What the US Is Likely to Contribute to the UN HLPM State-Outcome Document

Steven Newcomb

In September 2014 a United Nations High Level Plenary Meeting of the U.N. General Assembly is scheduled to meet at the United Nations headquarters in New York. The High Level meeting, that is falsely being labeled a World Conference on Indigenous Peoples, will focus on nations and peoples which the U.N. system typically calls “indigenous.” By the end of the High Level Plenary meeting, the state governments are scheduled to produce an entirely state-constructed outcome document about how they will implement the U.N. Declaration on the Rights of Indigenous Peoples.

Within the structure of the U.N. Permanent Forum on Indigenous Issues, there are seven caucus regions of the world for Peoples termed “indigenous.” On March 1-2, the North American Indigenous Peoples Caucus met and reached a consensus position to call for a cancellation of the U.N. HLPM “to be known as the World Conference on Indigenous Peoples.”

On March 10 the U.S. Department of State held a “scoping session” with a number of other Indian people, most of whom did not attend the North American Indigenous Peoples Caucus gathering in the Secwépemc Nation Territory in Kamloops, British Columbia. Most of the “scoping session” crowd expressed strong support for the convening of the U.N. HLPM and requested U.S. government support for “tribal nations” to gain a “dignified” status somewhere within the U.N. system so that they can take their “issues and concerns” to the United Nations.

Ironically, the vast majority of issues and concerns that the “scoping session” Indian attendees want to take to the United Nation have to do with the various ways that their nations and peoples have been, and continue to be, abused by the laws and policies of the United States, the very same United States government whose support they are seeking to find a status other than Non-Governmental Organization, in the U.N. system.

Most troubling about the March 10 U.S. State Department “scoping session” was that not one person attending the 90 minute meeting mentioned the upcoming U.N. HLPM state-outcome document. The fact that no one was focused on this most important part of the HLPM is deeply troubling. It demonstrates that those Indian leaders and Indian organizations that are strongly supporting the U.N. HLPM, and who say they want to be participants, seem oblivious to the high stakes involved in a negative state-outcome document, the drafting of which they are likely to be excluded from. Only 30 or fewer Indigenous Peoples' representatives, out of some 370 million indigenous people worldwide, are scheduled to be allowed in the room during the "informal" phase of the drafting.

Regarding the likely United States’ role in the drafting of the HLPM state-outcome document, it is instructional to take language from the U.S.’ 2010 statement “supporting” the U.N. Declaration on the Rights of Indigenous Peoples. The U.S. is not going to contradict what it has previously and officially said regarding its interpretation of the U.N. Declaration. One lie by the United States is particularly egregious regarding the right of self-determination. As the U.S. State Department said in its 2010 statement:

The United States is therefore 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.

The United States has falsely stated, as its official position, the view that the U.N. Declaration on the Rights of Indigenous Peoples makes a “call” for developing “a new and distinct international concept of self-determination specific to Indigenous Peoples.” The document makes no such “call.” We must therefore assume that the U.S. will take every opportunity to advance this false position at any meetings it attends regarding the drafting of the HLPM state-outcome document. According to the United States, the U.N. Declaration calls for “the development” of “a concept of self-determination for Indigenous Peoples that is” not the same as the already “existing right of self-determination in international law.” The U.N. HLPM is a framework for working on “the development” of such a new concept of self-determination which the U.S. says does not yet exist in international law, but that it “supports.”

What will be the basis for the U.S.’ view of self-determination for those peoples the U.N. calls “indigenous?” It is the form of “self-determination” that the U.S. says is already existing in the context of U.S. federal Indian law and policy. The U.S. government said this in its December 2010 position: “For the United States, the Declaration’s concept of self-determination is consistent with the United States’ existing recognition of, and relationship with, federally recognized tribes as political entities that have inherent sovereign powers of self-governance.” The U.S. is saying that all the U.N. Declaration is ever going to provide you with is what has already been concocted by the U.S. in the context of its federal Indian law and policy.

In other words, the United States is using the U.N. Declaration on the Rights of Indigenous Peoples as a means of having its U.S. domestic self-determination policy framework, i.e. 638 contracting for goods and services, and the existing framework of U.S. federal Indian law and policy, recognized internationally at the United Nations. For as the U.S. government further said in 2010:

This [federal] recognition of [federally recognized Indian tribes] is the basis for the special legal and political relationship, including the government-to-government relationship, established between the United States and federally recognized tribes, pursuant to which the United States supports, protects, and promotes tribal governmental authority over a broad range of internal and territorial affairs, including membership, culture, language, religion, education, information, social welfare, community and public safety, family relations, economic activities, lands and resource management, environment and entry by non-members, as well as ways and means for financing these autonomous governmental functions.

Whatever one’s opinion of 638 contracting under the U.S. Indian Self-Determination Act, one point is clear: it is not the same as, and is dramatically inferior to, the international legal right to self-determination.

Two years ago, at an Indian leadership gathering I was interrupted as I was explaining the U.S.’ interpretation of the U.N. Declaration on the Rights of Indigenous Peoples. This person said rather impatiently, “You know you can’t let the United States interpret the Declaration.” Sorry, but “news flash”: the U.S. has already begun interpreting the U.N. Declaration, and we’d better wake up and pay attention. To support the U.N. HLPM erroneously “to be known as the World Conference on Indigenous Peoples,” is to support the U.S.’ effort to advance its false and self-serving interpretation in the form of a negative U.N. General Assembly State-Outcome Document. The foreseeable negative potential at the hands of the U.S. and its allies, is why NAIPC has called for the cancellation of the HLPM.

Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2010). He has been studying U.S. federal Indian law and international law since the early 1980s, has published several law review articles.

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