Enforcing International Indigenous Rights in America –

This summer I was honored to speak before the United Nations Office of the High Commissioner for Human Rights regarding American Indian Treaty and consultation rights. During my first visit to the U.N. Palais des Nations, I was affected most by hearing fellow American Indians express to the U.N. their deeply held belief that the doors of United States federal courts are closed to us.

With tremendous respect to the indigenous human rights warriors who have advocated for change long before I ever arrived in Geneva, I disagree. Federal courts can dispense justice to Indian people and in doing so, can enforce international indigenous rights like those recognized in the United Nations Declaration on the Rights of Indigenous Peoples (“U.N. Declaration”).

Of course, as any Indian lawyer will tell you, the deck is stacked in federal court. In Lone Wolf v. Hitchcock (1903), for instance, the U.S. Supreme Court declared that the “plenary power” of Congress gave it authority to unilaterally abrogate federal treaty promises to Indian peoples. Thirty years ago in Oliphant v. Suquamish Indian Tribe (1978), the Court held that tribes had somehow been “implicitly divested” of inherent criminal jurisdiction to punish non-Indians who commit wrongs on Indian lands, as this power was inconsistent with tribes’ status as “domestic dependent nations.” This is the kind of “law” we face, still.

“Indian law” is, after all, a purely non-Indian construct. “Plenary power” and “domestic dependent nations” are not our terms. Instead, Indian law was born of the perceived need of European colonizers to manage the “savage”, the indigenous peoples of the lands they “discovered.” As noted by Professor Robert Clinton, “Indian law developed originally as the white man’s law about Indians, rather than a corpus of rules which Indian voices played a significant role in shaping.” Not surprisingly then, Indian law largely operates to work against Indians.

Despite this limitation, though, American indigenous peoples have become less marginalized in domestic law. In 1966 Congress enacted 28 USC 1362, which gave tribal governments the right to sue in federal courts for claims made under federal law. Tribes were finally given a formal legal voice in “the courts of the conqueror.” More recent Executive Orders and federal agency policies—such as President Obama’s 2009 Memorandum on Tribal Consultation and the U.S. Department of the Interior’s “Protection of Indian Trust Resources Procedures Manual”—call for tribal self-determination in federal decision-making that concerns Indian lands and resources. As discussed below, such federal political gestures can produce real rights that Indians can increasingly enforce in domestic courts.

The most powerful recent development giving indigenous voice to Indian law is the United States’ endorsement of international indigenous rights norms through the U.N. Declaration. The value of that endorsement cannot be under-stated.

ENTIRE ARTICLE HERE: Enforcing International Indigenous Rights in America –

About Kurly Tlapoyawa (1010 Articles)

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