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Has US Changed Position on Declaration? Not Really

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.

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.

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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.

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.