While much has been made of the United Nations Declaration on the Rights of Indigenous Peoples for the protection of indigenous rights, the Declaration does not recognize or provide protection to Indigenous Peoples over their territories or scope of self-government. The Declaration perpetuates the colonial position that Indigenous Peoples do not own land, and colonial governments, now nation states, have the power to decide on the disposition of indigenous land and resources, and can limit tribal government powers. These features of the Declaration uphold the colonial doctrine of discovery and the legal position that Indians have only use rights to land, and must give first right of sale of land to the U.S. government.
A major feature of colonial rule over Indigenous Peoples in North America is that European colonizing nations assumed control over land. Through the doctrine of discovery, Christian sovereigns assumed control over indigenous territory, since non-Christians did not have rights to land when confronting claims by a Christian ruler. For North America the doctrine of land ownership is spelled out in the Proclamation of 1763. Having recently won the Seven Years War, also known as the French and Indian War, the winning British were awarded Quebec colony and the land east of the Mississippi River. The British government moved quickly to establish control over the interior lands west of the Allegheny Mountains, now called Indian Country, which remained in the hands of numerous Indian nations. The British king now claimed ownership of the land, called crown land, and the Indians were hereby British subjects living on the land at the discretion of the king. The king had trust responsibility and, in theory, he looked after the best interest of his subjects, including Indians.
During the Spanish colonial period in California, and throughout the Spanish Empire, the Spanish king held indigenous territory, and Indians were subjects to the king. He, like the British king, held the land in trust, and the Indians could not sell the land without government permission. The Spanish colonial plan invited Indians to form municipal governments, use some land for their subsistence, while leaving the vast majority of territory to the empire.
The British crown’s trust responsibilities and land ownership were transferred to the United States after the War of Independence. The doctrine that the United States held Indian land in trust was spelled out in the case Johnson v. M’intosh during the 1820s. A few years later, the U.S. Supreme Court, in Cherokee Nation v. Georgia, ruled that Indian nations were under the protection of the United States, and Indian individuals were wards, or under the trust and protection of the American government. In theory, like the British crown before, the U.S. government was to look after the best interests of the Indians. Soon after the Supreme Court ruled, in Worcester v. Georgia, that while Indian nations were under the power and protection of the United States, Indian nations still retained government powers over their internal affairs. However, Indian nations, no longer not empowered to treat with foreign nations, but retained nation-to-nation relations with the United States, as allied and protected governments.
The Declaration mimics central features of colonial law and allows Indigenous Peoples to form governments, much like the municipal governments of the Spanish Empire, and encourages internal government, but does not guarantee government-to-government relations. Like the Spanish colonial government, indigenous municipalities were subject to provincial and regional governments, and did not have direct relations with the central government. In the Declaration, indigenous governments are allowed municipal status, but are not guaranteed government-to-government status, and do not have the right to refuse sale of most of their traditional land. Hence the Declaration subordinates indigenous ownership of land and government in ways that are more limiting than U.S. law, and which are not congruent with indigenous rights and views on self-government and land stewardship.