The United Nations and Indigenous Peoples
By John Wallace
Table of Contents
I.
Introduction ……………………………………………………………
1
II.
The Declaration on the Rights of Indigenous Peoples ……………...…
2
III.
Tribal Sovereignty ……………………………………………...……
8
IV.
The Case of the Dann Sisters
……………….………………………
15
V.
The Future ……………………………………………………...….…
18
VI.
Conclusion ………………………………………………………….…
20
I can connect sovereignty and self-determination within the distinct context of my people
by making an analogy to the trees on my Clan or house territory. The roots, trunk, and
bark of the trees represent sovereignty to me. The special sap, food, medicines and
seedlings that come from our trees are symbiotic with the life force or energy of my
people and the land, united in a consciousness and connected through the web of life. 1
I. Introduction
On December 23, 1994, the General Assembly of the United Nations decided to celebrate
the International Day of the World’s Indigenous People on August 9th of each year during the
International Decade of the World’s Indigenous People. In 2004 the Assembly proclaimed a
1
June McCue, New Modalities of Sovereignty: An Indigenous Perspective, Intercultural Hum. Rts. L.
Rev. 19, 24-25 (2007).
1
Second International Decade by resolution 59/174. Resolution 59/174 provided in part,
“[b]earing in mind that, in the Vienna Declaration and Programme of Action, the 1993 World
Conference on Human Rights recognized the inherent dignity and the unique contribution of
indigenous people to the development and plurality of society and strongly reaffirmed the
commitment of the international community to their economic, social and cultural well-being
and their enjoyment of the fruits of sustainable development.”2 These unprecedented
proclamations call attention to the struggles of the Indigenous Peoples around the world.
Nowhere is the plight of indigenous people more dire than that of the Native American tribes of
the United States. The economic challenges faced by Native American tribes of the United
States, and notably, the tribes located in South Dakota, are highlighted by the fact that
South Dakota Indians are among the poorest of all U.S. citizens. All eight of
South Dakota’s majority-Indian counties are among the very poorest counties in
the United States. Five of the ten poorest U.S. counties are majority-Indian
counties in South Dakota.3
This paper explores the avenue presented to the Indigenous tribes of the United States
and the opportunities provided by the United Nations to include the U.N. Permanent Forum on
Indigenous Issues in light of the resurgence of indigenous peoples as actors in international and
domestic law and policy. Part II discusses how the U.N. has embraced Indigenous people of the
world, specifically with the United Nations Declaration on the Rights of Indigenous Peoples.
Part III discusses tribal sovereignty and the necessary sacrifices to be made by the tribes in order
to participate in the international community. Part IV will analyze the Dann Sisters’ case in the
2
General Assembly Resolution Adopted by the General Assembly, 59/174: Second International Decade
of the World’s Indigenous People,
http://daccessdds.un.org/doc/UNDOC/GEN/N04/486/70/PDF/N0448670.pdf?OpenElement, February 24,
2005.
3
Laughlin McDonald, Janine Pease, and Richard Guest, Voting Rights in South Dakota: 1982-2006, 17 S.
Cal. Rev. L. & Soc. Just. 195, 233 (Fall 2007).
2
Inter-American Commission on Human Rights and the rocky reception the decision received
United States. Part V will explore the future and the opportunities further tribal interaction with
the international community can provide. This analysis will paint a picture of hope for the
potential of the United Nations to help tribal communities to strengthen their economic, legal,
and cultural wellbeing.
II. The United Nations and the Permanent Forum on Indigenous Issues
The United Nations formed the U.N. Permanent Forum on Indigenous Issues (UNPFII) in
2000 as the result of a resolution adopted by the Commission on Human Rights.4 The United
Nations Commission on Human Rights (UNCHR) was established in 1946 at the first meeting of
the UN Economic and Social Council. The growth of the Office of the High Commissioner on
Human Rights (OHCHR) reflects the increasing strength of the international human rights
movement since the General Assembly of the United Nations adopted the Universal Declaration
of Human Rights on December 10, 1948.5 The UNCHR’s tasks include:
To address the right to self-determination; racism; the right of development; the
question of the violation of human rights in the occupied Arab territories,
including Palestine; the question of the violation of human rights and fundamental
freedoms in any part of the world; economic, social, and cultural rights; civil and
political rights, including the questions of torture and detention, disappearances
and summary executions, freedom of expression, the independence of the
judiciary, impunity and religious intolerance; the human rights of women,
See generally, Dag Hammarskjold Library, International Day of the World’s Indigenous People,
http://www.un.org/depts/dhl/indigenous/, (August 9, 2007).
