The Lack of Action Following the United Nations Declarationof the Rights of Indigenous Peoples

The Lack of Action Following the United Nations Declaration of the Rights of Indigenous Peoples

Alyssa Rodriguez By Sofia Carigma

ABSTRACT

From its colonial foundations, indigenous law revolved around restricting indigenous people’s access to their human rights, ultimately cultivating an international culture of violence and disregard in relation to indigenous peoples’ presence. Nevertheless, monumental milestones such as the United Nations Declaration on the Rights of Indigenous People (UNDRIP)1 laid essential foundations for the pro-indigenous framework evoked in the protection of their rights. However, its non-legally binding nature confirms the declaration’s framework as little more than a strong suggestion. As a result, states are delivering a facade of pro-indigenous legislature pretending to be a part of the indigenous rights movement whilst taking no form of action following the passing of legislation to support indigenous communities. By doing this, they actively allow for the continuation of genocide, as seen in nationwide epidemics of missing and murdered indigenous women, cases concerning the forced removal of indigenous children inadoption systems, and the general lack of inaction that sustains the high rates of violence facing Indigenous women worldwide. In examining various states with distinct populations of indigenous people, the evidence reveals that despite nations ratifying the UNDRIP, there are virtually no authoritative bodies actively ordering the international community to deliver on their promises. Such is confirmed in the case studies analyzing government policies in the United States, Mexico, and Australia. The continuation of genocide against

1General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295 (Oct.2, 2007).

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indigenous peoples most benefits the capitalist class, as they benefit from exploiting the natural resources that indigenous people protect, sacrificing their right to their ancestral environment for the elite class’ capitalistic agenda. The degradation of this elite capital class is achievable only through a global movement away from capitalism and a fundamental realization of the value of human rights simply to pursue humanity. The continuation of capitalism’s domination over the protection of fundamental human rights will inevitably lead to the genocide of Indigenous peoples globally. In response to the urgency of the indigenous humanitarian situation, it requires the international community to introduce a declaration modeled on the UNDRIP but with a clause to legally bind states to ensure respect for the indigenous communities' human rights.

INTRODUCTION: A HISTORICAL OVERVIEW OF THE FIELD OF INDIGENOUS LAW

Since the moment colonists stepped foot on lands inhabited by native peoples, their distinct inhumane behaviors and ideologies forever diverted the path of legal processes. Within the legal field, the horrific treatment of Indigenous people through the federal implementation of legislation designed to oppress native communities functioned as a tool to actively continue the genocide of native populations. The discriminatory culture of post-colonial states is visible in cases such as Oliphant v Suquamish(1978)2 andAlberta (Aboriginal Affairs and Northern Development) v. Cunningham(2011)3, Indian Boarding School Policy4, and the unknown status of the Indian Child Welfare Act5. Antiindigenous policies and legislation pushed native communities into the involuntary experience of long-term violence. Ultimately, it manifests today through national epidemics, the threat of cultural genocide through native children’s forced removal, and the targeting of indigenous environmental activists.

2 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). 3 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, CA. No. 33340 (2011). 4 Civilization Fund Act, Pub.L. No. 15–85, 3 Stat. 516b. 1819. 5 25 U.S.C. § 1901-1963 (1978).

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International law has acknowledged the prosecution of indigenous peoples due to prejudice and capitalistic interest by creating legislation incriminating those who would attempt to violate their human and indigenous rights. Adopted by the United Nations in 2007, the United Nations Declarations on the Rights of Indigenous Peoples, known as UNDRIP, is an international document that is not legally binding but can be called upon legally once states endorse the declaration in their home country. The declaration lays the framework to guarantee land, cultural, and civil rights to indigenous communities worldwide and aid them in achieving their autonomy. The United States chose not to endorse the declaration, although they preached support to save their political reputation. However, many states with significant indigenous populations and a history of racism supported the declaration, despite their previously opposing stance; Australia in 2009, New Zealand in 2010, and Canada in 2021. The United States remains the only state opposing the declaration. Nevertheless, the declaration marks a milestone in international indigenous rights law. Following the endorsement, a case in Australia embodies the articles outlining genocide, effectively highlighting the gravity of cultural genocide. In the case, Nulyarimma v Thompson6, an aboriginal woman sought justice for her forced removal from her indigenous family, specifically for placing her into a European-descended household to assimilate her into a nonindigenous culture. Due to the lack of identification of the mens rea, or in this case, the intention to commit cultural genocide, the federal court was unable to find the defendant guilty of genocide. Still, the calling upon and implementation of the articles stated in UNDRIP highlight a growing global awareness of the hostile situations many indigenous people endure, shedding light on a glimpse of hope for the future of international indigenous law enforcement.

