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Plea to UN Human Rights Council to Recognize Treaty of Guadalupe Hidalgo for Further Scrutiny

174 Year Quest: Restoring Sovereignty Stolen from Mexican Americans and Other Indigenous Peoples in Southwestern U.S. a.k.a. Aztlán

This coming July 4th will be an auspicious one for Mexican Americans.

On that day, the United Nations Human Rights Council will open a week long forum on indigenous Treaty rights under the direction of its investigative agency, the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP).

Of critical concern for Mexican Americans and first on the agenda is Item 3:

“Study on Treaties, agreements and other constructive arrangements, between indigenous peoples and States, including peace accords and reconciliation initiatives, and their constitutional recognition.”

The two-part discussion will be held from 4 a.m to 6 a.m. and 8 a.m. to 9 a.m., both Central Time. For viewing, click on this UN Webcast link:

Item 3 on the July 4th agenda provides an historical opening for long-time advocates of the Treaty of Guadalupe Hidalgo as a living human rights document to assert as well that it is time the Treaty be designated “for further scrutiny” as a document granting protections and status on a par with other treaties involving Indigenous Peoples.

What actions the UNHRC may announced on July 4th as a result of deliberations over the past six months depend on how effective the work of a small group of Chicano human rights activists has been in presenting the case for a renewed look at the Treaty of Guadalupe Hidalgo on behalf of Mexican Americans and other Indigenous Peoples affected by the Treaty.

What led to this moment in the history of advancing Indigenous Peoples’ rights worldwide was a call for papers by EMRIP in December 2021 on the topic listed as Item 3 on the July 4th agenda.

On December 24, 2021, Antonio “Tony” Gonzalez sent an email alerting me that he had learned that EMRIP had issued a call for papers on the issue of treaty rights of indigenous peoples not covered in previous studies of Indigenous Peoples. Tony, director of AIM-West, has been active in the field of indigenous matters going back to the early 1980s, so I knew this was a critical moment.

Gonzales was formerly with the International Indian Treaty Council, a non-governmental organization or NGO, that is, an entity recognized by the UN to participate and provide input on a variety of concerns the UN addresses worldwide. Tony served with the IITC in addressing matters related to indigenous peoples rights and protections under international law. In 1982, the IITC launched an initiative called the Treaty of Guadalupe Hidalgo Project, which brought together some of the same people who made up the group which answered the EMRIP call. We set about recruiting other Chicano activists who had been involved in studying and promoting the Treaty since the early1980s.

On April 28, 2022, a consortium of Mexican Americans and representatives of the Tohono O’odham Nation and the Tribu Lipan Apache de Mexico submitted a statement to the Permanent Forum on Indigenous Issues (PFII), an agency of the UN Human Rights Council at the UN Headquarters in New York City. (See attachment A)

Mazatzin Acosta, First Coordinator of the International Council of First Nations, had been scheduled to present the statement orally on behalf of the consortium but the three days’ long list of other speakers representing indigenous groups from around the world, further extended by remarks from member States of the UN, prevented him and other groups from reading their statements in the great hall.

Mazatzin’s remarks also called for the UN Permanent Forum to urge the Biden Administration to grant Executive Clemency to Leonard Peltier, already having served more than 46 years in Federal prisons and suffering from serious health problems. Mazatzin is widely known as a proponent of indigenous rights throughout the Americas.

Historical Background of the Treaty of Guadalupe Hidalgo

About 85,000 persons of Mexican origin lived within the boundaries that were created in 1848 when the U.S. Government seized more than half of the territory then held by Mexico. When the Treaty of Guadalupe Hidalgo was signed on February 2nd of that year, besides ending hostilities which had been instigated by the U.S. on April 25, 1846, it stipulated that those former Mexican citizens residing in the seized territory were given the option of returning to Mexico or electing to become citizens of the U.S.; some few thousand did cross back over the new border, but most simply stayed and after more than a year automatically became citizens by action of law under the Treaty.

However, thousands more people living in the “annexed” area became U.S. subjects: the members of numerous tribes or indigenous peoples. They had been sovereign nations, to use today’s terminology under international law. But then, the Mexicans who stayed were also deprived of their previous sovereignty as Mexican citizens. The fact that some mexicanos stayed on this side of the new border only affirms that they may have had little choice, having sunk deep roots into the land, given birth to children, buried their antepasados, and established viable communities, towns, and governing institutions by 1848.

The option to return to Mexico was a false one because those mexicanos who did not return still considered the land their own: some had been endowed with land grants by the Spanish Crown or Mexican government; some were expatriates of Mexico who wanted to have little or nothing to do with the Centralist policies of Mexico. Moreover, they were also led to believe that their land rights would be honored under the Treaty. Nothing less should the peoples who had lived in what is now the Southwest for perhaps thousands of years have expected their rights as sovereign peoples to have been respected.

