Friday, December 17, 2010
President Obama announced yesterday at the White House Tribal Nations Conference that the U.S. will now lend its support to the UN Declaration on the Rights of Indigenous Peoples.
The Declaration is a non-binding treaty designed to protect the human rights of indigenous peoples. It incorporates rights in the UN Charter, the Universal Declaration, and international human rights law, and specifically protects the right to self-determination and cultural rights, among others. The Declaration was adopted in 2007 over the opposition of the United States and three other member states.
President Obama announced on April 20, 2010, that the U.S. would reconsider its position on the Declaration. (Two days later, the UN special rapporteur on the rights of indigenous peoples told the Permanent Forum on Indigenous Issues that "[t]he [worldwide] violations of indigenous peoples are deep, systemic and widespread.") There's apparently little publicly available information on the review; DOJ's Office of Tribal Justice mentions it here, and the State Department mentions it here. The Office of Legal Counsel opined in 1996 that the U.S. government could establish the kind of government-to-government relationship that it currently maintains with federally recognized Indian Tribes with "other appropriately constituted indigenous communities within the jurisdiction of the United States." But otherwise there's no publicly available OLC opinion on the Declaration. The only bill in Congress to support the Declaration stalled in the House Committee on Foreign Affairs.
It's not clear what "support for the Declaration" means to the administration, where the Declaration is non-binding and where many of the rights contained in it (like many of the rights contained in other international human rights instruments) exceed those provided under (or required by) the U.S. Constitution. President Obama committed--and came through on--opening up the government to Native Americans and Native American concerns, but full compliance with the Declaration would go several significant steps further. Given the non-binding nature of the Declaration, its rights (which exceed our own constitutional rights and traditional practices), and the government's historic treatment of Native American peoples, it seems likely that "support for the Declaration" means something like "treat the Declaration as aspirational"--a move toward recognizing the rights contained it, but stopping short of treating it as mandatory.