US President Barak Obama, standing before a conference of Indian government, Alaskan Native and Hawaiian Native leaders, announced that his government “will support” the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). When that announcement was made I expressed pleasure with the decision and yet urged caution until the Department of State published its written explanation of the US government policy. That policy is now available and the news is both good and not good. The US government position on the UNDRIP is clear on US policy support for “enhancing self-determination of federally recognized tribes,” but ambiguous at best and negative at its worst on interpretations and meanings of key principles built into the Declaration: The meaning and breadth of self-determination (“self-determination specific to indigenous peoples”), “free, prior and informed consent” (“consultation with tribal leaders, but not necessarily the agreement of those leaders, before … actions… are taken.”).
The principle of self-determination is at the core of virtually all international human rights instruments of policy and law. The internationally recognized right of self-determination is the basis on which more than 140 independent states came into being after World War II. States like Israel, Slovakia, Republic of Georgia, Tuvalu, and the Federation of Micronesia exist today because of that important principle. The United States government tenderly walks around the principle by saying that it endorses that principle “specific to indigenous peoples.” The principle contemplates the right of a people to “freely determine their political status and freely pursue their economic, social and cultural development” as stated in Article 3 of the UNDRIP. As has been the US government’s policy for forty years, economic, social and cultural development receive fairly consistent support in administrative, legislative and usually judicial policies. The US UNDRIP policy on these matters stands as consistent with long-standing policy through several US governments from Lyndon Baines Johnson to Barak Obama. That policy has seen enhancement of education, health, environmental, and social advancements as well as enhanced protections for cultural artifacts to the benefit of American Indian, Alaskan Native and even Hawaiian Native communities. While the policy has not always been perfectly applied, it has been applied.
The central and missing piece in the US government’s endorsement of “self-determination” and thus the slight of hand reference to “self-determination specific to indigenous peoples” is the matter of freely determining the political status of an indigenous people. The US government has held fast to the idea that the right to choose one’s political status must be limited for indigenous peoples. Indigenous peoples domestically and presumably internationally must be held in perpetual tutelage under the control of each states’ government–even if a state government demands fealty through force of violence. Holding to the fiction of the UN’s non-binding conception of “non-self-dismemberment” the US Department of State references UNDRIP Article 46 by saying “the Declaration does not imply any right to take any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.” In fact the referenced article does suggest a restriction, but the restriction emphasizes “any activity or to perform any act contrary to the Charter of the United Nations.” There is no restriction on dismembering or impairing the territorial integrity of a sovereign and independent State if changing the political status of a people (perhaps choosing independence, free association or autonomy within an existing state) is freely chosen in accord with the UN Charter. The Declaration simply does not “authorize” dismemberment of existing states. That is reasonable, but it is equally reasonable to understand that freely choosing a political status can and indeed is encouraged if done within the framework of the UN Charter. Freely choosing a political status is the most basic of concepts built into the principle of self-determination. Without that right, there is no “self-determination.” The US position is to essentially nullify the right of indigenous peoples to freely make decisions about how they will organize as a political community.
There is a finer point on this discussion that can be made when we note that the US Department of State contemplates the UNDRIP principle of “free, prior and informed consent” as meaning, essentially, that American Indian, Alaskan Natives and Hawaiian Natives have the right of “free, prior and informed consent” unless the United States disagrees with the decision made by the indigenous people.
The US Department of State’s explanation of the US government’s support for the UNDRIP includes this rather contradictory statement: “…the United States recognizes the significance of the Declaration’s provisions on free, prior and informed consent, which the United States understands to call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders, before the actions addressed in those consultations are taken.” In other words, the United States may dictate actions and policies that affect the lives and property of indigenous peoples without their consent, but they may be informed. That is a position utterly inconsistent with the concept of “free, prior and informed consent”
The US government apparently rejects Article 10 of the UNDRIP which declares that “Indigenous peoples shall not be forcibly removed from their lands or territories…without the free, prior and informed consent of the indigenous peoples concerned….”
The US position strikes Article 11, para 2 and Article 28 of the UNDRIP which call for provision of mechanisms of redress “developed in conjunction with indigenous peoples” with their “free, prior and informed consent or in violation of their laws, traditions and customs.
Article 19 is struck down by the US position since it too requires the exercise of free, prior and informed consent before the state adopts and implements legislative or administrative measures. The US position is that “Consultation” satisfies this requirement event if consent is not secured.
The US position also flies in the face of Article 32 paragraph 2 that calls for obtaining the free, prior and informed consent before approval of projects affecting indigenous lands and territories.
It is a serious matter that the US government arrogates to itself the right and power to decide for American Indians, Alaskan and Hawaiian Natives without obtaining their free, prior and informed consent. It is equally serious that the US government wishes to hold up this approach internationally as a “model” reflecting its commitment to human rights. Other indigenous peoples are clearly made more vulnerable by the US position when states’ governments with which they must deal point to the US position and claim for themselves the right to decide and act in ways contrary to the interests of indigenous peoples.
The US policy of promoting and enhancing self-determination and self-government within the framework of the UNDRIP has considerable merit and benefit for American Indian, Alaskan Native and Hawaiian Native governing bodies. Unfortunately, the most important right, the right to choose and to consent, is denied and rejected out of hand. The “yes but no” approach can therefore receive both congratulations and denunciation. Much work now must focus on developing the full expression of self-determination including the full right of self-government–the right to choose and consent based on free, prior and informed engagement between peoples.
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