IN - scholarspace.manoa.hawaii.edu · Peoples: An Emerging Object of International Law, 80 AM J. INT'L L. 369 (1986); John Howard Clinebell, Jim Thompson, Sovereignty and Self-Determination:

Etlanic Law and Medicine Symposium: Legal Boundaries and Contributions in Etlan 0-Traditional Clainese Medicine

University of Hawai at Manoa Honolulu, Hawaii ApriI14-1S, 2006

THE RIGHTS OF INDIGENOUS PEOPLES TO LAND AND RESOURCES UNDER U.S. AND INTERNATIONAL LAW

by Jon M. Van Dyke William S. Richardson School of Law

University of Hawaii at Manoa jvandyke@hawaiLedu

Emerging norms of international law confirm that indigenous people have a

distinct status, have a right to self-determination, have rights to their traditional lands and

resources, and are entitled to separate and preferential programs.) International law recognizes

) See generally S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LA W (1996; 2d ed. 2004); G. BENNETT, ABORIGINAL RIGHTS IN INTERNATIONAL LAW (1978); Raidza Torres, The Rights of Indigenous Populations: The Emerging International Norm, 16 YALE J. INT'L L. 127 (1991); S. James Anaya, A Contemporary Definition of the International Norm of SelfDetermination, 3 TRANSNAT'L L. & CONTEMP. PROBS. 131 (1993); Jon M. Van Dyke, Carmen Di Amore-Siah, and Gerald W. Berkley-Coats, Self-Determination for Nonself-governing Peoples and for Indigenous Peoples: The Casesfor Guam and Hawai'/, 18 U. HAWAI'I L. REv. 623, 632-40 (1996); 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 (1994); Russel Lawrence Barsh, Indigenous Peoples in the i990s: From Object to Subject of International Law?, 7 HARV. HUM. RTS. J. 33, 35 (1994); Russel Lawrence Barsh, The Challenge of Indigenous SelfDetermination, 26 U. MICH J. L. REFORM 277 (1993); Russel Lawrence Barsh, Indigenous Peoples: An Emerging Object of International Law, 80 AM J. INT'L L. 369 (1986); John Howard Clinebell, Jim Thompson, Sovereignty and Self-Determination: The Rights of Native Americans Under International Law, 27 BUFF. L. REv. 669 (1978); Glenn T. Morris, international Law and Politics: Toward a Right to Self-Determinationfor Indigenous Peoples, in NATIVE AMERICANS AND THE LA W 323 (John R. Wunder ed. 1996); John Heffner, Between Assimilation and Revolt: A Third Option for Hawaii as a Model for Minorities World-Wide, 37 TEXAS INTERNATIONAL LAW JOURNAL 591 (2002); Benedict Kingsbury, Reconciling Five Competing Conceptual Structures of Indigenous Peoples' Claims in International and Comparative Law, 34 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLITICS 189 (2001).

1

University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

the right of self-determination of peoples as the most important of all human rights.2

"Indigenous people" are "the living descendants of pre invasion inhabitants of lands now

dominated by others," "culturally distinctive groups that find themselves engulfed by settler

societies born of the forces of empire and conquest," with "ancestral roots .. .imbedded in the

lands in which they live, or would like to live," who form "distinct communities with a

continuity of existence and identity that links them to the communities, tribes, or nations of their

ancestral past. ,,3

2 Article 1 of the International Covenant on Civil and Political Rights (ICCPR), Dec. 16, 1966,999 U.N.T.S. 171, states that "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." The Covenant was ratified by the United States on June 8, 1992.

In a report commissioned by the U.N. Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Special Rapporteur Jose Martinez Cobo. described the right of indigenous peoples to self-determination as follows:

Self-determination, in its many forms, must be recognized as a basic precondition for the enjoyment by indigenous peoples of their fundamental rights and the determination of their own future .... [S]elf-determination constitutes the exercise of free choice by indigenous peoples, who must to a large extent create the specific content of this principle, in both its internal and external expressions, which do not necessarily include the right to secede from the State in which they may live and to set themselves up as sovereign entities. The right may in fact be expressed in various forms of autonomy within the State.

Jose Martinez Cobo, Study of the Problem of Discrimination Against Indigenous Populations, U.N. Doc. E/CN.4/Sub.l983/211Add.8, at 74, para. 581.

See also Torres, supra note 1, at 142: "Self-determination can take a variety of forms along a spectrum from autonomy in particular subject matters such as cultural concerns, to full political autonomy, in which indigenous populations establish their own governments, design their own political systems, and enforce their own laws."

3 S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LA W 3 (1996). See also HENRY J. STEINER AND PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT 1006-07 (1996) (defining "indigenous people" as "communities or nations having an important historical continuity with societies that inhabited the same general territory and that predated colonization or invasion by other peoples" and who "seek to preserve their ethnic and cultural identity ... to continue as distinctive communities with their own social and legal institutions"); International Labor Organization Convention No. 169 Concerning Indigenous and Tribal Peoples in

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The Global Treaty Regimes and Pronouncements by International Bodies.

Global and regional treaties that provide protection to indigenous people include the

International Covenant on Civil and Political Rights (ICCPR),4 which has been ratified by more

than 145 countries, including the United States, the International Convention on the Elimination

of All Forms of Racial Discrimination,S which has been ratified by more than 155 countries,

including the United States, and the Charter of the Organization of American States (OAS),6

which has been ratified by 35 countries, including the United States. The most relevant provision

of the International Covenant on Civil and Political Rights is Article 27, which says that persons

belonging to ethnic, religious, or linguistic minorities "shall not be denied the right, in

community with the other members of their group, to enjoy their own culture, to profess and

Independent Countries (ILO Convention 169), art 1, June 27, 1989, 28I.L.M. 1382 (1989) (defining "indigenous peoples" as those "who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, .at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions"); Siegfried Wiessner, Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis, 12 HARV. HUM.

RTS. J. 57,57 n.3 (1999) (defining "indigenous peoples" as "groups traditionally regarded, and self-defined, as descendants of the original inhabitants of lands with which they share a strong, often spiritual bond. These peoples are, and desire to be, culturally, socially and/or economically distinct from the dominate groups in society, at the hands of which they have, in past or present, suffered a pervasive pattern of subjugation, marginalization, dispossession, exclusion and/or discrimination.") .

4 ICCPR, supra note 2.

5 International Convention on the Elimination of All Forms of Racial Discrimination, March 7,1966,660 U.N.T.S. 195, 5I.L.M. 352 (1966).