5
See generally, United Nations Human Rights: Office of the High Commissioner for Human Rights, Who
We Are, http://www.ohchr.org/EN/AboutUs/Pages/MissionStatement.aspx, (last visited on November 16,
2008).
4
3
children, migrant workers, minorities and displaced persons; indigenous issues;
the promotion and protection of human rights, including work of the SubCommission, treaty bodies and national institutions; and advisory services and
technical cooperation in the field of human rights.6
With this rather extensive list of responsibilities, it makes sense for the UNCHR to delegate
some of these responsibilities to the UNPFII. The specific tasks of the UNCHR that the
Permanent Forum inherited concern indigenous peoples in particular. Yet, the mandate of the
UNCHR encompass the directives assigned to the UNPFII generally. The UNPFII web site
defines the responsibilities of the Forum as three-fold.7 The Forum submits recommendations to
the Economic and Social Council on issues related to indigenous peoples. It is important to note
the Forum’s emphasis on such a wide range of issues impacting indigenous peoples. Native
American tribes are in need of help in these areas and greater cooperation between the Forum
and tribes can lead to many necessary improvements.
The Forum’s wider mandate can be more narrowly broken into the following
responsibilities:



provide expert advice and recommendations on indigenous issues to the Council,
as well as to programmes, funds and agencies of the United Nations, through the
council
raise awareness and promote the integration and coordination of activities related
to indigenous issues within the UN system
prepare and disseminate information on indigenous issues8
6
Office of the High Commissioner for Human Rights, Commission on Human Rights: Main Themes,
http://www.unhchr.ch/html/menu2/2/chrintro.htm, (last visited on November 14, 2008).
“The Permanent Forum is an advisory body to the Economic and Social Council with a
mandate to discuss indigenous issues related to economic and social development, culture, the
environment, education, health and human rights,” United Nations Permanent Forum on Indigenous
7
Issues, About Us/Mandate: Permanent Forum, Origin and Development,
http://www.un.org/esa/socdev/unpfii/en/about_us.html, (last visited on November 14, 2008).
8
Id.
4
The Permanent Forum’s ability to meet these specific responsibilities fills a major need for the
indigenous community currently not being met.
It is important to understand the basis for these United Nations mechanisms for human
rights and its progeny. The Universal Declaration of Human Rights, mentioned earlier, is
perhaps the foundation for all U.N. human rights organizations. The Universal Declaration of
Human Rights was adopted on December 10, 1948 by the General Assembly of the United
Nations.9 Groundwork such as this declaration led to another declaration far more specific to
indigenous people. On September 13, 2007, the United Nations adopted the Declaration on
Rights of Indigenous Peoples.10 The United Nations notes that, “[t]he General Assembly today
adopted a landmark declaration outlining the rights of the world’s estimated 370 million
indigenous people and outlawing discrimination against them – a move that followed more than
two decades of debate.”11 The result of the declaration is a major victory in human rights, and
specifically in the struggle of indigenous peoples. The application of the declaration to Native
American tribes may result in a renewed interest in and commitment to their struggle. The
declaration, called “the gem of the international indigenous movement,” is the important longterm work by thousands of Native delegates to the United Nations over nearly 30 years.12 The
declaration was the result of dedication on the part of indigenous people around the world and,
importantly included the indigenous people in the negotiating process. The declaration presents
a comprehensive list of rights, exclusive to indigenous populations, which have often been
9
See generally, un.org, The Universal Declaration of Human Rights, http://un.org/Overview/rights.html,
(last visited on November 16, 2008).
10
See generally, UN News Centre, United Nations Adopts Declaration on Rights of Indigenous Peoples,
http://www.un.org/apps/news/story.asp?NewsID=23794&Cr=indigenous&Cr1, (September 13, 2007).
11
Id.
12
See generally, Indian Country Today (Lakota Times), Support the Draft Declaration on the Rights of
Indigenous Peoples, http://www.highbeam.com/doc/1P1-117832448.html, (December 21, 2005).
5
ignored by national governments and international organizations.13 Notably, supporters point out
that the declaration will increase pressure on governments to observe universal principles such as
democracy, justice and nondiscrimination.14 The declaration also provides pressure on
institutions and agencies as the foundation for change. According to U.N. Special Rapporteur S.