This is why the reply that was drafted this past January (2022) in response to a call for papers on the Treaty by the Expert Mechanism on the Rights of Indigenous Peoples of the UNHRC is so significant. The five-page document was written by a group of individuals with years of experience in studying, researching, and advocating for Mexican American human rights under the Treaty in forums here in the U.S., other countries of the Americas and at the United Nations, both at its Headquarters in New York and its campus in Geneva.

The Expert Mechanism, known familiarly as EMRIP, limited responses to five pages, but fortunately allowed extensive appendices. This aspect was crucial to crafting the reply because the five-page limit allowed for the basic case to be asserted, but little context and evidentiary sources. We submitted the statement on January 30, 2022.

Some background about the UNHRC and EMRIP

EMRIP provides the Human Rights Council with expertise and advice on the rights of Indigenous Peoples and assists Member States (countries) in achieving the goals of the United Nations Declaration on the Rights of Indigenous Peoples. It is composed of seven independent experts on the rights of Indigenous Peoples. The experts are appointed by the Human Rights Council and are selected on the basis of competence and experience in the rights of Indigenous Peoples, due consideration for experts of indigenous origin, and gender balance.

Enacted in September 2007 by the UN General Assembly, the Declaration mentioned above is the most comprehensive international instrument on the rights of indigenous peoples. It establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world and it elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of indigenous peoples. In July 2000, The United Nations Permanent Forum on Indigenous Issues (UNPFII) was established as a high-level advisory body to the Economic and Social Council--ECOSOC. The PFII Forum’s mandate is to deal with indigenous issues related to economic and social development, culture, the environment, education, health and human rights.

More specifically, the Permanent Forum:

· provides expert advice and recommendations on indigenous issues to the Council, as well as to program, funds and agencies of the United Nations, through ECOSOC;

· raises awareness and promotes the integration and coordination of activities related to indigenous issues within the UN system;

· prepares and disseminates information on indigenous issues;

· promotes respect for and full application of the provisions of the Declaration and its effectiveness.

The first meeting of the Permanent Forum was held in May 2002, with yearly sessions thereafter. The Forum usually meets for 10 days each year, at the UN Headquarters in New York, at the UN Office in Geneva, or at such other place as it decides.

The Reply to EMRIP

Each session of the PFII is thematically focused on a specific issue. This year’s theme follows: “Indigenous peoples, business, autonomy and the human rights principles of due diligence including free, prior and informed consent.”

Thus, the call for papers by EMRIP that was issued toward the end of December last year had these principles as its focus. Not coincidentally, the reply that was submitted by the Mexican American group that coalesced to write the response centered their comments on the notion that free, prior and informed consent was at the heart of comprehending the plea we made seeking “further scrutiny” of the Treaty of Guadalupe Hidalgo.

We quickly put together a short list of individuals who had worked in the 1980s and 1990s with the TGH Project or who had acquired experience as lawyers or human rights advocates during the past decades since then. Tony took the task of trying to reach Indigenous Peoples along the border who might have a stake in seeking to raise awareness of the Treaty at the UNHRC through EMRIP. I contacted Gabriel Hernandez, with whom I had collaborated in the 1980s into the 1990s on raising awareness among Chicano organizations and individuals about the Treaty, eventually organizing the National Xicano Human Rights Council in 1985 The group held a series of meetings in Texas, Arizona, New Mexico, and California, including meetings with Indian leaders such as the late Thomas Banyacya, a traditional Hopi leader, who joined a Council meeting in Jemez Springs, New Mexico.

Next was Ernesto Mireles, Chair of the MeXicanos 2070 Board who pledged to participate in our deliberations. As a Board member, I knew that there was interest in the Treaty among the M2070 Board members. M2070 is an organization established in 2019 to preserve and enhance Mexican American culture and history with a long-term vision of research, programing of educational and cultural studies, and community organizing through the next half century, hence the 2070 in the title.

An obvious second recruit was Carlos Hernandez, a Board member and recent law school graduate with whom I had been conferring on the Treaty and whose interest was not only as a legal practice but personal aspiration to advance knowledge of the Treaty among Mexican Americans and to exploit the values and protections inherent in the Treaty. He signed up right away as well.

