For Immediate Release
December 30: Issaquah, Washington
Analysis and Commentary by Two Eagles (Perry Chesnut)
Secretary of State, Modoc Nation
State Department White Paper Contradicts Obama’s Statements at Tribal Nations Conference –
Shows U.S. Endorsement of UNDRIP Really Means Politics and Business as Usual
On December 16, 2010, President Obama met with more than 300 tribal leaders at Blair House for the second White House Tribal Nations Conference. In his opening remarks (transcript issued by the White House Office of the Press Secretary), the President surprised almost everyone by announcing that the United States is changing the position it has held since September of 2007 concerning the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) – from a position of outright rejection to a position of “lending its support to this declaration.” The President’s announcement was met with tremendous applause. Camera flashes filled the room, and hundreds of participants captured the moment by video on their cell phones.
It is worthwhile to read the actual words the President spoke just following this announcement, worthwhile because they raised the hopes and aspirations of not only the conference participants but also all Native Americans who have heard or seen the media reports that the U.S. has changed its position and will now support UNDRIP. But sadly, as I shall point out below, the President’s promises and platitudes may turn out to be nothing more than just empty talk. First, the President’s words from the point at which he announced support for UNDRIP:
“And as you know, in April, we announced that we were reviewing our position on the U.N. Declaration on the Rights of Indigenous Peoples. And today I can announce that the United States is lending its support to this declaration. (Applause.)
The aspirations it affirms -- including the respect for the institutions and rich cultures of Native peoples -- are one we must always seek to fulfill. And we’re releasing a more detailed statement about U.S. support for the declaration and our ongoing work in Indian Country. But I want to be clear: What matters far more than words -- what matters far more than any resolution or declaration -– are actions to match those words. And that’s what this conference is about. (Applause.) That’s what this conference is about. That’s the standard I expect my administration to be held to.
So we’re making progress. We’re moving forward. And what I hope is that we are seeing a turning point in the relationship between our nations. The truth is, for a long time, Native Americans were implicitly told that they had a choice to make. By virtue of the longstanding failure to tackle wrenching problems in Indian Country, it seemed as though you had to either abandon your heritage or accept a lesser lot in life; that there was no way to be a successful part of America and a proud Native American.
But we know this is a false choice. To accept it is to believe that we can’t and won’t do better. And I don’t accept that. I know there is not a single person in this room who accepts that either. We know that, ultimately, this is not just a matter of legislation, not just a matter of policy. It’s a matter of whether we’re going to live up to our basic values. It’s a matter of upholding an ideal that has always defined who we are as Americans. E pluribus unum. Out of many, one.
That’s why we’re here. That’s what we’re called to do. And I’m confident that if we keep up our efforts, that if we continue to work together, that we will live up to the simple motto and we will achieve a brighter future for the First Americans and for all Americans.”
President Obama wants to be clear: “What matters far more than words . . . are actions to match those words,” and action is the standard to which he expects his administration to be held. He derides the “false choice” that previous administrations have given Native Americans - that “you either had to abandon your heritage or accept a lesser lot in life,” and he rejects outright the basis of that false choice – the belief “that we can’t and won’t do better.” In perhaps the finest words of all he said: “We know that, ultimately, this is not just a matter of legislation, not just a matter of policy. It’s a matter of whether we’re going to live up to our basic values. It’s a matter of upholding an ideal that has always defined who we are as Americans. E pluribus unum. Out of many, one.”
The problem with the motto “Out of many, one” is that it reminds indigenous peoples of the dark and unrelenting history of eradication that has been the policy (at times stated but mostly unstated) of the United States concerning the indigenous peoples who inhabited this land for millennia before there even was a United States. The motto reminds us of genocide, at first by slaughter and, continuing even today, by assimilation. Of course, the President did not have this in mind when he said it; he meant it in the most positive sense.
However, within hours of the President’s remarks, the U.S. State Department issued its 15-page white paper titled “Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples - Initiatives to Promote the Government-to-Government Relationship & Improve the Lives of Indigenous Peoples.” (see attached .pdf file if the following link does not work U.S. State Department’s statement about U.S. support for UNDRIP) This document, not the President’s fine words, reflect the real position of the United States on the extent to which it has changed its position on and is willing to support UNDRIP. And folks, it isn’t good. It is so cleverly written that one commentator (Rudolph Ryser, writing for the Fourth World Eye, a publication of the Center for World Indigenous Studies) referred to it as “verbal sleight of hand.”
Let’s take a look at how the U.S. State Department, indeed, the entire Executive Branch of government, intends to “support” UNDRIP by lip service alone.