James Anaya:
The principles and rights affirmed in the Declaration constitute or add to the
normative frameworks for the activities of United Nations human rights
institutions, mechanisms and specialized agencies as they relate to indigenous
peoples. The Declaration, even in its draft form, has formed the basis for
legislation in individual countries . . . and it has inspired constitutional and
statutory reforms in various states in Latin America.15
The hard work put forward by the indigenous peoples of the world culminating in the
Declaration was not met with unanimous support. Four countries voted against the declaration;
Australia, Canada, New Zealand, and the United States. The reasons put forth by Canada for
voting against the declaration, according to Ambassador John McNee, was the overbroad and
unclear provisions on lands, territories and resources and that these provisions could put into
doubt matters already determined by treaty.16 The United States representative responded that it
was unsatisfactory that the Human Rights Council had not responded to his country’s calls, in
league with Council members, for States to commence further work to generate a consensus text.
“The Declaration had been adopted by the Council in a splintered vote . . . and risked endless
conflicting interpretations and debate about its application, as already evidenced by the
13
See generally, Viniyanka Prasad, The U.N. Declaration on the Rights of Indigenous Peoples: A
Flexible Approach to Addressing the Unique Needs of Varying Populations, 9 Chi. J. Int’l L.
297, 297 (Summer 2008).
14
See generally, IPS: Inter Press Service, Politics: U.N. Faces Test on Native Rights,
http://www.ipsnews.net/news.asp?idnews=35103, (October 13, 2006).
15
Siegfried Wiessner, Indigenous Sovereignty: A Reassessment in Light of the U.N. Declaration on the
Rights of Indigenous Peoples, 41 Vand. J. Transnat’l L. 1141, 1162 (October 2008).
16
See generally, supra n.9.
6
numerous complex interpretive statements issued by States at its adoption at the Human Rights
Council, and the United States could not lend its support to such a text.”17 Generally, the nations
voting against the declaration stated, “[n]o government can accept the notion of creating different
classes of citizens” and “the indigenous communities’ demand to determine their own affairs as
inconsistent with international law”18 The four countries voting against the declaration, tellingly,
each have a high population of indigenous peoples located in their countries. Perhaps more than
the stated reasons, the countries voted against the declarations due to the sweeping provisions for
“restitution to indigenous groups for land, territories, and resources taken by national
governments” or because it “purports to guarantee such access to all lands and resources that
were traditionally owned or otherwise occupied or used by indigenous peoples.”19 Regardless of
the reasoning, the countries are missing the point. The declaration is no more than that, a
declaration. It is a starting point. A place to begin the conversation. Common ground with
which the countries will be able to express regret for the ways they have treated their indigenous
populations.
Each of these countries face challenges in developing better relations with their
indigenous people, but two of the dissenters have recently taken action in a positive direction.
On February 13, 2008, Australian Prime Minister Kevin Rudd delivered an apology to
Australia’s indigenous peoples. The apology included in part:
That today we honour the indigenous peoples of this land, the oldest continuing
cultures in human history. We reflect on their past mistreatment. We reflect in
particular on the mistreatment of those who were Stolen Generations – this
blemished chapter in our nation’s history. The time has now come for the nation
17
un.org, General Assembly GA/10612, http://www.un.org/News/Press/docs/2007/ga10612.doc.htm,
(September 13, 2007).
18
Supra n.13., Id.
19
See generally, Prasad, supra n.12, at 298.
7
to turn a new page in Australia’s history by righting the wrongs of the past and so
moving forward with confidence to the future. 20
Certainly an apology is merely words, but it is an excellent starting place for better relations. In
New Zealand, on June 28, 2008, seven Maori tribes signed a historic treaty with the New
Zealand government transferring ownership of nine forests – covering 435,000 acres of land – to
the Maori tribes.21 “The settlement – the largest single deal between the government and Maori
tribes – seeks to address grievances dating back to the 1840 Treaty of Waitangi. The treaty
guaranteed the Maori people use of their land resources in return for ceding sovereignty to the
British crown, but land seizures and ownership breaches followed.”22 The actions by Australia
and New Zealand may not have been as a direct result of the U.N. Declaration on the Rights of
Indigenous Peoples, but the years of negotiations with each countries indigenous peoples
provided an environment for each success. Unfortunately, there are no comparable successes
being reported from the United States.
