In April, the U.S. Ambassador to the United Nations
announced that the U.S. will conduct a formal review of its position on the
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), an
historic document over two decades in the making. UNDRIP was adopted by the
U.N. General Assembly in September 2007, with 143 countries in favor and only
four – New Zealand, Australia, Canada and the United States – opposing. Since
that time, both Australia and New Zealand have changed their position, and
Canada has announced a qualified endorsement.
What does this have to do with the West?
In her remarks announcing
the review this past April, at the U.N. Permanent Forum on Indigenous Issues in
New York, U.N. Ambassador Susan Rice stated that:
(I)ndigenous
communities continue to feel the heavy hand of history. Our first nations face
serious challenges: disproportionate and dire poverty, unemployment,
environmental degradation, health care gaps, violent crime, and bitter
discrimination.
As Ambassador Rice later commented, “there is no American
history without Native American history.” As it is true across the nation, so
is this true in the Western United States. The stories of the West’s tribal peoples
– stories of resource exploitation and cultural degradation, stories of
empowerment and revitalization – are inextricably interwoven into the Western
narrative.
Law is language. The power of the law resides in the words
chosen by its arbiters and practitioners, and in the meanings assigned to those
words. The last two centuries of Federal Indian Law are littered with verbal contrivances
that have shaped, for the worse, the fate of whole nations. From Chief Justice
John Marshall’s 1831
notion of tribes as “domestic dependent nations” (“[Indians] occupy a territory
to which we assert a title independent of their will . . . [m]eanwhile, they
are in a state of pupilage”), to a 1985 Supreme
Court decision that the Western Shoshone people lost title to their land due to
“gradual encroachment” by the federal government (a concept that appears
nowhere in the law before or since), federal courts and bureaucracies have
long wielded language to constrain and derogate tribal peoples.
In the face of these and other historical injustices the
architects of UNDRIP employed language that honors and empowers the world’s
indigenous peoples, codifying a wide scope of rights that are both held in
common with all peoples, and are unique to indigenous peoples’ ways of
being. Notably, the Declaration affirms both the individual rights of
indigenous people as well as their collective rights – rights to “live
in freedom, peace and security as distinct peoples” (Art. 7), to “not be
forcibly removed from their lands or territories” (Art. 10), to “maintain,
protect, and have access in privacy to their religious and cultural sites”
(Art. 12), and the rights guaranteed by all 46 Articles enumerated in the
Declaration.
Were the United States to endorse the Declaration, the
document’s assignment of a comprehensive spectrum of rights – basic human
freedoms, rights to cultural traditions, rights to coexist with other groups
and with the environment peacefully – could inform and enhance U.S. policies
pertaining to North American Native nations, including the numerous tribes
whose traditional homelands are located in the American West.
The rights designated in the Declaration have the potential
to serve as a new framework for our federal judiciary and bureaucracies,
providing them with a powerful linguistic toolkit as they determine cases and
set forth policies related to indigenous peoples – including decisions that
implicate Western water allocation, energy production and distribution systems,
land use, and cultural diversity.
Westerners have a meaningful stake in this matter of international
concern. As the Obama Administration reviews its position on the Declaration, and
considers whether to endorse the document, the State Department is accepting public comments on the U.S.
position through October.
Caitlin Sislin, Esq. is the North America Director for Women’s Earth Alliance, where
she coordinates the Sacred Earth Advocacy Network — a network of pro bono
legal and policy advocates in collaboration with indigenous women environmental
justice leaders. For more information, please contact Caitlin at Caitlin@womensearthalliance.org.
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