Robert T. Coulter*
It has been just a year since President Obama announced the Administration’s support for the UN Declaration on the Rights of Indigenous Peoples and promised action to implement at least some of those rights. Across the country, tribal governments are seizing the Declaration and using it creatively to protect their lands and resources, and especially their rights to cultural and sacred sites.
For example, the Navajo Nation has used the Declaration in its efforts to protect the San Francisco Peaks, and the Seneca Nation has pointed out Article 37 (“Indigenous peoples have the right to the recognition, observance and enforcement of treaties”) in its efforts to resolve a 60-year occupation of Seneca territory by the New York State Thruway that violates the 1794 Treaty of Canandaigua.
Not surprisingly, other Indian and Alaska Native nations are using the Declaration to seek changes in federal laws and regulations, re-establish tribal jurisdiction to address violence against Native women and other crimes, regain control over Native lands and resources, and promote economic development.
The President and Interior Department officials have repeatedly pledged to consult with tribes about measures to implement the Declaration and protect the rights it proclaims. In response to this much-needed opportunity, tribes have reportedly made more requests for consultations than the Administration has been able to meet. This failure to meet the calls for consultation is disappointing, but the determination of tribes to use the Declaration and seek changes in federal laws, regulations, and practices is great news. At the urging of a number of Indian nations, the National Congress of American Indians (NCAI) asked the President last summer to appoint a Commission to develop recommendations and a plan of action for putting the Declaration into effect. At the Tribal Nations Conference hosted by President Obama earlier this month, tribal leaders repeatedly called for federal action to recognize or re-affirm the major rights in the Declaration, especially the rights of self-determination and jurisdiction over tribal lands, treaty rights, and rights to sacred sites, to name a few.
The federal government’s response to tribes has been positive but not nearly enough. Very recently, the Interior Department proposed new regulations to reduce the impediments to leasing certain tribal lands, with the intention of supporting self-determination and economic development. The Department also instituted a new policy concerning consultations with tribes. But the Interior Department’s own plans for implementing the Declaration have not been revealed, and the promised consultations with tribes about how the Department will implement the Declaration have not begun. NCAI’s proposal for a Commission has not been answered so far as we know. That proposal deserves a positive response.
The President this month also appointed an Indian Trust Reform Commission with the task of evaluating the Interior Department’s trust management. This Commission of respected and well-qualified Indian leaders is arguably a step toward implementing the Declaration, but it merely calls for study and recommendations rather than concrete action or change. The President did issue an Executive Order on Indian and Alaska Native Education and Tribal Colleges and Universities, which will hopefully implement aspects of the Declaration.
Apart from these small steps, virtually nothing has been done to change the actual functioning and activities of the Interior Department, the Justice Department, and other federal departments and agencies that have such a great impact in Indian Country. Practically all the problems, abuses, and inadequacies of the past continue today.
Obviously, tribes want to see real, concrete changes in federal laws, regulations, and policies – changes that will improve the lives of their citizens or members and assure the well-being of each tribe or nation. It is going to take a strong, national campaign by tribes to get serious, concrete changes made. Tribes will need to come together behind specific proposals for changes in administrative regulations and policies and for corrective legislation.
The UN Declaration is a very useful guide for what changes are necessary. It contains dozens upon dozens of rights covering nearly every conceivable topic. Tribes are studying these detailed provisions, making strategies, and deciding what changes are most important – what elements of the Declaration to implement first.
In order to see how the Declaration can be used to address the major concerns that tribes face, one must bore in and look closely at the details of the Declaration. For example, a top concern almost everywhere is environmentally safe and sustainable economic development. The Declaration contains many provisions that could help tribes to gain real control of their lands and resources and overcome some of the worst barriers to development in Indian Country. The provisions in the Declaration that acknowledge tribes’ rights to self-governance, to manage their own lands and resources, and to protect their subsistence economic activities, and that prohibit discrimination against tribes and their members, will all contribute to creating a positive climate for business, investment, and economic development in Indian Country. A number of important proposals for changing federal law to give tribes a fair chance for development have been drafted by the Indian Law Resource Center with the support of the Indian Land Tenure Foundation.
Another top priority is the protection and restoration of tribal governmental jurisdiction in order to increase the ability of tribes to prosper and survive, and especially to increase tribes’ ability to deal with the problem of violence against Native women. The UN Declaration contains more than 15 articles spelling out and protecting many aspects of tribal self-government and jurisdiction. These detailed provisions, along with the Administration’s support for them, could stop excessive interference and change the way the federal government deals with tribal governments. This could give tribal governments a greater chance for success and increase safety in all Native communities.
Treaty rights is another top priority for many tribes, and the Declaration contains remarkable and ground-breaking principles about Indian treaties. Article 37 provides that tribes “have the right to the recognition, observance and enforcement of treaties,” and Article 40 says that disputes that tribes have with countries about treaties or other matters must be resolved through just and fair procedures. Implementation of these articles would mark a very important change for tribes, many of whom are not able to enforce their treaty rights because of the limitations in present law.
The protection of and access to sacred sites is yet another set of issues often raised by tribes. The Declaration acknowledges that tribes have “the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.” These provisions call for serious changes in federal law and policy. In July, the Yocha Dehe Wintun Nation and the Cortina Band of Wintun Indians used the Declaration to successfully negotiate a cultural easement on a municipal park in California. The easement, which will be permanently associated with the park, allowed the tribes to cancel the construction of bathrooms on a sacred site, and to relocate and resize a planned new parking lot so that visitor traffic will be diverted from sacred sites.
My colleagues and I are preparing a series of articles to be published in the coming months that will look more closely at these elements of the Declaration and possible proposals for putting them into effect. In the meantime, further information and materials about the Declaration and what tribes can do to implement it are available through our website at www.indianlaw.org.
*Robert T. Coulter is Executive Director of the Indian Law Resource Center. He is a member of the Citizen Potawatomi Nation and has more than 30 years of experience in the field of Indian law.
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