III. Tribal Sovereignty
In order for the tribes within the boarders of the United States to petition the
international community for assistance, the tribes need to address the amount of sovereignty that
they are willing to sacrifice. The erosion of tribal sovereignty is nothing new in the United
States. As tribal governments struggle to reassert their rights to govern, over the last twenty
years U.S. Supreme Court decisions, such as Montana v. U.S., Oliphant vs. Suquamish Indian
Prime Minister of Australia, Apology to Australia’s Indigenous Peoples, House of Representatives,
Parliament House, Canberra, http://www.pm.gov.au/media/speech/2008/speech_0073.cfm, (February 13,
2008).
21
BBC News, NZ Signs Historic Maori Land Deal, http://news.bbc.co.uk/2/hi/asia-pacific/7472653.stm,
(June 25, 2008).
22
Id.
20
8
Tribe, Strate v. A-1 Contractors, and Plains Commerce Bank v. Long Family Land & Cattle Co.
have drastically limited the civil and criminal jurisdiction of tribal governments over actions
which occur within their territorial borders.23 Tribal sovereignty is subject to the whims of
Congress and, the uninformed, or at least the less than empathetic, decisions by the U.S.
Supreme Court. Continued adherence to treaties that were, admittedly, ill-gotten by the U.S.
government as precedent to continue to rob tribes of sovereignty come across as lacking in
compassion and a willingness by the government and people of the United States to seek
forgiveness for our sins as to the Native American population.
Yet, Native Americans, the indigenous peoples of North America, have not entirely
been marginalized. Sovereignty still exists for these besieged people. The National Congress of
American Indians notes that,
[j]ust like tender water ultimately erodes the hardest of rocks, indigenous cultures,
peoples, and their values have persisted. Like many oppressed communities, they
have had to adapt, go underground, and avoid open confrontation; they withdrew
into niches of survival, areas not initially desired by the more dominant and
aggressive part of humanity; they engaged in religious syncretism, transforming
their own gods into saints of the dominant faith; they participated in the dominant
economies, by way of tourism and the sale of handicraft; and they even enlisted in
the armed forces of the conqueror.24
The resilience of the Native American peoples is amazing given all that they have suffered.
Tribes reeling from adverse legislation and hostile judicial decisions have felt the urgency to find
an avenue where they can seek greater justice. Due to measures taking place on the international
landscape, such as the Declaration of the Rights of Indigenous People, it is possible the tribes
have found a new avenue to redeem some of these bitter losses. The international opportunity
does not come without a price. Native Americans must now balance the prospective gains
23
See generally, National Congress of American Indians, Tribal Sovereignty Protection Initiative,
http://www.ncai.org/Sovereignty_Protection.91.0.html, (last visited November 19, 2008).
24
Wiessner, supra, n.14, at 1144.
9
available from a relationship with the international courts and community vis a vis the
sovereignty they will have to sacrifice to realize these gains.
To understand this issue it is necessary to understand two types of sovereignty; first tribal
sovereignty and, secondly, sovereignty under international law. Tribal sovereignty relates back
to a people with self-governing societies that existed long before there was any European
contact. The self-government carried a higher spiritual connection than we may be used to in
Western forms of government. Nell Newton notes that, “[f]or most tribes, these forms of selfgovernment were also sacred orders, supported by creation stories and ceremonies invoking
spiritual powers.”25 The spiritual nature of the self-government practiced by the tribes makes it
inherently different from Western methods of government. Most tribes had no written laws and
only after European contact was there a move towards written legal codes and constitutions.26
Perhaps the marginalization of tribal sovereignty can be blamed on the momentous differences in
the foundation and form of tribal law versus Western law.
Tribal sovereignty is a result of recognition by first European nations and then by the
United States as “distinct, independent political communities.”27 Tribal governments have
historically been treated similarly to foreign governments in their dealings with the U.S.
government. Without doubt the U.S. government has limited this power of self-government.
According to Cohen’s Handbook of Federal Indian Law, “[t]he rights of tribes to govern their
members and territories flows from a preexisting sovereignty limited, but not abolished, by their
inclusion within the territorial bound of the United States. Tribal powers of self-government are
Nell Jessup Newton, Editor in Chief, Cohen’s Handbook of Federal Indian Law, 204 (2005 ed.,
LexisNexis, 2005).
26
See generally, Id. at 205.
27
See generally, Id.