U.S. State Department position: UNDRIP unnecessary to protect rights of Native Americans
The white paper issued by the State Department fleshing out the details of the U.S. endorsement of UNDRIP is really quite disappointing. Largely a laundry list of everything the federal government has done for the indigenous people of this country over the last two years, its primary message can be boiled down to: “We’re already doing all these wonderful things to help out the native peoples that live in our country, so U.S. endorsement of UNDRIP is unnecessary. But since we want to continue in our role as the leader of the free world, and the United States always stands up for what is right, we’ll go ahead and endorse it anyway.” This conclusion is all but confirmed when one reads the fine print of the article and finds that the United States government’s application and implementation of UNDRIP will be limited largely to already existing federally recognized tribes and be carried out within the framework of existing US and state law. In other words, even though the United States is “endorsing” UNDRIP, it sees no need to alter any of its laws or policies pertaining to the indigenous peoples within its national boundaries and jurisdiction. In fact, the State Department says the United States should serve as a “model” to the rest of the world in this regard.
Application of UNDRIP will not include all indigenous peoples but be limited to members of “federally recognized tribes”
The language of UNDRIP refers to indigenous peoples, not “tribes” and especially not “federally recognized” tribes. The very use of these terms greatly narrows the scope of the United States’ endorsement of UNDRIP, perhaps leaving out more indigenous people than it includes. The whole point of UNDRIP and the thirty years of work put in by thousands of indigenous people from around the world that resulted in UNDRIP was to have nation-states acknowledge the inadequacies of their existing laws and policies with respect to their indigenous populations and to set out a framework of principles upon which changes to those existing laws and policies should be based. It is this acknowledgment and change that UNDRIP seeks to achieve in order to protect the rights of indigenous peoples around the world.
While the Administration claims that it will support UNDRIP, there are three major foundational concepts that the State Department claims to support, but when the language in which they are discussed is closely examined, the United States’ support turns out to be verbal “sleight of hand” in which the three concepts are really rejected. First is the right of indigenous peoples to freely determine their political status; second is the right of indigenous peoples to have their treaties with the Federal and state governments recognized and honored; and third is the right of “free, prior and informed consent.”
US endorsement rejects UNDRIP’s right of indigenous peoples to “freely determine their political status”
With respect to this all important element of the right to self-determination, the State Department states:
“The United States is therefore pleased to support the Declaration’s call to promote the development of a new and distinct international concept of self-determination specific to indigenous peoples. The Declaration’s call is to promote the development of a concept of self-determination for indigenous peoples that is different from the existing right of self-determination in international law.” (emphasis added)
This language is a complete misstatement of UNDRIP’s position on the concept of self-determination. There simply is no language or provision in UNDRIP that can be interpreted as calling for the development of a “new and distinct international concept of self determination specific to indigenous peoples.” Not only does UNDRIP not promote the development of a concept of self-determination for indigenous peoples that is different from the existing right of self-determination in international law, it actually seeks to encourage nation-states to adhere to the concept of self determination under international law when dealing with indigenous peoples. The sixteenth perambulatory clause of UNDRIP reads as follows:
“Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights as well as the Vienna Declaration and Programme of Action, affirm the fundamental importance of the right to self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development,” (emphasis added)
And yet, the State Department goes on to state:
“For the United States, the Declaration’s concept of self-determination is 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.”
Stated quite simply, the United States will continue to deny indigenous peoples within its national boundaries the right to “freely determine their political status.” Their political status will be determined by the United States government, and, furthermore, the State Department has the arrogance to assert that this policy is consistent with UNDRIP’s concept of self-determination. On December 18, 2010, Rudolph Ryser, writing for the Fourth World Eye, a publication of the Center for World Indigenous Studies, described the position of the United States on this issue very well:
“The US government has held fast to the idea that the right to choose one’s political status must be limited for indigenous peoples. Indigenous peoples domestically and presumably internationally must be held in perpetual tutelage under the control of each states’ government–even if a state government demands fealty through force of violence. . . Freely choosing a political status is the most basic of concepts built into the principle of self-determination. Without that right, there is no “self-determination.” The US position is to essentially nullify the right of indigenous peoples to freely make decisions about how they will organize as a political community.” (http://cwis.org/publications/FWE/2010/12/18/us-government-on-undrip-yes-but-no/ accessed 12-27-2010)
US endorsement ignores UNDRIP’s obligation of nation-states to honor their treaties with indigenous peoples
One of the most galling aspects of the 200-year relationship between the United States and the native nations, tribes and bands it continues to dominate is the long and continuing practice of the U.S. government in breaching or simply ignoring the many treaties it has signed with Native American peoples. UNDRIP addresses this directly in its 8th, 14th and 15th perambulatory paragraphs and sets forth the right in Article 37:
“Article 37
1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.”
