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Sale of the Sacred: How Pe' Sla May Test Uncharted Waters of UNDRIP

The highly publicized auction of 1,940 acres in the Black Hills of South Dakota known to the Oceti Sakowin as Pe’ Sla, The Heart of Everything that Is, has been cancelled. The Reynolds family, “owners” of this property for the last 136 years (since the Gold Rush of 1876 pushed the Great Sioux Nation out of the Black Hills) has decided to make the land sale a private matter. Neither the family nor the auction company has given a reason for the change, but one can offer a guess. Perhaps it was the thousands of tweets, the scores of news stories, and the hundreds of thousands of dollars raised in an unprecedented fundraising campaign to buy the land back for the tribes by Or the threat of sale day becoming a major media draw, complete with prayer circles and protesters both near and far. But the final straw may have been yesterday’s announcement by the United Nations Special Rapporteur on the Rights of Indigenous Peoples, strongly suggesting consultation with tribes on the impending sale. On December 16, 2010, President Obama announced the United States’ support for the United Nations Declaration on the Rights of Indigenous Peoples (the UNDRIP), an aspirational document adopted by the UN General Assembly in 2007. And in May of this year, the UN Special Rapporteur on the Rights of Indigenous Peoples, Prof. James Anaya, made his first official visits to Indian Country – the first of any UN special rapporteur. His tour included consultations in Arizona, Alaska, Oklahoma, Oregon, and South Dakota, where he visited the Black Hills and the Rosebud Sioux Tribe. His official analysis and recommendations included restoring some land to Native American tribes, and he specifically suggested returning portions of the Black Hills. It was a prescient statement. The UNDRIP has not yet been tested here in the United States, and the fight for Pe’ Sla may provide the first such opportunity. While it is true that US property laws make legal the land grab that created this country (aka Manifest Destiny), international human rights regimes recognize the inherent moral and legal obligations to the indigenous inhabitants. There are a number of Articles of the Declaration that are relevant to land rights, such as “Article 8, Section 2: States shall provide effective mechanisms for prevention of, and redress for: (b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;” and also specifically relevant for culturally and spiritually significant sites, such as “Article 11, Section 1: Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites…” (Click here for full text of the UNDRIP.) In interviews with tribal leaders and other concerned parties about their interest in the UNDRIP, the conversation inevitably leads to the question “What can an ‘aspirational’ document actually do for us?” The answer is simple. When the United Nations was formed in the aftermath of WWII, the founding statement known as the Universal Declaration of Human Rights was an aspirational document. It was an ideal, a goal set forth by the international community to create a statement of shared moral expectations. It has since become normalized international law. The next question is “What do we need to do to recreate this for indigenous rights?” By simply engaging the process and using the document everywhere it is relevant. The more it is cited and used, the more foundation is built for its eventual acceptance. The key is to become familiar with the document, educate your constituents, policy makers and legislators, judiciaries and executives, educators and community leaders. When you have a relevant issue, draw associations and cite the statutes wherever appropriate – in court cases, tribal councils, congressional testimony, government consultations, City Hall and even school board meetings. Use the Declaration and help build a foundation for it’s eventual normalization. When appropriate, contact the Special Rapporteur with specific concerns. It is at his discretion which cases warrant intervention by the United Nations. In the case of the fight to save Pe’ Sla, Prof. Anaya has chosen to intervene on behalf of the United Nations, calling “on the United States Government and authorities in the state of South Dakota to start consultations with indigenous people on a land sale that will affect a site of spiritual significance to them.” This is the first such move by the UN special rapporteur in a case involving a tribe in the United States. Mr. Anaya said. “I believe such dialogue is necessary in order to help heal the historical injustices endured by the Lakota, Dakota and Nakota peoples and to allow them to maintain their cultures and traditional practices for future generations.” No matter what the outcome of the Pe’ Sla land sale, take heart in this: the UNDRIP is a new element that’s been added to the alchemy of political and civil righteousness. And while the wheels may turn slowly, the moral arc of history does “bend toward justice.” Lise Balk King is a fellow at the Carr Center for Human Rights Policy, Harvard Kennedy School of Government. She was previously co-publisher and executive editor of The Native Voice newspaper.

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