25
10
recognized by the Constitution, legislation, treaties, judicial decisions, and administrative
practices.”28 There is no question that the U.S. government has attempted to assimilate the tribes
into forgoing their sovereign rights.29 Venerated leader of the U.S. indigenous revival Vine
DeLoria, Jr. stated that indigenous sovereignty consists more of a sustained cultural integrity
than of political powers and to the degree that a nation loses its sense of cultural identity, to that
extent it suffers a loss of sovereignty.30
Tribal sovereignty, in its own right, can lead to some disturbing results with
consequences lacking in spiritual underpinnings. The recent Freedmen controversy from the
Cherokee Nation in Oklahoma is case in point. The Freedmen are descendants of black slaves
owned by Cherokees, free blacks who were married to Cherokees and the children of mixed-race
families known as black Cherokees, all of whom were part of the migration to Oklahoma in
1838. The Freedmen became full citizens of the Cherokee Nation as part of the Treaty of 1866
with the United States, but due to blood quantum requirements were subsequently denied the
right to vote in tribal elections. The resulting struggle between the Freedmen and the Cherokee
Nation resulted in the Nation limiting citizenship to only members who were Cherokee by
blood.31 This resulted in accusations of racism and bigotry. Exercising a truly internal
responsibility of a tribe, determining membership, can be seen as one of the last bastions of tribal
sovereignty, a power the tribes frequently employ. The uproar over the Freedmen decision is
28
Id.
When asked what could be done to Americanize the Indian, an Indian elder responded, “[[t]he question
is not how you can Americanize us but how we can Americanize you. The relatives you left behind (in
Europe) . . . are still trying to kill each other and enslave each other because they have not learned there
that freedom is built on my respect for my brother’s vision and his respect for mine. We have a hard trail
ahead of us in trying to Americanize you and your white brothers. But we are not afraid of hard trails,”
Robert A. Williams, Jr., The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and
Americanizing the White Man’s Indian Jurisprudence, 1986 Wis. L. Rev. 219, 222 (1986).
30
See generally, Weissner, supra n.14, at 1171.
31
See generally, Evelyn Nieves, The New York Times, Putting to a Vote the Question ‘Who is
Cherokee?,’ http://www.nytimes.com/2007/03/03/us/03cherokee.html, (March 3, 2007).
29
11
definitely warranted. There is any number of motivations behind the Cherokee Nation’s actions
relating to the Freedmen. One hopes this unpopular exercise of tribal autonomy is not the result
of a reaction to limits placed on tribal sovereignty by U.S. federal government and state
governments’ actions.
International law flows from treaties and customary law. The limitations that
international law places on sovereigns largely emanate from self-restraint.32 Sacrificing nationstate sovereignty is the foundation that allows the international system to operate effectively.
The United Nations relies on the nations’ self-restraint and that they not act autonomously to
advance their own self-interests. Access to international law through the Declaration, at first
glance, will require tribes to forgo some of what remains of their indigenous sovereignty. Due to
the aforementioned erosion suffered by tribes of their sovereignty, it is understandable why they
may be hesitant to do this. Joining the international movement requires indigenous peoples to
minimize their histories and claims to self-government and work within international human
rights principles and nation-state laws and political processes.33 Some tribes believe the
Declaration invites indigenous peoples to take part in nation-states and the international
community as ethnic groups seeking equal rights and treatment.34 This interpretation reached by
tribes could be based on experience, but it points out a less than equitable relationship. Some see
this as a lessening of status from one traditionally enjoyed by the tribes. Whether the ethnic
group status is a reality or not, the concern is real and fostered by attacks on tribal sovereignty in
the past.
32
See generally, 12 Georg Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts, §§ 330-340
(Hamburg, Meiner 1955) (1821).
33
See generally, Indian Country Today, Tribal Sovereignty in the 21st Century,
http://www.indiancountrytoday.com/global/undeclaration/28389259.html , (September 16, 2008).
34
See generally, Id.
12
The Blacks Law Dictionary definition of sovereignty is:
1. Supreme dominions, authority, or rule. 2. The supreme political authority of
an independent state. 3. The state itself.35
More relevant definitions for the purpose of this discussion are “external sovereignty” and
“internal sovereignty.” The Black Law Dictionary’s definition for external sovereignty is:
The power of dealing on a nation’s behalf with other national governments.36
External sovereignty explains the relationship between tribal governments and the federal
government or between the States and the tribal governments. This is the brand of sovereignty
more pertinent for our discussion. External sovereignty is the type that has been eroded away
since the tribal governments began to interact and make treaties with the U.S. government. It
includes the sovereignty that must be sacrificed in order to participate with the international
community. The definition of internal sovereignty is:
The power enjoyed by a governmental entity of a sovereign state, including
affairs within its own territory and powers related to the exercise of external
sovereignty.37
Internal sovereignty explains how the tribes run their own governments, to include decisions
such as tribal membership or electing tribal leadership. Internal sovereignty has mostly remained
under the control of the tribes while they have seen external sovereignty slip away. Internal
sovereignty has not been entirely unscathed. Tribal proceedings against non-Indians in Indian
country are virtually non-existent. As can be seen through the simple exercise of defining the
word sovereignty, there are many facets and much potential confusion surrounding the concept.
