Sunday, January 02, 2011

Different Face, Same Policy From U.S. on the Rights of Indigenous Peoples

Below are a few articles that respond to the December 16, 2010 announcement by Barack Obama that the United States will "lend its support" to the United Nations Declaration on the Rights of Indigenous Peoples:

‘Same old’ language from the administration of change
By Suzanne Jasper
December 30, 2010
Recently the human rights record of the United States was the subject of a global review at the United Nations. The Universal Periodic Review takes place for all member states every four years. First, the country “under review” makes an oral statement to go with their written report, then other countries present comments and recommendations, then the country “under review” speaks to the recommendations. There were more than a dozen questions and recommendations to the U.S. regarding indigenous peoples and indigenous issues.

It is deeply disturbing that Assistant Secretary for Indian Affairs Larry Echo Hawk responded by referring to the U.N. Declaration on the Rights of Indigenous People (leaving off the “s”). He also used language suggesting that U.S. federal law and policy “gives” Indian governments authority “over a broad range of internal and local issues” and that the Tribal Law and Order Act “gives” Indian tribes greater authority to prosecute crimes.

In a document titled “The Powers of Indian Tribes,” written as an Opinion of the Solicitor dated Oct. 25, 1934, there is recognition of “inherent” powers as “perhaps the most basic principle of all Indian law.” How is it that the highest United States government official for Indian Affairs in 2010 could think that federal law and policy “give” indigenous peoples rights they already have? Based on international human rights law, no government has the authority to deny inherent rights of indigenous peoples or to claim such rights are “given” to them.

To his credit, Echo Hawk acknowledged that “few have been more marginalized and ignored by Washington for as long as Native Americans.” He continued, “The consequences of that history are evident today in the many challenges faced by Native Americans: Poverty, unemployment, health care gaps, violent crime and discrimination.” Egregious human rights violations occurring over a long period of time and continuing unto this day have caused today’s challenges. It would marginalize indigenous peoples further to claim otherwise.

He also frequently used the words, “tribes” and “members.” Although he professed good will and understanding, Echo Hawk only used the word “nation” once – in reference to his own Pawnee Nation. “Tribes” may or may not have a government. Indian “nations” do. Clubs have “members.” Nations have “citizens.” Especially when addressing human rights issues, we would hope for more accurate language choices from the top U.S. government official for Indian Affairs.

Echo Hawk was speaking in front of the U.N. Human Rights Council. Yet he did not once refer to any human right, much less the inherent right of self-determination, which affirms the right of indigenous peoples to make their own decisions. This would include “a broad range of internal and local issues” as well as external ones.

In regard to the U.N. Declaration on the Rights of Indigenous Peoples, the U.N. Committee on the Elimination of Racial Discrimination urged the United States in 2008 “that the Declaration be used as a guide to interpret the state party’s obligations under the convention [on racial discrimination] relating to indigenous peoples.” At a separate side-meeting with various indigenous representatives, Echo Hawk seemed unaware of this conclusion of the committee.
Echo Hawk completely avoided use of the word ‘peoples,’ which would indicate federal recognition of our legal status as peoples.

Perhaps he was badly advised, for his language was so focused on federal “policy” and “law” that it could have been taken from a previous administration. Now that the human rights of indigenous peoples are affirmed more broadly in international law, we should not have to fight for the U.S. government to use legally correct language. Unwittingly or otherwise, Echo Hawk’s failure to use legally precise language continues the very “marginalization” he decries.

This is not to say that the language in itself is the main goal. A full recognition of the human rights of indigenous peoples as articulated in the Declaration without qualifications or limitations is a primary goal. But the language forges a path to achieving the goal. The U.S. endorsed the Declaration Dec. 16 using some of the same uninformed language and worse, claiming that it is not “a statement of current international law” as they endorsed it.

Many indigenous representatives who traveled to the U.N. have discovered that a measure of a government’s good will could be found in the language they used – that there was a direct correlation between respect for human rights and respect for indigenous peoples and the language used when speaking about those rights and peoples.

Presently it seems we could have a more sympathetic administration. Echo Hawk’s substitute words all worked in the context of his presentation. However, none of them describe us as we are: Indigenous peoples in the United States who are recognized rights-holders under international human rights law, both individually and collectively as part of our Indian nation.

We really do hope for a significant change from the present administration. Yet this language is the same old, same old. It comes across like a petty withholding of good will and respect. But there is still time for much needed improvement and perhaps this is just a case of not knowing any better.

Suzanne Jasper is the director of First Peoples Human Rights Coalition, a nonprofit educational organization specifically focusing on the human rights of indigenous peoples. Originally printed at

No real change in US position on Declaration

Phillip Deere (Muskogee), David Monongye (Hopi), Tadadaho Leon Shenandoah (Onondaga) lead original indigenous delegation into the Palace of Nations, United Nations (Geneva, Switzerland) 1977

By Steven Newcomb
December 24, 2010
On Dec. 16, the leaders of hundreds of American Indian nations were in attendance when President Obama expressed United States “support” for the United Nations Declaration on the Rights of Indigenous Peoples. The U.S. Department of State issued a 15-page statement later that day that provides a fuller context for interpreting Mr. Obama’s remarks and the U.S.’s position on the Declaration.

