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United States Finally Endorses Historic United Nation's Declaration

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United States Finally Endorses Historic United Nation's Declaration NATIVE AMERICAN RIGHTS FUND United States Finally Endorses Historic United Nation’s Declaration On The Rights Of Indigenous Peoples A. Introduction Three decades of worldwide effort by indige- “….the United States is lending its support to nous peoples resulted in an historic victory in this declaration. The aspirations it affirms – the United Nations General Assembly on including the respect for the institutions and September 13, 2007, when that body adopted the rich cultures of Native peoples – are ones we Declaration on the Rights of Indigenous Peoples must always seek to fulfill...But I want to be (Declaration) by an overwhelming majority.1 clear: What matters far more than words – 143 Yes, 4 No, 11 Abstaining. The four countries what matters far more than any resolution or who voted against the Declaration were the declaration – are actions to match those United States, Canada, New Zealand, and words.” — President Barack Obama Australia. One by one the dissenting countries have reversed their votes. The United States was spirituality, land rights, and rights to intellectual the last country to do so, on December 16, 2010. property; thereby providing some balance to an That means that there is no country in the world international rights framework based largely that now opposes the Declaration. In addition, on individual rights. Since 1999, senior staff two of the abstaining countries have now attorney Kim Gottschalk of the Native American endorsed the Declaration.2 Rights Fund (NARF) has worked with our client, The Declaration affirms the collective rights of the National Congress of American Indians (NCAI), Indigenous Peoples as human rights across a and indigenous peoples worldwide, in the process broad range of areas including self-determination, of elaborating and supporting the Declaration. 1 Three decades is a somewhat arbitrary starting point. It refers back to a 1977 meeting at the United Nations in Geneva, Switzerland concerning discrimination against Indigenous peoples in the Americas. However, indigenous efforts in the international arena go back much further in time. In the 1920s, Deskaheh, speaker of the Council of the Iroquois Confederacy, attempted to bring a dispute with Canada before the League of Nations. The League did not address the issue, viewing it as a domestic matter between Canada and the Iroquois. 2 Along with one country that indicated that its positive vote had not been registered, that brings the number of countries endorsing the Declaration to 150. United States Finally Endorses Historic United - NARF receives ACLU honor Nation’s Declaration On The Rights Of Indigenous - Tribal Supreme Court Project Update Peoples ................................................................ page 1 - Cases Recently Decided By The Supreme Court CASE UPDATES .................................................. page 9 National Indian Law Library ............................ page 13 - State high court empowers tribes’ child custody CALLING TRIBES TO ACTION! ...................... page 14 decisions NARF ................................................................ page 15 VOLUME 36, NO. 1 WINTER/SPRING 2011 The Declaration is not a perfect document but had been reached on numerous, but not all, it contains much language and many ideas and provisions of the Draft Declaration. At the same concepts supplied by the indigenous peoples time, for reasons unrelated to the draft declara- themselves, thereby establishing “...the minimum tion, the Human Rights Commission came standards for the survival, dignity and well- under fire at the United Nations and was being of the indigenous peoples of the world.” replaced by the Human Rights Council – events Art. 43. that placed the process of finishing the declara- tion in doubt. In the midst of this confusion, the B. Background to the Declaration Process Chair of the WGDD, Peruvian Ambassador Luis In 1977, a group of indigenous representatives Chavez, took the provisions upon which met in Geneva, Switzerland for the agreement had been reached, and, drafted a International Non-Governmental Organization compromise text for those provisions on which Conference on Discrimination against agreement had not yet been reached. This Indigenous Populations in the Americas, compromise text was based on the years of organized by the NGO Sub-Committee on discussion that had occurred in the WGDD. NATIVE AMERICAN RIGHTS FUND NATIVE Racism, Racial Discrimination, Apartheid and He submitted the draft declaration to the Colonialism. In 1982, based in part on recom- Human Rights Commission which, as one of its mendations from this Conference, the UN final acts, forwarded it to the newly