Black’s Law Dictionary 655 (Bryan A. Garner ed., 2d pocket ed., West 2001).
Black’s Law Dictionary online (8th ed. 2004).
37
Id.
35
36
13
Sovereignty has, so far in this discussion, been defined using Eurocentric contexts. It is
always dangerous to attempt to imprint our Western theories of what sovereignty is on a culture
that has the right to self-determination. Imposing our definition of sovereignty on the indigenous
peoples of the world is another example of the lack of understanding we so quickly and easily
fall into. Vine DeLoria, Jr. was referenced earlier as stating that indigenous sovereignty related
more to “cultural integrity” than to “political powers.”38 Activist and professor, Taiaiake Alfred
thinks it is important to “de-think” sovereignty as defined today.39 He states:
Sovereignty … is a social creation. It is not an objective or natural phenomenon,
but the result of choices made by men and women, indicative of a mindset located
in, rather that a natural force creative of, a social and political order. The
reification of sovereignty in politics today is the result of a triumph of a particular
set of ideas over others -- no more natural to the world than any other man-made
object.40
This is similar to the controversial precept that the “victors get to write the history.” According
to Alfred, the victors get to determine the meaning of sovereignty. The Native American Caucus
argues that tribal governments are the oldest governments in the Western Hemisphere and that
the United States was not the original government to establish a democracy.41 The truth lies
somewhere between the notion that tribal sovereignty is purely a Western creation and that the
United States stole its democratic principles from tribal governments.
The challenge comes in looking beyond traditional notions of sovereignty and to
determine if a more useful definition can be reached. Taiaiake Alfred provides that indigenous
perspectives of sovereignty offer alternatives to traditional definitions and depends on restoring
38
See generally, supra n. 29, Id.
See generally, Weissner, supra n. 14, at 1171.
40
Id. at 1172.
41
See generally, Native American Caucus, Tribal Sovereignty: History and the Law,
http://www.nativeamericancaucus.com/tribal.shtml, (last visited on November 22, 2008).
39
14
respect between entities.42 “True indigenous formulations are non-intrusive and build
frameworks of respectful coexistence by acknowledging the integrity and autonomy of the
various constituent elements of the relationship.”43 Mutual respect between the U.S. federal
government or U.S. states and tribal governments will prove to be a challenge. Respect between
the international community and the tribes is already established, directly as a result of the
Declaration and the efforts that went into formulating it. The continued goodwill created by the
creation process provides a solid foundation for success between the United Nations, the tribes,
and the international community.
IV. The Case of the Dann Sisters
The case of Mary and Carrie Dann bringing their complaint to the Inter-American
Commission on Human Rights (the Commission) points out the benefits of indigenous peoples
engaging the international community for justice. For over 25 years, the sisters fended off the
U.S. Government as they tried to compel the Western Shoshone Nation to accept a cash payment
for their gold-rich territory seized through the 1863 Treaty of Ruby Valley which gave the U.S.
restricted access to and use of Western Shoshone lands for specific purposes.44 The Dann sisters
fought the government and the Western Shoshone Nation in order to keep their land and not to
accept the cash settlement. The sisters exhausted their recourse to the U.S. court system when in
1985, the U.S. Supreme Court held, “payment occurred within the meaning of section of Indian
Claims Commission Act relating payment of claim after final determination when funds that
42
See generally, Weissner, supra n. 14, at 1172.
Id.
44
See generally, Susan Bates, For Mary Dann the Fight is Over,
http://www.snowwowl.com/hhmarydann.html, (May 1, 2005).
