Next Step: ?Implementation

Gale Courey Toensing
1/6/11

When President Obama announced that the United States is “lending its support” to the United Nations Declaration on the Rights of Indigenous Peoples during the White House Tribal Nations Conference last month, hundreds of tribal leaders in attendance broke into applause and cheers. It was so loud it almost drowned out his next statement.

“The aspirations it affirms—including the respect for the institutions and rich cultures of Native peoples—are one we must always seek to fulfill,” Obama said.

The use of the word “aspirations” was a red alert to many tribal leaders, among them Chief Gary Harrison of Chickaloon Village Traditional Council in Alaska, who participated in many U.N. sessions during the Declaration’s development and also attended the Dec. 16 conference.

“It is about time the U.S. took this step after opposing the Declaration for so many years,” Harrison said. “Now they need to take measures to ensure that it’s more than just an aspirational document for the American Indian, Alaska and Hawaiian Native Nations.”

Support for the U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP) is a significant change in U.S. policy. Only four countries—Australia, Canada, New Zealand and the U.S.—voted against it at the U.N. in September 2007 and the U.S. is the last to reverse its position.

But tribal leaders’ initial joy at Obama’s expressed support was soon tempered by the fine print in a 15-page State Department document issued later that day showing that the support is limited by a number of crucial caveats and ambiguities.

Penobscot Indian Nation Chief Kirk Francis, who attended the White House conference, said it was “commendable” for the president to support the Declaration. “But what does it all mean and how do we apply those principles in that document to everyday life for Indian people here?” Francis said.

The state of Maine, where the Penobscot Nation is located, set a precedent in 2008 when Donna Loring, the nation’s former representative to the state legislature, introduced a resolution supporting the Declaration that was adopted by the General Assembly. “We’ve been involved in these issues for a while now and making sure that the United States doesn’t try to domesticate the international Declaration—that’s going to be the challenge,” Francis said.

Steven Newcomb (Shawnee/Lenape), co-founder and co-director of the Indigenous Law Institute and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery, said that the U.S. interpretation on the UNDRIP hasn’t really changed much since voting against it.  “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,’” Newcomb wrote in an editorial on indiancountrytoday.com.

Furthermore, those aspirations are to be achieved within the structure of the U.S. Constitution and laws, according to the State Department. “The U.S. position seems well designed to maintain the status quo of federal Indian law and policy. The U.S. 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,” wrote Newcomb.

In the nuanced language of the international body, the U.S. could have voted to “adopt” the UNDRIP at the U.N. in 2007, or it could have “endorsed” the Declaration since then. But what does it mean by “lending its support”?
Tonya Gonnella Frichner (Onondaga Nation), the North American Regional Representative to the United Nations Permanent Forum on Indigenous Issues, picked up on the imprecision of those words. “We are hoping that this support translates into an endorsement, and we look forward to working with the Obama administration in implementing the U.N. Declaration,” Gonnella Frichner said.

Gonnella Frichner, who is also founder of the American Indian Law Alliance and vice chair of the Seventh Generation Fund for Indian Development and vice chair of the U.N. Permanent Forum on Indigenous Issues (UNPFII), has been leading international diplomacy for indigenous peoples for two decades, including her full engagement in the development and advocacy of the UNDRIP with world leaders and tribal nations. In a statement posted on the UNPFII website, she welcomed the president’s announcement despite the ambiguity of his language. “This is an important milestone that signifies that the international community has reached consensus on the Declaration. Now that we all agree, let’s get to work and move forward and implement the Declaration,” Gonnella Frichner said, noting that indigenous peoples continue to suffer disproportionately from poverty, poor health, discrimination and other ills.
“We have been uprooted from our lands, deprived of our natural resources and our cultures denigrated. Hundreds of indigenous languages are in danger of extinction. This is a situation that must be rectified and the Declaration, which was drafted in close cooperation between indigenous peoples and governments, points the way forward. The Declaration on the Rights of Indigenous Peoples is an important human rights instrument that guarantees indigenous peoples the right to self determination as well as their collective rights,” said Gonella Frichner.

But the U.S. interpretation of the collective rights of indigenous peoples raised concerns. Andrea Carmen (Yaqui Nation), the executive director of the International Indian Treaty Council, who also participated in the work on the UNDRIP at the U.N. over many years, said in an indiancountrytoday.com editorial that U.S. statements on self-determination and collective rights have no basis in established international law that the U.S. has already endorsed, such as the International Covenant on Civil and Political Rights.

She pointed to the statement that the U.S. is “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’s call is to promote the development of a concept of self-determination for indigenous peoples that is different from the existing right of self-determination in international law.” But the U.N. Declaration makes no such call.

“In Article 3, the Declaration defines self-determination for Indigenous Peoples consistent with the language affirming this right for ‘all peoples’ in international law,” Carmen wrote. “The U.S. cannot deny rights in the Declaration that it has already adopted in an international convention to which it is a signatory," she said. Another problem was the U.S. statement limiting indigenous peoples’ right to “free, prior and informed consent”—or the denial of consent—before states adopt and implement legislative or administrative measures that may affect them.

The United States has interpreted that right to mean “consultation,” a much more limited and diminished standard.
That provision in the Declaration is particularly relevant to the Chickaloon people whose village is facing threats of coal mining in their traditional homelands. “The rights in the Declaration to free prior and informed consent, self-determination, subsistence, land and resource rights are especially important to us,” Harrison said. “Implementation is what we are waiting for now.”

In order to implement the Declaration, indigenous peoples need to interpret it as a dynamic and interrelated whole, Carmen said. “That way they can challenge, when need be, any diminished or qualified interpretations. This is an international standard affirming the rights of indigenous peoples as interpreted under international law without discrimination, and that is the spirit and understanding that needs to be applied by all parties as we move forward together in its implementation.”

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