created Working Group on Indigenous Populations was Human Rights Council. The Human Rights formed within the Sub-Commission on the Council met for the first time in June of 2006 Promotion and Protection of Human Rights, and on June 29, 2006, by a vote of thirty in favor, (then known as the Sub Commission on the two opposed (Canada and Russia), and twelve Prevention of Discrimination and Protection of abstaining, approved the Declaration and for- Minorities). This Working Group was composed warded it to the General Assembly for adoption. of independent experts. In 1988, the working In the General Assembly, a group of African group chair completed a draft declaration on the Nations garnered sufficient votes to defer rights of indigenous peoples, based largely on consideration of the Draft Declaration to allow their input, and in 1994, the Sub-Commission time for further consultation. The African adopted a Draft Declaration on the Rights of Group initially proposed numerous unaccept- Indigenous Peoples.3 able amendments, which it later withdrew in This Draft Declaration was forwarded to the favor of nine amendments with which most Human Rights Commission. The Human Rights indigenous peoples could live. As noted, this Commission established an intersessional process culminated on September 13, 2007, Working Group on the Draft Declaration when the Declaration was adopted overwhelm- (WGDD) charged with elaborating a declaration ingly by the General Assembly of the United on the rights of indigenous peoples “taking Nations. into account” the Draft approved by the Sub-Commission. The WGDD was initially C. United States Endorsement authorized for ten years, and then extended for Of The Declaration an additional year. Thus, for eleven years, On December 16, 2010, President Obama nations and indigenous peoples met in Geneva, “announce[d] that the United States is lending generally for two weeks a year, to elaborate a its support to this declaration. The aspirations it draft declaration. affirms – including the respect for the institu- By the end of the eleven year period, agreement tions and rich cultures of Native peoples – are 3 See discussion in S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW, (2d ed. 2004) p. 57. PAGE 2 NARF LEGAL REVIEW NATIVE AMERICAN RIGHTS FUND NATIVE “The United States argues that it is doing its part in protecting Indian land rights by supporting Indian tribes in these cases. That is ironic since the cases represent major losses in the court system, demon- strating the inadequacy of our law when measured against the Declaration.” ones we must always seek to fulfill...But I want to be clear: What matters far more than words – what matters far more than any resolution or declaration – are actions to match those words.” This announcement was greeted by a standing ovation by the roomful of tribal leaders assem- bled for second annual White House Tribal Nations Conference in Washington, D.C. Indigenous peoples had urged the United States to endorse the Declaration uncondition- ally. Unfortunately, the United States issued a lengthy explanation of its interpretation of key peoples can help guide its development in the elements of the Declaration – an interpretation right direction. at odds with that of most indigenous peoples. This article provides a brief overview of expla- http://www.state.gov/documents/organization/ nations given by the United States in connection 153223.pdf The areas in which explanations with its endorsement of the Declaration and were given correspond with those matters which makes some preliminary observations on those the prior Administration identified as causing objections. It closes with a brief discussion of them to vote against the Declaration in 2007. possible uses of the Declaration in the future. http://www.archive.usun.state.gov/press _releases/ 20070913_204.html 1. Overview of United States’ Explanation While it is unfortunate that the United States of Its Endorsement felt compelled to issue a lengthy explanation of a. Binding Nature of the Declaration its vote, nevertheless, the endorsement is of The United States’ explanation states: “The great importance. By implication, the Obama United States supports the Declaration, which – endorsement approves without condition those while not legally binding or a statement of cur- areas for which no explanation was provided and rent international law – has both moral and the Declaration will take on a life of its own, political force….[I]t expresses aspirations of the with its meaning developing in context over the United States, aspirations that this country years – very likely in ways that go beyond the seeks to achieve within the structure of the U.S. interpretations given by the United States. With Constitution, laws, and international obliga- strategic use of the Declaration, indigenous tions, while also
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