House resolution falls short of unqualified UN Declaration adoption

Gale Courey Toensing
7/30/10

WASHINGTON – A congressional representative has introduced a resolution in the U.S. House calling on the United States “to promote respect for and full application of the provisions of the United Nations Declaration on the Rights of Indigenous Peoples consistent with United States law.”

Faleomavaega Eni Hunkin, American Samoa’s congressional member and chairman of the House Committee on Foreign Affairs’ subcommittee on Asia, the Pacific and the Global Environment, introduced H.R. 1551 on July 22.

“The Declaration is a landmark instrument outlining the rights of the world’s 370 million indigenous peoples in 70 countries. A non-binding text comparable to the Universal Declaration of Human Rights, the Declaration on the Rights of Indigenous Peoples sets out the individual and collective rights of indigenous peoples, as well as their rights to culture, identity, language, employment, health and education,” Faleomavaega said.

But the resolution falls far short of the goal set by tribal leaders, citizens and organizations across the country to have the Obama administration fully and unconditionally adopt the international accord, which is currently under review by the State Department.

H.R. 1551 does not explicitly call for the adoption of the U.N. Declaration on the Rights of Indigenous Peoples (UINDRIP). Instead, the four-part resolution asserts that:

• “the administration should continue to work together with partners in indigenous communities domestically and around the world to provide security, prosperity, equality, and opportunity for all;

• “the Declaration on the Rights of Indigenous Peoples provides an important framework for addressing indigenous issues globally;

• “the Administration's decision to conduct a formal review of the Declaration on the Rights of Indigenous Peoples and the United States’ position on it is welcomed; and

• “the United States should promote respect for and full application of the provisions of the Declaration on the Rights of Indigenous Peoples, consistent with United States law.”

“It’s what many people were concerned about when they (the U.S.) made the announcement to review the UNDRIP,” said Andrea Carmen, referring to the hedge phrase “consistent with United States Law.”

“A qualified endorsement of UNDRIP is not going to be helpful,” Carmen said.

The U.N. General Assembly adopted the UNDRIP in September 2007 with 143 countries voting for it, 11 abstaining and four voting against it – U.S., Canada, Australia and New Zealand. Australia and New Zealand have since adopted the Declaration and Canada and the U.S. has initiated a process towards doing so.

U.N. Ambassador Susan Rice announced during the U.N. Permanent Forum on Indigenous Issues in New York in April that the U.S. is undertaking a review of its opposition to the Declaration. The review is underway with scheduled consultation meetings and a State Department Web site where people may e-mail comments.

Carmen, Yaqui Nation, is the executive director of the International Indian Treaty Council, which was involved in negotiations on the UNDRIP over the 30 years of its development.

“There are 192 member states of the U.N. and if all international laws, norms and standards were going to be qualified vis a vis existing states’ laws, what would be the point of coming up with international standards?” Carmen said.

“This is a Declaration. It’s supposed to lift us all up to another level of agreement and relationship, which everybody knows and the U.S. freely admits, has not been a good relationship between Indian nations and tribes with the U.S. government over hundreds of years,” Carmen said.

The UNDRIP affirms a wide range of indigenous rights, including self-determination, land and natural resources, cultural rights and sacred sites protection, subsistence, treaty rights, health and social services, non-discrimination, environmental protection, education, language, and many others.

Tribal leaders, traditional leaders and organizations, including the National Congress of American Indians, have presented a unified call for the U.S. to endorse and support the UNDRIP in an unqualified manner at a number of meetings and consultations, including President Obama’s tribal summit in Washington last November.

While the U.S. administration may state a kind of cafeteria approach in which it accepts some but not other provisions of the UNDRIP – “veggies, but no dessert,” as Carmen put it – the Declaration is an established document that is not going to be changed.

“The state either endorses in its entirety or does not. Picking and choosing which articles to support does not represent the step forward that must be taken at this time. This is a tremendous opportunity for the administration to say, ‘Let’s look at our laws and policies and see how to bring them up to these higher international standards,’ ” Carmen said.

Carmen said that the U.S. is already legally bound to use the Declaration by being a signatory to the United Nation’s Convention on the Elimination of Racial Discrimination. The Committee on the Elimination of Racial Discrimination (CERD), which monitors implementation of the convention, informed the U.S. two years ago that it is to use the Declaration as a guideline regarding its obligations to indigenous peoples.”

If the U.S. were to adhere to the CERD’s direction, it would use the Declaration as a guideline in the process of adopting it.

Article 19 says, “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

And Article 38 says, “States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.”

“Consultation is not the same as ‘free, prior and informed consent. Consultation can lead toward consent or it can lead to saying no. The Declaration defines the right and obligation of states to ensure that consent is achieved,” Carmen said.

Article 43 says that the rights recognized in the UNDRIP are “the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.”

It shouldn’t be difficult for the U.S. to meet those minimum standards, Carmen said.

“What is it that they feel is more minimum than minimum?” she said.

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