Indigenous Peoples & the U. N Indigenous Peoples & the U.N. Declaration on the Rights of Indigenous Peoples Melody Kapilialoha MacKenzie Ka Huli Ao Center for Native Hawaiian Law William S. Richardson School of Law University of Hawai’i at Mānoa

Who Are Indigenous Peoples? Non-dominant peoples who lost traditional ownership and power over their lands as part of the colonization process; Have historical continuity with the inhabitants of the same land prior to its invasion or colonization by a foreign power; Are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems. Worldwide, 370 million indigenous peoples in at least seventy countries

U.N. Declaration Adopted by U.N. General Assembly on September 13, 2007 with 143 countries voting in favor; 11 countries abstained Four countries – Australia, New Zealand, Canada, and the U.S. – voted against, but have all changed their positions since then. Dec. 16, 2010, US. last country to change position Process – announcement by State Dept. that U.S. was reviewing its position; months of consultation and comments

Declaration Not legally binding in international arena or in U.S. – not a treaty or covenant that would be binding for the U.S. Aspirational in nature but provides the basis for norms that all nations should adopt General agreement by so many nations can lead to these precepts becoming international consensus and thus “customary” international law, which has been recognized even in U.S. courts as “binding.”

Peoples Declaration recognizes the world’s indigenous peoples as “peoples” under international law, with the same human rights and freedoms as other “peoples.” “Peoples” have the right of self-determination in international law; “peoples” are those groups understood to be under alien, colonial, and racist domination and subjugation – historically only those in the classic colonial setting were “peoples” entitled to the right of self-determination.

Rights Begins with long preamble setting forth the context for the Declaration Encompasses a wide range of basic human rights and fundamental freedoms Article 1 & 2 – Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms recognized by UN Charter & Universal Declaration of Human Rights; free and equal with all other peoples and right to be free from any kind of discrimination.

Self-Determination Article 3 Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Self-Determination Article 4 - Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. Article 5 – Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

‘Āina - Land Article 10 - Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return. Article 25 - Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

‘Āina – Art. 26 Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.  Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

‘Āina – Art. 30 Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities.

Caveats Article 4 – Indigenous peoples have the right to autonomy or self-government in matters relating to their internal and local affairs Article 30 - Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest . . . Prior version stated, “unless justified by a significant threat to a relevant public interest." Article 46 - 1. Nothing in this Declaration may be . . . construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

Navajo Code Talkers

U.S. Interpretation “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. The purpose of the Declaration was not to change or define the existing right of self-determination under international law.” “Further, as explained in Article 46, the Declaration does not imply any right to take any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”

U.S. Interpretation 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.” Important statements throughout declaration requiring “free, prior and informed consent” of indigenous peoples – “the United States understands [these provisions] 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.”