6 Charter of the Organization of American States (OAS), April 30, 1948, 119 U.N.T.S. 3, 2 U.S.T. 2394, T.I.A.S. No. 2361, as amended 1970,21 U.S.T. 607, T.I.A.S. No. 6847.

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practice their own religion, or to use their own language.,,7

The International Covenant on Civil and Political Rights has created the Human Rights

Committee, based in Geneva, to interpret the treaty and to monitor compliance with the its

provisions. This Committee has 18 members, elected for four-year terms by the contracting

parties. In the process of interpreting and applying Article 27, the Human Rights Committee has

recognized the separate and unique status of native peoples in its comments and in a number of

recent decisions. In its General Comment on Article 27, the Committee explained that this

provision of the Covenant recognizes that countries have affirmative obligations to protect and

promote the rights of their indigenous peoples in particular, and it interpreted Article 27 as

covering all aspects of an indigenous group's survival as a distinct culture, understanding culture

to include economic or political institutions, land use patterns, as well as language and religious

7 This treaty, like all other treaties ratified by the United States, is part of the supreme law of the land under Article VI, clause 2 of the U.S. Constitution. Although the United States issued a declaration of partial non-self-execution when it ratified this Covenant in 1992, this declaration (as affirmed by the Executive Branch) means only that the treaty does not itself create a private right of action, but it does not limit the status of the treaty as the supreme law of the land nor does it limit the relevance, applicability, and force of the treaty through statutes such as 42 U.S. C. § 1983,28 U.S.C. § 1331, and many others. See, e.g., United States v. Alvarez-Machain, 504 U.S. 655, 667 (1992) (indicating that treaties have the force of law even if they are not selfexecuting). The declaration expressly does not apply to or limit the reach of Article 50, which requires that "[t]he provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions." See United States v. Duarte-Acero, 208 F .3d 1282, 1284 (11 th Cir. 2000) (despite declaration, ICCPR is supreme law of the land); id., 132 F. Supp.2d 1036, 1040 n.8 (S.D. Fla. 2001) (declaration does not apply when raising "ICCPR claims defensively"); Jordan Paust, Customary International Law and Human Rights Treaties Are Law of the United States, 20 MICH. 1. INT'L L. 301,322-27 (1999); David Sloss, Ex Parte Young and Federal Remediesfor Human Rights Treaty Violations, 75 WASH. L. REV. 1103, 1108 & n.19, 1121 & n.79, 1123 & n.85, 1129-30, 1141-42, 1199 (2000); JORDAN 1. PAUST, JOAN FITZPATRICK, JON M. VAN DYKE, INTERNATIONAL LAW AND LITIGATION IN THE U.S. 75-76, 190, 193-94, 397-98 (West Group, 2000).

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practices.8 The Committee noted in particular that "culture manifests itself in many forms,

including a particular way of life associated with the use of land resources, especially in the case

of indigenous peoples."9 When reviewing the Report submitted by the United States in 1995, the

Committee said that it was "concerned that the aboriginal rights of Native Americans may, in

law, be extinguished by Congress" and recommended that "steps be taken [by the United States]

to ensure that previously recognized aboriginal Native American rights cannot be

extinguished.,,10 Similarly, in reviewing Canada's recent report to the Committee, the Committee

stated "the practice of extinguishing inherent aboriginal rights" was "incompatible" with the

Covenant and that indigenous peoples have the right to control their land and resources and

cannot be deprived of their means of subsistence. 11 The "General Comments and decisions in

individual cases are recognized as a major source for interpretation of the ICCPR" and are

"authoritative. ,,12

8 The Rights ofMinorites (Art. 27), General Comment No. 23 (60), U.N. Human Rights Committee, 50th Sess., p. 7, U.N. Doc. CCPRlC/21IRev. lIAdd. 5 (1994), available at http://www.ohchr.orglenglishlbodieslhrc/comments.htm.

9 Id.

10 Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Comments of the Human Rights Committee, U.N.Doc. CCPRlC/79/Add.50 (1995), paras. 25 and 37.

II Concluding Observations and Recommendations of the Human Rights Committee: Canada, CCPR.lC/791 Add. 1 05 (April 7, 1999).

12 See, e.g., Maria v. McElroy, 68 F. Supp.2d at 232; United States v. Bakeas, 987 F. Supp. 44,46 n.4 (D. Mass. 1997) ("the Human Rights Committee has the ultimate authority to decide whether parties' clarifications or reservations have any effect."); Report of the Committee, 1994 Report, vol. 1,49 U.N. GAOR, Supp. No. 40, U.N. Doc. Al49/40, para. 50 ("General comments ... are intended ... [among other purposes] to clarify the requirements of the Covenant. ... "); see also United States v. Duarte-Acero, 208 F.3d 1282, 1285 n.l2, 1287-88 (11 th

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Among the opinions handed down by the Human Rights Committee recognizing and

protecting the rights of indigenous peoples are: Maori Fisheries Settlement Case (New

Zealand),13 finding that 19 Maori claimants had standing to challenge the settlement of Maori

fishing claims, reaffirming that "economic activities may come within the ambit of article 27, if

they are an essential element of the culture of a community,,,14 finding in this case that the New

Zealand government had been proceeding in good faith and had met the requirements of Article

27 but reminding the government to continue to do so and noting that the right of self-

determination in Article 1 has the potential to be used by indigenous peoples to reinforce their

rights under Article 27; Francis Hopu v. France, 15 determining that France had violated the

human rights of the indigenous people of Tahiti when it allowed the construction of a hotel on

indigenous ancestral burial grounds; Kitok v. Sweden,16 ruling that Article 27 extends to

economic activity "where that activity is an essential element in the culture of an ethnic

community" and that the indigenous Sami People were entitled to exclusive rights to regulate the

grazing of reindeer and were authorized to determine who was eligible to participate in this

Cir. 2000); PAUST, FITZPATRICK, VAN DYKE, supra note 7, at 77-78.

13 Maori Fisheries Settlement Case (New Zealand), Human Rights Committee, CCPRlC/70/D/54711993 (Nov. 15,2000).

14 Id, para. 9.2.

15 Francis Hopu v. France, Human Rights Committee, Communication No. 54911993, CCPRlC/60/D/549/1993 (views adopted July 29, 1997).

