Pax Plena

Tag: Native Americans

  • Why I Love America

    American flagA prominent Native American law blog I follow posted a tongue-in-cheek message to Americans celebrating the Fourth of July. The headline declared:

    Happy Fourth from the Merciless Indian Savages

    [Link]

    For the confused, the headlined referenced a brief passage from the Declaration of Independence, listing the offenses of King George III. The excerpt appears in full below:

    He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

    It’s true that the United States has had a violent relationship with American Indians. From an abject policy of destruction and relocation hailing from the early years of the Jackson Administration, to a policy of systemic termination of tribal governments, I suppose if any group in America has a grievance against the government we celebrate today, it would be my people, the Native Americans.

    The point is not to measure effronteries, but I can understand the purpose in the making the statement. The simple fact is that America is neither a perfect angel, nor an evil villain as the social extremes would suggest.

    The best description we can give America is that we are a wonderful, complicated, dysfunctional family.

    Think about our family tree. We have Bible-beating aunts from the midwest. We have uncles that drink too much from the south. We have mothers and fathers who don’t speak to each other anymore (but refuse to divorce for tax reasons) in the northeast. And we have lazy cousins who would rather be professional students than get a real job from the west.

    But even the most dysfunctional of families has to come together every now and again.

    So, we have an annual probate meeting to discuss the estate of our late Uncle Sam. Each family sends its delegates to the meeting down in Washington, D.C. where they take in the sights, and pretend to be very busy. Being a family meeting, however, you can imagine how little they actually get done. In fact, they spend most of their time yelling at each other, drinking, and having the odd sex scandal. The end result is the occasional bastard child, and the need for years of therapy.

    But sometimes we really do come together, and get important, things, done. This doesn’t happen often, but it does happen on occasion. And when it does happen, we’re a stronger family for it. That is until the next time Uncle John gets drunk watching Nascar, and mocks Cousin James for his vegan lifestyle in San Francisco. Then we have a family World War III and Grandma and Grandpa have to step in and settle things down.

    And that’s why I love America really. We behave just like a family, only on a bigger scale. And even while we may loathe our cousins for being self-righteous, at the end of the day, we would miss them if they weren’t around anymore.

    America’s greatness isn’t the moral high-ground we sometimes claim. And our weakness isn’t that we drive trucks instead of hybrids. America’s greatness is that we manage, somehow, to get along. Mostly.

  • 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.

    [Link]

    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.

    – Posted using BlogPress from my iPad