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Fraternal Twins with Different Mothers: Explaining Differences between Self–Determination and Self–Government Using the Indian Tribal Sovereignty Model as Context

18 June 2013
Tribal Leader Summit

President Obama meets with tribal leaders before the 2010 White House Tribal Nations Conference. Pete Souza / White House Photo.

Cheryl L. Daytec*

PDF Available for Official Citation 

 

Federal Indian policy is, to say the least, schizophrenic. And this confusion continues to infuse federal Indian law and our cases.[1]

– Justice Clarence Thomas

 

It’s not the package and the wrapping which counts but what is inside, underneath the clothes and the skin.

– Lame Deer, Lakota

I. INTRODUCTION

In the United States, there are more or less 565 federally recognized Indian tribes,[2] excluding the Alaska Native Peoples.Nineteenth century jurisprudence is characterized by judicial rhetorical flourishes on their sovereignty predating colonization. To provide a legal and, perhaps, moral anchor for colonial divestiture of their pre–existing tribal powers, the 19th century Supreme Court essentialized Indians as “domestic dependent nations”[3] in a state of pupilage under the United States, with reserved rights of sovereignty over their internal affairs. Hoisting a paternalistic trident, the Supreme Court warded off state incursion into Indian reservations,[4] shooed away the state taxman,[5] fenced out of Indian land the statute books of the states,[6] and decreed that “even federal laws could not be applied to Indians without congressional permission.”[7] Affirming the inherent sovereignty of tribes was, and still is, a recurrent judicial mantra as though it is a building block of a decision that conforms to the Court’s theory of justice or that is acceptable to the tribes.
In recent history, indigenous movements all over the world organized into a global force and became victorious in pushing the international community to develop an international human rights regime that recognized their right of self–determination, which is probably the highest of all group rights. Before indigenous peoples gained international status and succeeded in getting their self–determination claims recognized, self–determination was already a ‘keyword’ in federal Indian policies. One writer said that United States policymaking has liberally appropriated the word “into legislation, policy statements, and opinions with random fervor . . . as though [it] is a magical incantation which, by its mere utterance, will render a policy perfect.”[8]

It is said that in the United States, the movement toward self–determination, which resulted in the reversal of termination policies, began during the Kennedy administration.[9] In 1961, the Declaration of American Indian Purpose, asserting indigenous self–determination was submitted by the National Congress of Native Americans to President Kennedy.[10]              In response, the Kennedy administration committed that treaty and contractual relationships of the government with the Indians would not be altered without their consent and that their cultural heritage and land base would be protected.[11] In his March 1968 address to Congress, President Johnson, pushed for “a [federal] policy of maximum choice for the American Indian: a policy expressed in programs of self–help, self–development, and self–determination.”[12] The support for Indian ‘self–determination’ reached its height during the Nixon administration. President Nixon called on Congress to end the termination era and reaffirmed the trust responsibility[13] of the federal government to the tribes. He also pushed for legislations supporting tribal autonomy.[14] This push culminated in the passage of the Indian Self–Determination and Education Assistance Act in 1975.[15] The Act admits that federal domination of tribes stifled self–government and development, and that “Indian people will never surrender their desire to control their relationships both among themselves and with non–Indian governments, organizations, and persons.”[16]It considers “assuring maximum Indian participation in the direction of educational as well as other Federal services to Indian communities” as a discharge of the United States’ obligation “to respond to the strong expression of the Indian people for self–determination.[17]

The negative vote of the United States on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), despite the fact that there are many federal policy statements and laws using the term self–determination, surfaced the fact that indigenous self–determination under international law is not on the same page as self–determination under federal Indian policies. Despite claims that Indian tribes are a third form of government in the United States, aside from the federal and state governments,[18] with a “nation–to–nation relationship”[19] with the federal government, some scholars pejoratively describe them as “private clubs”[20] and “glorified fraternal organizations.”[21] The words “sovereignty” and “self–determination” affirmed in laws, policies, and jurisprudence of the United States are in reality substitutes for participation in decision–making processes at the minimum or self–government or autonomy at the maximum.

In Montana v. United States,[22] the Court stressed that the exercise of inherent tribal sovereignty is limited to what is necessary for self–government or to control internal relations. This sentiment has been echoed in the Montana progeny cases.[23] To some scholars, there is no difference between self–government and self–determination. They argue that indigenous self–determination means “autonomy and participation in the life of the States.”[24] However, the two terms, although sharing family resemblance, are distinct from each other and States are fully cognizant of this. Thus, during the drafting process of the UNDRIP,[25] States were adamant to replace the term self–determination or “to narrowly define it to mean ‘self–government’ and ‘autonomy.’”[26] The United States, Australia, Canada, and New Zealand dissented to the UNDRIP[27] when it was presented for voting before the UN General Assembly in 2007, because of the word “self–determination.”[28] They articulated their apprehension that the UNDRIP could be misrepresented “as conferring a right of possible secession and minority groups . . . could . . . exploit [it] to claim the right to self–determination, including exclusive control of their territorial resources,”[29] notwithstanding that the Declaration plainly provides that it does not sanction secession.[30] The HRC also noted in its 2000 Concluding Observations on Australia[31] that the State party prefers self–management and self–empowerment to self–determination “to express domestically the principle of indigenous peoples’ exercising meaningful control over their affairs.”

While sharing the same gene pool, self–determination and self–government or autonomy do not have identical DNA. This paper advances four reasons: First, self–determination is an inherent right, whereas self–government is a grant. Clearly, the Supreme Court has since abandoned what for a long time was the gospel truth about Indian tribes: they possessed inherent rights of sovereignty which they may exercise unless curtailed by a treaty or Congress. Lone Wolf v Hitcock,[32] Oliphant v. Suquamish Indian Tribe,[33] and their derivative cases effectively hold that Indian tribes only have power that Congress has delegated to them through congressional plenary power. Second, self–determination is explicitly recognized under international law as a right of peoples, with the status of a jus cogens norm. Although self–government is the political aspect of self–determination, it is not by itself the self–determination which States are obliged to recognize as a right of peoples within their polities. In fact, the term does not appear in any of the provisions of the International Covenant on Civil and Political Rights (ICCPR). Third, self–government is a democratic entitlement to participate in the processes of the majority who rule the democratic space, which can operate against self–determination. As the Supreme Court said in California Democratic Party v. Jones,[34] a foundational constitutional doctrine is “the eminently democratic principle that—except where constitutional imperatives intervene—the majority rules.” Indigenous peoples are always a political minority and they cannot be equal players in the “majority rules” arena. Self–determination on the other hand is the shelter of indigenous peoples from the rule of the majority which might harm their interest as minorities. In the United States, self–determination policies are profuse with Indian participation in planning of policies but ultimately decisions are made by the federal government acting for the majority that rules. Fourth, self–government does not necessary entitle the self–governing entity sovereignty over natural resources whereas self–determination protects the people’s right to its natural resources. Indian tribes are not actually owners of their ancestral lands. The United States is, and indigenous peoples are mere usufructuary owners. Exercising plenary powers, the federal government may sell or condemn tribal lands in favor of outsiders.

Part I briefly traces the legal and normative underpinnings of self–determination and its historical context. It argues that the Constitution provides a solid argument for indigenous self–determination. It also explores justifications for the recognition of indigenous peoples as peoples. Part II reviews the evolution of the concept of tribal sovereignty as the power of distinct, political entities that are at the same time domestic dependent nations. It follows the judicial terrain beginning from the beginning of the “reserved rights” doctrine first articulated in United States v. Winans[35] to its mutation into the “congressional plenary power doctrine” improvised in Lone Wolf but sharpened into the “congressional–grant doctrine” in Oliphant. It also looks at the self–determination era in the United States. Both parts are necessary to lay down the premise for comparing self–government and self–determination using the Indian tribe’s experiences as the context.

Part III explores the differences between self–determination and self–government or autonomy. Part IV offers the conclusion that if the judiciary is to be a meaningful instrument toward the realization of Indian self–determination, it should revisit the constitutional norms supporting it which offers a wide room for doctrinal reversal and embrace of a new one. 

II. THE LEGAL UNDERPINNINGS OF INDIGENOUS SELF–DETERMINATION: HISTORY OF STRUGGLE FOR INTERNATIONAL LAW RECOGNITION OF INDIGENOUS SELF–DETERMINATION

   Prior to colonization, indigenous peoples existed for thousands of years in the territories they presently inhabit. For most of the 20th century, indigenous peoples were paternalistically treated as mere objects and not subjects of international and domestic laws.[36] Until 1967, indigenous peoples were regarded as part of the flora and fauna and not counted as persons in Australia.[37] In the Philippines, indigenous populations were called non–Christian tribes.[38] In the United States, even if Indians became citizens under the Indian Citizenship Act of 1924, it took decades before they were allowed to vote.[39] The aftermath of decolonization in the mid–20th century saw the rise of movements demanding minority and group rights. Indigenous peoples pushed their agenda using minority rights regimes. In Asia and Africa, former colonies embarked on nation–building and constitutional projects. Unfortunately, homeland groups distinct from the majority of the colonized were left out.

Indigenous peoples entered the age of rights in international law as mere silhouettes in the human rights discourse. In 1957, the International Labour Organisation Convention 107[40] was adopted by the international community. Criticized for its assimilationist policies,[41] ILO Convention 107 was nonetheless a landmark treaty, being the first international document to deal with indigenous peoples that it called “indigenous populations.”[42] It brought indigenous populations to the attention of the international community and fueled international efforts to address their issues and opened the doors for indigenous participation in national and international fora on indigenous concerns.[43]

The latter part of the 20th century witnessed the renascence of ethnic identities and demands for minority rights.[44] It also witnessed the rise of private corporations and their mad rush for the exploitation of natural resources. Since indigenous peoples sit on the bulk of the Earth’s remaining natural resources,[45] and as a result of their resource management system that believes in intergenerational responsibility to preserve the planet’s resources for posterity,[46] their territories became natural targets for industrial expansion. Such expansion brought into their domains a host of human rights abuses and even more abject poverty. “Indigenous peoples are said to bear disproportionately the costs of resource–intensive and resource–extractive industries, large dams and other infrastructure projects, logging and plantations, bio–prospecting, industrial fishing and farming, and also eco–tourism and imposed conservation projects.”[47] National resistance movements rose against unfettered expansion of industry into indigenous domains. As rightly observed:

[G]lobalization has triggered greater awareness among the indigenous peoples of self–empowerment and democratization, which are important forces in capturing globalization. . . . Through their [Sarawak] blockades and protest movements, they have shown that they know how to use “power” to speak and to resist the globalizing forces that threaten their way of life and economic activities.[48]

States were apathetic to indigenous oppositions to forced dislocation and other human rights abuses. Indigenous movements built global networks and, emerging from the shadows, their ignored, if not forgotten, identities began to take shape before the eyes of the international community.[49] Asserting and pursuing the recognition of their self–determination claims, indigenous populations rose as actors in UN instruments.[50] As a milestone, the international community adopted International Labour Organization Convention 169[51] and declared 1995–2004 as the United Nations’ International Decade of the World’s Indigenous People.[52]

These developments fueled international legal dialogues on group rights. In the last decades, major efforts by indigenous organizations and individuals led to the evolution of international law on self–determination. Traditionally, self–determination was regarded as a right of States from colonial domination,[53] but indigenous peoples pushed international legal boundaries. Due to the failure of domestic legal systems to protect them, many indigenous populations utilized supranational remedies as shelter from the deleterious consequences of economic globalization and industrial expansion.[54] They used the notion of self–determination to press for protection before the Human Rights Committee (HRC).[55] During the drafting of the ICCPR, it was questionable whether minorities qualified as peoples,[56] and some scholars interpret this to mean that indigenous peoples were excluded from coverage under the protection of the ICCPR.[57] For a long time, the HRC was hesitant to acknowledge the peoplehood of indigenous peoples out of deference to States–which always saw the potential of secession rising with every self–determination claim.[58] This hesitancy invited the displeasure of scholars, who equivocated that an indigenous self–determination claim is more promisingly understood as “a generalized right” and that “its realization does not always entail the option of separate statehood . . . .”[59] While self–determination dominates the rights agenda of indigenous peoples, it is not necessarily a demand for statehood, but “can be comprehended in ways that need not challenge sovereignty,”[60] and allow for independence within the framework of existing States,[61] removed from the colonial context.[62] Despite the initial reluctance of the HRC, indigenous peoples did not let up[63] until it finally recognized their international status as rightful bearers of self–determination. Since 1999, the HRC has been calling on States to respect the right of self–determination[64] of those “among the most disadvantaged in the world.”[65]

Recently, the international community adopted the UNDRIP.[66] Currently, the right of self–determination is enshrined in a number of international treaties and other documents, and has “crystallized into a rule of customary international law, applicable to and binding on all states.”[67] 

