The Eastern Band of Cherokee Indians are in a better place to determine the outcome of their sacred sites than many other Native peoples because they are the legal owners of the land. Much of the barrier to the restoration of Kituwah Mound to its original state came from disagreements within the group.
Another difference that sets apart the case at Kituwah Mound is that when the integrity of the site was threatened by outside forces, that force was a private company rather than federal or state government. Both of these factors make applying UNDRIP complicated, since most of the document is aimed at guiding the actions of the nations that signed it. The negotiation with Duke Energy occurred entirely between the two private parties, without the involvement of the government. If UNDRIP were to serve as a mandate for private entities like individuals and companies, Article 32 would be a section to highlight. The Article says that states (though we are imagining it to extend to companies such as Duke) must get consent from the Native nation who occupies the land before starting a construction project, especially one that would damage natural resources.