16 Kitok v. Sweden, Human Rights Committee, 1988, V.N.Doc. Al43/40 at 221.

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activity; Bernard Ominayak, Chief of the Lubicon Lake Band of Cree v. Canada,17 ruling that

Canada's mistreatment and neglect of an Indian tribe - including expropriation of tribal land,

granting of leases to developers, and delays in providing domestic procedures to address the

claims - constituted a continuing violation of Article 27 of the International Covenant on Civil

and Political Rights because they "threaten the way of life and culture of the Lubicon Lake

Band;" and Lovelace v. Canada,18 recognizing the unique right of a native person who was

ethnically a Maliseet Indian, and who had been absent from her home reserve for several years, to

return to the reserve and live in community with other members of her native group.

The International Convention on the Elimination of All Forms of Racial Discrimination 19

is interpreted and implemented by the 18-member Committee on the Elimination of Racial

Discrimination. This body has characterized the deprivation of indigenous peoples of their lands

and resources as a form of racial discrimination, and has called upon state parties to take special

measures to protect the cultural patterns and traditional land tenure of indigenous peoples, in

order to avoid the kind of discrimination that has deprived indigenous peoples of the enjoyment

of their distinct ways of life.20 The Committee has also concluded that Australian legislation

17 Bernard Ominayak, Chiefofthe Lubicon Lake Band of Cree v. Canada, Human Rights Committee, Communication No. 167/1984, U.N.Doc. Al45/40, vol. II, annex IX.A, at 27, para. 33.

18 Lovelace v. Canada, Human Rights Committee, 1981, V.N.Doc. CCPRIC/OP/I at 83.

19 International Convention on the Elimination of All Forms of Racial Discrimination, supra note 5.

20 Indigenous Peoples, General Recommendation No. 23, V.N. Committee on the Elimination of Racial Discrimination, 5pt Sess., Annex V, pp. 4-5, U.N. Doc. Al52/18 (1997), available at http://www.ohchr.org/englihs/bodies/cerd/comments.htm ..

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facilitating loss of aboriginal lands violated the Racial Discrimination Convention.21

The Organization of American States (OAS) has established the seven-member Inter-

American Commission on Human Rights to protect regional human rights and to address

petitions filed against OAS member states. This Commission has consistently acted to recognize

and protect the rights of indigenous peoples, and has stated that "special protection for

indigenous populations constitutes a sacred commitment" of all members of the OAS.22 Among

its specific rulings involving indigenous peoples are Case No. 1802 (Ache Indians - Paraguay), 23

denouncing Paraguay's treatment of the Ache Indians and calling upon the Paraguayan

government to take "vigorous measures" to correct these violations; Report on the Situation of

Human Rights of a Segment of the Nicaraguan Population of Miskito Origin and Resolution on

the Friendly Settlement Procedure Regarding the Human Rights Situation of a Segment of the

Nicaraguan Population of Miskito Origin,24 reviewing the grievances of the indigenous peoples

on Nicaragua's Atlantic Coast, recommending measures to secure indigenous land rights and to

develop a new institutional order that would better accommodate to the distinctive cultural

21 CERD/56IMisc.42/rev.3.

22 O. BENNETT, supra note 1, at 61; see generally Hurst Hannum, The Protection of Indigenous Rights in the Inter-American System, in THE INTER-AMERICAN SYSTEM OF HUMAN

RIGHTS 323 (David J. Harris & Stephen Livingstone eds. 1998).

23 Case No. 1802 (Ache Indians - Paraguay), 1977 Annual Report of the Inter-American Commission on Human Rights, O.A.S. Doc. OEAlSer.L.NIII.43, doc. 21, at 37 (1978).

24 Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin and Resolution on the Friendly Settlement Procedure Regarding the Human Rights Situation ofa Segment of the Nicaraguan Population ofMiskito Origin, O.A.S. Doc. OEAlSer.LNII1.62, doc. 10, rev. 3 (1983), OEAlSer.LNII1.62, doc. 26 (1984) (Case No. 7964 (Nicaragua)).

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attributes and traditional forms of organization of the indigenous groups, and interpreting Article

4 of the American Convention on Human Rights,25 which broadly affirms the right to life, as

requiring states to take measure to secure the natural environments of "indigenous peoples [that]

maintain special ties with their traditional lands, and a close dependence upon the natural

resources provided therein;" and Case 7615 (Yanomami Indians -- Brazil), 26 ruling that Brazil

had violated the human rights of the Yanomami Indians by allowing a highway to be built into

their land, bringing disease and social disorder to the tribe, that Brazil had an affirmative duty to

"take timely and effective measures to protect the human rights of the Y anomamis," and that

Brazil should proceed with plans to demarcate Y anomami lands and secure them from

encroachment by outsiders. In 1978, Paraguay returned 21,884 hectares of land to the indigenous

communities of Lamenxay and Riachito, pursuant to an initiative of the Inter-American Human

Rights Commission, to settle Case No. 11,713.27

In 2001, the Inter-American Court of Human Rights, established to interpret and enforce

the American Convention on Human Rights,28 recognized the collective rights of indigenous

peoples to land and resources on the basis of Article 21 (1) of the American Convention on

25 American Convention on Human Rights, 1144 V.N.T.S. 123, O.A.S. Treaty Sera No. 36 (1969).

26 Case 7615 (Yanomami Indians -- Brazil), Inter-Am.Comm.H.R. Res. No. 12/85 (March 5, 1985), 1984-85 Annual Report of the Inter-American Commission on Human Rights, O.A.S. Doc. OEAlSer.LN/II.66, doc. 10, rev. 1, at 24,33 (1985).

27 Inter-American Commission on Human Rights Press Communique No. 04/98 (March 25, 1998).

28 American Convention on Human Rights, supra note 25.

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Human Rights,29 and ruled that Nicaragua had violated international law when it granted a

concession for large-scale logging to a Korean corporation and failed to recognize and protect the

land rights of the indigenous Mayangna community of Awas Tingni. 30 In this important ruling,

the Court concluded that "the international human right of property embraces the communal

property regimes of indigenous peoples as defined by their own customs and traditions, such that

'possession of the land should suffice for indigenous communities lacking real title to property of

the land to obtain official recognition of that property. ",31 In its opinion, the Court explained that

indigenous peoples have "a communitarian tradition regarding a communal form of collective

property of the land," and that "[i]ndigenous groups ... have the right to live freely in their own

territory; the close ties of indigenous people with the land must be recognized and understood as

the fundamental basis of their cultures, their spiritual Hfe, their integrity, and their economic

survival.,,32 These rights entitle the indigenous people "to have the state demarcate and title

29 Article 21(1) of the American Convention on Human Rights, supra note 25, states that: "Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interests of society."

