Background
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly on September 13, 2007 by a vote of 144 in favor, 4 against, and 11 abstentions. The four countries that voted against were the United States, Canada, Australia, and New Zealand — all settler-colonial states with significant indigenous populations.
All four of those countries subsequently reversed their positions. The United States formally endorsed UNDRIP on December 16, 2010, when President Obama announced U.S. support at the second White House Tribal Nations Conference. The endorsement explicitly committed the United States to "lend its support to this declaration."
UNDRIP is not self-executing in U.S. courts — meaning it does not automatically create a private cause of action. But under the Charming Betsy canon, it is interpretive authority that should inform how ambiguous federal statutes are construed.
The Core Consent Provision
Article 19 is the heart of the UNDRIP consent framework — and the most directly applicable provision to P.L. 280:
UNDRIP Article 19:
"States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them."
Other Critical UNDRIP Articles
Article 4 — Self-Determination
"Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs."
Article 5 — Distinct Institutions
"Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions."
Article 26 — Lands and Territories
"Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used."
Article 28 — Restitution
"Indigenous peoples have the right to redress... for the lands, territories and resources which they have traditionally owned... and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent."
Article 32 — Development Decisions
"States shall consult and cooperate in good faith with the indigenous peoples concerned... in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources."
How UNDRIP Strengthens the P.L. 280 Consent Argument
UNDRIP is the international consensus that ATN's consent argument is not an outlier theory — it is the global standard. 148+ countries have endorsed it. The United States itself has endorsed it. Every other settler-colonial state has endorsed it. The principle of free, prior, and informed consent is not a fringe legal proposition; it is the modern international law of indigenous-state relations.
For ATN's litigation and policy strategy:
- 1. Charming Betsy canon: ambiguous federal statutes (like P.L. 280) should be construed consistent with international law. UNDRIP demands consent. Therefore, P.L. 280 should be construed to require consent.
- 2. U.S. endorsement matters. Unlike many international instruments, the U.S. has explicitly endorsed UNDRIP. That endorsement is a formal commitment of the United States government to the principles in the Declaration.
- 3. Article 19 is directly on point. P.L. 280 was a "legislative measure" affecting indigenous peoples. It was enacted without consultation, without good faith negotiation, and without consent. It violates every element of Article 19.
- 4. Article 28 supports retrocession. Indigenous peoples have the right to redress for territories used "without their free, prior and informed consent." Retrocession of P.L. 280 jurisdiction is exactly the kind of redress Article 28 contemplates.
- 5. Political & moral weight. Even where UNDRIP is not legally enforceable, it provides overwhelming political and moral authority. No reasonable U.S. official can defend P.L. 280's consent-free framework while the U.S. is publicly committed to UNDRIP's consent principle.
UNDRIP is the framework that connects ATN's local fight against P.L. 280 to the global indigenous-rights movement. It is the language ATN should use in international advocacy, in U.N. submissions, and in any forum where international human rights norms are weighed.
Related Authorities
- Murray v. Charming Betsy (1804) — The interpretive canon that brings UNDRIP into U.S. statutory construction
- Dann v. United States (IACHR 2002) — Inter-American Commission applying indigenous-consent norms to U.S.
- Indian Civil Rights Act of 1968 — Domestic legislative parallel to UNDRIP's consent requirement