V. Indigenous Human Rights and the SWO in Relationship with the U.S.: Looking Forward to Springtime

On the international level, Indigenous peoples experiencing human rights violations have demanded that nation-states evolve their human rights standards to provide for collective rights. At the 1977 Geneva Conference, where Indigenous peoples from the Western Hemisphere gathered, Indigenous leaders testified as to the legal oppression impacting the ability of Indigenous peoples to exist in their traditional forms.

The tone of the testimony and related documentation is best expressed by those delegates who said: We have exhausted all legal means--the existing laws, courts, commissions of inquiry, etc.--on the national level, and that is why we have come to the international arena, to the non-governmental organizations of the United Nations, for urgent cooperation.

The legal systems and institutions of the various American States have never taken into account the indigenous peoples and nations, thus serving the interests of the dominant society exclusively.
Legal discrimination as a means of exploitation is institutionalized in all states, forcing indigenous peoples to participate in legal structures and systems of law which are most often detrimental to their interests. This form of discrimination is disguised variously in public policy as “assimilation,” “integration,” “incorporation,” etc.

A thirty-year drafting process led to the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP), adopted by the U.N. General Assembly on September 13, 2007. The vote on the adoption was 144 in favor, eleven abstaining, and four opposed (Australia, Canada, New Zealand, and the United States of America). In 2010, U.S. President Barack Obama announced that the United States would support the UN DRIP and thus was the last nation-state casting a favoring vote to reverse its position.

Applying the provisions of the UN DRIP to the relationship between the Sisseton-Wahpeton Oyate and the United States of America would significantly alleviate much of the oppression being experienced by the Sisseton-Wahpeton peoples. A first step would be to address the status of the final homelands of the Sisseton-Wahpeton Dakota, the Lake Traverse Reservation. From the Treaty of 1851 to the present, the land rights of the Sisseton-Wahpeton peoples have been uncertain and misrepresented. The U.N. Declaration sets forth in Article 26 a strong statement on the rights of Indigenous peoples to own their lands.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Applying the guidance of Article 26, the U.S. Congress should acknowledge and re-establish the reservation boundaries of the Lake Traverse Reservation, thus, connecting federal recognition to tribal recognition. With full tribal jurisdiction in the 1867 boundaries acknowledged by the U.S. government, the Sisseton-Wahpeton Oyate's government can begin a strengthened program of repurchasing lands within the boundaries and consolidating the land base for further economic development and as a homeland for future generations.

Another pertinent article of the UN DRIP is Article 28, which provides that there should be established a just means to redress lands that have been taken from Indigenous peoples. This is another avenue that would benefit the Sisseton-Wahpeton Oyate in reclaiming the land within the 1867 boundaries and having the boundaries re-acknowledged. From the restoration of the boundaries, many positives would flow and assist in remedying the human rights injuries endured by the Sisseton-Wahpeton peoples.

The friction and racial hatred directed against the Sisseton-Wahpeton men, women, and children, noted throughout the past century, is an ongoing source of conflict that must be dealt with. One of the best ways to deal with racial hatred is through providing humanitarian education and accurate historical information. Article 2 of the UN DRIP provides, “Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.” The propaganda program that the United States has provided through U.S. history books, archives, judicial opinions, and national myths serves to keep tribal peoples silenced, disempowered, and a source of national ridicule.

Articles 12, 13, 14, and 15 of the UN DRIP all speak to the right of Indigenous peoples to engage in culturally appropriate education, to transmit their knowledge to future generations, to establish culturally relevant educational institutions, and to have their histories correctly provided publicly. Article 31 also calls for Indigenous peoples to have the right to control their expressions and images, including in sports. In terms of the misrepresentation and propaganda causing negative impacts in tribal communities between Whites and Natives, Article 15 expressly provides:

1. Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information.

2. States shall take effective measures, in consultation and cooperation with the indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society.

The Sisseton-Wahpeton peoples and all Indigenous peoples in mid-North America would be greatly served by the United States following Article 15, Section 2. When there is just governmental action and policy by the United States, it will lead to just action and attitudes by U.S. citizens. As long as the institutions and agencies of the U.S. government fail to provide correct and accurate historical and contemporary information on the status and laws that control American Indians, U.S. citizens, and in particular White citizens, will continue to believe in their racial superiority based on the myths and propaganda currently being circulated.

One of the ways forward for the United States to begin to reconcile the U.N. Declaration and herald in a new springtime with the Sisseton-Wahpeton Oyate and all Tribal Nations would be to fulfill the solemn treaty promises entered into. Article 37 directly addresses the rights of Indigenous peoples to hold nation-states to those types of solemn promises.

Article 37

1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.

For springtime to return to the lives of the Sisseton-Wahpeton peoples, a reconciliation needs to occur with the United States of America. The U.N. Declaration on the Rights of Indigenous Peoples provides a path to that reconciliation. Article 37 is crucial to such a path as it would allow the Dakota to begin to trust in the U.S. government, if the United States honored and respected the treaties and agreements entered into.

With the United States honoring its word, the Sisseton-Wahpeton Oyate would be on a new footing with security in the Lake Traverse Reservation as the peoples' homeland. By the U.S. government demonstrating good faith towards the SWO, U.S. citizens would begin to follow suit as well. Truth telling and accurate historical materials in line with Article 15 of the U.N. Declaration would possibly provide greater understanding concerning the actions of the Dakota, the U.S. government, and White settlers. The SWO would have an opportunity to heal from the forced refugee status that began with the 1851 Treaty, set off the U.S.-Dakota War of 1862, and has continued in the poverty conditions experienced by the peoples on the Lake Traverse Reservation. The long wintertime of the Sisseton-Wahpeton peoples enduring ongoing human rights violations is overdue to give way to a fresh new springtime with the peoples of the United States. By righting past wrongs, the United States will allow the healing to begin.

Associate Professor of Law, James E. Rogers Fellow in American Indian Law, University of Idaho College of Law. This is the author's Dakota name.