I. THE STATE OF MODERN INDIGENOUS LAW

Today's primary concern of indigenous legislation revolves around undoing previously discriminatory policies and the crises they created. In Mexico, additional legislation was passed to distinguish autonomy and self-

6 Nulyarimma v Thompson, FCA 1192 FCA [1999] (Austrl.).

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determination of their native reservations, known as Pueblos Originarios. Additionally, legislation passed to protect indigenous fashion designs, and recognize the identification of Afro-Indigenous peoples7. In Brazil, indigenous activists are actively protesting the passing of anti-indigenous legislation that would permit the destruction of the native people’s land for the exploitation of natural resources8. In the United States, politicians reacted to this global shift towards self-awareness by removing racist policies. The Harvard Law Review highlights a bill in the process, which hopes to implement the Truth and Healing Commission9 on Indian Boarding School Policy, to document and share the historical records and human experiences of indigenous peoples forced to enter Residential Boarding Schools. These same boarding schools faced exposure for harboring thousands of indigenous remains in mass graves. The policy also recognized the frequent violation of human rights in these spaces and identified the federal boarding school policy as cultural genocide. Additionally, the commission calls for federal reparations in access to healthcare and educational opportunities to heal the deeply rooted intergenerational trauma established by the schools. The United States failed to provide these reparations, despite its northern neighbor giving approximately 1.9 billion dollars to reparations in indigenous communities. The largest effort the Native American community experienced from the federal government came in the form of an apology; on December 19, 2010, the United States federal government created the Native American Apology Resolution.10 The resolution apologizes on behalf of the entirety of the nation to the native community by acknowledging the historical actors that perpetrated violence and the continued neglect that sustains said violence.

7 The National Law Review, New General Law for The Protection of Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities in Mexico, (July 27, 2022). https://www.natlawreview.com/article/new-general-law-protection-cultural-heritageindigenous-and-afro-mexican-peoples-and 8 Human Rights Watch, Brazil: Reject Anti-Indigenous Rights Bill, (August 24, 2021 3:33PM EDT), https://www.hrw.org/news/2021/08/24/brazil-reject-anti-indigenousrights-bill 9 Truth and Healing Commission on Indian Boarding School Policies Act, S.2907 (117th), U.S. (2021). 10 Harvard Law Review, Recent legislation: Truth and Healing Commission on Indian Boarding School Policy Act (Nov. 21, 2020), https://blog.harvardlawreview.org/recentlegislation-truth-and-healing-commission-on-indian-boarding-school-policy-act/

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Nevertheless, the apology provides no action or plans to move forward in addressing the inflated rates of violence afflicting native peoples. The lack of federal action to repair native communities tarnished by their former policies clarifies the government’s unbothered position and evidently reveals that it will continue to remain inactive in protecting and restoring indigenous peoples unless a larger entity pressures the state to do so.

II. CASE STUDY: THE UNITED STATES

Since the genocide of millions of Native Americans by colonists, the colonial regime established a culture of violence and abuse toward Indigenous Americans. The first recorded case of legal case interactions between Native Americans and colonists was Fletcher v Peck (1810)11. The legal case laid the groundwork for the legal delegitimization of indigenous claims to their homelands, evidently marking the beginning of a chain of anti-indigenous legislation. An abundance of cases further targeted the community, such as in Oliphant v Suquamish(1978)12, which officially deemed that Tribal courts hold no jurisdiction over non-tribal members, further putting the native community in a legally sanctioned position of helplessness. The decision indirectly enables non-tribal members to abuse and mistreat native individuals on reserved land, making them legally exempt from tribal prosecution and encouraging the violation of indigenous human rights. The culture of protecting offenders against native Americans has cultivated a violent environment that birthed an epidemic of violence against Native American women, girls, and two-spirited individuals. Since Columbus' arrival, the Missing and Murdered Indigenous Women Girls and Two-Spirited people’sepidemic has called the United States home. Nevertheless, the preservation of violence against native women resulted in a humanitarian crisis, in which primarily women and girls frequently disappeared, being met with nonchalance and a lack of involvement from state and federal law enforcement. With one of the highest rates of experienced

11 Fletcher v. Peck, 10 U.S. 87, (1810). 12 Id. at 2.

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violence, if not the highest, indigenous people are most susceptible to homicide, sexual violence, and human trafficking.

