Let me be a free man—free to travel, free to work, free to follow the religion of my forefathers, and I will obey every law or submit to the penalty.
-- Chief Joseph, Nez Perce.
Indigenous rights are never freely given—they must be demanded, wrested away, then vigilantly protected. That is the essence of freedom.
-- Walter Echo-Hawk, Pawnee.
INDIAN RIGHTS IN THE U.S. ARISE from a foundation fashioned in the 19th Century. Much of that foundation remains sound today and should be retained, especially the "inherent tribal sovereignty" doctrine of Worcester v. Georgia (1833) and its "protectorate framework" for protecting Indian nations that exist in the Republic as "domestic dependant nations." However, other foundational principles are embarrassingly outmoded and make Indian rights vulnerable. Those include the doctrines of discovery, conquest, and of unlimited Congressional power in Indian Affairs, as well as engrained legal fictions that deem Indians racially and culturally inferior. Rights that spring from that dark well are forever vulnerable, and invariably discriminatory.
A stronger, more just foundation for Indian rights is needed--one grounded in a modern world that rejected colonialism long ago. We must find justifications for Supreme Court decisions other than conquest, colonization, or racial superiority. The pivotal question becomes: What should the new foundation for Native rights be?
That new foundation is provided by precepts of the UNDRIP, listed in the preambular paragraphs at the beginning of this international instrument. The Indigenous rights guaranteed in the UNDRIP are founded upon values that spring from the human rights framework of contemporary international law. These UNDRIP principles allow us to reconceptualize the foundation for Native American rights in the United States:
* Equality: Indigenous peoples are "equal to all other peoples" and they "should be free from discrimination of any kind." Racism is rejected as an illegitimate source upon which to base Indian rights: "All doctrines, policies, and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemable and socially unjust."
* Inherent Rights: Indigenous rights are "inherent rights" that derive from Indigenous peoples' "political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories, and resources." These rights are not "given" to them by nation-states, but already belong to them (akin to fundamental rights enjoyed by other peoples under natural law). Recognition of Indigneous rights is an important nation-building process that enhances harmonious and cooperative relations between the State and Indigenous peoples based on principles of justice, democracy, respect for human rights, non-discrimination and good faith.
* Self-determination: The centerpiece for Indigenous rights is "control by Indigenous peoples" over developments that affect them and their lands that enables them to strengthen their institutions, cultures, traditions and to promote development in accordance with their needs and aspirations. Integration of Indigenous peoples into the fabric of society through this means strengthens consensual partnerships between Indigenous peoples and nations. By contrast, colonialism and dispossession are invalid sources for defining Indigenous rights, because those are sources of "historic injustice" that deny Indigenous Peoples their right to self-determination and prevent them from exercising the right to development in accordance with their needs and aspirations.
These precepts can supplement the Worcester foundation for Indian rights in the United States if incorporated into federal Indian law during the implmentation of the UNDRIP, and they can replace the nefarious principles that have long weakened Indian rights. A sounder foundation for Indian rights arises from notions of justice and human rights found in contemporary international law. We will begin examining the minimum standards of the UNDRIP next week.