30 Case of the Mayagna (Sumo)Awas Tingni Community v. Nicaragua, Inter-Am. Ct. H.R. (Ser. C) No. 79 (2001), abridged version reprinted in 19 ARIZONA JOURNAL OF INTERNATIONAL AND COMP ARA TIVE LAW 395 (2002).

31 James Anaya, Indigenous Peoples' Participatory Rights in Relation to Decisions about Natural Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples Have in Land and Resources, 22 ARIZONA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 7 (2005). See generally S. James Anaya, The Awas Tingni Petition to the Inter-American Commission on Human Rights: Indigenous Lands, Loggers, and Governmental Neglect in Nicaragua,9 ST. THOMAS LAW REVIEW 157 (1996).

32 Awas Tingni Case, supra note 30, para. 149.

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those lands in their favor in circumstances where those rights are not otherwise secure. ,,33

In 1999, the Inter-American Commission ruled that the case filed against the United

States by Mary and Carrie Dann, traditional Western Shoshone ranchers alleging of infringement

of ancestral land rights by the United States, was admissible and that the facts warranted

consideration by the Commission.34 In 2003, the Commission issued its report on this long-

festering dispute, and ruled that the United States had violated the rights to due process and

property held by the Danns under international human rights law. Relying directly on ILO

Convention No. 16935 and the Proposed American Declaration on the Rights of Indigenous

Peoples,36 the Commission concluded that international law now requires countries to respect:

(1) the right of indigenous peoples to legal recognition of their varied and specific forms and modalities of control, ownership, use and enjoyment of their territories and property;

(2) the recognition of their property and ownership rights with respect to lands, territories and resources they have historically occupied; and

(3) where property and user rights of indigenous peoples arise from rights existing prior to the creation of a state, recognition by that state of the permanent and inalienable title of indigenous peoples relative thereto and to have such title changed only by mutual consent between the state and respective indigenous peoples when they have full knowledge and appreciation of the nature or attributes of such property. This also implies the right to fair compensation in the event that

33 S. James Anaya, International Human Rights and Indigenous Peoples: The Move Toward the Multicultural State, 21 ARIZONA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 13,44 (2004).

34 Case No. 11.140 (IA CHR).

35 ILO Convention 169, supra note 3.

36 Proposed American Declaration on the Rights of Indigenous Peoples, Inter-Am. C.H.R., 1333d Sess., OEAlSer.LN 111.95, doc. 7 (1997), available at http://wwww.cidh.orglIndigenas/lndigenas.en.OllPreamble.htm. See S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 66 (2d ed. 2004).

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such property and user rights are irrevocably lost. 37

Applying these principles to the question whether the United States could require the Danns and

the other Shoshone to apply for permits to graze their cattle on their traditional lands, the

Commission concluded that the United States had failed to apply to the natives the same

standards that it applies to other cases of takings of property.38 The Commission added that

international law requires "special measures to ensure recognition of the particular and collective

interest that indigenous people have in the occupation and use of their traditional lands and

resources and their right not to be deprived of this interest except with fully informed consent. ,,39

In October 2000, the Inter-American Commission declared admissible a petition filed in

1998 by the Toledo Maya Cultural Council (TMCC) on behalf of 37 indigenous Maya

communities in the Toledo District of southern Belize protesting government grants of logging

and oil concessions to more than 700,000 acres of rain forest in Maya traditional territories, and

the government's failure to recognize and protect Maya traditional land and resource tenure

outside of small, confining reservations that were established by the British colonial government

decades ago.40 In an extraordinary measure, the Commission specifically requested that the State

of Belize suspend . all permits, licenses, and concessions for logging, oil exploration and other

natural resource development activity on lands used and occupied by the Maya communities in

37 Anaya, Multicultural State, supra note 33, at 47; Anaya, Participatory Rights, supra note 31, at 15 (both citing Mary and Carrie Dann v. United States, Case No. 11.140, Report No. 75/02, Inter-Amer. C.H.R. para. 130, OEAlSer.LN/II.l17, doc. 1 rev. 1 (2003)).

38 Dann Case, supra note 37, paras. 144-45.

39 Id., para. 131.

40 Case No. 12.053 ( IACHR).

12


the Toledo District until the Commission has had the opportunity to investigate the substantive

claims raised in the case. In its ruling on the merits in 2004, the Commission reaffirmed that

international law upholds indigenous peoples' land and resource rights and that the granting of

the concessions by the Belize government "without effective consultations with and the informed

consent of the Maya people" constituted a violation of their human rights.41

These consistent rulings of the Inter-American Commission on Human Rights and the

Inter-American Court of Human Rights give teeth to the treaties and principles governing the

status and rights of indigenous peoples. Indigenous peoples have the right to political autonomy,

they have enforceable rights to lands and resources, and they have the right to be involved in any

decisions affecting their property rights in these lands and resources.

Customary International Law Also Recognizes and Protects the Rights of Indigenous Peoples.

In addition to these treaty-based norms and the opinions issued by treaty-created bodies

recognizing the rights of indigenous peoples to their lands, resources, cultural practices, and

autonomy, the rights of indigenous peoples are also recognized under customary international

law. Norms of customary law arise when a preponderance of states and other authoritative actors

agree upon a common understanding of the norms' content and accept a legal obligation to act in

conformity with the norms. Such binding norms can be determined by examining practices,

decisions, and actions undertaken with a recognition that these actions are legally required.

Customary international law principles regarding indigenous peoples can thus be determined by

41 Maya Indigenous Communities of the Toledo District v. Belize, Case No. 121053, Report No. 40/04, Inter-Am.C.H.R. para. 144; see Anaya, Participatory Rights, supra note -, at 15.

13


examining the specific actions taken by countries with regard to their own indigenous peoples, by

statements made by countries in contexts in which they are explaining their views of

international law , by the texts of international treaties (even if they are not universally ratified),

and by resolutions of international and regional organizations.42 Efforts by scholars to explain

and codify customary international law constitute another reliable source of these norms.43

Customary international law principles are binding and are enforceable.

Two key sources of evidence of the customary international law norms regarding

indigenous people are the International Labor Organization's Convention No. 169 Concerning

Indigenous and Tribal Peoples in Independent Countries,44 and the Draft Declaration of the

Rights of Indigenous Peoples,45 now under consideration at the United Nations.