III. THE LEGAL PARADIGM OF INDIAN TRIBAL SOVEREIGNTY: A STORY OF BEGINNINGS, EVOLUTION, AND RETROGRESSION

A. Constitutional Underpinnings of Indian Self–Determination

Before indigenous self–determination became part of international law lexicon, the United States already recognized “tribal sovereignty.” A common tragedy of indigenous peoples all over the world is exclusion from constitution–building projects of the States that absorbed them.[68] In the case of American Indians, the United States’ founding fathers did not intend to include them as subjects or citizens under the U.S. Constitution. Nonetheless, their presence in the United States was acknowledged constitutionally.[69]The American Indians have been considered a lurking “shadow that could not be completely ignored” in constitution–building.[70] Hence the Constitution, as ratified in 1789, granted Congress “the power to regulate Commerce with . . . the Indian tribes,”which can be seen as an affirmation of Indian sovereignty.[71] The U.S. federal government relied on the Constitution’s provision on treaty–making in its relationship with tribes.[72] The process outlined in the provision[73] was observed in the treaties concluded with the Indian tribes: the Executive Branch, through the President, would submit an agreement with tribes to the Senate for ratification.[74] Treaty–making, “and legislation made pursuant to those treaties, governed relations between the Federal Government and the Indian tribes,”[75] an implicit acknowledgment of their capacity to do so as collectives.[76] Treaties “rested upon a concept of Indian sovereignty . . . and in turn greatly contributed to that concept.”[77] In 1831, the U.S. Supreme Court noted in Cherokee Nation v. Georgia[78] that the federal treaty–making with Indian tribes was tantamount to recognition of their peoplehood, “capable of maintaining the relations of peace and war, of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States by any individual of their community.” In United States v. Winans,[79] the U.S. Supreme Court, affirming that treaties between the United States and Indian tribes were between “two sovereign nations,” proffered what has become known as the reserved rights doctrine. Indians had reserved rights not surrendered to the US, and a treaty was not a grant of rights to the Indians, but rather “a grant of rights from them, a reservation of those not granted.”[80]

The House of Representatives had no “voice in the development of substantive Indian policy” within a treaty, and could only appropriate such funds as were necessary to put the treaty into effect.[81] The House refused to appropriate funds to implement new treaties until 1871, by which time Congress abolished treaty–making with tribes.[82]

B. The Independent, Distinct Political Entities but Domestic, Dependent Nations

In Cherokee Nation v. Georgia, the U.S. Supreme Court recognized the pre–contact sovereignty of Indian tribes. However, the Court referred to them as domestic, dependent nations “in a state of pupilage” whose relationship “to the U.S. resembles that of a ward to his guardian.”[83] The U.S. Supreme Court stated “[t]hey look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father.”[84] The ensuing Worcester v. Georgia[85] “[laid] the cornerstone for the legal system’s continuing recognition of tribal sovereignty.”[86] Decided in 1832, the Worcester decision enunciated that Indian nations always enjoyed recognition as distinct, independent political communities and had the power of self–government—flowing from their original tribal sovereignty and not from a grant of power by the U.S. federal government.[87] The U.S. Supreme Court held that:

The settled doctrine of the law of nations is that a weaker power does not surrender its independence—its right to self–government, by associating with a stronger, and taking its protections. A weak State, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state.[88]

Under Chief Justice Marshall, the U.S. Supreme Court recognized only two limitations to Indian sovereignty: (1) Tribes could not alienate their lands except to the United States; and (2) They could not enter into treaties with foreign nations.[89] Thus, in Ex Parte Crow Dog,[90] the U.S. Supreme Court overturned the conviction by the colonizer’s court of an Indian accused of killing another Indian; a matter earlier settled according to tribal law.Recognizing tribal sovereignty, the U.S. Supreme Court said that the application of the colonizer’s law

[T]ries [Indians] not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social State of which they have an imperfect conception and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man’s revenge by the maxims of the white man’s morality.[91]

The U.S. Supreme Court declared, and would reiterate in Talton v Mayes,[92] that the long arm of federal laws did not extend to reservations without express authorization by Congress. In Talton, it also said that tribal powers were beyond judicial review.[93] 

C. The Birth of Plenary Powers: Pre–Existing Reserved Rights Become Subject to Congressional Curtailment

Even as jurisprudence on American Indian sovereignty first developed as the principle that tribes possessed pre–existing powers of sovereignty, this jurisprudence evolved judicially and made tribes “subject to the supreme legislative authority of the United States.”[94] This subjugation of tribal sovereignty to the U.S. Congress was later repackaged as Congress’ plenary powers. Under this rule, tribes reserved their pre–existing powers which they could exercise, unless curtailed by Congress. Cohen wrote in 1941:

The whole course of judicial decision on the nature of Indian tribal powers is marked by adherence to three fundamental principles: (1) An Indian tribe possesses, in the first instance, all the powers of any sovereign state. (2) Conquest renders the tribe subject to the legislative power of the United States and, in substance, terminates the external powers of sovereignty of the tribe, e.g., its power to enter into treaties with foreign nations, but does not by itself affect the internal sovereignty of the tribe, i.e., its powers of local self–government. (3) These powers are subject to qualification by treaties and by express legislation of Congress, but, save as thus expressly qualified, full powers of internal sovereignty are vested in the Indian tribes and in their duly constituted organs of government.[95]

The abounding judicial rhetoric recognizing tribal sovereignty recognition is matched by doctrinal pronouncements that impair it. The U.S. Supreme Court’s earliest and longest lasting infringement on tribal sovereignty was the creation of congressional plenary power over tribes. Ex Parte Crow Dog braced the infrastructure for the rise of this formidable legal edifice when the U.S. Supreme Court, in voiding a conviction of an Indian by a federal court, said that without congressional authorization, the federal government could not take cognizance of a crime committed by one Indian on a reservation against another Indian. This led to the passage of the Major Crimes Act, which conferred federal jurisdiction on certain crimes committed by Indians within reservations. The law, held out as a valid exercise of plenary power over Indian affairs, passed judicial review in United States v. Kagama.[96] Plenary power became an enduring doctrine after it was declared a political question and thereby beyond judicial review in Lone Wolf v Hitchcock.[97]

Kannan opines that “[t]he status of tribes as domestic dependent sovereigns, the existence of a guardian/ward relationship between Indians and the United States, . . . and provisions in the Constitution . . . combine to vest in Congress plenary power over Indian tribes.”[98] This view concedes that there is constitutional basis for disregarding tribal sovereignty. However, such basis does not exist. The U.S. Constitution explicitly recognizes tribal sovereignty under the Commerce Clause[99] and nowhere grants legislative plenary power over the tribes. Whatever broad powers the federal government has over tribes that negated their pre–contact sovereignty is not a constitutional grant, nor could it be justified under any democratic principle. Pommersheim maintains that the source is “judicial plenary power”[100]that the Supreme Court has been consistently exercising to grant, and reaffirm the grant of, plenary and unilateral authority on Congress. In other words, plenary power is not constitutionally derived; rather, it is judicially evolved. The excision of tribal powers might be the immediate result of plenary powers, but is ultimately the aftermath of judicial misinterpretation of the Constitution.

The plenary power doctrine was invented to “facilitate the unilateral expansion of federal land acquisition and power in Indian affairs.”[101] As it mutated by judicial fiat, it became the legal leg upon which stood the legitimacy of further diminution of Indian lands and tribal powers and assumption by federal apparatuses of powers originally held by tribes. It has been invoked, among others, to justify unilateral abrogation of treaties with tribes,[102] the revision of reservation boundaries,[103] the sale of Indian lands without their consent,[104] federal veto power over tribal decision to lease lands,[105] federal unilateral decision to lease tribal lands,[106] the exercise of eminent domain over tribal lands,[107] the determination of tribal membership,[108] and the divestiture of tribal powers over reservations.[109] Although challenged several times, it remains very well–entrenched and in fact has grown more teeth. It shaped, reshaped, distorted, and re–distorted tribal sovereignty.

The Supreme Court has vacillated from sympathetic, condescending, and outright hostile in ruling on indigenous sovereignty and self–determination. At its sympathetic mode, the Court attested the inherent sovereignty of tribes,[110] held that treaties are not rights devised to tribes, but rather “a reservation by the Indians of rights already possessed and not granted away by them,”[111] warded off state incursion into Indian reservations by holding that they were beyond the taxing arm[112] and laws of states,[113] decreed that “even federal laws could not be applied to Indians without congressional permission,”[114] and recognized the taxing power of tribes over activities of non–Indians within their reservations reasoning that “the power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self–government and territorial management.”[115] At its unsympathetic state, it would take back with its right hand what it gave with the left.[116] For example, while the Court laid down the doctrine that “a general Act of Congress does not apply to Indians or their lands,”[117] it virtually had a diametrically opposed holding in Case of the Cherokee Tobacco,[118] when it extended federal taxation law to an activity within a reservation despite the absence of a law providing it. Years later in Tuscarora,[119] the Court was categorical that federal laws of general application extended to Indians and their governments unless Congress provided otherwise. This has perhaps moved Justice Souter, dissenting in US v. Lara,[120] to say that the Supreme Court leaves a legacy of confusion “for our failure to stand by what we have previously said reveals that our conceptualizations of sovereignty and dependent sovereignty are largely rhetorical.”[121] Indeed, the Supreme Court has been consistently treating tribal sovereignty as an elastic band.

D. The Retrogression of Sovereigns: Reserved Powers Judicially Mutate Into Statutory Grants

The period from the 1960s to the present is called the self–determination era[122] in view of the surge of more federal policies and laws that purport to promote Indian self–determination. This movement was most likely borne out of the realization that past policies “invisibilized” the Indians whose destinies were being decided in ivory towers without their participation. Laws have been passed under the banner of self–determination to ensure Indian participation in crafting and implementing policies that affect them. Yet, it is during this era that “[t]he Supreme Court has become more hostile to [Indian] interests in its resolution of issues of tribal self–determination, highlighting the dearth of secure footholds in judicial doctrine for Native American law.”[123] The courts have been shrinking the powers of the tribes as they have been expanding federal powers over them. In fact, the Court revolutionarily reshaped tribal sovereignty. Whereas it used to be an exercise of retained powers not divested by congress,[124] it became an exercise of those powers that Congress granted. As they are presently contoured, Indian tribes bear little or no semblance to the domestic dependent nations of the 19th century.

While the U.S. Supreme Court facially acknowledges the concept of inherent tribal sovereignty, the Court’s decisions have actually created a contradictory body of jurisprudence that often undermines tribal sovereignty. In Oliphant v Suquamish Tribe,[125] the Court did not expressly acknowledge tribal sovereignty. But it made a bizarre assertion that “the effort by Indian tribal courts to exercise criminal jurisdiction over non–Indians . . . is a relatively new phenomenon.” Why should jurisdiction over acts that happen within a territory of a sovereign–however domestic and dependent–be a new phenomenon? It is in fact older than the United States assertion of sovereignty over the Indians themselves. As pointed out by Justice Marshall in his terse dissent, “the power to preserve order on the reservation . . . is a sine qua non of the sovereignty that the Suquamish originally possessed. . . . In the absence of affirmative withdrawal by treaty or statute, . . . Indian tribes enjoy as a necessary aspect of their retained sovereignty the right to try and punish all persons who commit offenses against tribal law within the reservation.”[126] The same attitude impelled the Court to ground its decision on the discovery doctrine which while acceptable under the law of nations in the early 19th century, was hurled into the trash bin by civilized countries in the 20th century:[127] “Indian tribes hold and occupy [the reservations] with the assent of the United States, and under their authority.”[128] The decision stated that Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non–Indians, and may not assume such jurisdiction unless specifically authorized to do so by Congress.

But in US v. Wheeler,[129] the Court with seeming language facility restated the 19th century doctrine that tribes possessed “inherent powers of a limited sovereignty which has never been extinguished.”[130] The Court said that “[t]ribes possess all of the powers of governance of sovereign nations except those withdrawn by treaty or by congress,” qualifying however that tribal sovereignty “exists only at the sufferance of Congress and is subject to complete defeasance.”[131]

More recent Supreme Court decisions have made romantic references to inherent tribal sovereignty. But the net effect of such decisions is to decimate tribal powers. For example, Montana acknowledged that tribal courts possess inherent sovereignty. But it is actually the grandmother of recent Supreme Court decisions cumulatively shrinking tribal civil jurisdiction and Indian lands. It held that tribal courts do not have jurisdiction to regulate activities of non–Indians in Indian country. The evolution of the Montana rule “reflecting a gradual conservative trend in the Court from 1981 to 2008, occurred in a series of decisions in which the Court, while never abandoning its 1981 decision, qualified, amended, and fundamentally reinterpreted it to severely limit tribal jurisdiction.”[132] Along with Oliphant, it veered away from the recognition of tribes as “unique aggregations possessing attributes of sovereignty over both their members and their territory.”[133] By holding that tribes could not regulate non–Indian activities within Indian reservation and proclaiming that tribal sovereignty is limited to exercise of powers over Indians, the Court treated tribal jurisdiction as personal rather than territorial. This has led some scholars to pejoratively describe tribes as “private clubs”[134] and “glorified fraternal organizations”[135] despite judicial claim that they are “a good deal more than ‘private, voluntary organizations.’”[136]

Cornell, who equates self–government with self–determination, is critical of the policy directions on Indians that the United States has taken under the banner of self–determination:

The federal idea was to treat self–government as self–administration, turning tribal governments into adjuncts of the federal administrative apparatus. In the years since, most federal involvement in Indian affairs has been more concerned with addressing social problems than with building Indigenous capacities for genuine self–rule. This trend has been supported by recent U.S. court decisions that have severely curtailed tribal jurisdiction and undermined Indigenous rights of self–government.

