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The Obama Administration Now Supports UNDRIP—But That’s Not Enough

When President Barack Obama signaled last year that the United States had changed course and was now supporting the U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP), nobody really knew what that meant. Indian country worried that his proclamation was just empty words since his administration wasn’t going to make the document legally binding, conservative muckrakers screamed that he was giving America away, and mainstream society barely noticed. It took a recent oversight hearing by the Senate Committee on Indian Affairs to bring the United States’ murky position on UNDRIP back to the forefront.

While most nations worldwide signed on to the document in 2007, the U.S. was one of a few holdouts. Then, in a meeting with tribal leaders last December, Obama announced a dramatic turnaround: “[Today] I can announce that the United States is lending its support to this declaration. The aspirations it affirms—including the respect for the institutions and rich cultures of Native peoples—are one we must always seek to fulfill.”

Some Indians soon asked why he wasn’t pushing to get the document rooted in American law. (The Obama administration has made it clear that it doesn’t see the document as legally binding.) Still, the president’s personal support is welcome. Leaders at the Indian Law Resource Center (ILRC) say it sets an agenda for the United States and Indian nations to address important issues in Indian country and to improve government-to-government relations between Indian nations and the United States. Robert Coulter, director of the ILRC, said in December that the declaration also serves as a “powerful affirmation” of Indian rights—not that they need such affirmation in Indian country.

The document originated in 1976, when it was developed by Indian nations and leaders in the United States and in Central and South America. According to ILRC, the initiative was prompted due to concern that federal law was adverse to the rights of Indian and Alaska Native nations in fundamental ways. For instance, federal courts often refuse to recognize that Native nations are entitled to constitutional rights and equality before the law. In Central and South America, conditions for Natives under the law have traditionally been even worse, ILRC leaders say. Therefore, indigenous leaders banded together to turn to the United Nations and to international law in hopes of calling attention to these injustices and improving federal law, policies and practices.

Whether UNDRIP will be successful in the U.S. will depend on whether the government chooses to apply it in a way that gets past the status quo of current federal-tribal policy. For some policymakers, like Sen. Daniel Akaka, D-Hawaii, there’s no doubt that the government can do better. On June 9, he called to order an oversight hearing of the Senate Committee on Indian Affairs, which he chairs, with a goal of making the United States “a world leader in indigenous rights and implementation of the UNDRIP,” according to a press release from Akaka’s office. The gathering, which brought some of the leading Indian advocates of UNDRIP to Capitol Hill for a day, was large on show, but sparse on action (as are most hearings on Indians issues in Washington). In his opening remarks, Akaka spoke of the importance of Indians telling their own stories, while “holding ourselves and the world accountable.” How that will happen is still anyone’s guess.

Still, it’s not folks like Akaka who have to be sold on the merits of U­NDRIP. It’s everyone else, including friendly faces, like that of Donald Laverdure, at least while he works in the capacity as the principal deputy assistant secretary for Indian affairs at the Department of the Interior. He noted early on in his testimony before Akaka’s committee that the document is not legally binding and that the administration sees it as aspirational in nature. He also said it is an important instrument because it calls for consultation and cooperation before adopting measures that may affect indigenous peoples.

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As well-meaning as Laverdure and other federal officials may be, many Indians want UNDRIP to go much further than what the federal government is currently willing to offer. “Indian and other Native nations in this country live with a system of federal law today that is unconstitutional; it’s discriminatory; and it’s unworkable,” testified Coulter, a member of the Citizen Potawatomi Nation. “It makes it almost impossible for Native nations to overcome the social and economic conditions that they endure. It’s like the Separate but Equal doctrine; it’s like the Jim Crow laws that oppressed African Americans for many years in this country.”

Coulter noted that Indian lands can be taken without due process or compensation, and that Congress has plenary power in legislating over Indian nations without regard for the Bill of Rights and the limitations of the Constitution, while believing that it can terminate Indian nations and violate treaties. Courts also routinely approve of federal legislation that would be declared unlawful if it affected any other group in this country, Coulter said. He noted that UNDRIP attempts to correct for these problems through self-determination, rights of land and resource ownership, rights for women and other means. “Congress should embrace the declaration because it is American; it’s based on American values; it’s American in its origin,” Coulter testified. “It’s an agenda for change that can be easily embraced.”

“There is a notion in the federal government that they know best for Native America,” testified Duane “Chili” H. Yazzie, Navajo Nation Human Rights Commission chairman. “That is not the case. The declaration recognizes Native Americans possession of distinct rights to sacred sites since time immemorial, whereas the U.S. recognizes a few rights post-colonization.”

“The domestic policy of the United States should support the ability of tribal nations to make the decisions that is best suited for their own specific needs,” added Cherokee Nation Secretary of State Melanie Knight in her testimony. She noted that her tribe has worked to revitalize the culture and language of her people through a Cherokee language immersion school. “We ask this committee to ensure and protect our rights through facilitating the inclusion of Native language, history and culture throughout all programs and activities that affect Indian country. For instance, policy changes to enable both public and private school to further language preservation efforts.”

Many officials in the Obama administration familiar with Indian policy know that UNDRIP adds a new dimension to federal-tribal relations. It’s just that for now the easiest course of action is to offer a façade of understanding, while largely continuing in a status quo manner. That reality was summed up by Laverdure in his testimony when he said that the Obama administration is already carrying out the ideals of the document in a number of ways, such as through the president’s meetings with tribal leaders. But he did not point out that the U.S. continues to fight against tribal interests in multiple ways, including through attacks on tribal sovereignty and rights from Justice Department lawyers.

It was clear that Laverdure, a citizen of the Crow Tribe, understands the complexities of the situation when he offered this final thought in his written testimony: “We recognize that a lot more needs to be done and we look forward to working with Congress, tribal leaders, other indigenous peoples and representatives from other indigenous organizations and communities to ensure that Native Americans, like all Americans, have the opportunities they deserve.” Larry Echo Hawk, assistant secretary of Indian affairs at Interior, also understands the issues here; in a speech to the National Congress of American Indians soon after the hearing that was meant to outline the progress of the Obama administration’s “empowerment agenda” for Indian country. “Over the past two years, Indian affairs has listened to tribal leaders and to Indian country about implementing real change, and we will work to carry the positive momentum forward as we reform, restructure and rebuild federal relations with Indian country,” Echo Hawk said in the June 14 address. Interior officials were quick to point out that Echo Hawk played an important role in Obama’s decision to adopt UNDRIP.

Indian leaders, meanwhile, say that it’s not only the federal government that has much more work to do—it is also tribal governments and peoples. “This opportunity extends to the Indigenous Peoples of Guam and American Samoa, and Natives of Hawai’i, as well as to Indian and Alaska Native tribes,” Coulter explained in written testimony looking to the challenge ahead. “Far more action is probable when Native leaders have informed themselves about the declaration and begin to act on a nationwide level.”