The U.N. Declaration on the Rights of Indigenous Peoples: Part I
By Melody Kapilialoha MacKenzie, Professor of Law and Founding Director
Recently, I had the honor of co-teaching a class on Comparative Indigenous Rights with Walter Echo-Hawk, the Spring 2018 Dan & Maggie Inouye Distinguished Chair in Democratic Ideals. Walter has more than forty years of experience as an attorney asserting and defending the rights of native nations and tribes, and as a scholar and author. One thing that struck me was Walter’s optimism that the racist colonial doctrines that underpin the United States’ relations with Indigenous peoples could be changed over time to reflect the principles embodied in the U.N. Declaration on the Rights of Indigenous Peoples. G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007). Indeed, Walter’s 2013 book, In the Light of Justice, examines both the best and worst aspects of Federal Indian Law and details how many of the holdings of the U.S. Supreme Court on native peoples do not comport with the basic human rights principles set forth in the Declaration. Walter urged those working on behalf of Indigenous peoples to continue to raise the principles set out in the U.N. Declaration in every possible forum – before courts, tribunals, legislatures, and the executive, and on a county, state, federal, and international level.
The Declaration was adopted by the U.N. General Assembly in September 2007, after decades of negotiations between Indigenous peoples, U.N. Member States, and human rights organizations. Support was not unanimous: eleven states abstained and four states––Australia, Canada, New Zealand, and the United States––voted against the Declaration. All of these states have changed their positions, with the U.S. as the last to express support for the Declaration.
Victoria Tauli-Corpuz, the Chair of the U.N. Permanent Forum on Indigenous Peoples, hailed the passage of the Declaration, acknowledged the long struggle to draft and negotiate the document, and observed that it was the only U.N. declaration “drafted with the rights-holders, themselves, the Indigenous Peoples.”
Under international law, a U.N. General Assembly declaration is not legally binding. Nonetheless, as Law Professor S. James Anaya notes, U.N. declarations “emanate from the most representative political organ of the world body and are typically grounded in well-established principles of world order or human rights.” Moreover, the Declaration “undoubtedly represents widespread consensus on the rights of indigenous peoples and a certain level of global expectation that those rights will be upheld, at least in regard to its core provisions.” Thus, the Declaration, although not legally binding, reflects generally accepted principles of international law that are so fundamental that they may be deemed customary. This is supported by the specific language of Article 43 of the Declaration affirming that the rights it contains “constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.” (Emphasis added.)
The Declaration builds upon human rights principles by recognizing a wide range of basic human rights and fundamental freedoms are applicable to Indigenous peoples. Among these are the right to self-determination and the right of Indigenous peoples to freely determine their political status; an inalienable collective right to the ownership, use and control of lands, territories and other natural resources; and the right to maintain and develop political, religious, cultural and educational institutions along with the protection of cultural and intellectual property. Decl., arts. 3–5, 10, 25–27, 11–13.
The Declaration highlights the requirement for free, prior and informed consultation, as well as participation and consent in activities that impact on Indigenous peoples, their property or territories. Decl., arts. 10, 11, 19, 29. It requires fair and adequate compensation for violation of the rights recognized in the Declaration and establishes guarantees against genocide. Decl., arts. 10, 28, 2. The Declaration also provides for fair and mutually acceptable procedures to resolve conflicts between Indigenous peoples and States, including international and regional mechanisms for examining human rights violations. Decl., arts 38-41.
For Native Hawaiians, all of the Declarations provisions are important but several provisions are of particular significance. These provisions relate to self-determination, a basic right of all peoples, and to ʻāina, the lands and territories of Indigenous peoples. This column examines the Declarations’ provisions on self-determination while the provisions on ʻāina, as well as efforts to implement the Declaration, will be explored in the next issue of Ka Moaʻe.
The Right of Self-Determination
The Declaration makes clear that the right of self-determination, which is a collective political right of peoples, is applicable to Indigenous peoples. Article 3 of the Declaration 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.
Robert T. Coulter, native rights advocate and author of Native Land Law (2014), notes that self-determination emerged as a political concept after World War I and has been “intensely political and controversial, . . . [with] varied meanings depending on the circumstances.” As a general proposition, “self-determination [means] that the people of a country or territory should be able to decide on their own government and, if the boundaries of countries are to change, then the people concerned should be able to choose what country they will be part of. This concept includes the principle of independence or freedom for colonial territories and their peoples.”
In the Declaration, however, Article 4 appears to restrict the right to self-determination by stating that “[i]ndigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs.” (Emphasis added). Moreover, Article 46 of the Declaration also provides that “[n]othing in this Declaration may be interpreted as implying . . . or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”
Although the right to self-determination appears to be limited in the Declaration, and assuredly that is how States will interpret it, Indigenous peoples’ advocates contend that such an interpretation is at odds with international law principles. International law generally takes no position––either positive or negative––on cession. Moreover, the Declaration was signed by States, not Indigenous peoples. Thus, as Julian Aguon details in his chapter on international law in Native Hawaiian Law: A Treatise (2015), some advocates have proposed that Indigenous peoples may choose to selectively support and advance provisions of the Declaration. This selective support and advancement of provisions of the Declaration recognizes that in the final negotiations on the Declaration, Indigenous peoples were allowed only to be consultants and not actual negotiators and did not support language that obfuscated the right to self-determination.
The U.S. Interpretation
The December 2010 announcement that the U.S. had changed its position on the Declaration noted that while the Declaration is not legally binding, it has “moral and political force.” Moreover, the announcement acknowledged that the Declaration “expresses aspirations of the United States, aspirations that this country seeks to achieve within the structure of the U.S. Constitution, laws, and international obligations, while also seeking, where appropriate, to improve our laws and policies.”
Significantly, in discussing the right of self-determination, the U.S. construed the Declaration as promoting the development of a “new and distinct international concept of self-determination specific to indigenous peoples,” which is “different from the existing right of self-determination in international law.” (Emphasis added.) The U.S. also specifically cited Article 46 of the Declaration, which seeks to guarantee the territorial integrity and political unity of “sovereign and independent states.” Not surprisingly then, from the U.S. perspective, the right of self-determination articulated in the Declaration is a limited form of self-determination, one “consistent with the United States’ existing recognition of, and relationship with, federally recognized tribes as political entities that have inherent sovereign powers of self-governance.”
The passage of the U.N. Declaration on the Rights of Indigenous Peoples was a major victory for native peoples world-wide. It was not a total victory, however, as seen in how the U.S. and other States have attempted to limit the right of self-determination. Nevertheless, as Walter Echo-Hawk has suggested, all Indigenous peoples, including Native Hawaiians, must continue to engage in the human rights work affecting Indigenous peoples internationally with a view to changing the underlying racist doctrines that have resulted in the genocide, the theft of Indigenous lands, and the suppression of Indigenous languages and cultures.
Native Hawaiians must continue to advocate locally, nationally, and internationally for self-determination and sovereignty. Whether within a fully independent Native Hawaiian nation or within the United States polity, Native Hawaiians are Indigenous peoples and the protections set forth in the U.N. Declaration must be fully implemented to ensure the protection of Native Hawaiian lands, resources, and culture.