In sum, central governments have tended to respond to Indigenous peoples in the same ways they have responded to immigrant and other minority populations: with egalitarian and assimilative policies that attempt to address Indigenous disadvantage and facilitate integration into encompassing societies.[137]

This affirms the allegation of the accused in Wheeler who contested federal jurisdiction over him after he was convicted by the tribal court for an act necessarily included in the graver federal offense. Invoking the ‘all–encompassing’ plenary power of Congress over tribes, he concluded that tribes were just “arms of the federal government” that “owe their existence and vitality solely to the political department of the federal government.”[138] This view has since been echoed by scholars who claim that tribes are more adjuncts of the federal government dispensing powers with congressional authority or sufferance, rather than exercising inherent powers as self–determining peoples. Alfred observes that the administrative units within tribes are colonial impositions patterned after non–indigenous arrangements.[139]

E. Self–Determination and Self–Government: A Rose That Does Not Smell Like a Rose is Not A Rose

In several federal policy statements, self–determination is invoked as the premise. But it has always meant self–government. As Cook says, “congressional emphasis seems to be most often on tribal self–governance” even if legislations adopt the word self–determination in their policy statements. Clarifying the entitlements of self–government, Congress provides that “powers of ‘self–government’ means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.”[140] Courts acknowledge that congressional policy “now seeks greater tribal autonomy within the framework of a government–to–government relationship with federal agencies.”[141] Jurisprudence which profusely uses ‘tribal sovereignty’ limits it to self–government[142] regarded as one of the foundational aspects of tribal existence. Cornell cautions that “it must be made clear that self–government merely connotes governmental power over a limited class of persons, i.e., tribal members, whereas true sovereignty includes governmental power over territory and all persons within that territory.”[143] Their right of internal self–government includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions.[144] Federal courts regard the exercise of tribal jurisdiction as acts of self–government.[145]

IV. SELF–DETERMINATION AND SELF–GOVERNMENT: SIMILAR YET DIFFERENT

A. The Difference Between Gift and Right

Legal scholarship and jurisprudence on Indians surface two competing theories of tribal sovereignty. First, it is inherent and pre–constitutional or older than the government of the United States. Therefore, tribal sovereignty is an exercise of rights and powers retained or reserved and not surrendered to the United States as established in Winans.[146] The theory is interpreted by some scholars, thus: “Tribes do not exercise rights because Congress granted them rights. Tribes exercise rights based on their original and indigenous sovereignty.”[147] The second theory holds that tribal sovereignty is an exercise of those powers that Congress suffers tribes to exercise as held in Wheeler. The source of tribal powers is essentially congressional authorization and these powers may be restricted or altered by Congress exercising its plenary power over Indian affairs. The tension between these two theories spells the difference between self–determination and self–government. A gift is neither a claim nor an entitlement that may be demanded by the grantee. A right on the other hand is the correlative of duty or obligation.[148] A right grounds an affirmative claim against the duty–bearer which is enforceable under the law. As Feinberg put it,

Rights are not mere gifts or favors, motivated by love or pity, for which gratitude is the sole fitting response. A right is. . . something that can be demanded or insisted upon without embarrassment or shame. When that to which one has a right is not forthcoming, the appropriate reaction is indignation; when it is duly given there is no reason for gratitude, since it is simply one’s own or one’s due that one received.[149]

A right is therefore enforceable against the bearer of the obligation to respect it. In respect to duty or obligation, Kant has this to say:

Duty is the necessity of acting from respect for the law. . . . It is only what is connected with my will as a principle, by no means as an effect—what does not subserve my inclination, but overpowers it, or at least in case of choice excludes it from its calculation—in other words, simply the law of itself, which can be an object of respect, and hence a command. Now an action done from duty must wholly exclude the influence of inclination, and with it every object of the will, so that nothing remains which can determine the will except objectively the law, and subjectively pure respect for this practical law, and consequently the maxim that I should follow this law even to the thwarting of all my inclinations.[150]

According to Thornberry, self–government or autonomy is “essentially a gift by the states . . . though it can be entrenched [and] it does not flow freely from the sources of international law as an obligation on States.”[151] Self–determination, on the other hand, is a human right.[152] The primary human rights instruments that protect self–determination are therefore enforceable against States–parties. Since self–determination is also a peremptory norm and therefore customary international law, it is enforceable against States that did not ratify it. It is independent of the outsider’s recognition, and proceeds not from a positive grant of power from a government but from the people who make up the self.[153]

Essentially, Indian tribal sovereignty in its present contour is a gift from the federal government. Based on the Indian experience, there might be truth in what Sophocles said: “The gifts of enemies are no gifts and bring no good.”[154] The paternalistic undercurrent in every federal policy on Indians, while it may be impelled by liberality which presumably underpins every gift or grant, actually prevents tribes from charting their own destiny and continue to facilitate full assimilation. Oliphant, decided out of concerns that Indian tribal justice may miscarry justice to the prejudice of a non–Indian, redrew the map showing the source of tribal powers. It held that tribes were shrived of their pre–constitutional inherent jurisdiction the moment they surrendered to the sovereignty of the United States.[155] However, such jurisdiction may be reinstated by the delegation of federal powers through congressional plenary power. The judicial logic that inspired Oliphant, which is now the controlling doctrine in criminal jurisdiction, can only proceed from the belief that Indian “sovereignty” is a federal grant, not the exercise of inherent powers.

The doctrine now is that tribal power thereby “exists only at the sufferance of Congress and is subject to complete defeasance.”[156] Winans,[157] which treated tribal sovereignty as the exercise of pre–constitutional powers reserved by the tribes, has been virtually abandoned. As essentially held in Oliphant and Montana, tribes could not exercise jurisdiction over non–Indians in their territories, not because Congress stripped them of such powers, but because Congress never granted them in the first place. There is then a question of how Congress treats tribal powers over other Indians. The Supreme Court provides the answer in Wheeler: “[U]ntil Congress acts, the tribes retain their existing sovereign powers.”[158] In essence, when tribal powers are limited to internal affairs between Indians, it is only the consequence of federal toleration and, therefore, a gift from the United States. As Carlos Ruiz Zafon aptly said, “[p]resents are made for the pleasure of who gives them, not the merits of who receives them.”[159] The Court in Lara claims that plenary power allows Congress to treat sovereignty as a clay that can be shaped, reshaped, fragmented, or made whole.[160] It is Congress’ prerogative to give and to curtail tribal powers.[161]

What are the obligations of the federal government? Since Indian self–governance is a gift from Congress, it does not generate obligations, except those that Congress assumes voluntarily. Plenary authority can override a treaty or agreement with the tribes.[162] In fact, Congress possesses a plenary authority on all matters affecting Indians, including their form of government,[163] and it can limit, modify or eliminate the powers of local self–government that the tribes otherwise possess.[164] The very foundation of the tribes’ exercise of powers is their constitutions, which they could only adopt with the permission of United States provided to them under the Indian Reorganization Act. Because self–rule was premised as a grant under Congress’ authority, Congress gave itself the power to impose federal oversight over the tribes. A boilerplate constitution was virtually imposed,[165] and although rejected by some tribes, most tribal governments are patterned after it.[166] As the Court said, “the United States from the beginning permitted, then protected, the tribes in their continued internal government.”[167] All this was, and still is, possible because self–government is a gift, not an inherent right.

B. Self–Determination in International Law

Gudmundur Alfredsson rightly claims that “international human rights instruments do not expressly provide for a right to autonomy,”[168] that has “firmly anchored in international and regional human rights instruments.”[169] Autonomy or self–government, therefore, cannot be enforced against States, either in the domestic or international legal systems. On the other hand, self–determination is guaranteed under international law.

It is now settled that self–determination is a principle of customary international law and a jus cogens or peremptory norm.[170] The International Court of Justice pronounced this in the East Timor Case[171] calling the right an erga omnes obligation of States. The Court reprised this doctrine in its Advisory Opinion on the Construction of a Wall in the Occupied Palestinian Territory[172] to the UN General Assembly in 2004. Being jus cogens and a peremptory norm, self–determination is a non–derogable right of the highest order[173] and does not have to be expressed in the positive laws of States; it is already considered incorporated and enforceable as a claim in states’ domestic legal systems. Independent of its expression in positive law or international doctrine,[174] self–determination “has an existence in the moral order.”[175] The recognition of this right is implicit in every State’s constitution and is thus:

[A] powerful expression of the underlying tensions and contradictions of international legal theory: it perfectly reflects the cyclical oscillation between positivism and natural law, between an emphasis on consent, that is voluntarism, and an emphasis on binding objective legal principles, between a statist and communitarian vision of world order.[176]

In the United States, it is settled that customary international law is regarded as federal common law[177] and is therefore part of the supreme law of the land. Indians may therefore sue in the courts to enforce their self–determination rights. However, such suits are limited to their rights within domestic law. On the other hand, they may sue to enforce all rights which are entitlements of self–determination, whether or not positive law expressly provides them. Independent of its being customary law, self–determination is explicitly recognized under international law. Both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), two covenants which form part of the International Bill of Rights, identically provide: “All peoples have the right of self–determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”[178] The same provision is in the Declaration on the Rights of Indigenous Peoples (UNDRIP)[179] which the United States recently adopted,[180] reversing its dissent registered when the landmark instrument on indigenous rights was presented to the UN General Assembly in 2007.[181]

While the United States has not ratified the ICESCR, it has ratified the ICCPR which came into force on 8 September 1992,[182] making the treaty part of the supreme law of the land.[183] It is worth noting that the United States’ ratification was subject to the declaration that the ICCPR is not self–executing, implying that that an enabling legislation is a sine qua non for the direct enforcement of the treaty in U.S. courts. It is, however, correctly observed that this attempt to undermine the efficacy of the ICCPR is void, since it diametrically opposes the ICCPR’s object and purpose to promote human rights.[184] Debates as to whether the United States’ declaration is binding is an academic exercise. Treaty reservations and declarations are, as a rule, valid, but they do not operate against non–derogable rights and jus cogens or peremptory norms.[185]

C. Self–Determination as Democracy: Throwing the Lamb in with the Wolves?

The value of democratic rights per se to indigenous peoples is limited,[186] because the essence of the democratic process is the will of the majority. Democracy, according to Benjamin Franklin, is “two wolves and a lamb deciding what to have for lunch.”[187] Indigenous peoples that are a political, if not numerical, minority governed in a majoritarian fashion may lack political representation due to the lack of inherent capacity for institutional controls against the will of the majority.[188] Democracy in its simplest definition, offers little protection against the abuse of human rights in the absence of safeguards for minorities. The U.S. Constitution does not provide guarantees against federal and state abuse of Indian sovereignty.[189] In fact, indigenous participation in the democratic process serves to validate those decisions which isolate them, and legitimize the “[reproduction of] the very configurations of colonial power that indigenous peoples’ demands for recognition have historically sought to transcend.”[190] Opponents of majoritarianism call it tyranny of the majority[191] because a decision of the majority is democratic even if incompatible with justice,[192] which can ultimately lead to the collapse of the rule of law.[193]

Despite changes in the federal government’s policy on Indian self–determination during the last forty years, “at its core it has been consistently predicated on two principles: (1) providing greater control to tribal citizens and their governments in planning, designing, implementing, and controlling the public affairs of their respective tribes; and (2) maintaining the trust relationship between the federal government and American Indian tribes.”[194] It is widely acknowledged that President Nixon’s declaration in 1970 before Congress that “the Federal government [should] begin to recognize and build upon the capacities and insights of the Indian people”[195] provided the impetus for the passage of the Indian Self–Determination Act. The Act considers “assuring maximum Indian participation in the direction of educational as well as other Federal services to Indian communities” as a discharge of the United States’ obligation “to respond to the strong expression of the Indian people for self–determination.[196]

While rhetorically, the Self–Determination Act may give tribes a greater role in their affairs, the law does not say that they ultimately decide. It equates meaningful self–determination with “effective and meaningful participation by the Indian people in the planning, conduct and administration” of Indian services.[197] Under the Act, Indians are given seats at the discussion table, along with federal bureaucrats and legislators, when it is their affairs on the agenda.

The spirit of this law is embedded in executive actions on Indian matters. For example, in 2000, the federal government issued an Executive Order which affirms federal recognition of the right of Indian tribes to self– government and support for tribal sovereignty and self–determination.[198] It lays down principles for executive policies and legislative proposals that elaborate on consulting tribes for inputs in the development of regulatory policies that have tribal implications. But the picture is stark: the self in self–determination is but a mere consultant that ultimately does not make the decision on matters that affect itself. Since the setting is democracy, it is still the majority that decides.

Historically, the exercise of Indian self–determination has been “severely crippled by the powerful jaws of federal bureaucracies”[199] which were acting in the interest of the majority. The participation of the tribes in the democratic processes to address their concerns stamps moral validity on eventual federal decisions. After all, the tribes were consulted.