Indian country will need to spend considerable time carefully analyzing and discussing the State Department document, and asking the United States for additional clarifications. Only then will we gain a precise understanding of the United States’ position on the Declaration, which, by the way, does not include Indian treaties (The word treaty is mentioned once in the phrase “Northwest treaty tribes”).

On the key points, the United States’ manner of interpreting the Declaration has not improved since Sept. 13, 2007 when the U.S. government initially voted against adopting the Declaration. At that time, under the G. W. Bush State Department, the United States formally entered its position into the record at the United Nations. The Obama administration seems to have largely kept those Bush era positions.

The Declaration does not
do away with a dominating framework that is in violation of our inherent sacred birth rights.

Thus, the Dec. 16 position paper appears to be merely a further elaboration of the already existing United States position with regard to the Declaration under the guise of “supporting” that human rights instrument.

Take, for example, the United States’ position on “collective rights.” Collective rights are related to the right of self-determination expressed in Article 1 of the Human Rights Covenants. The two Covenants are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights.

Specifically, Article 1 of those two human rights Covenants reads: “All peoples have the right of self-determination. By virtue of that right, they freely determine their political status, and freely pursue their economic, social and cultural development.” Article 3 of the Declaration reads: “All Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” They are in perfect alignment.

However, in 2007, the United States claimed that the collective rights expressed in the Declaration (e.g., Article 3) are not the same as Article 1 rights expressed in the Human Rights Covenants in international law. The U.S. also claimed that the U.N. Working Group had been given a “mandate,” specifically, “to articulate a new concept, i.e., self-government within the nation-state.” Yet, the U.S. government provided no document to support this claim, nor could it because the Working Group was never given such a mandate.

Now, in its recent statement, the State Department has explicitly said that indigenous peoples’ “collective rights” exist outside the scope of “all human rights recognized in international law.” As the State Department put the matter, “indigenous peoples possess certain additional, collective rights.” (Emphasis added). The United States is claiming that the “collective rights of indigenous peoples” expressed in the Declaration are “additional” to “all human rights.”

The State Department also said, “The United States is therefore pleased to support the Declaration’s call to promote the development of a new and distinct international concept of self-determination specific to indigenous peoples.” The Declaration makes no such “call.”

According to the U.S. State Department, the entire Declaration is “not legally binding or a statement of current international law.” From the standpoint of the United States, the U.N. Declaration on the Rights of Indigenous Peoples merely expresses “aspirations.”

The U.S. position seems well designed to maintain the status quo of federal Indian law and policy. The United States seems determined to maintain the bedrock categories and concepts found within the symbolic universe of U.S. law and policy constructed by the United States for the reduction, control and containment of originally free and independent Indian nations.

“Christian discovery,” “conquest,” and the idea of “diminished” Indian sovereignty are some of the foundational categories of the status quo, being actively used by the U.S. court to the detriment of Indian nations. The Declaration does not do away with a dominating framework that is in violation of our inherent sacred birth rights and our fundamental human rights as indigenous nations and peoples.

The UNDRIP was intended by indigenous peoples to provide solutions to a particular set of problems that they face on a daily basis. However, the document itself does not specify the nature of those problems. They are there in the background merely by implication. Those problems need to be specified by indigenous peoples along with an explanation of how they believe the Declaration provides the means of solving those problems.

With the United States’ expression “support” for the U.N. Declaration, within the very constrained interpretation it has set forth, the next level of work begins. It remains to be seen to what extent the Declaration will enable Indian nations and peoples to create true and positive reform of a racist and domineering system of federal Indian law and policy instituted by the United States during the past 200-plus years.
Originally printed at
Steven Newcomb, Shawnee/Lenape, is the co-founder and co-director of the Indigenous Law Institute, author of “Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery” (Fulcrum, 2008), and a columnist for Indian Country Today.

Deskaheh, Cayuga Nation, Visionary for Indigenous Peoples' Rights at the League of Nations, 1921-23

US Government on UNDRIP: Yes, but No
Fourth World Eye, Center for World Indigenous Studies
Dec 18, 2010 by Rudolph Ryser
US President Barak Obama, standing before a conference of Indian government, Alaskan Native and Hawaiian Native leaders, announced that his government “will support” the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). When that announcement was made I expressed pleasure with the decision and yet urged caution until the Department of State published its written explanation of the US government policy. That policy is now available and the news is both good and not good. The US government position on the UNDRIP is clear on US policy support for “enhancing self-determination of federally recognized tribes,” but ambiguous at best and negative at its worst on interpretations and meanings of key principles built into the Declaration: The meaning and breadth of self-determination (“self-determination specific to indigenous peoples”), “free, prior and informed consent” (“consultation with tribal leaders, but not necessarily the agreement of those leaders, before … actions… are taken.”).

