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
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.
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.
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.