A statement of the Philippine Supreme Court, in which it overruled the constitutional challenge of indigenous peoples against a mining law that indigenous people feared would dispossess them of their ancestral domains, is indicative of how majoritarian sentiments can overshadow indigenous interests:

We must never forget that it is not only our less privileged brethren in tribal and cultural communities who deserve the attention of this Court; rather, all parties concerned—including the State itself, the contractor (whether Filipino or foreign), and the vast majority of our citizens—equally deserve the protection of the law and of this Court. To stress, the benefits to be derived by the State from mining activities must ultimately serve the great majority of our fellow citizens. They have as much right and interest in the proper and well–ordered development and utilization of the country’s mineral resources as the petitioners.[200]

The same line of reasoning is used by the United States in United States v. Navajo Nation.[201] In that case, the Navajo Nation sought to enforce a claim of $600M against the federal government for alleged losses when the Secretary of Interior as “the highest–ranking government official charged by statute with overseeing Indian Affairs” breached his fiduciary duty to Indian tribes by approving a royalty share of the Nation from a coal mining operation way lower than what was recommended by other federal agencies. The Court observed that its decision “has the potential to impact not only the parties, but also energy customers in California, schoolchildren in Utah, and tribal law specialists nationwide” along with the energy industry which “wants cheap coal.” The Court also mentioned that “energy companies argue that there is a substantial benefit to millions of energy consumers throughout California in having the reasonably priced coal that comes as a result of the current lease arrangement.” The tribes lost the case.

One scholar states that the function of self–determination is “to protect the collective human and democratic rights of minorities and unrepresented peoples”[202]—something pure democracy cannot accomplish.[203] This scholar doubts that self–determination can “be satisfied by the majoritarian model, even in the presence of minority rights.”[204] Self–determination is the right to equal participation in decision–making, normatively based on the concept of democracy.[205] But democracy is not a sufficient, fair response to demands for self–determination. Indigenous peoples, as minorities, can never be equal participants in decision–making as historically they occupy positions of subservience.

In fact, in some cases, minorities and indigenous peoples have had better, or less bad, conditions under systems regarded by the international community as totalitarian. The Stalinist regime prohibited racial bigotry and suppressed ethnic and racial resentment, [206] rescuing the Roma from the fringes of society and facilitating their integration into the production process, thereby elevating their standard of living.[207] When the Soviet Union crumbled and a democratic order took control, the centuries–old racism returned and jeopardized Roma integration.[208] Democracy therefore does not ensure the integration of minorities.

To Hannum and Lillich, self–governance and autonomy refer to a measure of “actual as well as formal independence enjoyed by the autonomous entity in its political decision making process.”[209] The existence of autonomous entities may as well as a measure of “actual as well as formal independence enjoyed by the autonomous entity in its political decision–making process.”[210] But for Anaya, self–government is only political,[211] and does not by itself translate into control over non–political aspects of a people’s existence.

In this era of globalization, democratic entitlements alone will do little to change the situation for indigenous peoples. Mazower supports this assertion by observing that the collapse of liberal democracy in the mid–20th Century Europe was caused by a focus on process, rather than results. In his words, it “assume[d] mistakenly that a deep rooted social crisis could be solved by offering ‘the people’ constitutional liberties.”[212] Although these liberties accorded people the space to participate in political discourse and processes, they failed to resolve the prevailing social issues.[213] Self–determination with a strictly political focus that is not result–oriented will fare no better.

D. Self–Determination Requires Land Control

The inadequacy of the federal response to Native American claims of self–determination is due largely to the tribes’ lack of land control. The Self–Determination Act and prevailing Indian policies promote Indian representation within the policy process, providing them an opportunity to identify their problems and propose viable solutions. Yet tribes continue to decry the suppression of their self–determination claims.

Self–government or autonomy, meaning that “parts of the State’s territory are authorized to govern themselves in certain matters by enacting laws and statutes, but without constituting a State of their own,”[214] may satisfy scholars who view self–determination as only the expression of political power.[215] As an adjunct of self–determination, autonomy is indeed a political right, “the right of a people organized in an established territory to determine its collective political destiny,”[216] or “the right to participate in deciding the structure of the state, the type of government and the persons to be entrusted with political power in a state.”[217] However, it is just one of the aspects of self–determination. It does not, by itself, allow self–control over other aspects of a people’s existence.[218] While institutions of government are necessary components of self–determination, “sovereignty over natural resources and territories [should proceed] their appearance.”[219] The Royal Commission of Aboriginal Peoples of Canada recognized this basic fact, declaring that “without a greater share of land and resources, institutions of aboriginal self–government will fail.[220]

Reporting on Greenland’s home rule agreement with Denmark, Miguel Alfonso Martinez, UN Special–Rapporteur on treaties, agreements and other constructive arrangements between States and indigenous populations, concluded that Greenland’s “‘autonomy regime’ [did] not amount to the exercise of the right to self–determination by the population of Greenland.”[221] He agreed that autonomy regimes “have brought [or may bring] certain advantages to indigenous peoples” [222] but will not end a State’s aspirations to exert the fullest authority possible, including integrating and assimilating its peoples.

Self–determination rather than self–government guarantees land control. International law stresses that “the right to self–determination requires, inter alia, that all peoples must be able to freely dispose of their natural wealth and resources and that they may not be deprived of their own means of subsistence.”[223] Scheinin argues that self–determination contains is impressed with two dimensions: “[A]ll peoples’ right ‘to freely determine their political status’ (political dimension) and to pursue their ‘economic, social and cultural development’ (resource dimension).”[224] Anaya similarly argues that international norms on indigenous peoples that “elaborate upon the requirements of self–determination, generally fall within the following categories: cultural integrity, lands and resources, social welfare and development, and self–government.”[225] Hannum considers formal secession antiquated, instead claiming that self–determination in its current form is grounded on two justifications: first, “protecting the individual and group identity,” and second, “facilitating effective participation in government.”[226] The first is reflected in human rights norms. The second requires the identification of relevant elements of democratic self–government to guarantee effective participation of people in the affairs of the State. The human rights norms are guaranteed by land control, which enables control over indigenous economic and cultural destinies within an existing State polity.[227] In Maya Indigenous Communities Toledo District v. Belize, the Inter–American Court of Human Rights ruled that Belize violated the land rights of the Maya peoples by granting oil and logging concessions to corporate actors. It pronounced that the “effective protection of ancestral territories implies not only the protection of an economic unit but the protection of the human rights of a collective that bases its economic, social, and cultural development upon their relationship with the land.” [228] Lea argues that protection of ancestral land is necessary to “maintain the ‘cultural context of choice’ and at the same time to allow sufficient territory and resources necessary for the effective exercise of ‘income rights.’”[229]

Even in cases where indigenous peoples have been granted self–management, viable land bases are required for success. Speaking of the indigenous peoples of Hawaii, Anaya wrote “Without an effective land base, surviving Native Hawaiian customs—intertwined with land use and stewardship patterns–are suppressed.”[230] To indigenous peoples, “land rights have to be viewed as an expression of tribal unity and perpetuation.”[231] For the marginalized, land rights are synonymous with economic power.[232] They are the bargaining leverage of the marginalized against the exercise of State powers. In addition, property rights have “a social, rather than merely economic, function.”[233] This can be seen clearly when looking at the example of traditional power relationships between men and women. A lack of property rights prevents women from achieving empowerment.[234] Power inequalities between men and women are attributable to the disparity in land rights[235] especially in agricultural societies. Thus to empower women, their right to control assets or productive resources must be recognized.[236] As held by the African Commission of Human and Peoples Rights, without control of their lands, indigenous peoples cannot effectively participate in the political process. Land ownership “ensures that [they] can engage with the state and third parties as active stakeholders rather than as passive beneficiaries.”[237] Thus States’ opposition to international recognition of indigenous peoples’ right to self–determination is due more to “fear of losing control over indigenous lands and natural resources than fear of losing some of their overall political power.”[238]

Native American history validates the view that land control—or the absence of it—affects the exercise of self–government. Tribes have been granted self–government and democratic rights under Congress’ plenary powers, but these powers obliterated their pre–constitutional sovereignty over their lands and resources. Forced removal, whether by military force or legislation[239] and judicial pronouncement,[240] and the privatization of tribal lands under the 19th century allotment policy[241] have severely eroded tribal self–determination.

This history has made tribal claims to self–determination difficult within the federal legal system. Tribes cannot lease their lands without the Secretary of Interior’s imprimatur.[242] Over tribal objections, the federal government issued a hydroelectric power plant license to operate within a reservation, since “it is clear that all aspects of Indian sovereignty are subject to defeasance by Congress.”[243] Their lands may be taken by the federal government without their consent, even in violation of agreements or treaties,[244] or condemned in the exercise of eminent domain.[245] In fact, “[b]etween 1936 and 1974, some 595,157 acres were restored to tribal ownership, but more than three times that many acres of existing tribal lands, a total of 1,811,010, were condemned for other purposes.”[246] Treaties on which Native Americans base their land claims may be unilaterally abrogated by Congress.[247] Tribes have no vested rights when their occupation of land is unrecognized by the federal government.[248] Oliphant and Montana hold that tribes do not exercise territorial sovereignty such that non–Indian activities within Indian country may not, as a general rule, be regulated by the police power of tribal governments. Finally, whatever remaining powers tribes possess is subordinate to the cardinal plenary power of Congress.

These developments in federal Indian law and jurisprudence pose real danger to tribes whose lands “constitute less than 2% of their original area” but host “[a]pproximately one–third of all western U.S. low–sulfur coal, 20 percent of known U.S. reserves of oil and natural gas, and over one–half of all U.S. uranium deposits.[249] It is alleged that “[t]he U.S. has been increasing efforts through its federal agencies and with energy legislation and through its corporate energy partners to push more mineral and resource–extraction development within tribal lands.”[250] With tribal sovereignty limited to self–government, and with self–government limited to what powers the federal government chooses to grant them, tribes do not have meaningful control over their lands. Such control would arm them with the requirement that tribes give their free and prior informed consent before the federal government can act on their land. That would be a manifestation of self–determination.

V. PARTING WORDS

Although the founding fathers entrenched tribal sovereignty in the Constitution, “these constitutional provisions have proved mostly illusory and ineffective in protecting tribal sovereignty and constraining federal power in Indian affairs.”[251] The consequence has been a series of Supreme Court cases that engaged in double–speak on the issue of tribal sovereignty. Tribal sovereignty, initially viewed as inherent, was made subject to the power of the federal government. Eventually, congressional plenary authority became the rule.

The United States occasionally uses the word self–determination in reference to tribal sovereignty. A cursory evaluation of the powers of tribal governments permitted by the federal government shows that the rhetoric of self–determination as used in US laws and jurisprudence mean self–government and autonomy, if measured against international law and normative standards. Although U.S. Supreme Court jurisprudence has numerous references to tribal sovereignty that predate colonization, federal recognition of sovereignty and self–determination is limited to support for indigenous self–government.

The case of the Indian tribes classically illustrates the fundamental differences between self–determination and self–government. Self–determination is protected by the ICCPR. Since the United States qualified its ratification of the covenant with the declaration that the ICCPR is not self–executing within the domestic law, the Court does not reference the ICCPR in its decisions. Instead, the Court recognizes that “[federal] regulation is . . . rooted in the unique status of Indians as a ‘separate people’ with their own political institutions.”[252] Tribal powers are regarded as grants from the federal government exercising legislative plenary power over the tribes. Hence, the federal government has been cumulatively diminishing tribal powers mostly by judicial fiat.

Since self–government is a democratic entitlement, the tribes have the right to participate in crafting policies that affect them. Cook observes that “[i]f self–determination is a tribally–derived concept reflecting tribal goals, then it is only logical that self–determination policy should reflect native opinions and interests.”[253] However, since democracy is an unequal playing field where the majority rules, indigenous populations are forced to trust that the majority will decide in their favor. This does not mean that participation in democratic processes or autonomy has no value to the Indian tribes. The 1975 Self–Determination Act opened the conference chambers to tribes and assured them seats at the discussion table, ensuring that their views would be heard. In fact tribal self–rule “has proven to be the only policy that has shown concrete success in breaking debilitating economic dependence on federal spending programs and replenishing the social and cultural fabric that can support vibrant and healthy communities and families.” [254]But self–government falls short of a promise or guarantee that tribal lands will not be further diminished. If they are, the institutions of self–government will similarly erode.

Cornell and Kalt state that “if central governments wish to perpetuate Indigenous poverty, its attendant ills and bitterness, and its high costs, the best way to do so is to undermine tribal sovereignty and self–determination.”[255] The best way to undermine self–determination is to undermine land control. Self–determination necessarily entails control of land and resources. But Indian tribes do not possess such control. Their lands are held in trust for them by the federal government. As trustee, the federal government can alienate or lease their lands without their consent or over their objections. They cannot prescribe laws that apply to activities of non–Indians on their lands, or to non–Indians in reservations.