ILO Convention No. 169 has already been ratified by countries - mostly in the Western

Hemisphere - that comprise a substantial part of the indigenous world. As of January 2006, this

treaty had been ratified by 17 countries: Argentina, Bolivia, Brazil, Colombia, Costa Rica,

Denmark, Dominica, Ecuador, Fiji, Guatemala, Honduras, Mexico, Netherlands, Norway,

Paraguay, Peru, and Venezuela.46 The treaty was developed by a 39-nation drafting committee,

42 See JORDAN J. PAUST, INTERNATIONAL LAW AS LAW OF THE UNITED STATES 3-4 (1996), and references cited

43 See id. at 3, 19-21 n.l 7.

44 ILO Convention 169, supra note 3.

45 Draft Declaration of the Rights of Indigenous Peoples, U.N. Doc. E/CN.4/1995/2, E/CN.4/Sub.2/1994/56 (Oct. 28, 1994), reprinted in 34 I.L.M. 546 (1995).

46 Website of the International Labor Organization, <http://www.ilo.orglilolex/cgi-lexlratifce.pl?CC 169» (visited Jan. 8, 2006).

14


with representatives from employee and employer groups as well as governments. This

convention is "meaningful as part of a larger body of developments that can be understood as

giving rise to new customary international law with the same normative thrust. ,,47 Its principles

can thus be viewed as evidence of existing customary international law.

ILO Convention No. 169 is explicit in requiring governments to assist native peoples in

regaining their lands and resources. Article 14 states:

I. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities ...

2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.

3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.

Other provisions of ILO Convention No. 169 also require states to take an active role in

protecting the rights of the indigenous peoples within their borders. Article 2 of the convention

calls for governments to play an active role with indigenous peoples in developing and protecting

their rights. Article 4 requires governments to take "special measures" to safeguard the

institutions, property, and culture of native people, and Article 6.I.c requires governments, in

appropriate situations, to provide the resources necessary to enable native people to establish

their own institutions and initiatives.

In 1982, the United Nations Sub-Commission on Prevention of Discrimination and

Protection of Minorities created the Working Group on Indigenous Populations to draft a

47 ANAYA, INDIGENOUS PEOPLE IN INTERNATIONAL LAW, supra note 3, at 50.

15


declaration of indigenous rights. During the following 12 years, the Working Group conducted

meetings and collected comments, and in August 1994 it presented its Draft Declaration on the

Rights of Indigenous Peoples to the United Nations Commission on Human Rights.48 Article 27

of the current version of the Draft Declaration on the Rights of Indigenous Peoples emphasizes

the right of indigenous peoples to their lands and resources:

Indigenous peoples have the right to the restitution of the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, occupied, used or damaged without their free and informed consent. When this is not possible, they have the right to just and fair compensation. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status.49

The Human Rights Commission has been considering this Draft Declaration since 1995. Among

the issues that still divide states is whether the concept of "indigenous peoples" can be applied to

populations in Asia in the same manner that it is applied to populations in the Western

Hemisphere and the Pacific Islands. Some Asian countries, particularly the People's Republic of

China, resist the idea that it is useful to identify "prior occupants" of Asian countries and that the

process of doing so would undermine "other values with which the state is properly concemed."so

48 Sub-Commission Res. 1994/45, at 103, U.N. Doc. E/CN.411994/2 (1994).

49 Language in the current recent draft also states that "[i]ndigenous peoples have the collective right to live in freedom, peace and security as distinct peoples ... " and that they have the right to be protected against "any form of assimilation or integration by any other cultures .... " Draft Declaration on the Rights of Indigenous Peoples, U.N. Doc. E/CN.4/Sub.211993/29, Annex I, at 50, arts. 6 and 7(d)(1993). The Draft Declaration also states that indigenous peoples have the right to autonomy in internal and local matters such as education, information, media, culture, religion, health, housing, employment, social welfare, land and resource management, and internal taxation. Id. art. 31.

50 Benedict Kingsbury, "Indigenous Peoples" in International Law: A Constructivist Approach to the Asian Controversy, 92 AMERICAN JOURNAL OF INTERNATIONAL LAW 414, 433

16


Others have argued that "broadening the concept of 'indigenous peoples'" to cover tribal and

mountain peoples in Asia "will weaken it" by watering down central tension between native

inhabitants and colonizing settlers. S I

Although the "Draft Declaration" has not yet emerged as a formally-adopted

"Declaration," two important steps have been taken recently to protect and promote the rights of

indigenous peoples. In 2000, the V.N. Economic and Social Council established the Permanent

Forum on Indigenous Issues, as a subsidiary organ of the Council.s2 And on April 24, 2001, the

53 members of the Human Rights Commission adopted a resolution appointing a Special

Rapporteur on Human Rights and Indigenous Issues with the responsibility to protect and

monitor the human rights and fundamental freedoms of indigenous peoples. 53

Although "not all are satisfied with all aspects of the draft declaration ... a new common

ground of opinion exists among experts, indigenous peoples, and governments about indigenous

peoples' rights and attendant standards of government behavior, and that widening common

ground is in some measure reflected in the sub-commission draft."s4 Although "the specific

contours of these norms are still evolving," it is now established that indigenous peoples have

(1998).

51Id at 447.

52 ECOSOC Resolution 2000/22; see also V.N.G.A. Res. 55/80; see generally Julie Debeljak, Indigenous Rights: Recent Developments in International Law, 28 INTERNATIONAL JOURNAL OF LEGAL INFORMATION 266 (2000).

53 E/CNAI20011L.63, 57th Sess.

54 ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW, supra note 3, at 53 (emphasis in original).

17


rights under customary intemationallaw and that governments have an obligation to protect

those rights. 55

State Practice Confirms the Obligation to Recognize the Separate and Distinct Status of Indigenous Peoples, and Their Ri&hts to Land and Resources.

The actions of numerous states to define and protect the rights of the indigenous

peoples living within their borders confirm that compelling state interests exist to provide such

protections. Among the many such actions that could be mentioned would be the establishment

in New Zealand of the Waitangi Tribunal in 1975, followed by the systematic examination and

settlement of the claims of all Maori groups. In these settlements, the Maori have received land,

but have also received factories, fishing vessels, fishing rights (which are privately-owned in

New Zealand), and money, and are now Maori groups are major economic participants in the

country's economy. 56 New Zealand's courts have cited decisions from other Commonwealth

countries to explain the New Zealand government's fiduciary responsibility toward indigenous

peoples.57 The Maori utilize no blood quantum, but include all persons with any amount of

Maori ancestry among the groups that share the benefits of these settlements. 58 In Australia, in

55Id. at 57-58.

