January 01, 2011

Modoc Nation rips UN declaration

Recently conservatives have had fun concocting a new racist smear campaign against Obama and liberals have had fun mocking them. Now let's return to the actual UN Declaration on the Rights of Indigenous Peoples and see how harmless it really is. Here's part of a press release from the 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 UsualU.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.
And:US endorsement ignores UNDRIP’s obligation of nation-states to honor their treaties with indigenous peoples

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.
Comment:  As Wikipedia notes about the Modoc:The Modoc are a Native American people who originally lived in the area which is now northeastern California and central Southern Oregon. They are currently divided between Oregon and Oklahoma. The latter are a federally recognized tribe, the Modoc Tribe of Oklahoma. The Oregon Modoc are enrolled in the federally recognized Klamath Tribes.So the Modoc Nation is an unrecognized tribe, which is why it spends time bemoaning the administration's focus on recognized tribes. But still, this is a great critique.

I think the second point is the telling one. How do you "endorse" or "support" indigenous rights without explicitly stating you'll honor the treaties you signed?

That's why I have to shake my head at those who think this "aspirational" document will move Natives closer to a just world. One, it has zero legal force; it's not binding on the US, future administrations, or Obama himself. Two, the white paper offers no significant discussions of tribal sovereignty, treaty rights, or government-to-government relations. So tribes are "aspiring" to nothing except the status quo.

For more on the subject, see UN Declaration = Status Quo and What Supporting the UN Declaration Means.


Two Eagles, Kokiwas Band, Modoc Nation said...

Great post, but I would like to clear up the erroneous statement that the Modoc Nation is not a federally recognized tribe.

The Modoc Nation is a name change for the Modoc Tribe, which, until June 19, 2010 was one of three tribes in a confederation known as the Klamath Tribes (plural). On that date, the Modoc People ratified a modern constitution, elected their own government, and issued a declaration dissolving all allegiance and political ties to the Klamath tribal government. In other words, they exercised their sovereign right to change their government and political affiliation. (see www.modoc-nation.org)

Federal recognition of the Modoc Tribe (Nation) began with the Lakes Treaty of 1864, continued until the Termination Act of 1954, and was restored by an act of Congress in 1986. The Federal Register listing of recognized tribes lists the "Klamath Tribes" (plural) and includes the Modoc Tribe and Yahooskin Band of Snake Indians.

So the Modoc Nation (formerly Tribe) is, indeed, a federally recognized tribe. Any arguments to the contrary are based on assumptions or complex legal theories that would have to be proven in court.

Rob said...

I see the Klamath Tribes and the Modoc Tribe of Oklahoma in the Federal Register (below). I don't see the Yahooskin Band of Snake Indians or any other Modoc Nation or Tribe.


I'm pretty sure the federal government recognizes the Klamath Tribes as a single entity. That doesn't mean it recognizes each of the component tribes also. I believe they're recognized only as part of the whole.

Exercising your rights and declaring your independence doesn't necessarily mean the feds recognize these things. Where exactly is the Modoc Nation listed as an entity separate from the Klamath Tribes? Which government programs for federally recognized tribes does the Modoc Nation participate in? Etc.

Until I see hard evidence, not just legal rhetoric, I'll continue to stand by my assertion. As far as I know, the Modoc Nation of Washington (?) isn't a federally recognized tribe.