The adoption by the United States of the UNDRIP is a positive step toward redressing past injustices and achieving reconciliation. The United States should sit down with the tribes and ask them how meaningful Indian self–determination may be realized within the framework of the existing bigger sovereign. A Dakota historian observes that “[c]olonial dominance can be maintained only if the history of the subjugated is denied and that of the colonizer elevated and glorified.[256] The continued reduction of tribal lands and shrinkage of Indian sovereignty is such a glorification of colonization.[257] It should be revisited. As it has been a powerful weapon to shrink tribal sovereignty, the plenary doctrine may be an equally powerful weapon to finally give due recognition to indigenous self–determination.

The United States must recognize and respect that control over land is critical to indigenous self–determination. Whatever political strength Indian tribes continue to possess is a consequence of the fact that the Indian land base has not been fully exterminated. There are remaining “remnant parcels” which “warfare, colonialism, and assimilationist programs” have not eroded, and these have “unintentionally provided a foundation for tribal continuity and survival.[258] These remnant parcels have to be protected to serve as the base for the exercise of Indian self–determination Healing can be achieved by changing the rhetoric of self–determination to actual recognition. As Daes states:

It should be emphasized, once again, that it is not realistic to fear indigenous peoples’ exercising of the right to self–determination. It is far more realistic to fear that the denial of indigenous peoples’ right to self–determination will leave the most marginalized and excluded of all the world’s peoples without a legal, peaceful weapon to press for genuine democracy in the States in which they live.[259]

 


        *   2012–13 Hubert Humphrey Fellow, University of Minnesota Law School, Minneapolis, Minnesota; Litigation and Research Officer, Cordillera Indigenous Peoples Legal Center, Philippines; Founding Member, National Union of Peoples’ Lawyers, Quezon City, Philippines; Associate Professor, St. Louis University, Baguio City, Philippines. Ms. Daytec holds LL.M, J.D., M.M, and B.A.C. degrees, and is a member of the Kankanaey People of Northern Luzon, an indigenous group in the Philippines. Many thanks to Dr. Paul Bloom, University of Minnesota, for his insights.

        [1].    United States v. Lara, 541 U.S. 193, 219 (2004) (Thomas, J., concurring).

        [2].    U.S. Gov’t Accountability Office, GAO–12–348, Indian Issues: Federal Funding for non–Federally Recognized Tribes 6 (2012), available at http://www.gao.gov/assets/600/590102.pdf.

        [3].    David E. Wilkins, American Indian Politics (2002).

        [4].    See generally Ex Parte Kan–gi–shun–ca, 109 U.S. 556 (1883) [hereinafter Crow Dog]; Cherokee Nation v. Georgia, 30 U.S. 1 (1831).

        [5].    See Elk v. Wilkins, 112 U.S. 94, 99–100 (1884) (“Indians and their property, exempt from taxation by treaty or statute of the United States, could not be taxed by any state.”); see also In re Kansas Indians, 72 U.S. 737 (1866).

        [6].    See Williams v. Lee, 358 U.S. 217, 222 (1959) (holding Arizona courts did not have authority over Indian dispute in Arizona); In re Kansas Indians, 72 U.S. at 738 (holding that Kansas courts did not have jurisdictions over tribal organizations in Kansas).

        [7].    See David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 Cal. L. Rev. 1573, 1573 (1996); see also Worcester v. Georgia, 31 U.S. 515, 518–19 (1932); Elk v. Wilkins, 112 U.S. at 367; Crow Dog, 109 U. S. at, 398; In re Kansas Indians, 72 U.S. at 738; Cherokee Nation, 30 U.S. at 5. But see The Cherokee Tobacco Case, 78 U.S. 616 (1870) (implying that general federal laws are effective in Indian reservations in the absence of a congressional act or treaty to the contrary).

        [8].    See Samuel R. Cook, What is Indian Self–Determination? 3 Red Ink 1 (May 1994).

        [9].    David H. Getches, et al., Cases and Materials on Federal Indian Law 224 (4th ed. 1998).

      [10].    Declaration of Indian Purpose, in Red Power: The American Indians Fight for Freedom 13, 13–14 (Alvin M. Josephy, Jr. et al. eds., 2d ed. 1999).

      [11].    See Indians of North America, Declaration of Indian Purpose: The Voice of American Indians, Items 6–2, 11 (1961).

      [12].    Lyndon B. Johnson, President of the United States, The Forgotten American: The President’s Message to the Congress on Goals and Programs for the American Indian at United States Congress (March 6, 1968) (transcript available in Documents of United States Indian Policy 249 (Francis Paul Prucha ed., 3d ed. 2000)).

      [13].    Cherokee Nation v. Georgia, 30 U.S. 1, 14 (1831) (acknowledging a trust–like relationship between the U.S. federal government and Indian tribes).

      [14].    See Cook, supra note 8.

      [15].    Alaska Governance Task Force, Self Governance and Determination (2004) (noting that President Nixon’s administration’s continuing advocacy for Native Americans provided the impetus for the passage of the Indian Self–Determination Act), available at http://www.alaskool.org/resources/anc2/ANC2_Sec5.html.

      [16].    25 U.S.C. § 450 (2012).

      [17].    25 U.S.C. § 450a (2012) (“Recognition of obligation of United States. The Congress hereby recognizes the obligation of the United States to respond to the strong expression of the Indian people for self–determination by assuring maximum Indian participation in the direction of educational as well as other Federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities.”).

      [18].    N. Bruce Duthu, American Indians and the Law 3–6 (2008); Sandra Day O’Connor, Lessons from the Third Sovereign: Indian Tribal Courts, 33 Tulsa L.J. 1, 1 (1997).

      [19].    Philip M. Kannan, Reinstating Treaty Making with Native American Tribes, 16 Wm. & Mary Bill Rts. J. 809, 810 (2008) (citing a notice of Department of Justice Policy on Indian Sovereignty and Government–to–Government Relations with Indian Tribes, available at 61 Fed. Reg. 29, 424 (June 1, 1995)).

      [20].    Joseph P. Kalt & Joseph William Singer, Myths and Realities of Tribal Sovereignty: The Law and Economics of Indian Self Rule, Harvard University John F. Kennedy School of Government Faculty Research Working Papers Series , 18 (March 2005).

      [21].    See Robert N. Clinton, There is No Federal Supremacy Clause for Indian Tribes, 34 Ariz. St. L. J. 113, 214–23 (2002).

      [22].    See Montana v. United States, 450 U.S. 544, 564 (1981) (holding right to self–government did not give Crow Indian Tribe pass binding regulation on how non–Indians used Big Horn Riven).

      [23].    I refer to those subsequent cases which relied on Montana v. United States. See, e.g., Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 337 (2008) (“Even then, the regulation must stem from the tribe’s inherent sovereign authority to set conditions on entry, preserve tribal self–government, or control internal relations.”); Atkinson Trading Company v. Shirley, 532 U.S. 645, 658 (2001) (noting that Indian sovereignty is governed by the limited concept of self–government.); Nevada v. Hicks, 533 U.S. 353, 357 (2001); and Brendale v. Confederated Tribes, 492 U.S. 408, 409 (1989).

      [24].    Alexandra Xanthaki, Indigenous Rights and United Nations Standards: Self Determination, Culture and Land 282–83 (2007) (noting that the definition described in the quote is an approach possible in the current international legal land scape and more amenable to States); see also Douglas Sanders, Is Autonomy a Principle of International Law?, Nordic Journal of International Law 1, 17–21 (1986).

      [25].    See G.A. Res. 61/195, U.N. Doc. A/RES/61/195 (Oct. 2, 2007) (adopted with a vote of 143 in favor and 4 against, with 11 abstentions).

      [26].    See Christian Emi & Marianne Jensen, Editorial, Indigenous Affairs: Self–Determination 3, 4 (2001).

      [27].    They were the only dissenting States. All of them have subsequently adopted the UNDRIP.

      [28].    Office for the High Comm’r of Human Rights, Concluding Observations of the Human Rights Committee: Australia, U.N. Doc. A/55/40, ¶¶ 498–538 (Jul. 24, 2000) [hereinafter Concluding Observations, Australia].

      [29].    Id.

      [30].    UN Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295, art. 46(1). The Declaration provides: Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

      [31].    See Concluding Observations, Australia, supra note 28, ¶¶ 498–538.

      [32].    See Lone Wolf v. Hitchcock, 187 U.S. 553, 565–68 (1903) (holding that a treaty did not limit Congress’s ability to administer the property of Indians).

      [33].    Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 209–10 (1978) (holding Indian tribunal courts could not punish non–Indians absent Congressional authorization).

      [34].    California Democratic Party v. Jones, 530 U.S. 567, 584 (2000).

      [35].    United States v. Winans, 198 U.S. 371, 381 (1905).

      [36].    Lee Swepston, Indigenous Peoples in International Law and Organizations, in International Law and Indigenous People 53 (Joshua Castellino et al. eds., 2005).

      [37].    1967 Referendum, Wangka Maya Pilbara Aboriginal Language Center, available at http://www.wangkamaya.org.au/index.php? option=com_content&task=view&id=107&Itemid=1.

      [38].    The People of the Philippines v. Cayat, G.R. No. L–45987 (S.C., Dec. 5, 1939) (Phil.).

      [39].    See Mary Sam, History of American Indian Voting Rights, Mille Lacs Band of Ojibwe (2009), http://www.millelacsband.com/Page_culture.aspx?id=270 (noting the Minnesota Supreme Court denied Indian citizens the right to vote because they were not civilized).

      [40].    Indigenous and Tribal Populations Convention, Jun. 26, 1957, available at http://www.unhcr.org/refworld/type,MULTILATERALTREATY,ILO,,3ddb66804,0.html (last visited May 1, 2013).

      [41].    It regarded “indigenous populations” as transient societies on the road to integration into or absorption by the dominant ones and assumed “that the only possible future for indigenous and tribal peoples was integration into the larger society and that the State should make decisions on their development.” International Labour Organization, History of ILO’s Work, International Labour Organization (2013), available at http://www.ilo.org/indigenous/Aboutus/HistoryofILOswork/lang–en/index.htm.

      [42].    See id. (noting that the title contains the term “indigenous populations”).

      [43].    See Swepston, supra note 36, at 56 (noting that ILO Convention 169 would not likely have been possible without ILO convention 107).

      [44].    See generally, Claus Offe, Political Liberalism, Group Rights, and the Politics of Fear and Trust, 55 Studies in East European Thoughts 167, 168 (2001) (arguing the 20th century was marked by a “fourth wave” of ethnic minority demands for rights).

      [45].    When she was Chair of the UN Permanent Forum on Indigenous Issues, Victoria Tauli–Corpuz said that majority of the world’s remaining natural resources—minerals, freshwater, potential energy sources and more—are found within indigenous peoples’ domains.  United Nations Permanent Forums on Indigenous Issues, Backgrounder: Indigenous Peoples’ Land, Territories and Natural Resources (2007), available at http://www.un.org/esa/socdev/unpfii/documents/6_session_factsheet1.pdf. According to the University of Minnesota Human Rights Center, indigenous peoples “embody and nurture 80% of the world’s cultural and biological diversity, and occupy 20% of the world’s land surface.” University of Minnesota Human Rights Library, Study Guide: The Rights of Indigenous Materials, University of Minnesota (2003), available at http://www1.umn.edu/humanrts/edumat/studyguides/indigenous.html.

      [46].    For the indigenous concept of stewardship over lands, see S. James Anaya, International Human Rights and Indigenous Peoples: The Move Toward the Multicultural State, 21 Ariz. J. Int’l & Comp. L. 13 (2004).

      [47].    Comm’n on Human Rights, Indigenous Issues: Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, 59th Sess., U.N. Doc. E/CN.4/2003/90 (2003).

      [48].    Sabihah Osman, Globalization and Democratization: the Response of the Indigenous Peoples of Sarawak, 21 Third World Quarterly 987 (2000).

      [49].    See Swepston, supra note 36, at 53 (noting the rise in concern about indigenous groups thanks to successful lobbying efforts by indigenous groups).

      [50].    See Cherie Metcalf, Indigenous Rights and the Environment: Evolving International Law, 35 Ottawa L. Rev. 101, 103 (2003). For a detailed narration of how indigenous rights reached the United Nations, see Augusto Willemsen Diaz, How Indigenous Peoples’ Rights Reached the UN, in Making the Declaration Work: The United Nation Declaration on the Rights of Indigenous Peoples 16 (Claire Charters et al. eds., 2009).

      [51].    This is the only international treaty that applies specifically to indigenous peoples. It is the first to use the term indigenous peoples although its Article 1(3) States: “The use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.” Indigenous and Tribal Populations Convention, No. 107, Art. 1(3) (1957).

      [52].    International Decade of the World’s Indigenous People, G.A. Res. 48/163, U.N. GAOR, 48th Sess., Agenda Item 114(b), U.N. Doc. A/RES/48/163 (Feb. 18, 1994).

      [53].    A. A. Idowu, Revisiting the Right to Self–Determination in Modern International Law: Implications for African States, 6(4) Eur. J. Soc. Sci. 43, 43–46 (2008); Edward McWhinney, Self–Determination of Peoples and Plural–Ethnic States in Contemporary International Law: Failed States, Nation Building and the Alternative, Federal Option 2 (2007).

