Center Responses to the Questions Posed by the U.S. Department of State

1.      U.S. law treats federally recognized tribes differently from other indigenous groups in the United States.  Is this practice consistent with the Declaration?

The United States' process for recognizing Indian and Alaska Native tribes is, as a general matter, consistent with the UN Declaration.  There are various definitions of indigenous peoples that are widely accepted in the international community and in state practice.  Though these definitions vary somewhat, they all have common elements.  These common elements include:  self-identification as indigenous; descendency from pre-colonial, pre-conquest societies; a non-dominant sector of society; having distinct social, economic, cultural and political institutions; and having a collective attachment to land and natural resources.  The Declaration does not prescribe precisely how such a determination is to be made.  Of course, the present federal process does need improvement in order to be more fair and reasonable.

Whether it would be consistent with the Declaration to treat some indigenous peoples differently from other indigenous peoples would depend on the reasonableness of the classifications, the nature of the difference in the treatment, and other factors.  It is clear in all events that the rights in the Declaration are to apply to all indigenous peoples and individuals.


2.      Is self-determination as discussed in the Declaration consistent with tribal self-determination in U.S. law and practice?

In the United States, the federal  government has recognized for generations the right of self-determination for Indian and Alaska Native nations, and this is demonstrated in its government-to-government relationships with Indian and Alaska Native nations.  The right of self-determination in the Declaration reflects this long standing practice.  The UN Declaration provides insights into how the United States can implement and strengthen its government-to-government relationships with Indian and Alaska Native nations and avoid practices that contradict the right of self-determination.  We see no major inconsistency between self-determination in the present federal law and the right of self-determination in the Declaration.


3.      What additional mechanisms, if any, are necessary for the United States to act consistently with the lands, territories, natural resources, sacred sites, and redress provisions of the Declaration?

The Declaration would not require, even if it were binding, that the United States create any additional mechanisms for it to act consistently with the lands, territories, natural resources, sacred sites, and redress provisions of the Declaration.  The UN Declaration treats the property rights of indigenous peoples much like the United States Constitution does.  The Declaration sets an agenda for discussions between Indian, Native Hawai'ian and Alaska Native peoples and the United States government on improving the mechanisms and law in the United States concerning lands, territories, natural resources, sacred sites, and redress.  There is no doubt that there are aspects of federal law about Indian, Native Hawai'ian and Alaska Native lands that require improvement, but the improvements are already required by the United States Constitution.  It is also true that certain improvements are needed to ensure that there are fair and adequate judicial remedies available for Native peoples and individuals that suffer harms in respect to their lands and sacred sites.  It is not clear at this time what the details of these improvements should be, but they can be resolved through good faith consultations in the future.


4.      What is your understanding of the meaning of "free, prior and informed consent" in the Declaration? 

Free, prior, and informed consent is an important principle deriving from indigenous peoples' collective rights to self-determination and their lands and resources.  It is not a substantive right like the right of self-determination.  As used in the Declaration, free, prior, and informed consent does not give indigenous peoples a right of veto.  Rather, it refers to a process that countries must follow, or conditions that must be met, before a state takes action that would otherwise constitute an infringement of a right or constitute a taking of property.


5.      As many countries have stressed in their statements in support of the Declaration, the Declaration as a non-binding aspirational document whose force is moral/political rather than legal.  Is that your view of the nature of the Declaration?

The Declaration establishes a set of standards that guide countries about the treatment of, and the obligations toward, indigenous peoples and individuals.  It is a non-binding instrument, meaning that countries are not, strictly speaking, legally bound to recognize the rights in the Declaration by reason of the Declaration alone. Nevertheless, it is an official statement by most member countries of the United Nations that these are the legal rights of indigenous peoples in international law.  This gives the Declaration considerable political and moral force.

To be clear, however, the Declaration does have legal significance.  It states legal principles and legal rights, some of which are already a part of binding international human rights law.  Nevertheless, a country is not legally bound by the provisions of the Declaration merely because it voted for or endorsed the Declaration.