“American Indians and Alaska Natives are 2.5 times as likely to experience violent crimes and at least 2 times more likely to experience rape or sexual assault crimes compared to all other races. More than 4 in 5 American Indian and Alaska Native women, or 84.3 percent, have experienced violence in their lifetime. Homicide is the third leading cause of death among American Indian and Alaska Native women between 10 and 24 years of age and the fifth leading cause of death for American Indian and Alaska Native women between 25 and 34 years of age. In 2017, the top three cities with the highest number of MMIWG cases were Seattle, WA (45); Albuquerque, NM (37); and Anchorage, AK (31). The top three states were New Mexico, Washington, and Arizona. In the U.S. and Canada, an average of 40 percent of the women who were victims of sex trafficking identified as American Indian or Alaskan Native.”13

The epidemic of violence is ever-present. The United States made efforts to recognize the awful conditions women of the indigenous communities endure, by establishing the Violence Against Women Act of 200714 which identified the United States' legal responsibility to use federal resources to assist tribal governments in safeguarding the lives of indigenous women and girls. The legislation also allowed tribal courts to prosecute non-tribal members for violent crimes committed on native lands. However, the legislation did not contribute to assisting tribal governments or addressing the epidemic. Violence continued to wreak havoc and diminish indigenous communities; Alaska maintains its place as the state with the greatestnumber of women murdered by men, indigenous women’s percentage of 40% of murders representing double their state population makeup.15 Despite indigenous women being targeted disproportionately, the efforts made by indigenous activists in 2019 to have the Violence Against

13 Association on American Indian Affairs, Indigenous Peoples and Violence. 14 International Violence Against Women Act, S.2279 (110th). U.S. (2007). 15 Megan Mallonee, SELECTIVE JUSTICE: A CRISIS OF MISSING AND MURDERED ALASKA NATIVE WOMEN, Alaska Law Review 93–117 (2021).

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Women Act reauthorized, demands for federal action against the waves of violence resulted in silence. In the place of legal-supported legislation, Congress established May 5th as a national holiday, raising awareness of the situation, and an executive order resulting in the creation of Operation Lady Justice16, a task force to address MMIW. These policies are crucial to spreading participation in activism and shedding light on the humanitarian crisis occurring unbeknownst to the public; native women are being murdered, assaulted, and human trafficked with the government's knowledge. Still, there is no sufficient legislation to legally bind the federal government to defend the lives of the women they made vulnerable to violence. Additionally, major legislation that preserved children's cultural identities within the adoptive system by placing them with adoptive parents of the same tribe when the opportunity arose is in danger. The Indian Child Welfare Act (ICWA) of 197817 created in response to a situation of cultural genocide; private agencies and state child welfare removed one-third of indigenous children from their homes and families, placing 85%18 of them in non-native homes. This policy was one of many utilized to erase the child’s connection to their native heritage, but ICWA put an end to the cultural genocide. Nevertheless, recent accusations of racial discrimination threaten the future of the law. In the case Brackeen v Haaland19, a non-indigenous couple attempted to adopt the Navajo boy they had cared for since he was ten months old; ICWA’s policy removed him from the home to place him in an unrelated Navajo family. The case won on the state level, quickly proceeding to the supreme court. The case remains unheard, but if the court deems the law racially discriminatory, other major legislation within indigenous law will be vulnerable to being dismantled, hence leaving indigenous rights more vulnerable than before. Of the many legislation left vulnerable, the dismantlement of the following laws represents an enormous change in the Native community’s relationship with the federal government; the Major Crimes Act20 which determines the federal government’s position when

16 Exec. Order No.14053, C.F.R. 64337 (2021) 17 Id. at 5. 18 Noah Y. Kim, Politifact - Understanding the battle over the Indian Child Welfare Act (2021). 19 Brackeen v. Haaland, 5th Cir. No. 18-11479 (2021). 20 18 U.S.C. § 1153 (1885).