      [54].    See, e.g., Lubicon Lake Band v. Canada, U.N. H.R. Comm., Commc’n No. 167/1984, U.N. Doc. Supp. No. 40 (A/45/40) at 1 (1990); Mikmaq v. Canada, U.N. H.R. Comm., Commc’n No. 78/1980, U.N. Doc. Supp. No. 40 (A/39/40) at 200 (1984); R. L. et al. v. Canada, U.N. H.R. Comm., Commc’n No. 358/1989, U.N. Doc. CCPR/C/43/D/358/1989 at 16 (1991); J.G.A. Diergaardt et al. v. Namibia, U.N. H.R. Comm., Commc’n No. 760/1997, U.N. Doc. CCPR/C/69/D/760/1997 (2000); A. B. et. al. v. Italy, U.N. H.R. Comm., Commc’n No. 413/1990, U.N. Doc. CCPR/C/40/D/413/1990 (1990).

      [55].    The HRC is the international oversight mechanism to monitor States’ compliance with obligations under the ICCPR, International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171; S. Exec. Doc. E, 95-2 (1978); S. Treaty Doc. 95-20, 6 I.L.M. 368 (1967)—the first treaty to formally oblige States to respect, promote, and fulfill the right of self–determination of “all peoples.” The relevant provisions of what is considered the International Bill of Rights are found in Article 1, Sections 1 and 2 of both the ICCPR and the International Covenant on Economic, Social, and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3; S. Exec. Doc. D, 95-2 (1978); S. Treaty Doc. No. 95-19, 6 I.L.M. 360  (1967) (“ICESCR”), which identically state: “1. All peoples have the right of self–determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co–operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.”

      [56].    See Paul Keal, European Conquest and the Rights of Indigenous Peoples 114–16 (2003).

      [57].    See generally id. (Chapters 4–6 in particular contain relevant discussion on the protection of indigenous peoples under international law).

      [58].    Numerous communications asserting indigenous self–determination (primarily invoking the treaty’s Optional Protocol I, which provides for individual complaints) were dismissed by the HRC. The HRC ruled in such cases that the complaints were inadmissible because self–determination claims are collective rights and may not be raised by individuals, and are therefore beyond the ambit of its competence. See, e.g., Lubicon Lake Band v. Canada, U.N. H.R. Comm., Commc’n No. 167/1984, U.N. Doc. Supp. No. 40 (A/45/40) at 1 (1990); Mikmaq v. Canada, U.N. H.R. Comm., Commc’n No. 78/1980, U.N. Doc. Supp. No. 40 (A/39/40) at 200 (1984); R. L. et al. v. Canada, U.N. H.R. Comm., Commc’n No. 358/1989, U.N. Doc. CCPR/C/43/D/358/1989 at 16 (1991); J.G.A. Diergaardt et al. v. Namibia, U.N. H.R. Comm., Commc’n No. 760/1997, U.N. Doc. CCPR/C/69/D/760/1997 (2000); A. B. et. al. v. Italy, U.N. H.R. Comm., Commc’n No. 413/1990, U.N. Doc. CCPR/C/40/D/413/1990 (1990).

      [59].    Paul Keal, Indigenous Self–Determination and the Legitimacy of Sovereign States, 44 Int’l Pol. 287, 288 (2007); see also Benedict Kingsbury, Claims by Non–State Groups in International Law, 25 Cornell Int’l L. J. 481, 498 (1992); Omar Dahbour, The Ethics of Self–Determination: Democratic, National, Regional, in Cultural Identity and the Nation–State 1, 9–11 (Carol C. Goulde & Pasquale Pasquino eds., 2001). According to Dahbour, indigenous peoples have not shown interest in Statehood, but rather in “regional autonomy,” which “does not challenge the sovereignty of the States in which they reside.” Id. Dahbour, however, likely understands regional autonomy as meaning more than just self–government; including, for example, control of resources. Id.

      [60].    Keal, supra note 56, at 146. Keal may be correct that most indigenous peoples do not interpret self–determination as statehood or sovereignty but this does not necessarily remove secession as one of their options. To be very sure, while there is no right to secession under international law, there is nothing that interdicts it either. Scholars who espouse the position that secession is unacceptable under international law invoke Provision 6 of the Declaration of the Granting of Independence to Colonial Peoples which States: “Any attempt at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the United Nations Charter.” Declaration of the Granting of Independence to Colonial Peoples, G.A. Res. 1514 (XV), ¶ 6, A/RES/1514(XV) (December 14, 1960).

      [61].    Reference re Secession of Quebec, Advisory Opinion, 1998 2 R.C.S. 217, 281–84 (Aug.20, 1998) (Can.).

      [62].    Hurst Hannum, The Specter of Secession: Responding to Claims for Ethnic Self–Determination, 77(2) Foreign Aff. 13, 13 (1998) [hereinafter Hannum, Specter of Secession].

      [63].    See cases cited supra in note 58. The cases cited were serially dismissed by the HRC. After every dismissal, a new case would crop up raising self–determination claims, seemingly unmindful of the HRC’s previous ruling(s).

      [64].    The first time the HRC made such a determination was in its Observations on Canada in 1999. See Concluding observations of the U.N. H.R. Comm.: Canada, 65th Sess., Apr. 7, 1999, ¶ 8, U.N. Doc. CCPR/C/79/Add. 105 (1999). Subsequent cases include: Apirana Mahuika v. New Zealand, U.N. H.R. Comm., Commc’n No. 547/1993, U.N. Doc. CCPR/C/70/D/547/1993 (Nov. 15, 2000); Concluding observations of the U.N. H.R. Comm.: Norway, 67th Sess., Nov. 1, 1999, U.N. Doc. CCPR/C/79/Add.112 (1999); Concluding observations of the U.N. H.R. Comm.: Mexico, 66th Sess., Jul. 27, 1999, U.N. Doc. CCPR/C/79/Add.109 (1999); Concluding observations of the U.N. H.R. Comm.: Brazil, 85th Sess., Dec. 1, 2005, U.N. Doc. CCPR/C/BRA/CO/2; Concluding observations of the U.N. H.R. Comm.: Denmark, 70th Sess.,Oct.31, 2000, U.N. Doc. CCPR/CO/70/DNK (2000); Concluding observations of the U.N. H.R. Comm.: Australia, 69th Sess.,Jul. 24, 2000, U.N. Doc. CCPR/A/55/40 (2000); Concluding observations of the U.N. H.R. Comm.: Sweden, 74th Sess., Apr. 24, 2002, U.N. Doc. CCPR/CO/74/SWE (2002); Concluding observations of the U.N. H.R. Comm.: United States of America, 87th Sess., Dec. 18, 2006, U.N. Doc. CCPR/C/USA/CO/3/Rev.1 (2006); Fifth Periodic Report of the U.N. H.R. Comm.: Canada, 66th Sess., Nov. 18, 2004, U.N. Doc. CCPR/C/CAN/2004/5 (2004); Concluding observations of the U.N. H.R. Comm.: Canada, 85th Sess., Apr. 20, 2006, U.N. Doc. CCPR/C/CAN/CO/5 (2006); Ángela Poma Poma v. Peru, U.N. H.R. Comm., Commc’n No. 1457/2006, U.N. Doc. CCPR/C/95/D/1457/2006 (Mar. 27, 2009).

      [65].    Jan Knippers Black, The Politics of Human Rights Protection: Moving Intervention Upstream with Impact Assessment 117–18 (2009).

      [66].    United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007), 46 I.L.M. 1013 (2007).

      [67].    Michael P. Scharf, Earned Sovereignty: Judicial Underpinnings, 31 Denv. J. Int’l L. & Pol’y 373, 378 (2003).

      [68].    Erica–Irene Daes, An overview of the history of indigenous peoples: self–determination and the United Nations, 21(1) Cambridge Rev. Int’l Aff. 7, 13 (2008).

      [69].    Frank Pommersheim, Broken Landscapes 4 (2009).

      [70].    Id.

      [71].    The Full Commerce Clause reads: “Congress shall have the power . . . To regulate Commerce with foreign Nations, among the several States, and with the Indian Tribes.” U.S. Const., Art. I, § 8, cl. 3.

      [72].    Pommersheim, supra note 69, at 4.

      [73].    U.S. Const., Art. II, § 2, cl. 2 (“[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . . . .”).

      [74].    Kannan, supra note 19, at 816; United States v. Sioux Nation of Indians, 448 U.S. 371 (1980) (discussing how treaties were negotiated with tribes); Washington v. Fishing Vessel Ass’n, 443 U.S. 658, 666 (same).

      [75].    United States v. Lara, 541 U.S. 193, 201 (2004).

      [76].    See generally Robert Williams, Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600–1800 (1997).

      [77].    Francis Paul Prucha, American Indian Treaties: The History of a Political Anomaly 2 (1994).

      [78].    Cherokee Nation v. Georgia, 30 U.S. 1, 16 (1831).

      [79].    United States v. Winans, 198 U.S. 371, 381 (1905).

      [80].    Id. at 381.

      [81].    Antoine v. Washington, 420 U.S. 194, 202 (1975).

      [82].    Id. The Supreme Court said, “In 1871, however, the insolence of conscious strength, and the growing jealousy of the House of Representatives towards the prerogative—arrogated by the Senate—of determining, in connection with the executive, all questions of Indian right and title, and of committing the United States incidentally to pecuniary obligations limited only by its own discretion, for which the House should be bound to make provision without inquiry, led to the adoption, after several severe parliamentary struggles, of the declaration . . . that ‘hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power, with whom the United States may contract by treaty.’” Id. (citing Francis A. Walker, The Indian Question 211–12 (1874)). The law that ended treaty making with tribes was the Act of Mar. 3, 1871, ch. 120, § 1, 16 Stat. 544, 566 (codified as amended at 25 U.S.C. §71 (1988)).

      [83].    Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831).

      [84].    Id.

      [85].    Worcester v. Georgia, 31 U.S. 515 (1832).

      [86].    Getches, supra note 7, at 1582.

      [87].    Worcester v. Georgia, 31 U.S. 515 (1832); see also Ex Parte Crow Dog, 109 U. S. 556, 571 (1883) (involving the killing by an Indian of another Indian on Indian land). The case was settled according to tribal law. However, Crow Dog, the accused, was indicted for murder in Nebraska and was convicted and sentenced to die by hanging, a decision affirmed by the territorial Supreme Court. He applied for a Writ of Habeas Corpus with the Federal Supreme Court. Recognizing tribal sovereignty, the Court speaking through Justice Matthews said of the case: “It is a case where, against an express exception in the law itself, that law, by argument and inference only, is sought to be extended over aliens and strangers; over the members of a community, separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others, and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it.” Ex Parte Crow Dog, 109 U. S. 556, 571 (1883).

      [88].    Worcester v. Georgia, 31 U.S. at 520.

      [89].    Steven Paul McSloy, American Indians and the Constitution: An Argument for Nationhood, 14 Am. Indian L. Rev. 139, 140 n.4 (1989) (quoting William C. Canby Jr., The Status of Indian Tribes in American Law Today, 62 Wash. L. Rev. 1, 8 (1987)).

      [90].    Crow Dog, 109 U.S. 556.

      [91].    Id. at 571.

      [92].    Talton v. Mayes, 163 U.S. 376, 384 (1896).

      [93].    Id.

      [94].    Lone Wolf v. Hitchcock, 187 U. S. 553 (1903).

      [95].    Felix S. Cohen, Handbook of Federal Indian Law 123 (1941).

      [96].    See United States v. Kagama, 118 U. S. 375 (1886). The court also said that Indian tribes were treated by the US “not as states, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union, or of the state within whose limits they resided.” Id. at 381–82.

      [97].    Lone Wolf v. Hitchcock, 187 U. S. at 508, aff’d 541 U.S. 193, 201 (2004).

      [98].    Kannan, supra note 19, at 816.

      [99].    U.S. Const. art. I, § 8, cl. 3.

    [100].    Pommersheim, supra note 69, at 142.

    [101].    Id. at 139–40.

    [102].    See United States v. Dion, 476 U.S. 734 (1986); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

    [103].    See Lone Wolf v. Hitchcock, 187 U.S. 553.

    [104].    See Sioux Tribe v. United States, 316 U.S. 317 (1942).

    [105].    25 U.S.C. § 396 (2000).

    [106].    See Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765 (1984).

    [107].    Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978).

    [108].    Id.

    [109].    See, e.g., United States v. Lara, 541 U.S. 193 (2004); Duro v. Reina, 495 U.S. 676 (1990); Montana v. United States, 450 U.S. 544 (1981); Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978); Wheeler v. United States, 435 U.S. 313 (1978).

    [110].    See Worcester v. Georgia, 31 U.S. 515 (1932).

    [111].    United States v. Winans, 198 U.S. 371, 380 (1905).

    [112].    See, e.g., White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980) (holding that a state cannot impose taxes even on non–Indians for use of Bureau of Indian Affairs Roads to transport lumber under a contract with tribes); see also Elk v. Wilkins, 112 U.S. 94, 99 (1884) (“Indians and their property, exempt from taxation by treaty or statute of the United States, could not be taxed by any state.”).