56 See, e.g., PAUL MCHUGH, THE MAORI MAGNA CARTA - NEW ZEALAND LA W AND THE TREATY OF WAITANGI (1991); P.B. TEMM, THE WAITANGI TRIBUNAL: THE CONSCIENCE OF THE NATION (1990).

57 Te Runanga 0 Wharekauri Rekoho Incorporated v. Attorney General, (1993) 2 NZLR 301, 306 (citing Mabo v. Queensland [No.2], 175 C.L.R. 1, 85-36 (1992)(Australia), and R. v. Sparrow, 70 D.L.R. (4th) 385, 406-09 (1990 (Canada), for the conclusion that "The sui generis nature of Indian title, and the historic powers and responsibility assumed by the Crown constitute the source of such a fiduciary obligation.").

58 Treaty ofWaitangi Act 1975 (which created the Waitangi Tribunal), sec. 2 (defining. "Maori" as "a person of the Maori race of New Zealand; and includes any descendant of such a

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the case of Mabo v. Queensland [No.2},S9 the High Court recognized the underlying land and

resources rights of the aboriginal people, relying on the principles of customary intemationallaw

to guide them in rejecting the notion that the lands of Australia were terra nullius when white

settlers arrived.

Section 35, Schedule B of Canada's 1982 Constitution recognizes and affirms the

"existing aboriginal and treaty rights of the aboriginal peoples of Canada." In 1992, Canada's

Supreme Court officially recognized the nation's fiduciary duty to its indigenous peoples and

ruled that any legislative enactment that might impact existing aboriginal rights triggers a strict-

scrutiny level of judicial review.60 In August 1998, Canada granted sovereign autonomy to

Nisga'a people in British Columbia, conveying to them control of resources and internal affairs

in an area of about 750 square miles near southern Alaska.61 Even more dramatically, on April 1,

1999, Canada formed the new territory ofNunavut, containing 1,900,000 square kilometers (one-

fifth of Canada) which will be governed by the indigenous Inuit people (because they constitute

82% of the population of that vast area), and also conveyed to the Inuit People fee simple title to

352,191 square kilometers (4% of all of Canada), including lands containing valuable mineral

person").

59 Mabo v. Queensland [No.2}, (1992) 175 C.L.R. 1.

60 Sparrow v. R., (1990) 2 S.C.R. 1075, 1108 (Canada) ("The relationship between the government and the aboriginal peoples is trust like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship.").

61 Province of British Columbia-Nisga'a Tribal Council-Government of Canada: Nisga'a Final Agreement, 37I.L.M. 1258 (1998); Anthony DePalma, Canada Pact Gives a Tribe SelfRule/or the First Time, N.Y. TIMES, Aug. 5,1998, at AI, col. 3 (nat'l ed.); Canada: SelfGovernment/or Tribe, N.Y. TIMES, Nov. 11, 1998, at A8.

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resources.62 The Canadian Supreme Court has permitted indigenous groups to present oral

history to substantiate the boundaries of their ancestral homelands, has accepted the customs of

indigenous peoples as part of the common law of Canada, and requires good-faith consultation

whenever the land rights of indigenous peoples are at issue.63

On March 27, 1997, Japan's Sapporo District Court issued a landmark decision declaring

illegal a governmental public works project based on the long history of unjust deprivations

imposed upon the indigenous Ainu People by the dominant Japanese culture, and ruling

explicitly that Article 27 of the International Covenant on Civil and Political Rights and the

Japanese Constitution required the Japanese government to respect the rights of the Ainu

People.64 The very next day, on March 28, 1997, the Prime Minister of Japan, Ryutaro

Hashimoto, acknowledged as a "historical fact" that the Ainu People are Japan's indigenous

people, and later that same year, the Japanese Diet enacted a law designed to protect and preserve

Ainu culture and to disseminate knowledge about Ainu tradition.65

62 See Alexandra Kersey, The Nunavut Agreement: A Modelfor Preserving Indigenous Rights, 11 ARIz. J. INT'L & COMPo L. 429 (1994); Jeffrey Wutzke, Dependent Independence: Application of the Nunavut Model to Native Hawaiian Sovereignty and Self-Determination Claims, 22 AM. INDIAN L. REv. 509 (1998).

63 Delgamuukw v. British Columbia, (1997) 3.S.C.R. 1010 (Canada); see generally Brian Slattery, Understanding Aboriginal Rights, 66 CAN. B. REv. 727 (1987).

64 Kayano v. Hokkaido Expropriation Committee, 1598 Hanrei Jiho 33, 938 Hanrei Times 75 (Sapporo Dist. Ct., 1997), reprinted in 38 I.L.M. 394 (Mark A. Levin trans. 1999).

65 Associated Press, Japan Recognizes Ainu as Japanese, HONOLULU ADVERTISER, March 29, 1997; Law Enacted to Protect Ainu Culture, Tradition, June 19, 1997, <http://www.embjapan.con.org/OttlJbr/jbrief65.htm>. See generally Mark A. Levin, Essential Commodities and Racial Justice: Using Constitutional Protection of Japan's Indigenous Ainu People to Inform Understandings of the United States and Japan, 33 N.Y.VJ. INT'L L.& POLITICS 419 (2001).

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Malaysia's Federal Constitution of 1957 gives the federal government responsibility for

the welfare of the indigenous peoples of that country and, in Section 8(5)( c), protects their land

rights, which have also been protected in judicial decisions.66 Similarly, Article 12(5) of the

Philippines' Constitution protects the "ancestral lands" and "ancestral domain" of the country's

"indigenous cultural communities." Additional Article 1 0, which was added to the Constitution

of Taiwan (Republic of China) in 1992, specifically recognizes the separate and distinct rights of

the indigenous peoples to land, water, culture, economic development, and political

participation.67

Brazil's Constitution guarantees to indigenous peoples permanent possession and

exclusive use of their traditional lands, and as of February 1999 Brazil had registered 315

indigenous areas covering 738,344 square kilometers.68 Colombia's 1991 Constitution

recognizes and protects the ethnic and cultural diversity of the nation, affords indigenous

communities a high degree of political and administrative autonomy, and respects their

institutions of self-government, including indigenous courts applying traditional customary

standards.69 Venezuela's Constitution, in Article 77, provides special protection for indigenous

peoples, and the Venezuelan Supreme Court in 1997 ordered the State of Amazonas to include

66 See, e.g., A dong bin Kuwauv. StateojJohor, 1 MALAYANL.l.418 (1997).

67 See Kingsbury, "Indigenous Peoples" in International Law, supra note 50, at 431-32 (discussing recent developments in Taiwan regarding its aboriginal peoples).

