- Native Americans
Indigenous Rights in the U.S.
The Declaration on the Rights of Indigenous Peoples, which the United Nations adopted in 2007, addresses both individual and collective rights of indigenous peoples and their relationship to land and natural resources.
This is a departure from previous international human rights declarations, which have focused primarily on individual rights.
The United States came late to this Declaration’s support. It voted against the Declaration in 2007, after opposing it every step of the way throughout the 25 years of research and arduous consultation required for its adoption. Only three other nations—Australia, New Zealand and Canada—voted against the measure.
Like the U.S., the other opposing nations are also former British colonies with small indigenous populations and large immigrant populations. One by one, these four opposing countries have signed the Declaration. The U.S. was the last to do so.
In December 2010, President Obama announced that U.S. support for the Declaration and directed federal agencies to examine how the document might affect U.S. laws and programs. In September 2014, the United Nations is planning to convene a high-level plenary meeting of the 69th session of the General Assembly, to be known as the World Conference on Indigenous Peoples.
What Does the U.N. Declaration Cover?
The Declaration is a broad description of right relationships between indigenous peoples and governments of the countries in which they reside. It covers governance issues; land rights; access to and control over natural resources and the preservation of culture, identity and community.
The Declaration urges governments to respect the rights of indigenous people to be directly involved in decisions that affect them and their lands and resources. It recognizes that indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress.
More than one-third of the Declaration’s articles address protection and promotion of indigenous cultures, including the preservation of languages and cultural resources and education. It affirms the right of self-determination and acknowledges the right of native peoples to follow their own paths to develop economically and socially.
Is the Declaration Legally Binding?
This Declaration, like all such agreements, is not directly, legally binding on nation-states. The Declaration can bolster the efforts of native peoples to define and assert their rights, however, by outlining internationally shared standards and expectations for the relationship between indigenous peoples and nationstates.
James Anaya, professor of Human Rights Policy at the University of Arizona School of Law and appointed as the United Nations Special Rapporteur on the Rights of Indigenous Peoples, encourages native peoples in the U.S. to “use the Declaration for engagement with governments, with Congress, [and] with the courts. Tribes need to use it with the outside world and within their communities…to build healthy relationships on all levels.”
Some supporters are disappointed that the document may be seen as “merely aspirational.” But Lise Balk King, a fellow at the Carr Center for Human Rights Policy at the Harvard Kennedy School of Government and former executive editor of the Native Voice newspaper, observes that “human rights are by nature aspirational.” She believes that the power of human rights declarations arises from the global collective decision-making processes that the declarations require.
She points to the history of the Universal Declaration on Human Rights, which took 60 years to enact, and notes that it is now recognized broadly as part of international law. She holds similar hopes for the future of this Declaration.
What Would the Declaration Change?
The Declaration is already having some impact on U.S. laws and practices, although in limited ways.
- In 2011, the Senate Committee on Indian Affairs held a hearing about the Declaration’s implications for domestic policy that began to examine where the Declaration might lead U.S. law to develop.
- Since the adoption of the Declaration, the Bureau of Indian Affairs and several U.S. government agencies have undertaken or continued policies and programs that are at least informed by, if not wholly responsive to, the standards set forth in the Declaration.
- Tribal governments throughout the U.S. are “using [the Declaration] creatively to protect their lands and resources, and especially their rights to cultural and sacred sites,” according to Robert Coulter, executive director of the Indian Law Resources Center.
The U.S. government’s preliminary reading of the Declaration could lead it to be applied in ways at odds with the document’s intent. Within hours of the president’s announcement of support, the State Department released a memo describing its own limited interpretation of the document. The memo asserted that the Declaration would apply only to the government-to-government relationship between federally recognized tribes and the U.S. government.
For some of the Declaration’s provisions, such as recognition of tribal authority in criminal cases and establishing a contractual relationship for the management of certain government programs, defining the relationship in this way might be a practical necessity. But it is not a sufficient or necessary foundation for all of the rights identified in the Declaration.
Some of the Declaration’s standards do not depend on a government-to government relationship in order to be implemented, such as those concerning the taking and use of eagle feathers for cultural and spiritual purposes. Under the narrow definition put forward by the State Department, tribes long recognized by state governments but not the federal government, such as the Lumbee Tribe in North Carolina, would be excluded from these agreements. Some tribes are pushing for a more comprehensive understanding of indigenous rights—as something inherent in indigenous peoples, not conferred upon them by any outside government.
In many ways, this Declaration holds up a mirror to U.S. laws and practices. It challenges those of us in the United States to compare the federal government’s policies and behaviors to a standard agreed on by most other countries in the world. This report highlights some of these potential intersections between the Declaration and U.S. laws.