    [113].    Williams v. Lee, 358 U.S. 217 (1959).

    [114].    Getches, supra note 7, at 1573.

    [115].    Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 149 (1982).

    [116].    See, e.g., Sioux Tribe v. United States, 316 U.S. 317 (1942); United States v. Sandoval, 231 U.S. 28 (1913); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

    [117].    Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 115 (1960).

    [118].    Cherokee Tobacco, 78 U.S. 616 (1870).

    [119].    Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99 (1960).

    [120].    See United States v. Lara, 541 U.S. 193 (2004) (the Court laid down the doctrine that double jeopardy did not attach when an individual is tried by the federal and tribal courts for the same acts constituting offenses under federal and tribal laws reversing previous holdings).

    [121].    Lara, 541 U.S. at 226 (Souter, J., dissenting).

    [122].    See Getches et al., supra note 9, at xv (claiming that the Indian legal history “is often divided into eras, which underscore the government’s Indian policy of the time.”).

    [123].    Note, Intergovernmental Compacts in Native American Law: Models for Expanded Usage, 112 Harv. L. Rev. 922, 922 (1999).

    [124].    See United States v. Winans, 198 U.S. 371 (1905).

    [125].    Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195 (1978).

    [126].    Id. at 212.

    [127].    For example, in Mabo v. Queensland, the Australian High Court said: “The fiction by which the rights and interests of indigenous inhabitants in land were treated as nonexistent was justified by a policy which has no place in the contemporary law of this country.” Mabo v. Queensland (No. 2) (1992) 175 CLR 1 (Austl.). The International Court of Justice, in its Advisory Opinion on Western Sahara, said that “a determination that Western Sahara was a ‘terra nullius’ at the time of colonization by Spain would be possible only if it were established that at that time the territory belonged to no one in the sense that it was then open to acquisition through the legal process of occupation.” Western Sahara, Advisory Op., I.C.J. Reports 1975, at 39 (16 Oct. 1975). In Carino v. Insular Gov’t, the U.S. Supreme Court rejected the Regalian Doctrine, the equivalent of discovery, which Spain invoked to justify the dispossession of the Philippine natives. The Court called the doctrine feudal, “an almost forgotten law of Spain.” Carino v. Insular Gov’t, 212 U.S. 449 (1909).

    [128].    Oliphant v. Suquamish Indian Tribe, 435 U.S. at 209.

    [129].    United States v. Wheeler, 316 U.S. 313, 322 (1942) (quoting Felix Cohen, Handbook of Federal Indian Law 122 (1945)).

    [130].    Id.

    [131].    Id. at 321.

    [132].    Brian L. Pierson, Determining Tribal Jurisdiction over Non–Tribe Members, 81 Wis. Lawyer, Nov. 2008, available at http://www.wisbar.org/AM/Template.cfm?Section=Search&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=75595.

    [133].    United States v. Mazurie, 419 U.S. 544, 557 (1975).

    [134].    Kalt & Singer, supra note 20, at 18.

    [135].    Robert N. Clinton, There is No Federal Supremacy Clause for Indian Tribes, 34 Ariz. St. L.J. 113, 214–23 (2002).

    [136].    United States v. Mazurie, 419 U.S. at 556.

    [137].    Stephen Cornell, Indigenous Peoples, Poverty and Self–Determination in Australia, New Zealand, Canada and the United States, Joint Occasional Papers on Native Affairs No. 2006–02, at 10 (2006).

    [138].    United States v. Wheeler, 316 U.S. 313, 319 (1942).

    [139].    See generally Taiaiake Alfred, Peace, Power, and Righteousness: An Indigenous Manifesto (1999).

    [140].    25 U.S.C. § 1301(2) (2006).

    [141].    United States. v. Lara, 541 U.S. 193, 202 (2004).

    [142].    See White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); United States v. Wheeler, 435 U.S. 313 (1978); McClanahan v. Ariz. Tax Comm’n, 411 U.S. 164 (1973); Worcester v. Georgia, 31 U.S. 515 (1832); see also Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (regarding the exercise of tribal jurisdiction as an exercise of self–government).

    [143].    Bradley B. Furber, Two Propositions: The Wheeler–Howard Act As a Reconciliation of the Indian Law Civil War, 14 Puget Sound L. Rev. 211, 218 (1991).

    [144].    United States v. Antelope, 430 U.S. 641 (1977).

    [145].    See Wheeler v. United States, 811 F.2d 549 (10th Cir. 1987); Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); White v. Pueblo of San Juan, 728 F.2d 1307 (10th Cir. 1984); cf. Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980) (plaintiff permitted to pursue action in district court when no tribal forum was available). The policy we adopt here is consistent with these cases.

    [146].    United States v. Winans, 198 U.S. 371 (1905).

    [147].    David E. Wilkins & K. Tsianina Lomawaima, Uneven Ground: American Indian Sovereignty and Federal Law 125 (2002).

    [148].    See Marcus Singer, The Basis of Rights and Duties, 23 Phil. Stud. 48 (1972).

    [149].    Joel Feinberg, Social Philosophy 59 (1973).

    [150].    Immanuel Kant, Fundamental Principles of the Metaphysic of Morals 18 (2007).

    [151].    Patrick Thornberry, Self–Determination and Indigenous Peoples: Objections and Responses, in Operationalizing the Rights of Indigenous Peoples to Self–Determination 55, 55–57 (Pekka Aikio et al. eds., 2000).

    [152].    Hurst Hannum, The Right of Self–Determination in the Twenty–First Century, 55 Wash. & Lee L. Rev. 773, 773 (1998).

    [153].    See Term Limits v. Thornton, 514 U.S. 779 (1995). In this case, the Supreme Court said that “sovereignty is vested in the people.” Sovereignty and self–determination while not the same, they are related. Self–determination is a necessary attribute of sovereign people.

    [154].    A. J. A. Waldock, Sophocles the Dramatist 69 (1951).

    [155].    See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 209 (1978) (“Upon incorporation into the territory of the United States, the Indian tribes thereby come under the territorial sovereignty of the United States and their exercise of separate power is constrained so as not to conflict with the interests of this overriding sovereignty.”).

    [156].    United States v. Mazurie, 419 U.S. 544 (1975); United States v. Wheeler, 316 U.S. 313 (1942).

    [157].    United States v. Winans, 198 U.S. 371 (1905).

    [158].    United States v. Wheeler, 435 U.S. at 323 (1978).

    [159].    Carlos Ruiz Zafón, The Shadow of the Wind (Lucia Graves trans., 2001).

    [160].    In United States v. Lara, the Court said, “The political branches, drawing upon analogous constitutional authority, have made adjustments to the autonomous status of other such dependent entities—sometimes making far more radical adjustments than those at issue here. . . . Congress, with this Court’s approval, has interpreted the Constitution’s “plenary” grants of power as authorizing it to enact legislation that both restricts and, in turn, relaxes those restrictions on tribal sovereign authority. From the Nation’s beginning Congress’ need for such legislative power would have seemed obvious. After all, the Government’s Indian policies, applicable to numerous tribes with diverse cultures, affecting billions of acres of land, of necessity would fluctuate dramatically as the needs of the Nation and those of the tribes changed over time.” United States v. Lara, 541 U.S. at 202–03.

    [161].    The Court in Lara further said, “Congress has in fact authorized at different times very different Indian policies (some with beneficial results but many with tragic consequences). Congressional policy, for example, initially favored “Indian removal,” then “assimilation” and the breakup of tribal lands, then protection of the tribal land base (interrupted by a movement toward greater state involvement and “termination” of recognized tribes); and it now seeks greater tribal autonomy within the framework of a “government–to–government relationship” with federal agencies. . . . Such major policy changes inevitably involve major changes in the metes and bounds of tribal sovereignty. The 1871 statute, for example, changed the status of an Indian tribe from a “powe[r] . , , ,capable of making treaties” to a “power with whom the United States may [not] contract by treaty.” United States v. Lara, 541 U.S. at 202–03.

    [162].    See United States v. Dion, 476 U.S. 734, 738 (1986) (citing Fong Yue Ting v. United States, 149 U.S. 698, 720 (1893)) (“It is long settled that ‘the provisions of an act of Congress, passed in the exercise of its constitutional authority, . . . if clear and explicit, must be upheld by the courts, even in contravention of express stipulations in an earlier treaty’ with a foreign power. This Court applied that rule to congressional abrogation of Indian treaties.”).

    [163].    See Winton v. Amos, 255 U.S. 373, 391 (1921) (“It is thoroughly established that Congress has plenary authority over the Indians and all their tribal relations, and full power to legislate concerning their tribal property.”).

    [164].    See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978) (“Congress has plenary authority to limit, modify or eliminate the powers of local self–government which the tribes otherwise possess.”).

    [165].    Matthew Fletcher, American Indian Tribal Law 146 (2011).

    [166].    Id. at 146.

    [167].    Wheeler v. U.S. Dept. of Interior, 811 F.2d 548,551 (10th Cir. 1987).

    [168].    Gudmundur Alfredsson, Autonomy and Human Rights, in Constitutional and Economic Space of the Small Nordic Jurisdictions 34, 34 (Lise Lyck ed., 1997).

    [169].    Id. at 40.

    [170].    See Ian Brownlie, Principles of Public International Law 515 (4th ed. 1990).

    [171].    Case Concerning East Timor (Port. v. Austl.), 1995 I.C.J. 90, 102 (June 30).

    [172].    Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, including in and around East Jerusalem, G.A. Res. ES–10/15, 10th emergency special sess., U.N. Doc. A/RES/ES–10/15 (Aug. 2, 2004).

    [173].    Maivan Clech Lam, Indigenous Peoples’ Right to Self–Determination and Territoriality, in Human Rights in the World Community: Issues and Action 148, 155 (Richard Pierre Claude & Burns H. Weston eds., 2006).

    [174].    See, e.g., ICCPR, supra note 55; see also ICESCR, supra note 55; United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007), 46 I.L.M. 1013 (2007) [hereinafter UNDRIP].

    [175].    Charles Beitz, Human Rights and the Law of Peoples, in The Ethics of Assistance Morality and the Distant Needy 196 (Deen K. Chatterjee ed., 2004) (take note however that Beitz himself considers this an orthodox view of human rights which he rejects as he believes in a practical conception of human rights).

    [176].    Antonio Cassese, Self–determination of Peoples: A Legal Reappraisal (New York: Cambridge University Press, 1995).

    [177].    See Filartiga v. Pena–Irala, 630 F.2d 876, 885 (2nd Cir. 1980); see also Estate of Ferdinand E. Marcos v. Marcos, 978 F.2d 493, 502 (9th Cir. 1992); see also Louis Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555, 1560–62 (1984).

    [178].    See ICCPR, supra note 55, art. 1; see also ICESCR, supra note 55, art. 1.

    [179].    See UNDRIP, supra note 174, art. 3 (“Indigenous peoples have the right to self–determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”).

    [180].    International Forum on Globalization, US Announces its Support of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), http://ifg.org/programs/indig/USUNDRIP.html (last visited January 28, 2013).

    [181].    See Press Release, UN General Assembly, General Assembly Adopts Declaration on Rights of Indigenous Peoples; “Major Step Forward” Towards Human Rights For All, Says President, U.N. Doc. GA/10612 (Sep. 13, 2007), available at http://www.un.org/News/Press/docs/2007/ga10612.doc.htm (stating that the UNDRIP was adopted by an overwhelming affirmative vote of 143. Four (4) – Australia, Canada, New Zealand and United States – voted against it while 11 abstained: Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa, and Ukraine. The following were absent: Chad, Côte d’Ivoire, Equatorial Guinea, Eritrea, Ethiopia, Fiji, Gambia, Grenada, Guinea–Bissau, Israel, Kiribati, Kyrgyzstan, Marshall Islands, Mauritania, Montenegro, Morocco, Nauru, Palau, Papua New Guinea, Romania, Rwanda, Saint Kitts and Nevis, Sao Tome and Principe, Seychelles, Solomon Islands, Somalia, Tajikistan, Togo, Tonga, Turkmenistan, Tuvalu, Uganda, Uzbekistan, and Vanuatu).

    [182].    See generally United Nations, Multilateral Treaties Deposited with the Secretary General: Status as at 1 April 2009, at U.N. Doc. ST/LEG/SER.E/26, U.N. Sales No. E.09.V.3 (2009), available at http://treaties.un.org/doc/source/publications/MTDSG/2009/English-II.pdf [hereinafter Multilateral Treaties].

    [183].    See U.S. Const. art. VI, §2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”). In various cases, the Supreme Court upheld treaties as part of the law of the land. See, e.g., Ware v. Hylton, 3 U.S. 199 (1796); see also United States v. Rauscher, 119 U.S. 407 (1886); Sale v. Haitian Ctrs. Council, 509 U.S. 155 (1993).

    [184].    See Multilateral Treaties, supra note 182 (stating that this was the position taken by the 11 states: Belgium, Denmark, Finland, France, Germany, Italy, the Netherlands, Norway, Portugal, Spain, and Sweden).