68 Constitution of the Federal Republic of Brazil, Article 231; Wiessner, supra note 3, at 79.

69 1991 Constitution of Colombia, Article 330; Wiessner, supra note 3, at 79-80.

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indigenous peoples in decisionmaking regarding restructuring of its local government. 70 Peru's

Constitution protects the communal lands of its indigenous peoples and allows them to use their

own languages and protect their cultural identities.71 Article 84 of Ecuador's 1998 Constitution

recognizes the collective rights of the indigenous peoples including the right to preserve their

community lands from seizure or taxation. Constitutional reform in Bolivia recognized the rights

of its indigenous peoples to assume the ownership of their traditionallands.72 Chile enacted a

Ley Indigena in October 1993 that recognized the rights of indigenous peoples under law to their

culture and to the lands they have historically occupied.73

Nicaragua's Constitution recognizes the communal and cultural rights of the indigenous

peoples of the Atlantic Coast and legislation has created autonomous regions for these peoples.74

In the internationally-mediated settlement of its civil war, the government of Guatemala agreed

with the opposition to recognize the special status of indigenous peoples and their rights to the

lands that have historically belonged to them.7s Mexico's legislature enacted a law recognizing

70 Weissner, supra note 3, at 81.

71 Id. at 82-83.

72 Bolivian Constitution of 1965, as amended in 1994, Article 171; Wiessner, supra note 2, at 83.

73 Ley Indigena, Establece nonilas sobre proteccion, fomento y desarrollo de los indigenas. Ley No. 19.253 (Oct. 5, 1993) <http://www.congreso.cllbibliotecalleyes/otras/indig.htm> .

74 Political Constitution of Nicaragua, Articles 5, 89, and 180; Wiessner, supra note 3, at 85-86.

7S Agreement on Identity and Rights of Indigenous Peoples Between ~e Government of Guatemala and the Unidad Revolucionaria Nacional Guatemalteca, signed in Mexico City, March 31, 1995, <http://www.un.org./Depts/minugualpaz7.htm>.

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native rights in April 2001 that did not provide everything the indigenous groups wanted, but

nonetheless recognized their separate status and autonomous rights.

A prominent scholar of indigenous rights, after surveying pertinent domestic laws on a

global scale and analyzing recent treaty law and international legal practice, has concluded that

customary international law now recognizes the following rights of indigenous peoples:

First, indigenous peoples are entitled to maintain and develop their distinct cultural identity, their spirituality, their language and their traditional ways of life. Second, they hold the right to political, economic and social self-determination, including a wide range of autonomy and the maintenance and strengthening of their own system of justice. Third, indigenous peoples have a right to demarcation, ownership, development, control and use of the lands they have traditionally owned or otherwise occupied and used. Fourth, governments are to honor and faithfully observe their treaty commitments to indigenous nations. 76

The Recognition of the Rights of Indigenous Peoples to Their Lands, Resources, Cultural Practices, and Self-Determination Is Mandated Under International Law and Does Not Constitute Impermissible Racial Discrimination.

The rights of native or indigenous peoples to their lands and resources are property

rights that are protected under intemationallaw, just like any other form of property rights.77

The rights of indigenous peoples to exercise their cultural practices are recognized and

protected in Article 27 of the International Covenant on Civil and Political Rights, as explained

above.78 The rights of indigenous peoples to a degree of political autonomy to control their

own affairs is recognized in ILO Convention No. 169, the Draft Declaration on the Rights of

76 Wiessner, supra note 3, at 127.

77 See, e.g., Article 17(1) of the Universal Declaration of Human Rights, which explicitly recognizes the right to own property communally with others in a group: "Everyone has the right to own property alone as well as in association with others." (Emphasis added.)

78 See supra text at notes 7-18.

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Indigenous Peoples,79 and in the numerous actions undertaken by nations around the globe to

recognize the separate status of the native peoples within their borders described above. so

These actions are mandated by international law and are not any form of "racial

discrimination." This result is clear from the action taken by the Committee on the Elimination

of Racial Discrimination, described above,sl which has explicitly called upon contracting

parties to take special measures to protect the cultural practices and land rights of indigenous

peoples. S2 As one group of commentators has explained, the Convention prohibits "unlawful

discriminations," but not those "differences" or "differentiations" that result from programs or

actions that "establish a demonstrable, rational relation to individual potentialities for self-

development and contribution to the aggregate common interest. "S3

When it ratified the International Covenant on Civil and Political Rights, the United

States adopted a formal "understanding" that permits certain forms of special measures. The

understanding states in pertinent part:

The United States understands distinctions based upon race, colour, ... national or social origin, ... birth or any other status--as those terms are used in Article 2, paragraph 1 and Article 26--to be permitted when such distinctions are, at a

79 Draft Declaration on the Rights of Indigenous Peoples, supra note 45.

so See supra text at notes 56-76.

SI See supra text at notes 19-21.

82 General Recommendation XXIII(51) concerning Indigenous Peoples, adopted at the Committee's 1235th meeting, Aug. 18,1997, CERD/C51IMisc.13IRev. (1997).

S3 MYRES S. McDOUGAL, HAROLD D. LASSWELL, LUNG-CHU CHEN, HUMAN RIGHTS AND

WORLD PUBLIC ORDER 596 (1980).

24


minimum, rationally related to a legitimate governmental objective.84

In the Report of the Senate Committee on Foreign Relations addressing the Covenant, it was

noted that the Committee created by the Covenant had interpreted the Covenant to allow

certain forms of "differentiation":

In interpreting the relevant Covenant provisions, the Human Rights Committee has observed that not all differentiation in treatment constitutes discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant. In its General Comment on nondiscrimination, for example, the Committee noted that the enjoyment of rights and freedoms on an equal footing does not mean identical treatment in every instance. 85

This "understanding" may be viewed as a reservation to the Covenant, which is compatible

with the object and purpose of the treaty as well as its authoritative interpretation by the

Human Rights Committee.86 As such, it affirms that certain special measures are permitted as

a matter of U.S. treaty law (i.e., they are "permitted" whenever such distinctions are rationally

related to a legitimate governmental objective). At a minimum, the U.S. understanding

contains a formal expression of federal policy relevant to the propriety of special measures, the

interpretation of other federal laws, and the operation of federal preemption.

