U.S. National Security Council, Position on Indigenous Peoples (January 18, 2001)

SUBJECT: Indigenous peoples

1. This message provides guidance for the U.S. delegations to the UN Commission on Human Rights, the Commission's Working Group on the UN Draft Declaration on Indigenous Rights and to the OAS Working Group on the similar OAS Draft Declaration, and to the preparatory meetings to the UN World Conference Against Racism. It relates to text we can accept in the Draft Declarations being considered in these forums.

2. The US delegation to the OAS is instructed to inform appropriate foreign government counterparts, and the OAS Secretariat, of the following US position on January 19. The US observer delegation to the Africa region preparatory conference for the World Conference Against Racism is instructed to inform appropriate foreign government counterparts of the following US position on January 22. Other US delegations to negotiations considering these matters should also be guided by these instructions.

3. The US delegation should support use of the term "internal self-determination" in both the UN and OAS declarations on indigenous rights, defined as follows:

"Indigenous peoples have a right of internal self-determination. By virtue of that right, they may negotiate their political status within the framework of the existing nation-state and are free to pursue their economic, social, and cultural development. Indigenous peoples, in exercising their right of internal self-determination, have the internal right to autonomy or self-government in matters relating to their local affairs, including determination of membership, culture, language, religion, education, information, media, health, housing, employment, social welfare, maintenance of community safety, family relations, economic activities, lands and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions."

This language combines aspects of Articles 3 and 31 of the current draft of the UN Declaration.

4. Because the term "internal self-determination" is carefully defined in the text, it is not necessary to include language in the text stating what the term does not mean. Instead, the US delegation to both the UN and OAS working groups on the indigenous declarations will read a prepared statement that expresses the US understanding of the term "internal self-determination" and indicates that it does not include a right of independence or permanent sovereignty over natural resources.

This statement enables the US to state its understanding of the articles on internal self-determination. The statement is intended to be read by the delegation, and is not for inclusion in the declaration or any related document. The text of the statement is as follows:

"Under United States domestic law, the US recognizes Indian tribes as political entities with inherent powers of self-government. In this domestic context, self-determination means promoting tribal self-government and autonomy over a broad range of internal and local affairs similar to those rights articulated in Article 31 of the current draft of the United Nations (Article 15 of the Organization of American States) draft declaration on indigenous rights. While the US domestic concept of self-determination is similar to the rights articulated in the draft declaration, it is not necessarily synonymous with more general understandings of self-determination under international law.

Generally, under international law, self-determination means the full enjoyment and free exercise of civil and political rights in a representative, democratic government. More specifically, however, the United States has historically understood this term, as enunciated in the United Nations charter and common articles 1(1) of the covenants, to mean the rights of all "peoples" to choose their political status, including the right to choose independence, among other possibilities; and to exercise permanent sovereignty over natural resources.

In an effort to harmonize US domestic and foreign policy on the right of self-determination for indigenous groups, we have considered the views of our indigenous representatives, other governments, and scholars, including the views that 1) self-determination is an evolving concept, 2) self-determination includes both an external and internal aspect and the latter would apply to groups within existing states, 3) self-determination is limited by the principle of territorial integrity and, therefore, must be exercised within the existing state, 4) self-determination as articulated in the draft declaration is specifically limited by Article 43 (Article 26) protecting the territorial integrity of existing nation states.

Although self-determination may be an evolving concept under international law and although the draft declaration may contain limitations on the exercise of self-determination to protect the territorial integrity of the existing state, it is the position of the United States that the draft declaration should be more explicit with regard to the civil and political rights enjoyed by indigenous peoples. Thus, the United States would be able to endorse the concept of self-determination in the declaration if the declaration itself specifically characterized the right as one of "internal self-determination." The term "internal self-determination" would include those rights articulate in Article 31 (Article 15) and thus be consistent with US domestic law, but would not include the rights of independence or permanent sovereignty over natural resources. With the understanding that this declaration sets forth the civil and political rights enjoyed by indigenous groups, the US can also support the use of the term "indigenous peoples" in this declaration."

5. Caveat on "peoples" in other international documents.

The UN and OAS declarations set forth the rights enjoyed by indigenous peoples. In particular, the United States supports final declarations stating that indigenous peoples have a right of internal self-determination, and defining that right as one exercised within the frame work of the existing state and involving internal control over local affairs. (See para 3, above, for exact language). Moreover, a separate statement to be read by the delegation will express our understanding that the right of internal self-determination as defined in the declaration does not include rights of independence or permanent sovereignty over natural resources (see para 4, above). Accordingly, it is not necessary to qualify the term "peoples" in these declarations with an express caveat in the text stating that it does not imply a right to independence or permanent sovereignty over natural resources as set forth in Article 1(1) of the covenants.

However, although the purpose of the UN and OAS declarations is to set forth the rights enjoyed by indigenous peoples, other international declarations, actions plans, etc., that do not define the rights of indigenous peoples with regard to self-determination and sovereignty over natural resources may nonetheless make reference to indigenous groups. In such instances, the United States would be able to support the use of the term indigenous "peoples" but only with a footnote that states as follows:

"The use of the term "peoples" in this document shall not be construed as having any implications as regards the rights that may attach to the term under international law."

6. Collective rights.

International human rights instruments generally recognize the rights of individuals. We accept, however, that some collective rights are appropriate for indigenous communities.

We believe collective and individual rights can coexist in the indigenous context without undermining the individual rights that are firmly rooted in international human rights law. In general, when considering how best to express our position in human rights instruments, the US has used the phrase "individuals in community with others." This formula clearly recognizes the collective aspect of some human rights while at the same time protects the rights of the individual. US domestic law recognizes collective rights for Native Americans, Alaskan Natives, and Native Hawaiians, and, in the domestic indigenous context, collective rights are viewed as furthering the rights of individuals.

7. Scope of the definition of indigenous peoples.

In the context of the UN declaration, no definition of indigenous peoples has been offered, nor is it expected that one will be offered. The US has determined it does not need to define who is indigenous in order to accept a final draft. We can apply the term domestically consistent with our domestic policy on federally recognized tribes while supporting an approach to this issue that takes account of differing historical experiences in other countries and regions.

If it should become necessary to provide some benchmarks in defining who is indigenous, it will be the position of the United States that the scope of "indigenous peoples" should be determined with reference to fundamental criteria, including but not limited to self-determination, aboriginal status, and distinct culture and customs. The application and relative weight of these criteria should account for differing historical circumstances around the world. For example, in the United States, aboriginal status is a necessary criterion in identifying indigenous peoples. In other countries or regions, it could be appropriate to apply the criteria differently in light of different historical experience, including histories of colonization, migration patterns (including forced migrations), the formation of existing or prior states in those areas, and efforts to assimilate indigenous peoples into surrounding cultures or societies.

In the context of the OAS declaration, a definition of indigenous peoples is under discussion. The US should therefore support the approach described above, but recognize the shared historical experience of aboriginal, precolonial peoples in the Americas region.

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