    [185].    Cassesse, supra note 176, at 140.

    [186].    See Jérémie Gilbert, Indigenous Peoples’ Land Rights Under International Law: From Victims to Actors 220–21 (2006).

    [187].    Black, supra note 65, at 75.

    [188].    See Roberto Gargarella, A Majoritarian Reading of the Rule of Law, in Democracy and the Rule of Law 147, 147 (Jose Maria Maravall & Adam Przewroski eds., 2003).

    [189].    See Pommersheim, supra note 69, at 4 (“Despite the fact that the Constitution explicitly recognizes tribal sovereignty in the Indian Commerce Clause and implicitly in the treaty–making power, there has been almost no in–depth constitutional exegesis that elucidates how these provisions either protect tribal sovereignty or set boundaries for federal authority in Indian affairs. Instead, these constitutional provisions have proved mostly illusory and ineffective in protecting tribal sovereignty and constraining federal power in Indian affairs.”).

    [190].    See generally Glen Coulthard, Subjects of Empire: Indigenous Peoples and the ‘Politics of Recognition’ in Canada, 6 Contemp. Pol. Theory 437 (2007).

    [191].    See generally Kerry Burch, How Toqueville’s Theory of Tyranny of the Majority Can Benefit Social Justice Pedagogies, 37 Philosophical Studies in Education 45, available at http://www.ovpes.org/2006/Burch.pdf.

    [192].    See generally Ronald Dworkin, Is Democracy Possible Here?: Principals for a New Political Debate (2006).

    [193].    Gargarella, supra note 188, at 148.

    [194].    Stephen Cornell & Joseph P. Kalt, American Indian Self–Determination The Political Economy of a Successful Policy 17 (Harvard Kennedy Sch., Working Paper No. 1, 2010) (citing The Harvard Project on American Indian Economic Development, The State of Native Nations: Conditions Under U.S. Policies of Self–Determination, 15–88 (2008)).

    [195].    Jack Utter, American Indians: Answers to Today’s Questions 278 (2d ed. 2001).

    [196].    25 U.S.C. § 450a(a) (“The Congress hereby recognizes the obligation of the United States to respond to the strong expression of the Indian people for self–determination by assuring maximum Indian participation in the direction of educational as well as other Federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities.”).

    [197].    See id. § 450a(b) (“The Congress declares its commitment to the maintenance of the Federal Government’s unique and continuing relationship with, and responsibility to, individual Indian tribes and to the Indian people as a whole through the establishment of a meaningful Indian self–determination policy which will permit an orderly transition from the Federal domination of programs for, and services to, Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services. In accordance with this policy, the United States is committed to supporting and assisting Indian tribes in the development of strong and stable tribal governments, capable of administering quality programs and developing the economies of their respective communities.”).

    [198].    Exec. Order No. 13,175, 65 FR 67249 (2000).

    [199].    See generally Cook, supra note 8.

    [200].    See La Bugal–B’Laan Tribal Association v Ramos, G.R. No. 127882 (S.C., Jan. 27, 2004) (Phil.).

    [201].    See United States v. Navajo Nation, 537 U.S. 488 (2003).

    [202].    Gerry J. Simpson, The Diffusion of Sovereignty: Self–Determination in the Post–Colonial Age, 32 Stan. J. Int’l L. 255, 258 (1996).

    [203].    Id. at 280.

    [204].    Id. at 279.

    [205].    See generally David Held, Democracy and the Global Order (1995).

    [206].    Ian Hancock, The Consequences of Anti–Gypsy Racism in Europe (Sep. 23, 1994), available at http://www.radoc.net/radoc.php?doc=art_f_bias_consequencesofracism&lang=en&articles=true.

    [207].    Id.

    [208].    See Will Guy, Romani Identity and Post–Communist Policy, in Between Past and Future: The Roma of Central and Eastern Europe 3, 5–13 (Will Guy ed., 2001).

    [209].    Hurst Hannum and Richard B. Lillich, The Concept of Autonomy in International Law, 74 Am. J. Int’l L. 858, 860 (1980).

    [210].    Donna Lee Van Cott, Explaining Ethnic Autonomy Regimes in Latin America, Studies in Comparative International Development, Vol. 35, Issue 4, at 30 (Winter 2001).

    [211].    S. James Anaya, The Native Hawaiian People and International Human Rights Law: Toward a Remedy for Past and Continuing Wrongs, 28 Ga. L. Rev. 309, 354 (1993–94) [hereinafter Anaya, The Native Hawaiian People]. 

    [212].    Mark Mowzer, Dark Continent 11 (1998).

    [213].    See id. (stating that the political liberties granted by Russian liberals to peasants in 1918 was not enough to solve the social crisis caused by war and landlessness).

    [214].    Hans–Joachim Heintze, On the Legal Understanding of Autonomy, in Autonomy: Applications and Implications 7, 7 (Markku Suksi ed., 1998).

    [215].    James Crawford, The Creation of States in International Law (2d ed. 2006).

    [216].    Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int’l L. 46, 52 (1992).

    [217].    Idowu, supra note 53, at 50–51.

    [218].    Anaya, The Native Hawaiian People, supra note 211, at 355 (stating that cultural integrity is part of the self–government norm).

    [219].    Aoife Duffy, Indigenous Peoples’ Land Rights: Developing a Sui Generis Approach to Ownership and Restitution, 15 Int’l J. on Minority & Group Rts. 505, 509 (2008).

    [220].    U.N. Human Rights Comm., Concluding Observations of the Human Rights Committee: Canada, ¶ 8, CCPR/C/79/Add.105 (April 7, 1999).

    [221].    U.N. Sub–Commission on Prevention of Discrimination and Protection of Minorities, Study on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Populations, ¶ 132, U.N. Doc E/CN.4/Sub. 2/1999/20 (June 22, 1999).

    [222].    Id. ¶ 134.

    [223].    Tove Sovndahl Pedersen, Expert Seminar on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Peoples: Background Paper, ¶ 1.15, HR/GENEVA/TSIP/SEM/2003/BP.5 (December 15–17 2003). See also Andy McSmith, The Big Question: Is Greenland Ready for Independence, and What Would It Mean For Its People?, The Independent, Nov. 27, 2008, available at http://www.independent.co.uk/news/world/europe/the-big-question-is-greenland-ready-for-independence-and-what-would-it-mean-for-its-people-1036735.html (explaining that Denmark recognizes Greenland’s control over its resources); see also U.N. Human Rights Comm., Concluding Observations of the Human Rights Committee: Canada, ¶ 8, CCPR/C/79/Add.105 (April 7, 1999). See also U.N. Human Rights Comm., General Comment 12, Article 1, ¶ 5, U.N. Doc. HRI/GEN/1/Rev.1 at 12 (1994), (stating that Art. 1 of the ICCPR “affirms a particular aspect of the economic content of the right of self–determination, namely the right of peoples, for their own ends, freely to ‘dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law”).

    [224].    Martin Scheinin, Indigenous Peoples’ Land Rights Under the International Covenant on Civil and Political Rights, 9, Galdu Resource Centre for the Rights of Indigenous Peoples, http://www.galdu.org/govat/doc/foredragavmartinscheinin.pdf.

    [225].    Anaya, The Native Hawaiian People, supra note 211, at 342.

    [226].    Hannum, Specter of Secession, supra note 62, at 14.

    [227].    Keal, supra note 56, at 147.

    [228].    Maya Indigenous Communities Toledo District v. Belize, Case 12.053, Inter–Am. Comm’n H.R., Report No. 40/04, OEA/Ser.L/V/II.122, doc. 5 rev. 1 ¶120 (2004).

    [229].    David Lea, Property Rights, Indigenous People and the Developing World 29 (2008).

    [230].    Anaya, The Native Hawaiian People, supra note 211, at 318.

    [231].    Jérémie Gilbert, The Treatment of Territory of Indigenous Peoples in International Law, in Title to Territory in International Law 199, 201 (J. Castellino & S. Allen eds., 2003).

    [232].    Karen O. Mason & Helene M. Carlsson, The Development Impact of Gender Equality in Land Rights, in Human Rights and Development 114, 116 (Philip Alston & Mary Robinson eds., 2005).

    [233].    Kerry Rittich, The Properties of Gender Equality, in Human Rights and Development 87, 98 (Philip Alston & Mary Robinson eds., 2005).

    [234].    Id. at 87.

    [235].    Id.

    [236].    Id. at 88.

    [237].    Centre for Minority Rights Development and Minority Rights Group v. Kenya, African Commission on Human and Peoples’ Rights, 276/03, ¶ 204, available at http://www.achpr.org/files/sessions/46th/comunications/276.03/achpr46_276_03_eng.pdf.

    [238].    Ichoku Precious Ifeoma, What are the Measures Available for the Protection of Indigenous Rights to Land and Natural Resources?, at 6, available at http://www.dundee.ac.uk/cepmlp/car/html/CAR9_ARTICLE11.pdf (last visited May 1, 2013); see also Press Release, General Assembly, General Assembly Adopts Declaration on Rights of Indigenous Peoples; ‘Major Step Forward’ Towards Human Rights For All, Says President, GA/10612 (Sept. 13, 2007) (stating that Canada and Australia voted against the UNDRIP because of concerns over land and resource rights).

    [239].    See Indian Removal Act, Library of Congress, http://www.loc.gov/rr/program/bib/ourdocs/Indian.html (explaining that the 1830 Indian Removal Act authorized the federal government to forcibly relocate tribes living within existing state borders to lands west of the Mississippi).

    [240].    See Johnson v. M’Intosh, 21 U.S. 543, 569–70 (1823) (holding that North American Indians have no proprietary interest in the land on which they historically lived and that the title to that land had passed to the United States by right of discovery and conquest); Lone Wolf v. Hitchcock, 187 U.S. 553, 564–65 (1903) (holding that, as Native American tribes are in a relation of dependency on the U.S. government, Congress has the right to unilaterally alter reservation borders despite treaty agreements to the contrary); Solem v. Bartlett, 465 U.S. 463, 470 (1984) (holding that there must be a clear Congressional intent shown before an opening of reservation land to non–Indian settlement can be determined a diminishment of the reservation).

    [241].    See, e.g., Carl Hakansson, Allotment at Pine Ridge Reservation: Its Consequences and Alternative Remedies, 73 N.D. L. Rev. 231, 232 (1997) (criticizing the 1887 General Allotment Act, better known as the Dawes Act, as the “most disastrous piece of land legislation in the United States concerning Indians,” as its division of reservation lands into individual plots “ravaged the Indian land base, destroyed existing tribal governments, and devastated Indian culture while opening large areas of Indian land to non–Indian settlement”); Susan Campbell, On ‘Modest Proposals’ to Further Reduce the Aboriginal Landbase by Privatizing the Reserve Land, 27 Canadian J. of Native Studies 219, (2007), available at http://www2.brandonu.ca/library/CJNS/27.2/01Campbell.pdf (a detailed discussion of the dispossession suffered by Native Americans under the Dawes Act).

    [242].    25 U.S.C.A. § 396 (1955).

    [243].    Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 787 n.30 (1984).

    [244].    See Lone Wolf v. Hitchcock, 187 U.S. at 564–65; Sioux Tribe of Indians v. United States, 316 U.S. 317 (1942).

    [245].    Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99 (1960) (holding that Tuscarora land could be seized and converted into a storage reservoir for a dam); United States v. Sioux Nation of Indians, 448 U.S. 371 (1980) (holding that Sioux tribe was entitled to $17.1 million in interest from the seizure of the Black Hills in 1877).

    [246].    Judith Royster, The Legacy of Allotment, Ariz. St. L.J. 1, 17 n.90 (1995).

    [247].    United States v. Dion, 476 U.S. 734 (1986) (holding that the Bald Eagle Protection Act passed by Congress was specifically intended to abrogate the treaty right of the Yankton Sioux Tribe to hunt bald or golden eagles).

    [248].    Tee–Hit–Ton Indians v. United States, 348 U.S. 272, 285 (1955).

    [249].    Encyclopedia of Religion and Nature 1, 840 (Bron R. Taylor ed., 2005).

    [250].    Id. at 839.

    [251].    Pommersheim, supra note 69, at 4.

    [252].    United States v. Antelope, 430 U.S. 641, 647 (1977).

    [253].    Cook, supra note 8.

    [254].    Kalt & Singer, supra note 20, at 1.

    [255].    Cornell, supra note 137, at 28.

    [256].    Angela Cavender Wilson, Remember This!, in Dakota Decolonization and the Eli Taylor Narratives 24 (2005).

    [257].    See Wamsutta (Frank B.) James, Suppressed Speech on the 350th Anniversary of the Pilgrim’s Landing at Plymouth Rock (September 10, 1970), in Voices of a People’s History of the United States 461, 462 (Howard Zinn & Anthony Arnove eds., 2004) (James was prevented from making this speech, referencing the continuing degradation of Native American culture in America, by Massachusetts officials. He and other Native American activists protested at Plymouth Rock, declaring Thanksgiving Day to be a “National Day of Mourning for Native Americans.”).

    [258].    Cornell, supra note 137, at 22.

    [259].    Daes, supra note 68, at 24.

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