The Obama Administration is weighing whether to sign off on the United Nations Declaration on the Rights of Indigenous Peoples, which could pose a problem to anyone who’s purchased property in the United States in the past several centuries.
The declaration was overwhelmingly adopted by the UN General Assembly in 2007 largely by rich, European countries whose indigenous peoples triumphed over the Romans and by poor, non-European countries whose indigenous populations either never were, have long since vanished or are now relatively small and powerless.
For a wealthy country like the United States with large numbers of politically connected Indian tribes, formal adhesion to the declaration might be just a little more consequential.
The declaration starts off by affirming the rights of indigenous peoples on a number of worthy fronts, such as self-determination, freedom, peace, human rights and native languages. But then there’s Article 26, which states that, “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”
You don’t have to be Christopher Columbus to see how this might raise a few red flags. About 500 years ago — circa 1491 — the United States was wholly occupied by indigenous peoples, also known as American Indians. If they now have a legal claim to the lands they have “traditionally owned, occupied or otherwise used or acquired,” this could place a significant wrinkle in New York Mayor Michael Bloomberg’s redevelopment plans for Lower Manhattan.
U.S. adhesion to the Declaration should be uplifting for the fees of international “public interest” lawyers, who’ve been increasingly encouraged by proliferating references federal judges have made to transnational “norms,” “customs,” and standards in their decisions.
Perhaps recognizing this, the Bush Administration voted against the resolution when it was introduced in 2007, as did three other nations: Australia, Canada and New Zealand. In March, however, Canada broke ranks and announced that it would support the declaration, albeit with what Ottawa termed a “qualified endorsement.” Australia confirmed its endorsement April 3, while New Zealand announced its support April 20.
Not wanting to be seen as an international killjoy, U.N. Ambassador Susan Rice jumped on the bandwagon in an April 20 address to the United Nations Permanent Forum on Indigenous Issues, saying she was “pleased to announce that the United States has decided to review our position” on the declaration.
“There is no American history without Native American history. There can be no just and decent future for our nation that does not directly tackle the legacy of bitter discrimination and sorrow that the first Americans still live with,” said Rice in her remarks. “Let there be no doubt of our commitment. We stand ready to be judged by the results.”
The result, of course, could be legal chaos as tribes attempt to renegotiate treaties, exercise control over development, and litigate ancestral lands and trusts claims, potentially far beyond their current reservations. The declaration is non-binding, meaning that it technically has no legal force, but it’s already being viewed by advocates as a potent legal weapon.
An April 23 article in Indian Country Today stated, “The declaration has strong provisions for supporting treaty rights and affirms indigenous peoples’ collective rights to self-determination and control over their lands and natural resources. These rights will likely conflict with development plans by extractive industries and multinational corporations, but will provide greater protections for indigenous peoples.”
Former U.N. Ambassador John Bolton, who had already left office before the 2007 vote, said the declaration could throw into disarray the long constitutional history of agreements between the federal government and the tribes.
“This document would threaten to upset all of this, and it doesn’t mean indigenous people would be better off for it,” said Bolton. “That’s the problem with these flowery international agreements. You can’t begin to assess the complexity of this and how it would affect the current situation.”
If the White House does agree to endorse the resolution — which, given the President’s enthusiasm for international norms over national sovereignty, seems likely — would Article 26 trigger a rash of federal litigation as Indian tribes sue public and private property-holders for just compensation of their traditional lands? Even the declaration’s supporters disagree.
From Jose Aguto, policy adviser for the National Congress on American Indians: “There are many ways to interpret that phrase.”
From Armstrong Wiggens, director of the Indian Law Resource Center: “This is a sticking point because some conservative people are saying, ‘Are Indians going to take over New York again?’ Absolutely not. We’re talking about the present situation, not the past.”
From Kenneth Deer, secretary of the Mohawk Nation at Kahnawke in Canada: “You never know, you never know. The whole reason for the declaration is that people can’t get justice.”
Say this for the Canadians, they saw this one coming. The Canadian announcement contained the caveat that the government would take steps to endorse the declaration “in a manner fully consistent with Canada’s constitution and laws.” New Zealand has also qualified its endorsement with respect to their constitutional frameworks, despite pushback from indigenous groups, which have urged those nations to endorse the declaration without conditions.
Far simpler to avoid such foreign entanglements in the first place. “The right thing would be not to sign off on this,” said Bolton, “just as the right thing would be not to sign off on a lot of these touchy-feely declarations.”