CHAPTER 10 RECONCEPTUALIZING TRIBAL RIGHTS: THE INTERFACE OF FEDERAL INDIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW

• Jurisdiction: United States

Indian Law and Natural Resources: The Basics and Beyond (Sep 2017)
CHAPTER 10
RECONCEPTUALIZING TRIBAL RIGHTS: THE INTERFACE OF FEDERAL INDIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW
Rebecca Tsosie
Regents' Professor of Law and Special Advisor to the Provost for Diversity and Inclusion
James E. Rogers College of Law, University of Arizona
Tucson, AZ ¹

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REBECCA TSOSIE is a Regents' Professor at the Sandra Day O'Connor College of Law and the Associate Vice Provost for Academic Excellence and Inclusion at Arizona State University. She is also a faculty affiliate for the American Indian Studies Program and the Mary Lou Fulton Teacher's College. Professor Tsosie, who is of Yaqui descent, joined the ASU College of Law faculty in 1994 and served as the Executive Director of the law school's Indian Legal Program from 1996-2011. She teaches in the areas of Federal Indian law, Constitutional law, Property, Cultural Resources law, Bioethics and Critical Race Theory. Professor Tsosie has written and published widely on doctrinal and theoretical issues related to tribal sovereignty, environmental policy, and cultural rights. Professor Tsosie's current research deals with Native rights to genetic resources. She has worked extensively with tribal governments and organizations, and serves as an appellate judge for the Fort McDowell Yavapai Nation's Supreme Court and the San Carlos Apache Tribe's Court of Appeals. Professor Tsosie received her B. A. and J.D. degrees from the University of California, Los Angeles, and is admitted to practice in Arizona and California. She is the co-author of a federal Indian law casebook entitled American Indian Law: Native Nations and the Federal System.

Introduction:

Most legal practitioners think of Federal Indian Law as a "domestic" legal regime due to the complex web of federal statutory and administrative law that governs transactions on tribal lands or with tribal governments. This is partially true. However, it is also true that Federal Indian law was created out of the "law of nations" that governs relationships between independent sovereigns, and this dynamic is now reflected by the discourse of Indigenous peoples' human rights.

In a trilogy of 19^th century cases, Chief Justice John Marshall employed international law principles to create the framework of federal Indian law, describing tribal governments as "domestic dependent nations" in a unique relationship with the federal government.

In Johnson v. McIntosh, Marshall drew upon the Doctrine of Discovery under international law to describe tribal land rights as based upon a "right of occupancy," rather than the "title" that "civilized nations" would hold. Similarly, in the Cherokee Cases, the rights of the Cherokee Nation as a separate, but "dependent" sovereign in

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a treaty relationship with the "United States" guided Marshall's conclusion that the Cherokee Nation's treaty-confirmed territory was not part of the state of Georgia and that Georgia could not extend its laws to persons within the Cherokee Nation.

Over the next century, the federal courts transformed Marshall's concept of a "dependent nation" under federal protection into a paternalistic "wardship," allowing federal law and policy to create a hierarchical relationship in which the federal government controlled the lives and destinies of tribal governments. Federal law was dominant throughout this period, although the twin dimensions of the federal government's "plenary power" and its "trust responsibility" were (and are) continually in flux. However, in the latter part of the 20^th century, Indigenous rights advocates began to draw upon the instruments, structures and norms of international human rights law to facilitate recognition for Indigenous peoples' claims to "self-determination," the moral and political right of autonomy that belongs to all "peoples." This global human rights movement has served as a catalyst for reconceptualizing indigenous peoples' rights under U.S. law. In particular, as Walter Echo-Hawk notes, the human rights framework provides an aspirational goal for reworking the parts of Federal Indian law that continue to be rooted in paternalism and hierarchical notions of federal power and tribal "dependency."²

