For nations and peoples typically called “Indigenous,” 2014 will be an important year in the international arena. This coming September, the United Nations General Assembly is scheduled to convene a High Level Plenary Meeting (HLPM) regarding the U.N....
On December 16, 2010, President Barack Obama endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) with great fanfare. The U.S. State Department then proclaimed that the declaration expresses “aspirations that this country seeks to achieve within the structure of the U.S. Constitution, laws, and international obligations, while also seeking, where appropriate, to improve our laws and policies.”
Five days later, the U.S. District Court for the District of Columbia approved a settlement of Cobell v. Norton, which resulted in a $3.4 billion payout to a class of tribal members – $1.9 billion of which would eventually fund what is today the U.S. Department of the Interior’s Indian Land Buy Back Program. Unfortunately, the Buy Back Program does not mark any improvement in federal Indian law or policy. To the contrary, that program runs counter to UNDRIP and other international human rights laws.
The most troublesome part of the program is that it will facilitate the forced sale of tribal members’ allotted or restricted fee lands, and, in turn, forcibly and permanently remove individual Indians from their ancestral lands. This was not the result of Interior oversight — Interior has spoken in code about this reality from day one. In 2012, the department articulated a strategy to “identify tracts with relatively low fractionation and a few ‘large’ interest owners, the acquisition of whose interests could bring a tribe to a controlling level of interest in that tract with a minimal number of acquisitions.” As is now clear, “controlling level of interest” referred to a mechanism in the federal Indian Land Consolidation Act (ILCA) that permits tribes that acquire a simple 51 percent majority interest in allotted or restricted fee lands to obtain the minority owners’ land interests by forced sale. 25 U.S.C. § 2204(a).
A year later, after folks began to crack Interior’s code, the agency proclaimed: “There will be NO forced sales.” But when pressed for a more honest answer during consultations with tribal governments in early 2013 — roughly an entire year after the Buy Back strategy was pronounced (hardly “meaningful collaboration with tribal officials” promised by the Obama administration — agency top brass were forced to admit that once Interior brings a tribe into a controlling 51 percent interest, the controlling tribe is empowered by federal law to force the sale of the remaining minority interest(s). In other words, the Buy Back Program equates to forced sales of individual Indian landholdings.
Still, even in late 2013, Interior continued to pretend that “the Buy Back Program is strictly voluntary.” Most recently, Interior buried the following statement in an appendix to its Updated Buy Back Implementation Plan: “Under the March 2011 terms of the Settlement and the Claims Resolution Act of 2010, all sales are voluntary.” But, “The Department has no control over the prerogatives of sovereign tribal nations to exercise whatever rights they may have regarding the purchase of land outside of the confines of the Buy Back Program.” Again, Interior is misleading when discussing the forced sale provision of 25 U.S.C. § 2204(a).
Interior’s continued sleight of hand is appalling. But more importantly, the fundamental underpinning of the federal Buy Back strategy — catalyzing forced sales of individual Indian owned lands — violates international human rights.
Article I of UNDRIP makes clear that indigenous individuals “have the right to full enjoyment . . . of all human rights and fundamental freedoms as recognized in . . . international human rights law.” Article 17 of the Declaration of the Rights of Man and of the Citizen guarantees that “[p]roperty being an inviolable and sacred right, no one can be deprived of it, unless demanded by public necessity, legally constituted, explicitly demands it, and under the condition of a just and prior indemnity.” Article 17, of course, reads very similar to the Fifth Amendment of the U.S. Constitution, which prevents takings of private property for public use without just compensation (and incidentally, served as the basis for the U.S. Supreme Court’s smack down of the ILCA’s escheat provision in Irving v. Hodel, 481 U.S. 704 (1987))...
Few would argue that the 21st century has proven to be a major turning point in the global indigenous rights movement with the passage of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Even its original opponents have officially signed on to the declaration (if conditionally) and terms and concepts that were once considered radical or unacceptable (such as “peoples” and “self-determination”) are at least tacitly endorsed by nation states. Intellectual space has been created to talk about multinational states, in political terms that expand beyond the assimilationist multicultural state.
The multinational state recognizes pre-existing nations and peoples within its borders. It acknowledges their rights to exist and flourish without the interference of unilaterally imposed state structures and legal systems. It does this by allowing a process of mutual engagement where governments are perceived as equals without one being subordinate to another. It does so because it ensures an inherently more politically stable, cohesive state.
Decolonization for indigenous peoples in settler states means a lot of different things but politically it manifests as a realigning of relationships between governments, indigenous and settler. For states it signals movement toward a more self-conscious multinational state and for indigenous nations it means a greater recognition of their right to self-determination.
Article 3 of UNDRIP recognizes that “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Article 4 guarantees that “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal or local affairs as well as ways and means for financing their autonomous functions.”
The concept of self-determination contained in UNDRIP has of course been highly contested with the United States among the most opposed to it. Some argue that it is limited to the exercise of “internal” self-determination, i.e. within the constraints of a domestic federal system (this is how the United States views it) while a more expansive exercise of “external” self-determination would allow for the possibility of secession from the state. Experts have pointed out repeatedly that indigenous nations virtually never speak in terms of independence in the form of statehood (i.e. secession) and that they instead stress the interdependent nature of their relationships with states...
We are writing this letter to convey our support of the nomination of Keith Harper as the United States Ambassador to the United Nations Human Rights Council. We think the Senate should swiftly confirm him. We have all worked with Keith over many years as he has steadfastly advocated on behalf of tribes throughout this nation. He has been in the forefront of advocacy on behalf of Native peoples across the United States and for indigenous peoples internationally. Repeatedly, Keith has stood strong in the face of difficult odds to stand for what is right. We have come to know Keith well and have confidence in his professionalism, his high ethical standards and his keen capabilities and skills. For these reasons, we think President Obama’s choice is an excellent one.
We are aware that more than 100 Indian nations and more than 25 tribal, human rights and civil rights organizations from across the spectrum have endorsed and are excited about Keith’s nomination. What we have to add is a distinct voice—that of Native women who are tribal leaders, community leaders, educators and advocates. We know that Keith will bring both an understanding of issues that impact Native women and the capability to effectively seek redress for these issues.
Native American women in the United States are more likely to be victims of violent crime that any other racial-gender category. This same dynamic occurs for many indigenous women throughout the world. The lack of safety and security undermines virtually every other aspect of these women’s lives. Moreover, too often, indigenous women do not have the same opportunities to live free, productive lives and participate fully in the political, social and economic opportunities of the wider society. In short, Native women here and everywhere face grave challenges and Keith’s engagement of the Human Rights Council as Ambassador is a critical factor in addressing these challenges.
He has the right experience and the right perspective. He has advocated in support of changes to address violence against Native women and expanding opportunities for them. He also represented the National Congress of American Indians in negotiations regarding the Declaration of the Rights of Indigenous Peoples at the U.N.
For the first time, when Keith is confirmed, we will have a United States Ambassador who has a complete understanding of these challenges and the skills and wherewithal to effectively address them. Moreover, his sensitivity to these issues will not just impact matters related to the human rights of indigenous women but all women. So for Native women like us, who care deeply about securing human rights generally and seeing that progress should be made on the human rights of indigenous women particularly, Keith’s nomination offers a unique opportunity.
Moreover, we are in a good position to evaluate Keith’s attitudes and demeanor towards Native women as we have worked with and observed him. He is always professional, respectful and gracious. Claims otherwise can only come from those who don’t know him...