WASHINGTON – Unless you’re tuned into American Indian law and policy, you likely missed the annual State of the Indian Nations address last week. Presented by the National Congress of American Indians and following the US President’s State of the Union, the SOIN sets the tribal agenda for a new year of politicking on Capitol Hill.
While there were few surprises in Thursday’s speech, there was an interesting call on President Obama to strengthen the federal government’s stance on the Declaration on the Rights of Indigenous Peoples.
The international human rights resolution was adopted by the United Nations General Assembly in 2007 and signed by President Obama in 2010. While many see the 46-article Declaration as paying symbolic recognition of the 370-million First peoples worldwide (the document is not legally binding), many indigenous advocates are, today, demanding states reconsider the resolution when framing new and outdated policies.
Marking the first time the Declaration would be mentioned as a top priority measure in a State of the Indian Nations address, Chickasaw tribal leader and NCAI President Jefferson Keel called for full implementation of the resolution to improve the government-to-government relationship tribes hold with the US. “We see a future where the trust relationship actually works,” he stated. “But that trust also requires consultation—legally enforceable consultation.”
For American Indian nations, the Declaration represents a chance to strengthen tribal sovereignty by fully implementing Article 32—an agreement in which governments shall allow for “free, prior and informed consent” before any kind of development disrupts tribal lands, such as mineral exploration or mining production.
This call for improved consultations with tribal nations has been actively pursued for the better part of the last decade, most recently in response to the land-use case involving a ski resort atop the San Francisco Peaks. Recently argued in the 9th Circuit Court of Appeals in early January, the lawsuit challenges the planned use of treated wastewater for snowmaking at the Arizona Snowbowl ski resort.
According to an attorney representing the Save the Peaks Coalition, he states there was no discussion that took place among at least a dozen American Indian tribes who consider the mountain to be sacred.
Earlier cases filed on behalf of the tribes have been argued unsuccessfully in separate courts. The Havasupai Nation, in August, went so far to file an Urgent Action / Early Warning Complaint with the UN, alleging the violation of their religious freedoms. Despite these efforts, the owners of the ski resort say they plan to begin making snow for skiing and snowboarding for this ski season.
“There would be a public outcry if the federal government tried to impose policy on a state without its consent,” said Keel in his address. “Without the power, legislation and accountability— ‘free, prior and informed consent’ are just some nice words on a page…We call for action to make consultation count.”
Getting government to respond to these demands could take awhile. Historically, the implementation of the UN Declaration on the Rights of Indigenous Peoples has advanced at a slow and steady pace. Drafting of the resolution began nearly 30 years ago in 1985. Before then, the nascent indigenous rights movement was finding its voice in the international community. In fact, many early advocates have credited the American Indian Civil Rights demonstrations of the late 1960’s and ‘70’s for galvanizing the global indigenous cause.
Considered the framework to the overall indigenous rights effort, the Declaration quite simply affirms that indigenous people are uniquely defined and thus demand a set of different laws to protect their equality. The fact that states like the US ever adopted the Declaration is seen as a major victory. Next to Canada, Australia and New Zealand, the United States was the last country to acquiesce, waiting three years to sign the resolution after its adoption in 2007.
According to Katie Jackman, staff attorney at NCAI, she believes many state leaders were reluctant to sign the Declaration based on language that stated Indigenous peoples held rights to lands of “traditional ownership.” But she argues that today’s tribal leaders—at least in the US—do not interpret such articles literally. “The vast majority of tribal leaders are more realistic, today. They still interpret [the Declaration] in a reasonable manner. They just think they should have more access and control of lands than they do right now,” said Jackman.
Overcoming this hurdle may only be the beginning. According to Jackman, if the Declaration is to be fully implemented, there remain certain provisions that do not currently meet federal Indian law such as Articles 21.2 and 22. These items call for the protection of indigenous women, who today, collectively experience some of the highest rates of violent crime and sexual assault. NCAI is currently lobbying two bills through Congress to respond to these troubling trends in the US.
It means there is much more work to do if the Declaration is to ever be considered anything more than emblematic language. In the words of President Obama when he announced his support for the Declaration— “what matters far more than words…are actions to match those words.” And thus begins a new chapter in the Indigenous rights movement.
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