The principle of self-determination is at the core of virtually all international human rights instruments of policy and law. The internationally recognized right of self-determination is the basis on which more than 140 independent states came into being after World War II. States like Israel, Slovakia, Republic of Georgia, Tuvalu, and the Federation of Micronesia exist today because of that important principle. The United States government tenderly walks around the principle by saying that it endorses that principle “specific to indigenous peoples.” The principle contemplates the right of a people to “freely determine their political status and freely pursue their economic, social and cultural development” as stated in Article 3 of the UNDRIP. As has been the US government’s policy for forty years, economic, social and cultural development receive fairly consistent support in administrative, legislative and usually judicial policies. The US UNDRIP policy on these matters stands as consistent with long-standing policy through several US governments from Lyndon Baines Johnson to Barak Obama. That policy has seen enhancement of education, health, environmental, and social advancements as well as enhanced protections for cultural artifacts to the benefit of American Indian, Alaskan Native and even Hawaiian Native communities. While the policy has not always been perfectly applied, it has been applied.

The central and missing piece in the US government’s endorsement of “self-determination” and thus the slight of hand reference to “self-determination specific to indigenous peoples” is the matter of freely determining the political status of an indigenous people. The US government has held fast to the idea that the right to choose one’s political status must be limited for indigenous peoples. Indigenous peoples domestically and presumably internationally must be held in perpetual tutelage under the control of each states’ government–even if a state government demands fealty through force of violence. Holding to the fiction of the UN’s non-binding conception of “non-self-dismemberment” the US Department of State references UNDRIP Article 46 by saying “the Declaration does not imply any right to take any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.” In fact the referenced article does suggest a restriction, but the restriction emphasizes “any activity or to perform any act contrary to the Charter of the United Nations.” There is no restriction on dismembering or impairing the territorial integrity of a sovereign and independent State if changing the political status of a people (perhaps choosing independence, free association or autonomy within an existing state) is freely chosen in accord with the UN Charter. The Declaration simply does not “authorize” dismemberment of existing states. That is reasonable, but it is equally reasonable to understand that freely choosing a political status can and indeed is encouraged if done within the framework of the UN Charter. Freely choosing a political status is the most basic of concepts built into the principle of self-determination. Without that right, there is no “self-determination.” The US position is to essentially nullify the right of indigenous peoples to freely make decisions about how they will organize as a political community.

There is a finer point on this discussion that can be made when we note that the US Department of State contemplates the UNDRIP principle of “free, prior and informed consent” as meaning, essentially, that American Indian, Alaskan Natives and Hawaiian Natives have the right of “free, prior and informed consent” unless the United States disagrees with the decision made by the indigenous people.

The US Department of State’s explanation of the US government’s support for the UNDRIP includes this rather contradictory statement: “…the United States recognizes the significance of the Declaration’s provisions on free, prior and informed consent, which the United States understands to call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders, before the actions addressed in those consultations are taken.” In other words, the United States may dictate actions and policies that affect the lives and property of indigenous peoples without their consent, but they may be informed. That is a position utterly inconsistent with the concept of “free, prior and informed consent”

The US government apparently rejects Article 10 of the UNDRIP which declares that “Indigenous peoples shall not be forcibly removed from their lands or territories…without the free, prior and informed consent of the indigenous peoples concerned….”

The US position strikes Article 11, para 2 and Article 28 of the UNDRIP which call for provision of mechanisms of redress “developed in conjunction with indigenous peoples” with their “free, prior and informed consent or in violation of their laws, traditions and customs.

Article 19 is struck down by the US position since it too requires the exercise of free, prior and informed consent before the state adopts and implements legislative or administrative measures. The US position is that “Consultation” satisfies this requirement event if consent is not secured.

The US position also flies in the face of Article 32 paragraph 2 that calls for obtaining the free, prior and informed consent before approval of projects affecting indigenous lands and territories.

It is a serious matter that the US government arrogates to itself the right and power to decide for American Indians, Alaskan and Hawaiian Natives without obtaining their free, prior and informed consent. It is equally serious that the US government wishes to hold up this approach internationally as a “model” reflecting its commitment to human rights. Other indigenous peoples are clearly made more vulnerable by the US position when states’ governments with which they must deal point to the US position and claim for themselves the right to decide and act in ways contrary to the interests of indigenous peoples.

The US policy of promoting and enhancing self-determination and self-government within the framework of the UNDRIP has considerable merit and benefit for American Indian, Alaskan Native and Hawaiian Native governing bodies. Unfortunately, the most important right, the right to choose and to consent, is denied and rejected out of hand. The “yes but no” approach can therefore receive both congratulations and denunciation. Much work now must focus on developing the full expression of self-determination including the full right of self-government–the right to choose and consent based on free, prior and informed engagement between peoples.


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