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enforcing law on indigenous land, the Environmental Protection Agency policies which allow tribes the ability to force oil and gas industries respect their environmental protection goals, as well as federally implemented programs aimed to improve healthcare and welfare services to native communities21. The abolishment of the Indian Child Welfare Act directly affects the preservation of the essential policies which constitute the basis of modern indigenous law. Hence, without the endorsement of UNDRIP by the U.S. government, there is no international legal document influential nor binding to pressure the U.S. government to actively pursue legislation to guarantee indigenous rights, address the MMIWG crisis, or prevent cultural genocide. Although colonization seems ancient to many individuals, it thrives for the Native American community and is in motion daily.

III. CASE STUDY: MEXICO

The vivid state of Mexico harbors a population of indigenous peoples reaching within the top five countries with the highest number of native peoples present today. The nation’s highest density is within the states of Chiapas, Yucatan, and Oaxaca, where a culture of indigenous revolution resides. The Zapatista Army of National Liberation (EZLN) often uses the foliage of Chiapas as shelter and has made a home in the state. The EZLN rebelled violently to expose the conditions indigenous people of Mexico live in and communicate their rights to culture, education, and land in the Peace Accord of 199622 . Although little change followed the peace accord, the party has contributed to highlighting the normalcy of Mexican state-sponsored violence, as seen in the Universal Periodic Review for the United Nations Human Rights Council in 2018,

“Between 2012 and 2016, the organization Red Nacional de Organismos de Derechos Humanos Todos los Derechos para Todos reported 302 aggressive actions against environmental journalists in the country, ranging from threats

21 Id. at 11. 22 Jeffrey N. Gesell, Customary indigenous law in the Mexican Judicial System, (1997). https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1495&context=gjicl

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to extrajudicial executions. [...]. Pedro Canché is an Indigenous journalist who faced wrongful imprisonment in Quintana Roo for supposedly sabotaging waterworks after reporting on a protest over water costs in Mayan communities. He had no relation to the protest leaders and was illegally held for nine months before his release23”

While the nation maintainsa large population of indigenous peoples, their disregard for indigenous rights is made evident through frequent accounts of unjust detainment and cruel punishment upon indigenous communities, sometimes with no other goal than intimidation of the native community, and the lack of justice is evident. Mexico makes its stance against indigenous peoples clear through its state-sponsored violence against indigenous environmental activists. A recent report by Mexico’s Center for Environmental Rights (CEMDA) found that authorities were responsible for at least 43% of violent attacks targeting environmentalists, many of whom are indigenous24 . Since signing the UNDRIP in 2007, the state has outlined precisely why the declaration must become legally binding. Additionally, failure to respect the outlined rights should result in international criminal prosecution through the International Criminal Court as to establish a global cultural norm of respecting indigenous rights. When its violence is not state-sponsored, the state often turns a blind eye to the abduction and murder of native communities. Mexico’s National Institute of Statistics and Geography reveals that 66.1% of girls aged 15 or above had survived gender-based violence at least once during their lifetime and that 43.5% of women had endured gender-based violence from their partners25 . The Mexican government created a facade of compassion by signing international treaties to protect women, such as the General Law onWomen’s Access to a Life Free of Violence and the Gender Violence Alerts26, but little

23 CulturalSurvival.org, Observations on the State of Indigenous Human Rights in Mexico. 2018. 24 Id. at 14. 25 Id. at 14. 26 Secretary General, La Ley General de Acceso de Las Mujeres a una Vida Libre de Violencia, (February 1, 2007) (Mex.).

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change has resulted from these legislations. Without international law to enforce the Mexican state into implementing the articles of UNDRIP, which each of these incidents violates, the state is free to continue abusing and allowing torture, unjust detainment, sexual violence, and femicide within its borders.

