International responsibility for human rights violations by American Indian tribes.

• Author: Cowan, Klint A.

The American Indian tribes have a unique status in the law of the United States. They are characterized as sovereigns that predate the formation of the republic and possess inherent powers and immunities. Their powers permit them to create and enforce laws and generally to operate as autonomous governmental entities with executive, legislative, and judicial branches. Tribes enjoy immunity from suit and exemption from federal and state constitutional provisions which protect individual rights. These powers and immunities provide a connection between tribal governments and U.S. international human rights obligations. This Article explores that connection. It examines whether the tribes may breach certain international human rights obligations of the United States, whether tribal violations may incur U.S. international responsibility, and if so, what consequences might result. It constructs an argument that the United States has failed to implement fully its international human rights obligations and that it can be held internationally responsible for tribal violations of human rights. This argument leads to policy recommendations for the United States and tribal governments.

INTRODUCTION

Recent work on international human rights and indigenous peoples focuses on the promotion and protection of "self-determination" and on the development of group rights. (1) This work builds upon the significant progress indigenous peoples have made toward the development of collective rights under international law. (2) International human rights tribunals have decided cases dealing with the rights of indigenous peoples, (3) while individual members of indigenous groups have successfully challenged State (4) violations of international human rights. (5) The study of indigenous peoples and international law has thus been mostly limited to the development and conceptualization of indigenous groups' (or indigenous individuals') rights against the State. (6) This narrow approach to the overlap between international human rights law, municipal law, and indigenous rights neglects potential consequences of individual human rights violations by indigenous groups.

The indigenous peoples of the United States, the American Indian tribes, have legislative authority, executive departments, police, and prisons. They resemble sub-State units of government, and exercise extensive governmental authority. This governmental status raises several questions about the potential for tribal entities to violate individual human rights as protected by international law binding on the United States. Can the tribes exercise their governmental powers in a manner which violates an asserted human right? Has the United States implemented human rights protections against the tribes? Can tribal conduct constitute a breach of international human rights obligations binding on the United States and, if so, what are the consequences? And perhaps most importantly, is tribal conduct attributable to the United States under international law?

This Article explores these questions, with a principle focus on whether the United States itself could incur international responsibility for human rights violations committed by American Indian tribes. The scope of the Article is thus modest. It does not attempt to engage with normative problems as to whether indigenous peoples or other sub-State entities should be bound by international human rights norms. In fact, because human rights are so often individual rights, tribes and other sub-State entities do not need to be bound by international norms for accountability still to attach. Only one entity, the State, as a subject of international law, may be internationally responsible for violations of those individual rights. (7) Under the international law of State responsibility, sub-State entities cannot themselves be responsible for violations of a State's international human rights obligations. (8) The obligations which bind the United States extend to every person within U.S. territory or control, regardless of whether such individuals are tribal members, non-tribal members, or foreign nationals. (9) If an individual right is violated and the violation is attributable to the United States, then the United States bears international responsibility for it. These are the presumptions underpinning this work: that the United States is bound by certain conventional and customary international human rights norms and that all individuals within U.S. territory or control hold such basic rights. Although this Article uses language such as "tribal violations of human rights," strictly speaking these statements refer to a tribal act or omission which breaches an individual right that is protected by international law and that binds the United States. A tribe may violate an individual's internationally protected right because the individual is a bearer of such right, not because the international human right law at issue binds the tribe.

The Article is structured as follows. Part I outlines the status of American Indian tribes in U.S. federal law. It explores their status as sovereigns, defines their governmental powers, and identifies the municipal law doctrine of sovereign immunity. This doctrine becomes particularly relevant in later sections which explore the gaps in U.S. implementation of its international human rights obligations. Part II lays out the relevant human rights obligations binding on the United States and then attempts to show that there are substantive and procedural gaps in the implementation of these obligations. However, these gaps are identified in U.S. reservations and declarations to the international community. Because these obligations are neither exempted from coverage under international instruments nor currently enforced under U.S. federal law, the United States may have left itself vulnerable to international enforcement for alleged violations. The last part of Part II examines the possibility of tribal actions violating an individual's international human rights and identifies certain human rights provisions that are particularly susceptible to tribal violation. Part III discusses the potential remedies available for violations of individual rights under municipal law, including both tribal and federal remedies. It demonstrates that most remedies can only be obtained in a tribal forum and addresses the implications of this reality. Part IV completes this examination of accountability, by arguing that international law permits actions of the tribes or of tribal officials to be attributed to the United States and identifying several tribunals with authority to hear a human rights claim against the United States. Finally, Part V concludes by suggesting implementation policies that the United States may choose to adopt to avoid being held internationally responsible for a human rights violation by tribes or tribal officials. As a counterbalance, Part V also identifies means available to tribes to forestall unwanted federal action that might infringe upon their political independence and sovereignty.

1. STATUS OF AMERICAN INDIAN TRIBES IN MUNICIPAL LAW

   1. Tribes as Political Communities

      American Indian tribes, as acknowledged in the U.S. Constitution, (10) are distinct, self-governing political communities with their own legal systems separate from federal or state governments. (11) The several hundred tribal governments operating in the continental United States vary in size and complexity and assert authority over a broad diversity of polities and territories. (12) Certain California rancherias, for instance, comprise only a few families and acres of land, (13) whereas the Navajo Nation, one of the largest tribes, operates as a complex political community whose population approximates Iceland's and whose territorial extent rivals that of the Republic of Ireland. (14)

      Citizens of tribes are typically referred to as "members," and most tribes have exclusive authority to define their membership or enrollment. (15) Membership in a tribal polity is a political, not a racial or ethnic, classification. (16) Although the tribes comprise mainly indigenous individuals descended from pre-Columbian inhabitants of North America, tribes are not necessarily ethnically homogenous. They have been voluntarily and forcibly integrated with others, (17) and several tribes historically naturalized non-indigenous peoples, such as escaped or freed African slaves. (18) In addition to tribal membership, American Indians born in U.S. territory hold both national and state citizenship. (19) Certain tribes whose territory has been severed by the U.S.-Mexican or U.S.-Canadian national borders may enroll members from the non-U.S. side of the boundary, making it possible for some tribal members to be foreign nationals but not others.

   2. Tribal Sovereignty

      U.S. municipal law conceptualizes tribal governments as one of three "sovereign" institutions, in addition to federal and state governments. This system regards American Indian tribes as pre-existing entities outside the federal framework. (20) Yet even the structural interaction of tribes with the United States government has not been simple. In several respects, United States law categorizes tribes as entities analogous to foreign States rather than regional sub-State entities. (21) Notably, until 1871 the federal government dealt with the tribes through treaties which U.S. courts continue to classify as equivalent to international treaties in municipal law. (22)

      Each tribe's governmental powers vary depending on its unique treaty history and applicable acts of Congress. To encompass this diversity, and to evaluate effectively the tribal-international human rights law nexus, this Article uses a broad concept of tribal authority. (23) Within this broad category, two general types of American Indian tribes must be distinguished: those recognized by the federal government and...