UN Draft Declaration on the Rights of Indigenous Groups

The Constitution would not bar the federal government from establishing the kind o f govemment-
   to-govemment relationship it presently maintains with federally recognized Indian tribes with other
   appropriately constituted indigenous communities within the jurisdiction of the United States.

                                                                                                  November 1, 1996

                      L e t t e r O p in io n   fo r t h e   D e p u t y L e g a l A d v is e r
                                         D epa rtm en t        of   St a t e


   This letter responds to your letter of October 10, 1996, to Associate Deputy
Attorney General Seth Waxman, which requested the views of the Department
of Justice as to whether the Constitution would permit the federal government
to afford other indigenous groups in the United States treatment comparable to
that presently afforded federally recognized Indian tribes.
   We have reviewed the text and constitutional history of the Indian Commerce
and Treaty Clauses of the Constitution, the history of the federal government’s
exercise of the authority granted by those clauses with respect to Indian tribes
in the continental United States and to the indigenous peoples of Alaska, and
the relevant case law. Based upon this analysis, we have concluded that the Con­
stitution would not bar the federal government from establishing the kind of gov-
emment-to-govemment relationship it presently maintains with federally recog­
nized Indian tribes with other appropriately constituted indigenous communities
within the jurisdiction of the United States.
   We cannot, however, offer any view as to the permissibility of exercising this
authority regarding a particular group of indigenous peoples without a thorough
analysis of that group’s history, its structure and status, the relationships between
its members, and the group’s relations with federal and state government authori­
ties. Thus, while Congress has the authority to consider recognizing or extending
benefits to indigenous groups other than Indian tribes, we cannot express a view
at this time as to whether Congress could lawfully take such action towards any
existing community of Native Hawaiians or other indigenous entities. We would
be happy to undertake such an analysis if you so desire.

                                                                    CHRISTOPHER H. SCHROEDER
                                                                    Acting Assistant Attorney General
                                                                         Office o f Legal Counsel




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