Thus, both the International Covenant on Civil and Political Rights and the Racial

84 Understanding No.1, reprinted in PAUST, FITZPATRICK, VAN DYKE, supra note 7, at 192, and in 31 I.L.M. 645, 659 (May 1992) (earlier draft, adopted later by the Senate and President).

85 Senate Committee on Foreign Relations Report on the International Covenant on Civil and Political Rights, March 24, 1992, reprinted in 31 I.L.M. at 655. See also PAUST, FITZPATRICK, VAN DYKE, supra note 7, at 195; Jordan Paust, Race-Based Affirmative Action and International Law, 18 MICH. J. INTL L. 659, 662-63 n.12 (1997).

86 See, e.g., Jordan Paust, Race-Based Affirmative Action and International Law, 18 MICH. 1. INTL L. 659, 663-64 (1997).

25


Discrimination Convention recognize that not all forms of differentiation are impermissible. In

the case of the rights of indigenous peoples, governments are, in fact, required by international

law to take steps to recognize and protect these rights, as explained above, and such steps do

not constitute racial discrimination.

The Protection of Indigenous Rights Under U.S. Law

The United States Constitution and the early decisions of the U.S. Supreme Court

recognized the separate and distinct status of the native peoples living within its borders. Article

I, Section 8, Clause 3 of the U.S. Constitution granted power to Congress to regulate commerce

with "Indian tribes." At the time our Constitution was drafted, Indian tribes were viewed as

separate nations - truly "nations within a nation" - and the relationship between the federal

government and the tribes was formal in nature. Indians were not permitted to be citizens during

the early years of our nation, even if they left their tribe or their tribal lands. 87 The early

decisions of the U.S. Supreme Court confirmed this formal relationship, and stated that state

governments could not regulate activities on tribal lands and that state officials could not even

enter such lands without invitation.88

During the nineteenth century, however, the U.S. government engaged in many acts of

mistreatment toward the Indians, moving them from one area to another and seeking to suppress

87 See FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 641-42 (Rennard Strickland et aI., eds., 1982); WILLIAM C. CANBY, JR., AMERICAN INDIAN LAW 237-38 (2d 3d. 1988).

88 See, e.g., Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (ruling that Georgia could not enforce its state laws within the Cherokee land); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) (describing Indian tribes as "domestic dependent nations" and stating that "[t]heir relation to the United States resembles that of a ward to his guardian"); and Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823).

26


their unique cultures. For almost a century after the U.S. Civil War, the official U.S. policy was

one of "assimilation," and the U.S. government sought to reduce the number of tribes and refused

to recognize new ones. In the twentieth century, efforts began to protect the rights of native

groups, and on July 8, 1970, President Richard M. Nixon sent a Special Message to Congress

announcing a clear policy that the natives within the country were entitled to autonomy and the

right to manage their lands and resources. The following year, a statute was passed to transfer

lands to Alaska's native peoples.89 Since then, many native groups have recovered lost lands and

resources. Today, more than 550 native groups have formal recognition by the United States

government.

The U.S. Supreme Court ruled in Morton v. Mancari90 and its progeny91 that preferences

for native peoples are viewed as "political" rather than "racial" classifications, and are to be

evaluated under a "rational-basis" rather than a "compelling-state-interest" or "strict-scrutiny"

test. The Mancari case upheld a hiring preference for Indians in federally-recognized tribes for

89 The Alaska Native Claims Settlement Act, 43 U.S.C. secs. 1601 et seg.

90 417 U.S. 535 (1974).

91 Among the many U.S. Supreme Court cases that follow Mancari and uphold preferential or separate programs for native peoples are Antoine v. Washington, 420 U.S. 194 (1975); Fisher v. District County Court, 424 U.S. 382 (1976); Moe v. Confederated Salish and Kootanai Tribes of Flathead Indian Reservation, 425 U.S. 463 (1976); Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977); United States v. Antelope, 430 U.S. 641 (1977); Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463 (1979); Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979); and Washington v. Washington State Commercial Fishing Vessel Association, 443 U.S. 658 (1979). In each of these decisions, the Court ruled unanimously that special treatment for native groups is permitted as long as the legislative program is rationally related to the government's responsibility to promote or protect the self-governance, self-sufficiency, or culture of the native group concerned. See also County of Oneida v. Oneida Indian Nation, 470 U.S. 226,253 (1985) (citing Mancari favorably).

27


positions in the Bureau of Indian Affairs (BIA), which had been legislatively mandated in 25

U.S.C. sec. 472. In an opinion written by Justice Harry Blaclanun, the Court viewed this hiring

preference not as a "racial" preference but as "an employment criterion reasonably designed to

further the cause of Indian self-government and to make the BIA more responsive to the needs of

its constituent groups. It is directed to participation by the governed in the governing agency.,,92

The one major indigenous group in the United States that has been left out of the efforts

to address past injustices has been the Native Hawaiian People.93 They are one of the largest

groups of indigenous peoples in the United States, but they stand alone in never having been

granted a settlement or access to a claims commission by the United States government. The

deprivations and injustices they have suffered have been well-documented. Congress

acknowledged in the 1993 Apology Resolution94 that the United States violated international law

when it provided the crucial support to the overthrow that allowed it to succeed, and Congress

called for a "reconciliation" between the United States and the Native Hawaiian People.

Although some steps have been taken in that direction, the return of land and resources to the

Native Hawaiian People remains as unfinished business, and the failure of the United States to

address and resolve the claims of the Native Hawaiians remains as a significant blemish on our

national character.

92 417 U.S. at 554.

93 See generally Jon M. Van Dyke, The Political Status o/the Native Hawaiian People, 17 YALE LAW & POLICY REVIEW 95 (1998).

94 Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Pub. L. 103-150, 107 Stat. 1510 (1993).

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Documents

IN - scholarspace.manoa.hawaii.edu · Peoples: An Emerging Object of International Law, 80 AM J. INT'L L. 369 (1986); John Howard Clinebell, Jim Thompson, Sovereignty and Self-Determination: