Think Globally, Act Tribally

A UN declaration provides the framework for Native self-determination

Walter R. Echo-Hawk

The flag of the American Indian Movement (Courtesy of the AIM)

The activism that has pro­pelled the trib­al sov­er­eign­ty move­ment and the rise of mod­ern Indi­an nations since 1950 is a social move­ment that ranks along­side the civ­il rights, women’s and envi­ron­men­tal movements. 

Indigenous advocates must inform themselves about international human rights law, overcome inertia and set aside resources for a national campaign to implement the UNDRIP.

But much work remains before Native Amer­i­ca can enter the body politic on a fair and equi­table basis, with the full mea­sure of its inalien­able indige­nous human rights intact. While the key for enter­ing this realm was beyond the reach of the for­bear­ers of the trib­al sov­er­eign­ty move­ment, today it lies in imple­ment­ing the land­mark Unit­ed Nations Dec­la­ra­tion on the Rights of Indige­nous Peo­ples (UNDRIP) into the legal cul­ture and social fab­ric of the Unit­ed States. The Unit­ed States for­mal­ly endorsed the dec­la­ra­tion in 2010, but has not dis­cussed with Native Amer­i­can lead­ers how we should go about the task of imple­ment­ing these UN stan­dards, which are designed to pro­tect the sur­vival, dig­ni­ty and well-being of indige­nous peo­ples world­wide though a human rights frame­work in the post-colo­nial era.

The Great Spir­it works in mys­te­ri­ous ways: Our fall­en trib­al lead­ers ush­ered us to the doorstep of self-deter­mi­na­tion, as that term is defined by mod­ern inter­na­tion­al human rights law and applied to indige­nous peo­ples in the UNDRIP. It is the para­mount chal­lenge of this gen­er­a­tion to take up their man­tle and enter into a human rights frame­work for defin­ing Native Amer­i­can rights in the 21st cen­tu­ry, pre­serv­ing the best from exist­ing law along the way and merg­ing it with the UNDRIP to form a seam­less, more just body of law.

Dur­ing the Indi­an self-deter­mi­na­tion era of the 1950s through the 1970s, Native Hawai­ians, Amer­i­can Indi­ans and Alas­ka Natives col­lab­o­rat­ed on nation­al issues affect­ing their inter­ests. In the 1980s, Native Amer­i­cans joined the inter­na­tion­al indige­nous move­ment that took shape dur­ing the mak­ing of the UNDRIP. The Unit­ed Nations began draft­ing the UNDRIP in 1985. By the time it was approved by the Gen­er­al Assem­bly in 2007, a large Native Amer­i­can con­tin­gent had joined the move­ment to demand human rights for trib­al peo­ples around the world.

Yet despite impres­sive nation-build­ing advances, Native Amer­i­ca has not reached the Promised Land. Indige­nous activism has failed to root out the engrained lega­cy of con­quest — a lega­cy that fos­ters lin­ger­ing inequities in a num­ber of major prob­lem areas, includ­ing the fol­low­ing three:

The polit­i­cal rela­tion­ship between the Unit­ed States and Indi­ans fails to meet UNDRIP stan­dards because of the fed­er­al government’s fail­ure to rec­og­nize the self-deter­mi­na­tion rights of Native Hawai­ians and Alas­ka Natives.

Until the Unit­ed States takes the human rights duties pre­scribed by the UNDRIP to heart, deplorable Native Amer­i­can socioe­co­nom­ic con­di­tions, shock­ing gaps in phys­i­cal and men­tal health­care, and oth­er indi­ca­tors of soci­etal trau­ma will remain per­ma­nent fixtures.

Native Amer­i­ca will con­tin­ue to be plagued by sec­ond-class land rights and no indige­nous habi­tat rights until the UN stan­dards regard­ing these rights are ful­ly real­ized in the Unit­ed States. 

These prob­lems bar the door to self-deter­mi­na­tion as defined by Arti­cle 3 of the UNDRIP, which states: 

Indige­nous peo­ples have the right to self-deter­mi­na­tion. By virtue of that right they freely deter­mine their polit­i­cal sta­tus and freely pur­sue their eco­nom­ic, social and cul­tur­al development.

By con­trast, U.S. law does not see Indi­an self-deter­mi­na­tion as an inher­ent human right. Instead, the Supreme Court has ruled that Con­gress may abol­ish trib­al gov­ern­ment out­right.

Con­se­quent­ly, there is an urgent need to bring U.S. law into com­pli­ance with UNDRIP. Advo­cates must turn to mod­ern inter­na­tion­al human rights law and take Native Amer­i­ca beyond the exist­ing frame­work into the human rights realm. We have come far, but Native Amer­i­cans can only advance so far under an unjust legal régime. With­out a stronger and more just human rights foun­da­tion, our dig­ni­ty, sur­vival and well-being remain at stake. Indige­nous advo­cates must inform them­selves about inter­na­tion­al human rights law, over­come iner­tia and set aside resources for a nation­al cam­paign to imple­ment the UNDRIP.

A good start­ing place is The Sit­u­a­tion of Indige­nous Peo­ples in the Unit­ed States of Amer­i­ca by S. James Anaya, the UN Spe­cial Rap­por­teur on the Rights of Indige­nous Peo­ples. This 2012 UN report is a cat­a­lyst for change that points the way to the Promised Land: 

Indige­nous peo­ples in the Unit­ed States … face sig­nif­i­cant chal­lenges that are relat­ed to wide­spread his­tor­i­cal wrongs and mis­guid­ed gov­ern­ment poli­cies that today man­i­fest them­selves in var­i­ous indi­ca­tors of dis­ad­van­tage and imped­i­ments to the exer­cise of their indi­vid­ual and col­lec­tive rights. 

The report express­es the need for a move­ment to resolve his­tor­i­cal trau­ma in a nation­al pro­gram of rec­on­cil­i­a­tion. Unless we close the wounds, the report pre­dicts, Native Amer­i­cans will remain in an unsta­ble posi­tion — sub­ject­ed to con­di­tions of dis­ad­van­tage and inequity — and the moral stand­ing of the Unit­ed States will suffer.

Anaya’s report makes rec­om­men­da­tions on how the three branch­es of the fed­er­al gov­ern­ment can bring U.S. law and pol­i­cy into com­pli­ance with UN human rights stan­dards. It rec­om­mends that the pres­i­dent issue a direc­tive to all exec­u­tive agen­cies to adhere to the Dec­la­ra­tion in all deci­sion-mak­ing con­cern­ing indige­nous peo­ples and asks the pres­i­dent to fol­low up on Congress’s 2009 apol­o­gy to Native Amer­i­ca with a pro­gram of rec­on­cil­i­a­tion. The report iden­ti­fies spe­cif­ic leg­isla­tive reforms nec­es­sary to achieve nation­al rec­on­cil­i­a­tion, includ­ing a con­gres­sion­al res­o­lu­tion affirm­ing UNDRIP as the pol­i­cy of the Unit­ed States. And the report asks U.S. fed­er­al courts to inter­pret, or rein­ter­pret, rel­e­vant doc­trine, treaties and statutes in light of the dec­la­ra­tion, both in regard to the nature of indige­nous rights and the nature of fed­er­al power.”

If the changes required by these rec­om­men­da­tions are imple­ment­ed, Amer­i­ca can redress its lega­cy of con­quest and move beyond that painful past as a stronger, more just nation. 

First, the hard-to-solve social ills and unhealed his­tor­i­cal trau­ma found in trib­al com­mu­ni­ties can be resolved in a human rights frame­work through the reme­di­al mea­sures pre­scribed by the UNDRIP.

Sec­ond, if the courts embrace and apply UN stan­dards, the law per­tain­ing to indige­nous peo­ples will be reformed, strength­ened and made more just.

Third, the vex­ing polit­i­cal ques­tion about the best way to incor­po­rate indige­nous peo­ples into the body politic can be answered: The belat­ed nation-build­ing steps called for by the UNDRIP are aimed at bring­ing Native Amer­i­cans into the nation­al com­mu­ni­ty on a con­sen­su­al, just and equi­table basis, with their indige­nous human rights intact.

Fourth, rec­og­niz­ing and pro­tect­ing indige­nous cul­tures, ways of life and habi­tats have a healthy envi­ron­men­tal by-prod­uct: the devel­op­ment of a social eth­ic to guide the way that Amer­i­cans look at the land (and the ani­mals and plants that grow upon it) and sea (and all the life in the ocean). Our nation sore­ly needs an eth­i­cal foun­da­tion with broad con­sen­sus to address and solve the grow­ing envi­ron­men­tal cri­sis, but it has been unable to find such an eth­ic. Tra­di­tion­al Native Amer­i­can reli­gions and the val­ue sys­tems that emerge from their hunt­ing, fish­ing and gath­er­ing cos­molo­gies pro­vide nec­es­sary ingre­di­ents for this moral com­pass. This wis­dom shows humans how to com­port them­selves to the nat­ur­al world. There is a con­gruity between pro­tect­ing the sur­viv­ing cul­tures of the nat­ur­al world and pro­tect­ing the nat­ur­al world itself.

Today, trib­al peo­ples in the Unit­ed States are study­ing the UNDRIP and eval­u­at­ing its pos­si­bil­i­ties, but they have not yet mount­ed a focused nation­al move­ment to imple­ment the dec­la­ra­tion. The UNDRIP serves as the basis for a new human rights era in fed­er­al Indi­an law and pol­i­cy. We stand at the begin­ning of this era. 

Reprint­ed and con­densed with per­mis­sion from Rosa Lux­em­burg Stiftung — New York Office, www​.ros​alux​-nyc​.org.

Wal­ter R. Echo-Hawk is a mem­ber of the Pawnee Nation of Okla­homa and works as an attor­ney, law pro­fes­sor, trib­al judge, author and activist.
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