Realism and The U.N. Declaration on the Rights of Indigenous Peoples

Much hay was made late last week when the United States endorsed the 2007 United Nations’ Declaration on the Rights of Indigenous Peoples, or the UNDRIP.


But as one friend put it, the Declaration is little more than a “non-binding gesture of goodwill,” for my money, not unlike a Christmas card. And in fact, the Christmas cards you receive this month may have more meaning behind them.

Many tribal interests have lauded the Obama Administration’s decision to endorse the instrument, but the functional difference the endorsement makes for indigenous rights in the United States is anyone’s guess.

Realistically, the Declaration does precious little to alter the domestic policy of nations’ toward their indigenous populations. Nothing in the UNDRIP, for example, requires that nations consult with indigenous peoples prior to making decisions on issues affecting them. Article 19 of the Declaration provides:

Article 19

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

While the language of the Article reads like a robust mandate, the Declaration is actually non-binding on signatory governments. The actual language from the Declaration’s Preamble merely “encourages” states to comply with the instrument’s provisions. This, of course, means that signatory parities are free to disregard the Declaration so long as they make a good faith effort to implement its aspirations.

To be fair, this criticism is not specific to the UNDRIP. The problem of weak mandates is endemic to many areas of international law, even where the instruments in question are actually said to be binding on the signatory parties. Consider the matter of Dann v. U.S..

There, the Dann sisters routinely grazed their cattle on public lands that were once part of the Western Shoshone Reservation. When the U.S. Government slapped a fine on the sisters for grazing without a permit, the Danns claimed that the lands were part of their ancestral territory, and that the fine violated their indigenous human rights. Naturally, the matter was litigated in the U.S. Courts where the Danns lost at every level, including the United States Supreme Court.

Having exhausted their domestic remedies, the Danns brought their petition before the Inter-American Commission on Human Rights which issued a sweeping finding of violation against the U.S. Government.

While the matter might seem like a win in any domestic court in the world, in international law the outcome was quite the contrary. In response to the IACHR opinion, the U.S. Government flatly ignored the Commission’s ruling, seized the Danns cattle, and dismissed the entire proceeding as the misguided effort of two Indians to upset the settled expectations of tribal property law.

Note carefully, that this was the outcome litigated under an international law instrument that is said to be ‘binding’ upon the signatory parties. If a binding instrument produces such incongruous results, the long-term viability of a non-binding instrument is a legitimate concern for advocates seeking to affirm rights on behalf of indigenous peoples under the Declaration.

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