Wabanaki Legal News, Summer 2011
In September 2007 the United Nations passed the Declaration on the Rights of Indigenous Peoples (UNDRIP). It covers 46 issues important to Native people, including:
- Self-determination, or the right of a people to decide their political status and government
- Culture and language
- Education and health
- Housing, land, resources and environment
- Indigenous law
143 nations voted for the Declaration. Only Canada, New Zealand, Australia, and the United States voted against it. Later on New Zealand, Australia and Canada changed their positions. That left only the U.S. opposing it.
In December 2010 President Obama announced that the United States would lend its support to UNDRIP. However, the official US statement of support for the Declaration is qualified. The State Department released the official US position statement. It makes clear that the US regards UNDRIP's concept of “self-determination” to be limited by existing laws and policies. That is, federally recognized tribes have inherent but limited powers of self-governance.
The US State Department does not regard the Declaration as binding law, but recognizes it as having both moral and political force. Some international treaties become US law. However, UNDRIP is only a resolution. It has not been ratified by the Senate and, therefore, is not binding on the United States. While it is not law, the US aspires to fulfill the spirit of the resolution. The official statement gives examples of how the US is already working towards the goals of UNDRIP through consultation and collaboration with US Tribes. These ongoing efforts are addressing, for example: environmental protection, health care, economic development and cultural protection.
Some commentators, including many in Indian Country, say that the US doesn't really support the Declaration. One example involves the concepts of “consultation” and “consent.” The US government already follows a policy of tribal “consultation.” But UNDRIP appears to require actual consent by tribes, which is much more than just consultation. Critics of the US position point to Article 19, which states that governments shall get indigenous people's “free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.” However, the US State Department statement defines consent only as a “process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders.” As a result, it seems likely that as time goes on US Tribes and the US government will have different ideas about what changes in US law and policy UNDRIP actually requires. Although the US recognition of the UN Declaration seems like a step forward, it remains to be seen how this will actually affect US policymaking.