Customary & Constitution Indigenous Government

Much has been said and written about the parts of the UN Declaration on the Rights of Indigenous Peoples that call for states’ governments to conduct relations with Indigenous peoples within a framework of “free, prior and informed consent.”  The United States Government, after “endorsing” the declaration described the UN Declaration as “aspirational” and then the Obama Administration went on to indicate that it did not endorse the “free, prior and informed consent” clause. The suggestions was that the US government saw this as a “veto” that could be exercised by indigenous peoples.To this I suggested in this space after US endorsement that the US was practicing a “double edged sword” by essentially saying, “yes” but “no.”

I have had some time to think about this ambiguous posture and have concluded that the US government is fearful that indigenous nations will exercise the “free, prior and informed consent” principle to veto corporate development in indigenous territories.  Indeed, I conclude, that is very likely and the US government’s fear is well founded since much of the corporate development occurring in indigenous peoples’ territories tends to destroy, expel toxins, cause human trauma and misery with no benefits to the indigenous peoples themselves. Shell Oil Company’s activities in the delta of Nigeria is a fine example of such destruction not to mention mining companies in West Papua, and nuclear waste in Yakama ceded territory and Western Shoshone territory.

But, as anyone with a good sense of mature balance will recognize, the US government’s apparent interest in protecting corporations and their assets from often very small tribal populations tends to violate the very principles contained in the UN Declaration on Human Rights, the UN Declaration on the Rights of Indigenous Peoples and in some instances the Geneva Accords and the Helsinki Final Act–all of which have had the benefit of US endorsement and signatures on the international plane.

The US government announced through the smiling face of President Ronald Reagan in 1983 that it affirmed its “government-to-government” relationship with Indian nations, Alaskan Natives and Hawaiian Natives.  That admission came after tribal authorities discovered that the United States had confirmed its official commitment to this principle in the Helsinki Accords of 1975.  The US government dutifully reported on its treatment of Indian peoples and nations to the Commission on Security and Cooperation in Europe as a responsibility under the Helsinki Accords. In other words, the US government since 1975 has had a policy to conduct relations with Indian Nations on a government-to-government basis (hidden in the folds of an obscure international Accord concluded to end World War II and demarcate spheres of influence in Europe between the United States and the Union of Soviet Socialist Republics and then publicly announced in 1983) with affirmations of that policy by Bush 1, Clinton, Bush 2 and Obama.  In other words, the US government is publicly opposing in the UN Declaration the principle of free-prior and informed consent while at the same time telling the world that it is conducting relations with Indian nations on a government-to-government basis, recognizing their sovereignty and promoting their self-determination.

Seventy-two Indian nations and Alaskan Native nations signed on to a “joint statement” submitted to the 12th Session of the UN Permanent Forum on Indigenous Issues (28 May, 2013) calling for a permanent position in the UN body to facilitate ongoing dialogue and discussions of international policy.  How that would be organized I certainly don’t know at the moment, but it is plain that indigenous customary and constitutional governments are no willing to sit back and wait for the United States government and other government to untangle their contradictory policies.  These governments have opened a new level of dialogue that depends on the international community and not the whims of a single state.

In time the United States government will commence formal framework discussions with constitutional and customary governments of  Indian nations that will by definition be “government-to-government” in nature and the principle of free, prior and informed consent will become an inherent part of that process.