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The U.N.’s Man in Lakota Country

An interview with United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya.
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It has been a bumpy couple of months for Indian rights. The Violence Against Women Act is meeting opposition in Congress, Carcieri still isn’t fixed, and the U.S. Supreme Court has made it clear that it knows little and cares even less about Indian law. And while the current administration in the White House is clearly pro-tribal, who knows what a new administration, goaded by Tea Party extremists, might do.

The good news is that there is a bigger picture for these struggles, and there is a bigger solution on the horizon. Indigenous Peoples all over the world are learning to stand up for themselves, and for each other. A major catalyst for this has been the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and while the United States still hasn’t officially implemented UNDRIP, it’s coming.

In late spring, United Nations Special Rapporteur on the Rights of Indigenous Peoples James Anaya concluded an official visit to the United States, which included meetings with federal and state representatives, tribal leaders and indigenous rights advocates throughout Indian country. In the first-ever investigation led by a human rights expert on Indigenous Peoples, he made stops in Arizona, Oregon, Washington, Alaska and South Dakota. Indian Country Today Media Network recently spoke with Anaya about his tour of Indian country and the importance of implementing all the tenets of UNDRIP in the United States.

How was the tour?

Fabulous. It was a great opportunity…to hear directly from Indigenous Peoples from many parts of the country and see some places I had only heard of before and to learn about the aspirations of Indigenous Peoples, especially in light of the history of misdeeds and wrongdoing and worse that they and their ancestors have lived through. And also it was good to see the ongoing vibrancy of indigenous cultures despite that history, and with that sense of loss is an ongoing sense of hope. I found there’s a high level of awareness on the part of Indigenous Peoples about their rights, [and] about what they feel needs to happen.

You issued a statement saying you were “elated” when President Obama announced he was “lending his support” to the declaration. How do you interpret his choice of words?

I think the important point is that the U.S. made a decided turn away from its previous position of being opposed to the declaration. The U.S. statement of support as articulated by president…did include a number of what might be characterized as qualifications, explanations, but I think it’s important to understand that every country that voted in favor of the declaration at the General Assembly had similar qualifications…and now the U.S. has endorsed the document itself. I take that at face value, and I’m going to hold the countries, including the United States, to the declaration.

There are an estimated 370 million Indigenous Peoples around the world. How many countries have you visited since your appointment in 2008?

Eighteen to 20. I need to have the consent of the government before I go [into a country] in an official capacity. And while I may request such an invitation, often times those invitations aren’t forthcoming. I’ve requested visits to a number of countries in Asia, but the only one that I’ve been able to visit so far is Nepal.

Terry Knight (left), Manuel Heart, Ute Mountain Ute tribal council, and Bradley Hight, vice-chairman, Ute Mountain Ute Tribe, conferred at a Colorado Commission of Indian Affairs meeting.

Anaya met with indigenous leaders in Ecuador in 2008. (AP)

Which countries have made the most progress in implementing the declaration?

We’re seeing, across the globe, steps being taken to at least acknowledge the presence of Indigenous Peoples, their distinct character, the fact that they have rights and to provide some protection for those rights in most countries. In Latin America, for example, most of the countries now have provisions in their constitutions that affirm indigenous rights. We see similar things in certain other parts of the world—the Republic of the Congo adopted a law on Indigenous Peoples that is in many respects in line with the declaration. The biggest difficulty we see across the world is the implementation of those new laws and policies on the ground so that in many places the actual conditions for Indigenous Peoples are the same, in many places even worse. You haven two tracks going forward simultaneously. That is, the recognition of Indigenous Peoples’ rights but at the same time greater facilitation for multinational resource companies to go on indigenous territories to extract the resources often in violation of Indigenous Peoples’ rights. And there doesn’t seem to be a coherent posture in many countries on how to reconcile those two tracks, and if anything, the movement forward in extracting resources from indigenous lands is accelerated compared to the movement forward in implementing Indigenous Peoples’ rights.

There’s a perception, particularly in the U.S., that the declaration lacks teeth because it is not legally binding. How do you reverse that sentiment?

Yes, it’s too bad that there’s no all-powerful entity, some court or something, that Indigenous Peoples could appeal to, to have the declaration enforced. And it’s too bad that it’s not legally binding in the sense that domestic courts have to apply it, but…[the] declaration is best applied to the day-to-day actions of governments and the day-to-day actions of indigenous leaders [so that it can] be internalized in the national consciousness so that the society as a whole is appreciative of the place of Indigenous Peoples in the country, understands their rights and more importantly believes in those rights. Until that internalization happens, even if you do have strong enforcement mechanisms, you don’t have a real effective realization of those rights.

Are treaties going to be used in implementing the declaration in the United States?