My own experience stemmed from the fact-gathering I had done in the late 1960s in writing the book, Chicano Manifesto, which contained a chapter on the Treaty titled, The Spirit of ’48: The Treaty of Guadalupe Hidalgo and evolved into earning the Juris Doctor in 1982. In my final semester, I had the privilege of completing an independent study with Prof. Thomas Buergenthal, a jurist in the Inter-American and United Nations legal system, who recognized the importance of the thesis I intended to prove about the Treaty. For my grade, I wrote an essay titled, “The Treaty of Guadalupe Hidalgo and Its Modern Implications for Mexican Americans.” In it, I asserted that the Treaty was a living document, that it asserted underlying principles of human rights harking back to the U.S. Constitution and Declaration of Independence, and that, therefore, it deserved to be recognized by world and inter-American bodies as conveying those rights to Mexican Americans under international law.

Drawing on his experience working with Indidenous Peoples worldwide, Tony Gonzales recruited three representatives of Indian tribes who similarly had no input into the writing of the Treaty: David J. Garcia of the Tohono O’odham Nation (Desert People), Amber Lee Ortega, of the Tohono O’odham Nation (Desert People), and Joel Cabral, Jefe de la Tribu Lipan Apache de Mexico. They participated in discussions via Zoom and telephone as well as commented as the draft evolved.

Over the next few weeks, we obtained expert feedback from various individuals with years of experience in the field of international law, Treaty documents and the workings of the UNHRC and its pertinent agencies such as EMRIP.

The key factors asserted in the EMRIP reply are:

1. The Treaty is a living international document, in full force and effect, explicitly protecting certain human rights of Indigenous Peoples. Numerous cases involving Indigenous Peoples’ rights to religious, cultural, and traditional freedoms and practices; land rights including access to communal grazing areas, water access, and property ownership based on Spanish and Mexican land grants; and boundary claims related to the border between the U.S. and Mexico have been adjudicated for decades. Carlos Hernandez assembled numerous cases supporting this point.

2. The Treaty complies with the implied reference to human rights protections in the founding documents of both the USA and Mexico, and other Treaty and international agreements of the time which can be traced to the present-day system and practice of international law which formally recognize the principles of human rights, that is, rights which adhere to the human person by their nature as opposed to rights which are protected by reason of place of birth.

3. With reference to the call for papers by the EMRIP, the group explicitly asserts that the Treaty is precisely the type of instrument that EMRIP is obligated by the UNHRC to address and resolve, “that there is an urgent need to respect and promote the rights of indigenous peoples affirmed in treaties, agreements and other constructive arrangements made between States and indigenous peoples, the implementation of which can contribute to the implementation of the UN Declaration of the Rights of Indigenous Peoples at the domestic or national level.”

Finally, the statement concludes that ample evidence exists that Chicanos are an Indigenous Peoples and, they, along with the many other indigenous peoples within the Treaty territory seized by the U.S. are party to this international document and thereby should have standing as such within the criteria of international laws protecting Indigenous Peoples. Thus, the group would welcome a thorough review and analysis of its assertions.

The signators to the reply that was finally submitted to EMRIP on January 30, 2022, were:

Amber Lee Ortega, member of Tohono O'odham Nation (Desert People), a descendant of Hia-Ced O'odham (Sand People), and descendant of A'al Vaippia, (Quitobaquito Springs); Antonio Gonzales, Executive Director, AIM-West; Ernesto Mireles, Chair of the Board of Directors and Founding Member, MeXicanos 2070; Continental Network of Indigenous Women of the Americas; Gabriel Hernandez, Founding Board Member, National Xicano Human Rights Council; Armando Rendón, Esq., Founding Board Member of MeXicanos 2070; Carlos Hernandez, J.D., MeXicanos 2070; David J. Garcia, Tohono O'odham Nation (Desert People) O'odham Elders Council (Grass Roots) Former Tohono O'odham Legislator; and Joel Cabral, Jefe de la Tribu Lipan Apache de Mexico.

The July 4th session will be the culmination of deliberations by EMRIP Since February at which time it will report to the Permanent Forum on Indigenous Issues its review and recommendations.

The hopes of the Mexican American and other Indigenous :Peoples’ advocate group remain positive that the PFII will consider the case brought by the AIM-West backed group and call for further scrutiny of the Treaty of Guadalupe Hidalgo. The stakes are high and entail a long-term approach to obtaining recognition at the United Nations’ PFII.

UN Web TV 15th session of Expert Mechanism on the Rights of Indigenous Peoples


July 4, 2022

1st Meeting. 10h00 – 11h00.

2nd Meeting, 15h00 - 16h00.

Documents cited in this paper

The various documents made reference to in this paper are available below.

UN-Declaration on rts of Indig Peoples
Download PDF • 134KB

Study of Indig Peoples Treaties etc by Spec Rapp MA Martinez
Download PDF • 134KB

Download DOCX • 62KB

Mon 4 Jul agenda EMRIP re Treaties TGH
Download DOCX • 23KB

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