In a recent announcement by President Obama, the United States became the last of four members of the United Nations that voted against the U.N. Declaration on the Rights of Indigenous Peoples to reverse position and issue a statement of support. Some commentators applauded the U.S. announcement. Others were critical: The Center for World Indigenous Studies said the U.S. statement is “ambiguous at best and negative at its worst on interpretations and meanings of key principles built into the Declaration.”
The dispute about the significance of the U.S. statement focuses on the fact that it, like the other three original naysayers—Australia, Canada, and New Zealand—framed the Declaration as “aspirational,” meaning it is not legally binding. The Obama administration paid no heed to resolutions issued by the United South and Eastern Tribes and the National Congress of American Indians calling for the U.S. to endorse the Declaration unconditionally and without devaluing it as “aspirational.”
Unfortunately, it was the Indigenous Peoples Caucus that, in their attempt to persuade U.N. members to vote for it, said the Declaration is “an aspirational instrument, [and] does not upend the rule of law domestically or internationally.” This has now come back to haunt the Caucus, as each of the four nations that originally voted no has, in reversing position, referred to the Declaration as “aspirational,” meaning their support does not require them to change their basic legal positions about the presumed subjugated status of indigenous nations.
The U.N. document itself refers twice to “aspirations,” but in a very different context from the statements of the four member nations. The Annex to the General Assembly Resolution states that the General Assembly is “convinced (emphasis in original) that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs.” The second reference is in Article 15, which states, “Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information.”
The key document to analyze is not Obama’s announcement toward the end of his 15-minute speech at a White House Tribal Nations Conference, but the detailed 15-page statement issued by the U.S. Department of State, which opens with a self-congratulatory message: “The United States today proudly lends its support to the United Nations Declaration on the Rights of Indigenous Peoples.” The State Department says the U.S. reversal is “in response to the many calls from Native Americans throughout this country and in order to further U.S. policy on indigenous issues.” Since the U.S. actually ignored the USET and NCAI resolutions mentioned above, it is hard to take seriously the assertion that the reversal was “in response” to Native voices. The truth is in the second part of the reason: namely, that the State Department views the Declaration as being a means to “further U.S. policy on indigenous issues.”
But how can this be? The Declaration affirms the central importance of the aspirations of indigenous peoples to control their own destinies, while U.S. law is opposed to real self-determination for indigenous peoples. The U.S. position on that has been consistent throughout the twists and turns of what we call “federal Indian law,” from the so-called “Marshall trilogy” of U.S. Supreme Court cases (Johnson v. M’Intosh and the two Cherokee cases) through the Allotment Act and Termination policies and into the 20th century era of “government-to-government” relations. The foundational position of the United States is that indigenous peoples of the American continent are inherently subjugated to the political authority of the U.S. federal government. This is nowhere close to the core provision of the U.N. Declaration—the promotion of indigenous self-determination: “control by indigenous peoples over developments affecting them and their lands, territories and resources.”
How can the U.S. claim to support the Declaration, given the fact that Article 3 explicitly recognizes the right of indigenous peoples to “freely determine their political status and freely pursue their economic, social and cultural development?” The State Department accomplishes this trick by reinterpreting Article 3, calling it “a new and distinct international concept of self-determination specific to indigenous peoples…that is different from the existing right of self-determination in international law.” Amazing! What this means is that the U.S. is still playing the same language and conceptual game played by the Supreme Court under John Marshall: Namely, indigenous sovereignty is not the same as the sovereignty of the United States! The infamous doctrine of Christian Discovery—subjugating indigenous peoples to the sovereignty of the Christian colonizers—lives on in 2011, but cleansed of its religious pretenses.
A famous pastry chef was quoted recently in The New Yorker magazine: “Dessert is aspirational…. It’s the one part of the meal you don’t have to eat.” Is this what the U.S. and the other three members really hope—that the U.N. Declaration on the Rights of Indigenous Peoples is like dessert: You don’t have to eat it?
The only way forward for indigenous peoples under the Declaration is to insist that Article 3 means what it says: self-determination is the core of international human rights, for all peoples, indigenous and non-indigenous. It’s not dessert; it’s the main course.
Peter d’Errico is a consulting attorney on indigenous peoples’ legal issues. He graduated from Yale Law School in 1968, was a staff attorney in the Shiprock, Ariz. office of Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968–1970, and taught Legal Studies at the University of Massachusetts, Amherst, 1970 – 2002. His website is umass.edu/legal/derrico.