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The declaration does call on respect for treaties. That reflects a growing international awareness of the role of treaties and an expectation that they be important elements for defining the relationships of Indigenous Peoples and governments. The declaration also points towards a method of developing relations between Indigenous Peoples and the broader society of governments that really amounts to treaty-making by advocating for arrangements and decisions based on agreement or consent with Indigenous Peoples. That really is paving the way toward treaty-making, toward the future—a different kind of relationship than has occurred in the past; one that is not the imposition of government decision-making on indigenous people.

A recent international assessment of Indian country (in 2008) cited a number of concerns—the high incidence of rape and sexual violence; the need for cultural preservation; the need to protect the lands and resources from multinational corporations and development, and more. If you had to prioritize these problems, what is issue number one for Indian country?

Reconciliation. I think there are a lot of issues and a lot of specific programs the federal government, in particular, is implementing to address those issues that I think are making some headway. But what I think needs to happen—this is what I heard [on my tour]—there needs to be a real reckoning of the history that indigenous people suffered and an understanding that the social conditions you mentioned—high suicide rates, alcoholism, domestic violence—are a direct consequence of this intergenerational trauma. And until there’s a reckoning and a reconciliation of this history…it’s going to be very difficult to fully address this laundry list of specific issues.

In 2009, President Obama quietly issued a written apology to American Indians but has yet to say it. Do you think that would be a step in the right direction?

Yes, but it would be important [that it be] made in an appropriate way. For Indian people and Indigenous Peoples around the world, protocol is very important. There’s a right way to do things.

The phrase “free, prior and informed consent” is used throughout the declaration. How do you define it, and how should it be implemented?

There’s a lot of confusion about this concept. And I think what we need to do is return to the origins of the discussion about it.… [They] have to do with identifying Indigenous Peoples rights of self-determination—or sovereignty, in the terminology of the United States—over lands and resources. And with those rights come certain safeguards, and one of those safeguards is that those rights can’t be affected or impacted or diminished without consultation and free, prior and informed consent. Anybody with property understands that you can’t just take the property without consent, unless there’s some…overarching governmental purpose. And because of this special significance of lands and resources to the cultural survival of Indigenous Peoples, if the government were to diminish those rights without free, prior and informed consent, it would have to meet a very, very high burden of justification.… [In] other parts of the world, companies or governments are saying, ‘Okay, we’re going to get your consent’…[but] very often not in the most equitable terms and very often in ways that diminish the rights of those involved.

There is a notion that compelling nations to abide by the declaration is potentially contentious, particularly in the U.S., where some conservatives object to international interference in domestic matters. How do you respond to these criticisms?

It’s not an imposition. International law and international standards are based on consensus of the different countries of the world, including the United States. So, it’s not an imposition. It’s something that the U.S. has endorsed. It’s based on consensus and the buy-in of the countries themselves. International law is part of every mature democracy in the world. Even the founders of this country understood that international law was an important part of the country’s architecture. So if we go back to early Supreme Court decisions, you see repeated references to the law of nations, including with regard to Indigenous Peoples. So, the United States has a long tradition of being a leader, not just an unwitting participant in the development and application of international law—it has been a leader in international law and human-rights law. And we shouldn’t forget that it was the U.S. delegation to the U.N., led by Eleanor Roosevelt in the 1940s just after the birth of the U.N., that led the charge to develop the Universal Declaration of Human Rights—the precursor to the current Declaration on the Rights of Indigenous Peoples.

Do you think Canadian Prime Minister Stephen Harper and his government are committed to implementing the declaration?

Canada has also declared its support for the declaration. It reversed its position similar to what the U.S. did—it voted against the declaration but then subsequently endorsed it.… [In] my capacity as special rapporteur, I will do what I can to apply the declaration in its plain meaning, including with Canada.

I understand there were some powerful, emotional moments during your tour—heartfelt stories of struggle and survival. How do process all that you heard?

It’s one thing to learn from afar about, say, Alaska. And it’s another thing to sit down and hear from [those people] directly. I had the privilege of being involved in cultural events in connection with the visit [to Alaska and the Pacific Northwest] and eating Native foods and participating in community encounters and meetings and that was very enriching and gives a very important perspective. But there is nothing like listening directly. For instance, the Violence Against Women Act is one I’ve tried to become very familiar with. I didn’t anticipate the depth of meaning that one gets from hearing directly from victims of domestic violence. [Once] one sits down and directly hears those stories, its very powerful and it really does inform the way I look at this issue.

I was told that you were adopted into a Lakota family and given a Lakota name during your visit to Rosebud Indian Reservation in South Dakota.

Yes. It’s “Eagle-Who-Watches-Over-People-Man.” That was quite moving…but it also impresses upon me the importance of this work.