Obama and 'First Americans'

President Obama's mandate to implement tribal consultation across all federal departments by February 3, 2010 jeopardizes our national sovereignty and constitutional federalism. It will fundamentally change the unique political and legal relationship between the USA and Indian tribes.

Our president is determined to fully implement President Clinton's Executive Order 13175 relating to "Consultation and Coordination With Indian Tribal Governments." Clinton's decree coincided with the United Nations' adoption in 1997 of the Declaration of the "Rights of Indigenous Peoples." The USA and Canada voted against adoption, and this may help explain why President Clinton waited until the very end of his term to quietly issue the Executive Order.

The U.N. Declaration states that the "arrangements between States and indigenous peoples are ... matters of international concern, interest, responsibility and character" and proclaims itself "a standard of achievement to be pursued in a spirit of partnership and mutual respect." Furthermore, the Declaration repeatedly decrees that nation-states must engage in "consultation and cooperation" and implement the Declaration's principles in the whole range of national policies, such as education, law, labor, media, environment, and natural resource management.

For President Obama, the implementation of Clinton's executive order "is a top priority." At the November 2009 summit meeting with the Tribal Nations ("first Americans"), President Obama ordered the development of an "action program" across multiple federal agencies and departments, such as Justice, Interior, Labor, Veterans, and Homeland Security. Even before the summit meeting, the administration had already begun to involve tribal governments as if they were a fourth level of government, equal with state and local governments.

In the past, the United States recognized Native American territories as "domestic dependent nations." The Obama administration appears to treat them as interdependent nations. In the past, American Indians exercised self-government within their tribes, but President Obama now appears to treat them as coequal with state governments. In the past, the federal government imposed regulations and unfunded mandates on tribes; now, tribal nations are invited to help formulate U.S. national policy. The new relationship elevates tribal governments. However, it also restructures traditional tribal self-government by drawing native peoples into a form of partnership with the federal government.

President Obama's mandate on tribal sovereignty is unsound constitutionally and federally. The Obama White House invites tribal officials to participate in "formulating policy affecting their communities." The United States' unique political relationship with tribal governments is now being transformed into an intergovernmental co-partnership between federal and tribal governments. Under this new functional partnership, state, local, and tribal governments are being drawn into an ever-expanding federal government, which in turn appears to be implementing U.N. international standards -- even those not yet ratified by the Senate.

Additionally, the U.N. Declaration proclaims that the indigenous peoples have a right to their own external relations. "Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders." The Declaration mandates that "States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right."

Not surprisingly, the Obama Administration involved the State Department in the consultation process. Since indigenous peoples have the right to develop relations with other peoples across borders, our "first Americans" could soon participate in global Indigenous Peoples (I.P.) summits, such as the Arctic I.P. Summits and the Indigenous Peoples' Summit of the Americas. If so, it is quite possible that America could have two competing external policies. It is conceivable that the USA would have two voices at different summits: one from the State Department at the Summit of the Americas, and another from tribal governments at their I.P. Summit of the Americas.

Even more significantly, the U.N. Declaration requires governments to cooperate in "the restitution or ... just, fair and equitable compensation, for the lands, territories and resources ... equal in quality, size and legal status or [compensation in the form] of monetary compensation."

It is one thing to sincerely regret past policy mistakes; it is quite another to invite new potential conflicts. There could be a move to integrate Native American customs and law into our legal system. If so, what would then prevent the introduction of Sharia law into the American legal system? In addition, the adoption of this Declaration could lead to confrontations. In Bolivia, for example, there have been serious confrontations between the central and regional governments over the redistribution of power and wealth as it relates to indigenous peoples. Closer to home, Canada's aboriginal peoples received a distinct constitutional status, and they are now acknowledged as a historic, founding peoples. The Canadian government followed through with a radical decision to return a major portion of Canada to its aboriginal peoples.

Implementing the U.N. Indigenous Peoples mandate provides an opportunity for our planetary-minded president to move the U.S. in the direction of a global neighborhood -- One World of many peoples. The U.N. I.P. Declaration already considers the culture of indigenous peoples an integral part of the "common heritage of humankind." President Obama may well find a kindred spirit among indigenous people for his vision of a common humanity that lives beyond borders.

In conclusion, President Obama's implementation of Clinton's Executive Order will transform the USA and tribal relations. Despite a disclaimer in the U.N. Declaration, imposing new international standards would seriously impact our national sovereignty. At stake is nothing less than the "reservation" of the United States as an independent nation-state.

Philip C. Bom is a professor of International Politics at Regent University in Virginia Beach, VA.
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