IV. CASE STUDY: AUSTRALIA

Similar conditions occurred during the colonist’s superimposed political dominance over aboriginal peoples of the land. Legal legislation such as the Aboriginal Protection Act of 186927 gave colonists the authority to wield complete control over the lives of their aboriginal counterparts, dictating where they were employed, whom they married, and where they lived. Progress toward a more humane environment for indigenous communities was demonstrated through the Aboriginal Lands Act of 197028, giving the indigenous lands legal rights to indigenous peoples through land deeds. The first Aboriginal Legal Service was established in the 1960s to address cases of racial discrimination and injustices, and the first national committee was formed in 1987 to investigate cases of suspicious police indigenous violence in the form of the Royal Commission into Aboriginal Deaths In Custody (RCADIC)29. Soon after, the High Court of Australia supported the aboriginal stance in the 1992 case, Mabo v Queensland30, which recognized the indigenous people of Australia and Torres Strait Islander’s legal claim of ownership over ancestral territories within Australian territory prior to settlerstate sovereignty declarations.

“Accordingly, Mabo No 2 found that native title and Crown sovereignty coexisted, but only to the extent that the Crown had not exhibited a ‘clear and plain intention’ to extinguish native title. In Mabo No 2, those whom the state recognizes as ‘Aboriginal and Torres Strait Islanders’ were

27 Aboriginal Protection Act, 33 Vic. [No. 349] (1869) (Austrl.). 28 Aboriginal Lands Act, [No. 8044] (1970) (Austrl.) 29 Commonwealth Government of Australia, Royal Commission into Aboriginal Deaths In Custody, (1987-1991) (Austrl.). 30 Mabo v Queensland [No. 2] (1992) 175 CLR 1, 5 (Austl.).

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granted rights called ‘native title’. Mabo No 2 generated confusion because it was not clear what constituted a ‘clear and plain intention to extinguish or what processes were required to prove native title31”.

The cases demonstrate movements toward a pro-indigenous space for their human rights, but it also manifests how the matter of interpretation often poses an obstacle to protecting indigenous rights, as states often utilize this loophole to evade internationally established principles. Although the nation ratified the UNDRIP in 2009, inflated rates of injustice towards the indigenous community expose the perseverance of limited access to essential services such as clinical care and high rates of violence experienced by these communities. Concern about indigenous people's treatment maintains its presence through direct and indirect violence on aboriginal communities. Despite Australia being ranked the third wealthiest nation internationally on the United Nations Human Development Index (HDI), the HDI ranking of Australia’s indigenous peoples reflects the HDI of states experiencing war and violence, such as El Salvador32 . Regardless of its pledge to protect aboriginal rights in Australian territory, statistics within the justice system reveal a disproportionate rate of indigenous peoples being incarcerated than their white majority counterparts. Although aboriginal people make up approximately 3% of the population, they represent 28% of prison populations and over 50% of the juvenile system’s population33. The nationdemonstrates no effective actions towards cultivating an equal society to coexist with aboriginal people. Instead, its silence actively enables continued violence against indigenous communities, proving its high human development index as a misleading statistic gaining a reputation of progressiveness without any movements towards achieving equity for their indigenous population.

31 Stephen M Young, THE MATERIAL COSTS OF CLAIMING INTERNATIONAL HUMAN RIGHTS: AUSTRALIA, ADANI AND THE WANGAN AND JAGALINGOU, 20 Melbourne Journal of International Law 598–643 (2019). 32 Police violence against Aboriginal people in Australia, Harvard International Review (2020), https://hir.harvard.edu/police-violence-australia-aboriginals/ 33 Id. at 18.

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Additionally, the prolonged struggle to preserve cultural identity in the next generation of aboriginal people is evident through family law cases. The cultural genocide of aboriginal children reached national awareness in 2008 when Prime Minister Kevin Rudd delivered a monumental speech, the National Apology to Australia's Indigenous Peoples34. In the said speech, Prime Minister Rudd apologizes on behalf of the Australian states' antiindigenous legislation from 1910 to 1970 that systematically enabled a cultural genocide through the forced removal of indigenous children from indigenous communities assimilated into white homes. These aboriginal individuals who struggled to maintain their cultural identity are commemorated as the Stolen Generations. This previously existing anti-indigenous stance within family law remains evident through modern legislation such as the Nulyarimma v Thompson35 case that highlights an aboriginal woman’s struggle with developing a cultural identity due to her forced removal and placement into a nonaboriginal family. Similarly, other legislation, such as the Aboriginal and Torres Strait Islander Child Placement Principles (ATSICPP)36, fails to adequately develop cultural care guidelines for indigenous children in child protection services. The Australian child protection system sees concerningly high rates of child removal from parental care and resentment from indigenous communities due to this culturally violent practice37. Therefore, in 2015, data revealed,

