Human Rights in Cross-Cultural Perspectives: A Quest for Consensus

8. North American Indian Perspectives on Human Rights

✪❁❍❅▲ ✷✎ ✺❉❏■ 8. North American Indian Perspectives on Human Rights Introduction: Columbus, Colonialism, and the Cant of Human Blights Human rights law is an excellent vehicle for a reassessment of relations among Indian and neo-European groups. Following World War II the themes of decolonialization and individual human rights emerged asfundamental concepts, and this is the moment to extend those concepts to Indian groups. The year 1992 marks a half millennium of discovery and settlement by Europeans in the Americas. The initial misnomer "Indian" still denominates and separates the original inhabitants of the Americas and their issue from the dominant: culture of the settlers of North America: the Anglo-Europeans.2 Indians have never recovered from the initial cultural,racial, and religious onslaught. The sixteenth-century debates about whether Indians are "human" persist in popular thought, modified today to a stereotypical perception of the "dumb Indian."3 Those debates also persist in the practical relationship of the national governments of Canada, Mexico, and the United States with Indian tribes, bands, and groups. They were colonized but do not have the benefit of decolonization policies. The major policy concession which acknowledges Indians as "human" is a periodic experiment of assimilation of individual Indians and Indian groups in the homogeneous goo of the cultural melting pot.4 The written and public views of the relationship arc generally onesided . Aside from a few popular works trying to educate non-Indians about the ways Indians see the relationship, most descriptions are by nonIndian authors who have not had a deep experiential relationship with Indian culture. One good example of the one-sided view is that of "Indian affairs law," as the American Bar Association denominates it as a field of 192 James W. Zion law: Indian affairs law has to do with non-Indian laws designed to regulate Indians, and almost nothing to do with laws of Indians.5 The one-sided and imposed view is in human rights law as well. The macrolcvel human right of genuine decolomalization through self-determination is not extended to Indian nations, tribes, bands, and groups. This discussion also focuses upon microlevel human rights for Indians, and legal protections in this area are recent and few as well. National attitudes must change if Indians arc to become fully acknowledged as "human" (or as the People).6 The United States speaks the cant of "human rights" in internationalarenas without itself observing and implementing them. There are twenty-one global human rights covenants and instruments available for national ratification; the United States has ratified only six, whereas Canada has ratified at least fifteen.7 Some look to the United States as a model for its rule of law that individuals may invoke international law human rights protections,8 but an American appellate court has dismissed Indian international human rights claims in a footnote , essentially saying, "You dumb Indians. Don't you know you can't have international law human rights, but only those rights the United States Congress decides to allow you?"9 While the United States has historically been the home of Enlightenment-era laws enshrining "selfevident truths" that are the basis for international human rights laws, truths arc not self-evident to the dominant Anglo culture, which generally rejects international law.10 Canada, though better in attitude, is ignorant in application when it comes to human rights. Canada rightly prides itself on its international activities and reputation in the field of human rights. The Canadian government , however, was unable to recognize obvious human rights when it reacted to an embarrassing incident that tarnished Canada's reputation. In Canada, an "Indian" is a person who fits national statutory qualifications . In 1951 Canada enacted a comprehensive Indian statute in the form of the Indian Act, and section 12(1) (b) provided that a woman who married a non-Indian, a non-status Indian, or a Metis would cease to be an "Indian." Indian men who married members of those groups, in contrast , did not lose their status.11 Unlike the situation in the United States, where Indian tribes, bands, and groups define their own membership, the Canadian system provided national, non-Indian, standards for enrollment, group membership, and Indian status. In 1973 the Canadian Supreme Court held that the equality provisions of the Canadian Bill of Rights (1960) did not override the discriminatory North American Indian Perspectives 193 provision.12 In 1977 Sandra Lovelace, another Indian woman who had been...