43
15
were awarded in compensation for loss of aboriginal title to land were placed by the United
States into an account in the Treasury for the Shoshone Tribe.”45 The U.S. had brought suit
against the Dann sisters in 1974 for trespass because they continued to graze cattle on what was
now public land in the eyes of the government. This final Supreme Court ruling surmised that
since the money was paid into the trust account of the Western Shoshone, that the compensation
precluded the sisters from raising Western Shoshone aboriginal title as a defense against the
federal government’s trespass charges.46
In April 1993, the Dann sisters filed a complaint with the Inter-American Commission
on Human Rights (IACHR) alleging that their human rights had been, and were still being
violated by the United States under a variety of articles of the American Declaration of the
Rights and Duties of Man (the American Declaration).47 The United States signed the Charter
for the Organization of American States (OAS) which, according to IACHR, makes it binding on
the United States. The U.S. believes otherwise. If there is any constant in U.S. foreign policy
since the 1980s it is a hesitance to participate in international treaties. Specifically, the United
States has become a party to few international human rights instruments.48 If the IACHR is
correct and the U.S. is a party to the charter then the U.S. would fall under the jurisdiction of the
IACHR. Because of this authority, the Commission assumed jurisdiction over the assertion of
45
U.S. v. Dann, 470 U.S. 39, 39, 105 S.Ct. 1058, 1058 (U.S. 1985).
See generally, Bates, supra. n. 43.
47
See generally, Id.
46
“Current opposition in the U.S. Senate to ratification of the American Convention on Human
Rights of the Organization of American States (OAS), as well as opposition to other human
rights treaties can be traced back to sovereignty concerns in U.S. foreign policy and Cold War
fears of Communism which characterized the 1950s. The current U.S. position has evolved from
this earlier isolationist stance, but in the name of ‘federalism’ still avoids any subordination to, or
interference by, international jurisdictional bodies,” Christina M. Cerna, International Law and the
48
Protection of Human Rights in the Inter-American System, 19 Hous. J. Int’l L. 731, 734-735, (Spring
1997).
16
the Dann sisters that the federal government’s declaration of title to their traditional lands
violates the American Declaration by enforcing racially biased laws, denying them the use of
their property, and denying recourse to an impartial tribunal.49 In December 2002, the IACHR
ruled on the Dann sister’s case. They issued a decision acknowledging the rights of indigenous
peoples in general to their aboriginal lands and finding that the U.S. deprived the Dann sisters of
their lands held under aboriginal title through unfair procedures.50
The U.S. government was quick to respond to the IACHR ruling. The response by the
U.S. government begins by simply stating, “[w]e must again inform the Commission that we
respectfully disagree with the conclusions contained in the Commission’s Report.”51 The U.S.
then informed the Commission that the Danns’ claim was not a human rights claim.52 The U.S.
concluded the response with “the United States respectfully declines to take any further actions
to comply with the Commission’s recommendations.”53 This was soon followed in May 2005,
when Mary Dann, the older of the courageous sisters, died as a result of an accident while
repairing fence line on her family ranch. Her younger sister Carrie continues the struggle, but
the fight has long odds of success due to the value of the land.54 In an eloquent statement, legal
expert Hari M. Osofsky stated, “The Danns’ experience in the U.S. legal system was both
See generally, Newton, Cohen’s Handbook of Federal Indian Law, supra n. 24, at 468.
See generally, Id.
51
Inter-American Commission on Human Rights, Response of the Government of the United States to
October 10, 2002 Report No. 53/02 Case No. 11.140 (Mary and Carrie Dann),
http://www.cidh.org/Respuestas/USA.11140.htm, (last visited on November 22, 2008).
52
See generally, Id.
53
See generally, Id.
54
The N.Y. Times reports “In the valley here, two mines operating on government leases are extracting
gold worth billions of dollars,” N.Y. Times, Range War in Nevada Pits U.S. Against 2 Shoshone Sisters,
49
50
http://query.nytimes.com/gst/fullpage.html?res=9C0CE0D8103FF932A05753C1A9649C8B63&sec=&spon=&page
wanted=2, (October 31, 2002).
17
Kafkaesque and Sisyphean, . . . they repeatedly rolled legal boulders uphill only to have courts
knock them back down.”55
The disturbing lesson learned from the Danns’ struggles is the way in which the United
States disregarded the ruling of the IACHR. The decision to take the case to the IACHR
portends both good and bad. Good in the respect that, specifically, the Western Shoshone, and
generally, Native Americans, now have an alternative to the U.S. judicial system. The judicial
system that has incessantly stripped indigenous rights and sovereignty from the tribes.56 It is
disturbing that the U.S. is so quick to disregard the decision of an international committee
concerning human rights. The attention garnered by the ruling and the U.S. blatant disregard of
the decision hurts the United States in the eyes of the world. Cohen’s Handbook of Federal
Indian Law provides, “[w]hile the IACHR does not have authority to render a binding decision,
its actions can bring international opinion to bear against the United States when it violates the
provisions.”57
V. The Future
What can be done to pave the way for better governance for Native American tribes?