Incredibly, this critical issue is not even discussed in the State Department’s white paper. In fact the word “treaties” appears only twice, both times in the same paragraph, in which the State Department lauds the National Oceanographic and Atmospheric Administration (NOAA) for consulting with “Northwest treaty tribes” regarding the designation of critical habitat and with four other unnamed tribes regarding their “ocean treaty fishing rights for groundfish in conjunction with the Pacific Fishery Management Council process.” While we all are grateful for the rare occasions in which the U.S. government “consults” with us, it is laughable that the Obama Administration has announced its “support” of UNDRIP without even addressing the issue of honoring treaties, one of the bedrock elements of UNDRIP. Apparently, this Administration, like its predecessors, continues to view treaties with native nations, tribes and bands as documents that have no real force of law and, therefore, are subject to being breached or abrogated whenever it is convenient for the U.S. government to do so. In fact, the Supreme Court enshrined this practice and made it “legal” when it invented by interpretation the “plenary powers of Congress” doctrine (see Lone Wolf v. Hitchcock, 187 U.S. 553, 23. S. Ct. 216, 47 L. Ed. 299 (1903)). So, we now see that this Administration plans to make no change with respect to its recognition, observance or enforcement of treaties it has struck with indigenous peoples. Rather than come right out and say that, however, the State Department has just ignored the issue entirely.
US endorsement rejects UNDRIP’s right of indigenous peoples to “free, prior and informed consent”
Articles 10, 11, 19, 28 and 32 of UNDRIP require that before certain actions are taken by the federal, state or local governments that would affect indigenous peoples, their lands or resources, traditional way of life, or other cultural or spiritual values or concerns, the government must obtain such a people’s “free, prior and informed consent.” This means before starting work on any project, or even in some instances removing indigenous people from their lands to another location, the government must inform and consult with the leaders of the affected native nation, tribe or band, in good faith and without any elements of coercion, and obtain their consent. No consent, no project – it’s as simple as that. However, here is what the State Department says about the endorsement and implementation of this right in UNDRIP:
“In this regard, the United States recognizes the significance of the Declaration’s provisions on free, prior and informed consent, which the United States understands to call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders, before the actions addressed in those consultations are taken.” (emphasis added)
As stated by Rudolf Ryser (cited above): “In other words, the United States may dictate actions and policies that affect the lives and property of indigenous peoples without their consent, but they may be informed. That is a position utterly inconsistent with the concept of “free, prior and informed consent.”
Summary: The U.S. endorsement of UNDRIP means “business as usual” for Native Americans
The bottom line result of the Obama Administration’s so-called “change” in position is really no change at all. At best, it is a “conditional” endorsement of UNDRIP, one which essentially allows the United States to ignore any provision of UNDRIP under any circumstance which would require a substantive change in US law or policy. Its greatest achievement does not benefit the indigenous peoples of the United States. Rather, it allows the United States to come in from the cold spotlight under which it has shivered since September 2007 as the last of the four pariah nations to have opposed UNDRIP without having to commit to changing any of its laws or policies that are detrimental to the indigenous peoples that live within its borders. At best, the Administration’s “change in position” allowing the United States to endorse UNDRIP entirely misses the point. At worst, it is a cynical move in the game of international politics that signifies nothing for the indigenous peoples of this country but “business as usual.”
As always, the burden of bringing about real change, “change you can believe in” will fall upon the native nations, tribes and bands of this country. No messianic figure, much less President Obama, is going to announce legislative and policy changes that will restore or secure the federal government’s recognition of our sovereignty and our concomitant right to freely determine our political status and freely pursue our economic, social and cultural development. If we want a brighter future for us and our children, a future filled with freedom to choose and opportunity to achieve, we shall have to seize it with our own hands. It will not be given to us. We shall have to do the hard work over the long haul.
Two Eagles (Perry Chesnut)
Secretary of State, Modoc Nation
P.O. Box 2232
Issaquah, WA 98027-0100
425-770-7345 begin_of_the_skype_highlighting 425-770-7345 end_of_the_skype_highlighting pchesnut@indigenous-rights.org
A Note on the Modoc Nation’s interest in and work done with respect to UNDRIP
On November 20, 2008, the Modoc People issued its Declaration of the Rights of the Free and Sovereign People of the Modoc Indian Tribe (Mowatocknie Maklaksûm), the first and, to our knowledge, still the only such declaration modeled on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) to be issued by any native nation, tribe or band in North America. In the exercise of these rights, we came together as a unique indigenous people and tribe in the Lava Beds National Monument on June 19th 2010 and unanimously ratified our first modern constitution and elected our initial government. On July 15, 2010, in response to the U.S. State Department’s call for consultations with federally recognized Indian tribes, our new government sent Hillary Clinton, the U.S. Secretary of State, the response of the Modoc People. In this response, we summarized the history of the Modoc People’s relationship with the despotic and corrupt Klamath Tribal government and why that 146-year history of our subjugation and abuse has led to our decision to dissolve all political allegiance and ties to the government of the Klamath Tribes. We stated that unless the United States changed its position on whether to endorse UNDRIP, the Modoc Nation and People’s struggle for self-determination through self-government would be considerably more difficult. We concluded by stating, “… the Modoc people, organized as the Modoc Nation (formerly Modoc Tribe), hereby respectfully request that the United States government reverse its position on UNDRIP and adopt its provisions without limitation or modification.” (emphasis added)
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