“Indigenous children were nearly 7 times more likely to be the subject of a substantiated notification than nonIndigenous children. The disproportionate number of Indigenous children in out-of-home care requires us to critique the child protection system and ask questions about how child

34 National Indigenous Australians Agency, Anniversary of the Apology to Australia’s Indigenous Peoples, (February 16, 2021), https://www.niaa.gov.au/newscentre/indigenous-affairs/anniversary-apology-australias-indigenous-peoples 35 Id. at 4. 36 Australian Institute of Health and Welfare, Connection between family, kinship and social and emotional wellbeing, (2021). 37 Adelaide Titterton, INDIGENOUS ACCESS TO FAMILY LAW IN AUSTRALIA AND CARING FOR INDIGENOUS CHILDREN , 40 UNSW Law Journal 146–185 (2017)

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protection authorities are interpreting ‘risk’ to children and families.”38

Within indigenous child protection laws, determining the conditions sufficient for the forced removal of these children is open to the state’s interpretation. There is no outline of what treatment definitively signals the necessary removal in the unique case of a native child being displaced from their familial relationships. This lack of guidelines when dealing with indigenous child protection cases further allows the state to disregard the disproportionate rates of displacement affecting indigenous youth, damaging the indigenous community’s ability to preserve their cultural survival. Indigenous communities must be consulted in cultivating plans for maintaining indigenous cultural care for children who are displaced from their ancestral homes for one reason or another. It is crucial for indigenous community leaders and parents to participate in discussions surrounding the guidelines for interpreting dangerous conditions for a child. Consultation in both cases is of the utmost importance to prevent cultural genocide and establish a culture of collaboration between the federal state and indigenous communities when pioneering indigenous law. The lack thereof following several years after the ratification in protecting the rights outlined in UNDRIP highlights the lack of action initiated by the national government. Instead, similarly to the previously discussed case studies of Mexico and the United States, the Australian nation demonstrates that it enables violence against aboriginal peoples by failing to follow up on its promises in the 2009 UNDRIP ratification. The inaction proves the nation’s compliance in the indigenous rights movement as nothing more than a phony policy to save face on the global stage.

INDIGENOUS LAW IS AN INTERDISCIPLINARY FIELD

Due to the complex nature of its existence, indigenous law is inevitably interdisciplinary. Constituting human rights, civil rights, women’s rights, cultural rights, family law, environmental law, and international law, the field of indigenous law has only been scraped at its surface level. There is ample work

38 Id. at 23.

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for activists and awareness to spread in the uphill battle to secure indigenous rights. There is a fundamental need for the creation of legally binding documents that ensure the state’s obligation to deliver on promises outlined in the UNDRIP, respecting and reflecting the complexity and intersectionality of indigenous rights. The failure to support the fundamental rights of native people will directly lead to the continued genocide of indigenous people, as seen in the examined case studies. With each pro-indigenous law passed that results in no follow-up and no change, hundreds of native women and girls lose their lives, environmental activists will experience abuse, and children are torn from their cultural communities. The situation is dire, and time is of the essence. Each day men and women die, culture disappears, and entire languages are lost indefinitely. In order to develop major progress within the field of indigenous law, international bodies must act critically to stop the continued genocide of indigenous people on a global scale.

V. INDIGENOUS LAW’S MAIN ISSUES

- Capitalism’s influence on the international stage. It is the very thing that fueledColumbus to sail across the sea, the motivator for slavery and slaughter, and the imprisoner of native peoples today. Nations build relationships with contrary states to pursue economic interests rather than progressing towards the common good. The culture of many indigenous tribes across the globe embodies capitalism’s antithesis, revolving around communism and socialism. There is little room for capitalism in this space so filled with community. Yet, capitalism’s presence on the modern nation’s agenda exposes itself; governments refuse to pass legislation legally obligating themselves to safeguard the rights of their native population. Clearly, the way of life established in indigenous communities poses a threat to capitalist entities, not only through their fundamental difference in perspective but also their relentless protection of the environment. Therefore, establishing the indigenous communities as an obstacle to major industries operating within deforestation and mineral extraction reveals the indigenous community as a barrier to the capitalist agenda. As long as capitalist-minded nations maintain the ability to deny human rights, which prevents their profit, these neoliberal

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post-settler-colonial nations will never revoke the ability to deny them said rights.

