The limits and potential of judicial review and truth commissions in safeguarding the rights of indigenous peoples: an examination of the implications of the US-Mexico border security wall on the Lipan Apache.

• Author: Akhtar, Zia

1. Introduction

   The Apache who are known as the Nde' (or people of the land) are located in the proximity of the Lower Rio Grande where the US government has constructed a mega security wall. This landmark is situated on the border with Mexico and presents an obstacle to the free movement of the Nde' across the previously porous border. It has also resulted in the US government depriving the native people of their estate which was protected under treaty law as an Indian reservation. The Lipan Apache are opposed to this project and have protested to the federal government as the seizure of the land was without the free, prior and informed consent. The outcome has been the assertion of self-determination by means of a Truth Commission that will document the rights that they claim have been infringed. The focal point of the Native American challenge to the security wall is that there are significant legal fictions in US law which assume the religious and racial superiority of Euro-American settler juridical systems over their customary practices. These override the indigenous peoples' rights to self-governance, lands and territories. They have now convened academic and professional groups which accuse the US of violating international human rights laws and private property rights in constructing the fence along its southern Mexican border.

   The US government has constructed the border wall by the enactment of the Secure Fence Act 2006. This has created a statutory regime to prevent challenges to its construction and militarisation. It has led to protest by the indigenous people who reside in the bordering states of the US and they have raised the matter as a breach of fundamental rights at the UN.

   The federal government has provided the Department of Homeland Security the power to construct the wall. It has included an ouster to prevent the jurisdiction of the courts by means of the Real ID Act 2005. Section 102 provides an exclusion clause which omits the grounds for legal challenge of executive decisions. This has suspended the environmental laws that are a plank of legislation which prevents contamination but cannot be challenged in court.

   The clause states:

   Not withstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements that are in the Secretary's sole discretion, to determine as necessary to ensure expeditious construction of the barriers and roads. (1) In pursuing the enactment of the wall under the Secure Fence Act the DHS in late 2005 "waived in their entirety" a series of statutes that include the Endangered Species Act 1982; the Migratory Bird Treaty Act 1916; National Environmental Policy Act 1982; Coastal Zone Management Act 1972; the Clean Water Act 1999; and the National Historic Preservation Act 1965. There has also been a waiver of the Native American Grave Protection and Repatriation Act 1990, and the American Indian Religious Freedom Act 1994 in Texas.

   In September 2012, the Lipan Apache who are the worst effected of the Indian tribes by the building of the wall established a Truth Commission to examine the history of indigenous treaties, land claims and dispossession in South Texas-Mexico in relation to the human rights violations, with assistance from the International Centre for transitional Justice (ICTJ) and the Barcelona International Peace Resource Centre (BIPRC). This has an international dimension and the preamble states as follows:

   A Truth Commission could serve an instrumental purpose in the United States and Mexico border region in light of the militarization programs and unresolved jury trials related to forced and armed dispossession exercised by the Department of Homeland Security against certain communities. These issues obviously were repressed by the Bush administration, and have been severely peripheralized by the Obama administration, costing the affected Indigenous peoples and taxpayers enormous resources better applied toward improving social relations and systems with the consent of the peoples. Unfortunately, the border wall--and each preceding system which worked to obstruct Indigenous self-determination in Texas--has been built on historical patterns of ignorance and genocide denial. (2)

   The indigenous peoples are represented through the Lipan Apache LAW-Defense (El Calaboz Rancheria). This was formally constituted in the summer of 2007 with the aim of promoting the autonomy, recognition, self-determination, and human rights of the indigenous communities of the Lower Rio Grande Valley and northeastern Mexico related through ancient lineal ties. The group has petitioned the United Nations Committee on the Elimination of Racial Discrimination (CERD) for help to stop the violations. Their intention is to censor the US by the CERD on grounds of the lack of the utilization of its Early Warning and Urgent Action procedures in constructing this wall. (3)

   This article examines the impact of the wall on the Nde' Apache and other indigenous peoples, the administrative law challenges under the Chevron principle which the US has denied, the use of the Eminent Domain powers and the basis for the Truth Commission that has established.

2. Exclusion of judicial review

   Administrative Law doctrine in the US allows for the judicial review process under the principle that Congress cannot enact laws that are contrary to the Constitution and it is the Federal Courts' role to interpret these provisions. In Marbury v. Madison (4) it was ruled that the balance of powers doctrine permits an enquiry into the legality of the Executive's decisions, which can be invalidated and requirement placed for a body to apply the writ of mandamus.

   The rule was stated by the Supreme Court that the Executive's actions were invalid:

   Where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy. (5)

   The Court also stated that it was the duty of the judiciary to state the ambit of the law and if two laws conflict then the Court will decide on the operation of each. The above case established a precedent under Article 3 of the Constitution by vesting the authority in the Supreme Court of the US to declare provisions in statutes void. In this instance the plaintiff was granted a declaration that Section 13 of the Judiciary Act of 1789 was unconstitutional because it expanded the original jurisdiction of the Supreme Court beyond that permitted by the Constitution.

   This rule has to be interpreted along with the fact that the US Constitution sets no express limits on how much federal authority can be delegated to a government agency, but limits the authority granted to a federal agency within the statutes enacted by Congress. The courts have addressed the issue of what standard of review should be applied by a court to a government agency's own reading of a statute when it is charged with administering a departmental project.

   The legal test for the courts to determine if the administrative agency has the powers necessary to override the statutes in interpreting a specific law was set out in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc (6) This dispute was based on the amendment to the Clean Air Act in 1977 and the issue was if the government department had correctly applied the law in regulating the industry standards. The aim of the statute was to obligate the states who had failed to attain the air quality standards established by the Environmental Protection Agency to do so. The CAA required these 'non-attainment' states to establish a permit program regulating 'new or modified major stationary sources' of air pollution.

   In its first circular the EPA defined a source as any plant that produced pollution. However, in 1981, the Agency adopted a new definition that allowed an existing plant to receive permits for modern equipment that did not meet standards as long as the total emissions from the plant itself did not increase. The Natural Resources Defense Council, a lobby group, challenged the EPA regulation in federal court. An affected party, Chevron Inc., then appealed the lower court's decision and the case went to the Supreme Court over what standard of review should be applied to a government agency's own reading of a statute that authorizes that agency to take action. The Court, in an opinion by Justice Stevens upheld the EPA's interpretation by formulating a two step test when it is reviewing determinations:

   (1) Whether the statute is ambiguous or there is a gap that Congress intended the agency to fill. (If the statute is unambiguous, and the interpretation runs contrary to the statute, then the interpretation is considered unreasonable as the text of the statute prevails.)

   (2) If an agency's interpretation is reasonable, then the court will defer to the agency's reading of the statute.

   This case has set the precedent for determining whether to grant deference to a government agency's interpretation of its own statutory mandate. It lays down the standards of the doctrine of "administrative deference". The US courts have taken a case by case approach where administrative discretion has been an issue.

   This has been described as being harsh in effect in an article in Virginia Law Review by Cass R Sunstein who states as follows: (7)

   Where possible the Step Zero question should be resolved in favour of applying the standard Chevron framework--a framework that has dual advantage of supplying the operation of regulating law and giving policy makers authority to undertake action that are likely to have been the victims of specialised action political accountability.'

   The Courts' favour a more complex framework which invites an independent judicial judgment in certain circumstances. This illustrates a desire to constrain an agency's...