This story is published as part of the Global Indigenous Affairs Desk, an Indigenous-led collaboration between Grist, High Country News, ICT, Mongabay, Native News Online and APTN.
Sometimes when a storm hits and the waves are high in the Straits of Mackinac, which connects Great Lakes Michigan and Huron, Whitney Gravelle wonders if she’ll get a call: Maybe there will be a break, and oil from Line 5 -pipeline under the strait will spill to her homelands. Gravelle, president of the Bay Mills Indian Community, has been working for years to stop Line 5, which is being built by Enbridge Inc. be managed, put out of service. The pipeline was built in the strait in 1953, without consultation with Bay Mills or other tribes. In 2010, a nearby pipeline overseen by Enbridge spilled 1 million gallons of oil into Michigan waters.
“I have routine nightmares about line 5,” Gravelle said. “I think it’s because we’re so involved in the issue — we work on it every day.”
In 2023, Gravelle brought the issue of line 5 before the UN Permanent Forum on Indigenous Affairs, or UNPFII. the largest annual gathering of indigenous peoples in the world. In response, the UN recommended that the US and Canada dismantle the pipeline because of its “real and credible threat” to indigenous rights. It did hasn’t happened yet. Gravelle was at UNPFII again this week to draw attention to Line 5.
Gravelle was also there to speak on a panel about how the United States has enforced — or failed to enforce — the UN rights of indigenous peoples. Also known as DRIP, the declaration is the international standard for indigenous rights. Although legally non-binding, UNDRIP includes the rights of indigenous peoples to maintain livelihoods, language, sovereignty and political autonomy, free from assimilation and colonizing forces.
The discussion — started by the implementation project, a partnership between the Native American Rights Fund and the University of Colorado Law School—has U.S. officials such as Assistant Secretary for Indian Affairs Bryan Newland, also a citizen of the Bay Mills Indian Community, and others from the Department of Commerce and agency for international development included. There, Newland highlighted the Biden administration’s recent policy to increase the inclusion of tribal nations’ priorities and perspectives.
American history with the declaration is rocky. When indigenous leaders from around the world first introduced it in 2007, the US voted against it, saying it “should have been written in terms that are transparent and capable of implementation”. Three years later, under the Obama administration, the US became the last country to adopt UNDRIP, recognizing it as a “moral and political power.” But today there is still a “huge implementation gap,” former UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, said at the forum on Tuesday.
The statement is an articulation of basic human rights to things like life, religion and self-determination in an indigenous context, said Kristen Carpenter, a law professor at CU Boulder and former appointee to the Expert mechanism on the rights of indigenous peoples, which helps governments implement UNDRIP. “United States laws and policies often still fall short of those basic human rights. It’s easy to get lost sometimes in the nuts and bolts and the very difficult work of policy,” Carpenter said at the discussion Monday. “But this job couldn’t be more important, in my perspective, because of the issues that are on the table.”
In the US, concerns range from land protection to cultural continuity to reckoning with America’s past policy of genocide. A critical part of the declaration is that governments must obtain indigenous nations’ informed consent on projects and policies that may affect them. And while UNDRIP considers such consent the minimum, many countries, including the US, interpret it as the highest standard, and have failed to implement it.
Free, prior and informed consent could give tribes and indigenous communities more control over decisions that currently rest solely with the federal government, such as Line 5 or the massive copper mine proposed at Oak Flat. opposed by the San Carlos Apache tribe.
Consultation with tribes has been federal policy — in name, if not in practice — since 2000, but has been interpreted widely by agencies and officials. Although the US has not adopted consent as the basis for its relations with indigenous nations, it has begun to incorporate it into specific policies, Newland said during the forum discussion on Monday.
Last December, for example, the department revise the Native American Graves Protection and Repatriation Act, first passed in 1990, which governs how cemeteries, sacred objects, and human remains are handled and returned to tribal nations. The revision uses consent language directly from the declaration, and includes the requirement that federally funded museums, agencies, and universities receive the free, prior, and informed consent of descendants or tribes before exhibiting, researching, or accessing human remains or sacred objects. The change has already had an impact, if now, and some museums took action to prevent the law from being broken.
Newland also said the department introduced a new model to find consensus with tribes when an activity affects tribal health, jurisdiction, sacred sites and rights. The policy applies to everything from mining to green energy development.
In addition to improvements in consultation policy, Newland cited the Department of the Interior’s report on the history of residences in the US as one way the department is upholding Article 8 of the declaration, which deals with forced assimilation. The department is also consulting with tribal nations on a 10-year national plan for revitalizing indigenous languages.
While acknowledging that the Department of the Interior is the “shining star” of tribal consultation in the U.S., Gravelle said that’s just not the case with other agencies the tribe must deal with, such as the U.S. Army Corps of Engineers. The result is an uneven dynamic across government. “We touch so many different federal agencies,” Gravelle said. “They all have to honor those commitments made with our tribal nations, and yet we continue to see that failure over and over again.”
There is also the shifting of policy changes from one administration to the next. The changes at the Department of the Interior are positive, but could be undone – or rendered useless – by a new administration. “It constantly feels like you’re trying to prove that you’re worthy of life, and that you’re worthy of having a home, and that you’re worthy of raising your children with your cultural values on the lands where your ancestors lived ,” Gravelle said of the struggle to be heard by federal governments.
That domestic discord, Gravelle said, “has prevented the United States from emerging as a leader, especially in the international arena when it comes to international indigenous rights.”