- Lack of negotiation with indigenous communities. The exclusion of indigenous peoples when defining their necessities and human rights demonstrates an approach reflective of the firm hand of these states' former colonial presence. In a report conducted in 2008 surrounding the Victorian indigenous populations, an individual raised concerns that the Charter’s definition of self-determination would undermine the Koori indigenous community’s struggle for the right to self-determination.

“Recognition in the Charter would need to be based on words and concepts of the Koori community, arising from negotiation and not mere consultation. No government can tell us what self-determination is. Only we can determine what self-determination means to us. That is the first step to selfdetermination.39”

In order to properly pioneer the field of indigenous law on the international stage, federal states must actively seek consultation with the very indigenous communities their legislation will affect. By outlining legislation according to the native population’s communicated desires and needs, the state will effectively begin the eradication of direct and indirect continued genocide of indigenous peoples and mark the beginning of an era of indigenous empowerment. - Too much room for interpretation. A main issue with the UNDRIP is its lack of a legally binding clause that would hold states accountable for the accountability of International Law. Nevertheless, for the declaration to have full legal force within the nation, it must be domestically implemented. Giving the states the ability to choose whether to ratify the declaration domestically and the ability to interpret what actions are sufficient to address indigenous rights effectively gives these nations the choice to pursue achieving indigenous rights if they wish to do so40. There must be strict

39 Taryn Lee, The Rights Granted to Indigenous Peoples under International Law: An Effective Means for Redressing Historical Wrongs?, 18 International Community Law Review 53–71 (2016). 40 Id. at 22.

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guidelines for preserving indigenous rights. It is crucial to implement transnational campaigns by NGOs to normalize a culture of respect toward indigenous communities. By cultivating a new global norm to work toward human progression, it attempts to deconstruct colonial racial biases as seen in postcolonial countries and encourages the masses to push their governments to integrate international frameworks for indigenous rights through domestic legislation.

CONCLUSION

Due to the centuries of historical oppression the indigenous community experienced, the colonizer’s imported capitalist mindset also established deep roots in the nations they overtook. The effects of colonialism today can be seen in the MMIW epidemic and the vulnerability of the Indian Child Welfare Act41 in the United States, as well as the hostile environment in Mexico for indigenous environmental activists, and sustained violence against native women, despite its signing of the United Nations Declaration on the Rights of Indigenous Peoples in 2007. These cases in which the governments actively allow their indigenous populations to fall vulnerable to violence, even sponsoring said violence as seen in Mexico, are unacceptable and should be condemned by the International Criminal Court. NGOs such as Human Rights Watch, Amnesty International, Cultural Survival, and the International Work Group for Indigenous Affairs must collaborate to bring awareness to the situation indigenous peoples endure while also encouraging an international movement towards the importance of human rights and away from economic domination. Additionally, these non-governmental organizations must establish accurate data on indigenous peoples affected by violence by funding surveys to be conducted locally and to unite indigenous activists and experts in the field of indigenous law and international law. Only will collaboration and a united front against the violation of indigenous rights prove effective in communicating the necessity for a legally binding document to enforce the implementation of indigenous rights internationally. Lastly, it would most benefit the indigenous collaborative group to establish themselves as non-

41 Id. at 5.

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communists to avoid the wrath of Western capitalist ideals. Instead, the community should reiterate their socio-economic beliefs within language reflective of neutrality while distinguishing their beliefs clearly from western thought and communism’s teachings. Pursuing the necessity of basic human rights and cultural rights proves impossible in the face of communism’s ideological enemy, as seen in conflicts such as the United States with communist Cuba and the Cold War. Ultimately, the community is vulnerable to the violence cultivated after colonization and continues to fall victim to its after-effects. With lives lost each day and too many missing, the indigenous community needs change implemented internationally as soon as possible. If not, the killing, the abuse, and the torture will never end.

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