Bridging Sovereignty: Leveraging UNDRIP and Federal Indian Law for Indigenous Advocacy
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and U.S. Federal Indian law offer contrasting frameworks concerning the rights of Indigenous peoples to their lands, territories, and resources.
UNDRIP, adopted by the UN General Assembly in 2007 (U.N. Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007)), broadly supports Indigenous rights to maintain and control their traditional lands and resources, advocating for legal recognition of these rights according to international customs and land tenure systems (Chambers & Price, 1974, as cited in Royster, et al., 2023, pp. 708-709).
In contrast, Federal Indian law in the United States provides tribes with certain rights to land and resources but often with constraints imposed by federal laws and policies. See the Marshall Trilogy of cases, including Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823), and its progeny.
In analyzing the strengths of UNDRIP, the rights are broad, asserting Indigenous sovereignty without the limitations typically imposed by national governments. This approach is more affirming of inherent tribal sovereignty compared to U.S. federal Indian law.
In analyzing the strengths of Federal Indian law, despite its limitations, federal Indian law provides a defined legal framework within which tribes have clear rights and can access certain protections and federal aid. This includes the right to self-governance and protections from state and local jurisdiction, albeit subject to Congressional oversight. See the Montana line of cases, including Montana v. United States, 450 U.S. 544 (1981), which defined the extent of tribal sovereignty, especially concerning the regulatory control over nonmembers on tribal lands; further elaborated in Nevada v. Hicks, 533 U.S. 353 (2001), where the Supreme Court affirmed limited tribal jurisdiction over non-Indians on Indian lands. Additionally, the Indian Self-Determination and Education Assistance Act of 1974, Pub. L. No. 93-638, 88 Stat. 2203, which allows tribes to contract directly with the federal government to manage programs that would otherwise be handled by agencies like the Bureau of Indian Affairs, further promoting tribal governance and administrative capabilities.
Given the comprehensive recognition of sovereignty in UNDRIP, tribes might use it as a persuasive tool in negotiations to expand their rights within the U.S. legal system. Although UNDRIP is not legally binding in the U.S., it can be leveraged to argue for laws and policies that better protect tribal rights to land and resources, aligning more closely with the Declaration's principles.
In conclusion, while UNDRIP offers a broader and potentially more empowering framework for Indigenous rights compared to U.S. Federal Indian law, its principles can be used strategically to strengthen the rights and sovereignty of Native American tribes within the existing U.S. legal system.
By leveraging both the philosophical framework of UNDRIP and the practical aspects of Federal Indian law, tribes can adopt an approach similar to that advocated by legal scholar Nell Jessup Newton, who emphasized the necessity for tribes to utilize a diverse array of legal tools—including federal trust doctrines, inherent tribal sovereignty, and other legal theories like those offered by the Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706 (2012)—to protect their interests (Chambers & Price, 1974, as cited in Royster, et al., 2023, pp. 372-374).
Reference:
Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706 (2012).
Indian Self-Determination and Education Assistance Act of 1974, Pub. L. No. 93-638, 88 Stat. 2203.
Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823).
Montana v. United States, 450 U.S. 544 (1981).
Nevada v. Hicks, 533 U.S. 353 (2001).
Royster, J. V., Blumm, M. C., Kronk Warner, E. A., Mills, M. (2023). Native American natural resources law: Cases and materials (5th ed.). Carolina Academic Press.
U.N. Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007).