I. Introduction

The land we now know as North America was formed, according to the oral tradition of nations of the Iroquois or Haudenosaunee Confederacy, when the Sky-Woman fell through a hole in the sky. At that time, the earth was covered with water. The creatures living in the water looked up and saw her falling and realized that they needed to make a place for her to land. The great turtle offered his back. The duck said that there must be earth on turtle's back, and dove to the bottom but could not dive deep enough. Loon and beaver both tried, but they could not reach the bottom either. Finally, muskrat was able to reach the bottom and bring back a small piece of earth, which, when he placed it on turtle's back, grew larger until it became the whole world. A pair of swans flew up to catch Sky-Woman and set her down gently on the earth on turtle's back. An indigenous culture which acknowledges that it owes its survival, from the very beginning, to the beneficence of non-human living things might also know something about how human communities can provide for their own needs while being mindful of the needs of other living things.

Half a century after the adoption of the Universal Declaration of Human Rights, the indigenous peoples of the world seek recognition by the international community of their human rights, especially rights associated with living as self-governing communities within their traditional homelands. Meanwhile, scientific communities based in the industrialized countries of the world have succeeded in drawing the attention of governments to the global crisis of the extinction of species, a crisis caused largely by the kind of human activities that are carried out in the pursuit of economic “growth” and “development.” This article explores some of the connections between these two international movements: the movement for the recognition of the human rights of indigenous peoples and the movement for the preservation of biological diversity.

People in the industrialized countries who recognize some of these connections are motivated both by self-interest and by principle. Indigenous peoples possess a wealth of traditional cultural knowledge about their homelands, knowledge that may be used to serve the interests of people in the industrialized world. Those who are motivated by principle tend to express support for the human rights of indigenous peoples, including the right to continue to exist as distinct cultures. These different kinds of motivations are not necessarily contradictory and may well prove to be complementary. If indigenous peoples can survive the current wave of assaults on their cultures and their homelands, non-indigenous governments and non-governmental organizations could find themselves working in partnerships with indigenous peoples to pursue common environmental conservation objectives for many generations into the future.

This article focuses on the situation of American Indian tribes in the United States of America, rather than on indigenous peoples elsewhere in the world. The emerging international law of the rights of indigenous peoples, while seeking to establish international minimum standards, relies mainly on national law to effectuate these rights. For example, the Draft United Nations Declaration on the Rights of Indigenous Peoples includes numerous provisions that would require or encourage states to take effective measures to ensure that indigenous peoples actually benefit from the rights proclaimed in the Declaration. Similarly, Article 8(j) of the Convention on Biological Diversity mandates each contracting party to respect and preserve indigenous traditional knowledge within the framework of national legislation. In light of this reliance on domestic law, a focus on the domestic law of the United States should be useful. Readers from other countries can draw on the United States experience in fashioning their own national legislation, and readers in the United States may find that a human rights perspective yields valuable insights.

The United States has a long tradition of recognizing the right of Indian tribes to live as self-governing, culturally distinct communities, although the adherence of national policy to the principle of tribal self-government has been, to say the least, inconsistent. In fact, in two historical periods the United States carried out policies designed to destroy tribal governments. In addition, throughout much of its history, the United States has supported the “development” of natural resources in ways that have inflicted suffering on tribal cultures, such as the hydroelectric dams in the Pacific Northwest which, as noted later in this article, have caused great damage to the runs of wild salmon that tribal cultures have depended upon for thousands of years. Over the last quarter century, federal policy toward Indian tribes has supported tribal self-government, and tribes have become increasingly prominent in governing their own territories. They also have increasingly made it known that their concerns about the natural world often extend far beyond the boundaries of their reservations.

The cultures of American Indian tribes hold a wealth of knowledge about the natural world, knowledge that reflects the presence of tribal cultures in North America for countless generations and the variety of ways in which these cultures are deeply rooted in the natural world. Prior to contact with Europeans, tribal cultures provided for the material needs of people through agriculture, hunting, fishing and gathering. In many modern tribal cultures, wildlife continues to be es¬sential for meeting subsistence needs. In most modern tribal cultures, some people still know how to use wild plants for healing. In all modern tribal cultures, connections to the natural world remain important aspects of Indian identity. At the core of tribal cultures are tribal religions. Many places in the natural world hold religious and cultural significance for tribal peoples, some because of events that took place there, some because people conduct religious ceremonies and practices there, some for reasons that no outsider has a right to know. In tribal cultures, places that are regarded as sacred tend to be located in places where the web of life has not yet been disrupted by human activity. The web of life in such places may reflect hundreds or thousands of years of the presence of human cultures, but the web has not been ripped apart by the kinds of activities that industrialized cultures allow to take place under the banner of “development.” Many of the non-human kinds of living things that make up the web of life in such places-what human policy-makers now call “biological diversity” or “biodiversity”hold significance in tribal religions and cultures: eagles, wolves, salmon, ravens, coyotes, buffalo, cedar, sage, sweetgrass, to mention just a few.