Weissner’s ideas of “self-help and re-empowerment” are keys to the success of the indigenous
communities.58 The importance of the land to the indigenous communities is a favorable place to
begin. The traditional lands of the Native American tribes are, in some cases, a patchwork of
55
Hari M. Osofsky, The Geography of Justice Wormholes: Dilemmas from Property and Criminal Law,
53 Vill. L. Rev. 117, 127 (2008).
56
See Montana v. U.S., 450 U.S. 544; Oliphant vs. Suquamish Indian Tribe, 435 U.S.191; Strate v. A-1
Contractors, 520 U.S. 438 and Plains Commerce Bank v. Long Family Land & Cattle Co, 128 S.Ct. 2709.
57
Newton, Cohen’s Handbook of Federal Indian Law, supra n. 24, at 468.
58
See generally, Weissner, supra n. 14, at 1173.
18
trust land, considered Indian Country, intermingled with non-Indian fee land, which is not
considered Indian Country. Wiesser believes figurative “fences” should be placed around lands
the indigenous peoples have traditionally held.59 The patchwork nature of tribal lands is a result
of failed Federal Indian policy of the past. This will be a most difficult proposition in counties
where it is necessary to determine the metes and bounds of land held in trust for the tribes or fee
land held by non-Indians with an Excel© spreadsheet.
The power of self-government is an important aspect of tribal sovereignty and should
be re-established. Tribal jurisdiction over non-Indians, even in Indian Country, has been
constantly eroded over the past thirty years. With the decision in Oliphant v. Suquamish Indian
Tribe, the U.S. Supreme Court began to strip away the Native American’s right to jurisdiction
over their own lands, in this case the “inherent criminal jurisdiction to try and to punish nonIndians.”60 This culminated last summer when the U.S. Supreme Court in Plains Commerce
Bank v. Long Family Cattle Co ultimately denied tribal jurisdiction. Returning jurisdiction to
tribal courts over non-Indians on Indian country is problematic due to parts of the Indian Civil
Rights Act, most notably in a lack of remedies available and lack of a representation
requirement. Resolving these problems will not prove to be easy but needs to be done.
Finally, it is important to honor the Native Americans culture and their religions in
order to bridge the many years of disrespect and governmental decisions lacking in dignity.
Weisnner states, “[t]he right to self-government ought to be granted with the express dedication
to the survival of their culture, their cosmovision, and their respect for the Earth, including all
59
See generally, Id. at 1174.
60
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 191 (U.S. 1978).
19
living and nonliving things.”61 Trusting indigenous people around the world to self-govern is the
first step. The indigenous governments must meet the minimum threshold of universal standards
of human rights.62 The United Nations recognizes these requirements for greater global
involvement by the indigenous peoples of the world. The governments of the United States and
Canada should take heed of the trust nurtured by the United Nations.
VI. Conclusion
The international community through the United Nations has made great advances in
relation to indigenous peoples. Through organizations such as the United Nations Permanent
Forum on Indigenous Issues and tools such as the Declaration on the Rights of Indigenous
Peoples, communities of indigenous people have access to greater opportunities for selfgovernance. The sovereignty issue is complicated by the notion of external sovereignty and the
way in which governments work with each other. Sharing sovereignty between indigenous
people and the countries that arrived and usurped their land and freedoms is always fraught with
tension. Mutual respect and dignity is an excellent place to begin in reaching arrangements
where indigenous people are empowered to govern themselves always with the oversight of the
United Nations priority of human rights as a barometer for any indiscretions. It is important that
the United States as a world leader needs to begin to participate in international law again. The
U.S. is setting itself up for a fall by continuing to disregard judgments by international
commissions. The U.S. should realize that the judgment of the IACHR announcing human rights
violations by the government of the U.S. is an important warning for our country. It is arguable
61
62
Weissner, supra n. 14, at 1175.
See generally, Id.
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that the U.S. has recently begun viewing human rights issues through a skewed lens if Abu
Ghraib and Guantanamo are any indication. Until the U.S. returns to the former vision of “the
shining city on the hill,” we should not close ourselves off to the opinion of the international
community.
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