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Opportunity Knocks at US Senate: Experts Tiptoe, Native Leaders Respond

Peter d'Errico
7/10/11

Chairman Daniel Akaka of the U.S. Senate Committee on Indian Affairs called for critical thinking about federal Indian law at the June 9 Oversight Hearing on Domestic Policy Implications of the UN Declaration on the Rights of Indigenous Peoples. He repeatedly asked where the U.N. Declaration challenged U.S. law.

Akaka pointedly sought a "personal opinion" from the Principal Deputy Assistant Secretary of Indian Affairs, separate from the position of the Interior Department. The Deputy declined to go beyond Obama administration talking points, even after Senator Al Franken added pressure by pointing out grossly inadequate funding of Indian education in Obama's budget.

The Deputy responded to Senator Franken with a well-worn Washington excuse in Indian Affairs: the Department was instituting "reform efforts" and "management changes" to provide "continuous communication with staff and members on whatever it takes to improve lives of Indian people."

Chairman Akaka saw the need for "a fairly comprehensive review and revision" of federal Indian law to be consistent with the US Constitution and international standards articulated by the UN. He asked the expert witnesses for specific areas of US law that should be "prioritized for early review."

The Executive Director of the Indian Law Resource Center (ILRC) referred to Article 2 (non-discrimination) and Article 26 (land rights), saying "the fundamental problem" is "equality before the law" and protection of property "under the US Constitution." His domestic Constitutional focus sidestepped Declaration Article 3 (self-determination).

The UN Special Rapporteur on the Rights of Indigenous Peoples did not respond with guidance on any challenge to US laws, but focused on the need for "social support" for the Declaration. He said the US has been "somewhat slow" to take a leadership role on the rights of Indigenous peoples, but did not explain the historical legal reasons for this.

The third expert witness, a law professor from the University of Oklahoma, said the UN Declaration had been "500 years coming," but did not mention the Doctrine of Christian Discovery in his call for a "reconsideration of fundamentals." In fact, he said it is "not entirely clear why" there are different legal categories of Indian land rights. Again without specifying why, he said self-governance under federal Indian law "is inconsistent with the UN Declaration."

The expert panel included an Indigenous filmmaker, whose film "Geronimo E-KIA, a Poem by the 1491s," was shown at the request of Chairman Akaka. Disclaiming any status as an expert, the filmmaker nevertheless provided riveting testimony about conditions in Indian country, including continuing pressure to sterilize Native women. He said the UN Declaration "means there is hope," but "I'd like to see teeth put into it, so I can feel its effects where I live at home."

A separate panel of Indigenous leaders provided broad, sharp testimony to the Committee. The President of the Quinault Nation, said "good policy is so much more than consultation" and proposed that the US embrace "free, prior and informed consent" to affirm Indigenous "jurisdictional sovereign powers." She asserted, "the US no longer has permission or power to make unilateral decisions about Indigenous resources and lands.

The Executive Director of the United Tribes of Michigan informed the Committee about global developments among Indigenous nations "strengthening each other's endeavors" to maintain balance in "earth, water, fire, and wind." He said the global Indigenous focus is on environmental traditional knowledge and inherent sovereignty and that the "issue is diplomatic relations between sovereigns as a two-way street."

The Chairperson of the Navajo Nation Human Rights Commission testified that the UN Declaration "sets standards" and "fills gaps" in US law and policy regarding sacred sites. He said the Declaration will "hold the US accountable" for its failure to protect such sites. He said the Declaration's "challenge" to the US is to emphasize international rather than domestic policy concerns.

The final witness, Secretary of State of the Cherokee Nation of Oklahoma, said "actions rather than words" are necessary "to heal centuries of failed US policies." She cited examples of Cherokee self-determination in economics, language, health, and culture, and called for US law to uphold a policy of Indigenous self-reliance.

All in all, we are left wondering what makes the experts timid, as we appreciate the forthright testimony of the Indigenous leadership.

Peter d’Errico graduated from Yale Law School in 1968 and was staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services from 1968 to 1970. He taught Legal Studies at University of Massachusetts, Amherst, for 32 years, and it currently a consulting attorney on indigenous issues.

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