Because tribal cultures are rooted in the natural world, protecting the land and its biological communities tends to be a prerequisite for cultural survival. Much has been written about whether or not tribal cultures embody values that can be described as environmental ethics, or, to frame the inquiry in the past tense, whether or not the cultural values and prac¬tices of tribal peoples enabled them to provide for human needs and wants without causing irreparable damage to their environments. Professor Rebecca Tsosie recently reviewed a substantial amount of the literature on this topic and concluded, after raising the usual cautions about generalizations, that, for most indigenous cultures of North America, traditional Indian world views can be described as having several common aspects:

  • a perception of the earth as an animate being; a belief that humans are in a kinship system with other living things; a perception of the land as essential to the identity of the people; a concept of reciprocity and balance that extends to relationships among humans, including future generations, and between humans and the natural world.

A basic premise of this article is that the objectives of the movement to preserve biodiversity will be served by recognizing the human rights of indigenous peoples. The most effective way to make use of their traditional ecological knowledge is to recognize the rights of indigenous peoples to govern their own territories. The national and sub-national governments of the world should support these rights by showing the same kind of respect toward indigenous peoples that they show in their interactions with other governmental entities. This premise is based, in part, on the historical experience in the United States, which has shown that tribal self-government is a prerequisite for cultural survival.

Another premise is that recognition of the right of indigenous peoples to govern themselves in their own territories will not be enough, in and of itself, either to ensure their survival as distinct cultures or to make sure that people who are involved in preserving biodiversity have access to the traditional ecological knowledge of indigenous peoples. This second premise is also based the experience in the United States. In the United States, most tribal governments currently have jurisdiction over only a small fragment of their aboriginal territory. Yet, most tribes do have strong economic, cultural and religious interests in places that are located outside the boundaries of their reservations. Federal law provides a variety of mechanisms through which tribal governments can influence the decisions made by other units of government (federal, state, local) that affect such off-reservation places, and this article provides an overview of tribal experiences with two of these mechanisms: the Endangered Species Act and the National Historic Preservation Act. Assuming that self-governing indigenous peoples in other countries have similar concerns outside their territories, some mechanisms to empower them to make their views known on activities that take place outside of their self-governed territories will be advisable, if the outside world is to benefit from their traditional ecological knowledge. Part II of this article offers a brief discussion of the basic principles of federal Indian law in the United States, as well as an overview of the history of federal policies relating to Indian tribes and their members. As any lawyer practicing in the field of federal Indian law can attest, this is a subject about which the average American citizen knows very little. Indian tribes occupy a vulnerable position in the American system of government, and lack of knowledge on the part of the American public contributes to this vulnerability. Part II concludes by raising the question of whether a human rights analysis is useful in the context of Indian tribes in the United States, either with respect to the survival of tribes as distinct living cultures or with respect to the ways in which tribal cultures might contribute to the preservation of biodiversity.

Part III briefly examines the emerging international law of the human rights of indigenous peoples, with an emphasis on rights relating to the survival of indigenous peoples as distinct cultures. This part also offers some critical commentary on the role of the United States in shaping the principles of this emerging field of human rights law, calling attention to some of the key points on which the United States has made statements in the international arena that are contradicted by the experiences of the United States in its dealings with Indian tribes.

Part IV begins with Article 8(j) of the Convention on Biological Diversity, which includes a mandate for each contracting party to respect and preserve indigenous traditional knowledge within the framework of national legislation. In light of the importance of national legislation, part IV focuses on the national legislation of the United States. The emphasis is on two federal statutes that can be used to bring the traditional knowledge and cultural values of Indian tribes to bear on the preservation of biodiversity. The Endangered Species Act is featured because it is the basic federal statute for preserving biodiversity. The National Historic Preservation Act is featured because it has evolved into the basic federal statute for bringing traditional tribal cultural knowledge and values into the decisions made by federal agencies, when those decisions affect places that hold tribal religious and cultural importance.

The conclusion returns to the question of whether a human rights analysis is useful in the context of Indian tribes in the United States. I give some of the reasons why I believe that a human rights analysis is not only useful but also essential. The conclusion also suggests that we move beyond talking about rights and also talk about, and act upon, the responsibilities that go along with these rights.