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Clearly, the rights of Indigenous peoples under U.S. domestic law are not coextensive with those under international human rights law. The domestic law of nation-states is generally binding within the borders of the nation-state, and in the United States, this requires a jurisdictional accommodation between sovereigns. On state and private lands, state law governs and tribal interests are generally not taken into consideration unless a federal interest is involved (such as permitting under the Clean Air Act) or there are transboundary issues necessitating an intergovernmental agreement (such as to facilitate law enforcement). However, on federal or tribal lands, the trust relationship is actualized through a web of federal statutory law, and tribal law may also apply, particularly when tribal lands are involved. For example, corporations seeking to develop resources on the trust lands belonging to tribal governments must navigate a combined set of tribal and federal laws and regulations.³ Tribal laws generally do not apply off the reservation, unless supported by federal power. Tribal interests, however, must be considered with respect to development on federal public lands under the National Environmental Policy Act (NEPA), as well as other federal statutes.⁴

In comparison, the international human rights framework establishes a uniform set of norms against which to measure the justice of domestic legal frameworks. International human rights law is transnational in scope. The rights defined under

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international law may not be "binding" in the sense that they are legally enforceable within domestic courts. Rather, nations must agree to sign onto the various treaties and covenants, and they also have the option to submit themselves to the jurisdiction of relevant international tribunals, where applicable. In some cases, human rights law is purely prescriptive, illuminated by the provisions of "declarations." The UN Declaration on the Rights of Indigenous Peoples, for example, comprises a set of prescriptive norms that describe the rights of Indigenous peoples, wherever they are located.

In countries where Indigenous land rights have not yet been demarcated or where Indigenous peoples lack rights to sub-surface resources, human rights principles frame the potential rights violations that can that result when lands are leased for mineral development. The recognition of Indigenous peoples' human rights creates a tool to protect Indigenous peoples from displacement, environmental degradation, and exploitation. The human rights framework also provides a uniform foundation to articulate best practices, given the expanding role of multinational corporations and international trade. International human rights law has been a positive force for many institutions that facilitate global development projects, including the World Bank.

This paper describes how emerging norms within international law are influencing the domestic arena of tribal rights, including substantive rights to land, natural resources, and cultural resources, and procedural rights, such as notice and

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consultation. Even if international human rights law is not legally enforceable in domestic courts, domestic tribal governments have access to international human rights offices and commissions focused upon indigenous peoples' rights. These international bodies can provide a source of political support for the legal claims of domestic tribal governments, such as the Standing Rock Sioux Tribe, when their efforts to protect ancestral lands are not vindicated by the federal courts.

This paper engages the interface between international human rights law and domestic Federal Indian law by exploring several key concepts and principles and examining the domestic context for these human rights principles. Part I of the paper describes the framework of international human rights law with special attention to the right of self-determination. Part II discusses the issue of "Indigenous" status as compared to the principles of domestic law that govern "federal recognition" for American Indian and Alaska Native nations. Part III of the paper explains the various political modes of accommodation that reflect the right of self-determination and indicates where these exist within the U.S. structure. Part IV discusses the status of Indigenous "territory" as compared to the various categories of property interests that tribal governments can hold within the United States. Part V of the paper discusses the principle of "consultation" under U.S. domestic law and compares the principle of "free, prior and informed consent" under international human rights law. Finally, Part VI provides a context for understanding these principles by examining several contemporary case studies within the United States that raise human rights concerns.

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I. The Framework of International Human Rights Law:

International human rights law is motivated by the central idea that a set of "universal" norms can guide the moral, and in some cases, legal interactions of nations with one another and with their subjects.⁵ International human rights law is directed toward protecting the fundamental rights of individuals, but there is limited recognition for the collective rights of distinct groups, including ethnic and religious minorities and "peoples." Under international law, all "peoples" have a right to self-determination, which includes the autonomy of the group to define itself as a separate political entity and engage in self-governance.⁶ This right is clearly articulated in Article 1 of the United Nations Covenant on...