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Atcitty: Obama, Native nations and the Supreme Court

Last week President Obama acknowledged that America has its own legacy of misdeeds to account for – “slavery, segregation, and the past treatment of Native Americans.” Sadly, during the same week, the Supreme Court continued America’s legacy of mistreatment of Native Americans:

In Navajo Nation, despite Congress’ mandate to the secretary of the interior to aid Indian nations to maximize our return on oil and gas production, the Supreme Court gave the secretary a license to secretly collude with energy producers to minimize royalty payments to Indian nations.

In Hawaii v. Office of Hawaiian Affairs, the court ruled that Congress’ apology to Native Hawaiians had no bearing on Native land claims because it was merely “conciliatory” in nature, not substantive.

These cases make it clear that the Supreme Court has an ongoing institutional role in domestic law, including defense of the status quo of American takings of indigenous lands and infringement on Native sovereignty in contravention of natural justice and international human rights.

The Supreme Court gives Native Americans a sense of wanting to 'finish the job' when it comes to Indian law cases to avoid the 'trouble' of hearing claims about Indian rights. American law must change.




Indeed, while the Supreme Court backed away from the racist, segregation policies against African Americans in the 1950s, the court gives Native Americans a sense of wanting to “finish the job” when it comes to Indian law cases to avoid the “trouble” of hearing claims about Indian rights. American law must change.

Given the international law foundation of Native rights, I would argue the Supreme Court has made itself incompetent to resolve Indian treaty rights and tribal self-government rights guaranteed by treaties.

First, the Supreme Court is uninformed about the historical nature of Indian sovereignty. The Constitution of the United States, in the Treaty and Commerce Clauses, makes it clear that Indian nations are prior sovereigns with reserved rights to self-government guaranteed by treaty. Yet, today, the Supreme Court issues illogical holdings, such as: non-Indian businesses located on Indian reservations that receive police and fire protection from tribal governments do not have to pay tribal taxes – even when the business has been saved from burning by the tribal fire department.

Second, the Supreme Court’s 30 minute-per-side format for decision making is not suited to resolving claims between governments. For example, in the Kiowa case, some of the Supreme Court justices suggested during argument that tribal sovereign immunity was a judge-made doctrine. That’s nonsense.

From the dawn of American history, Congress provided a bright line for Indian territory and enacted penalties for private citizens who, as George Washington explained, “by violating [Indian] rights, infringe on the treaties and endanger the peace of the Union.” Claims against Indian tribes could be made to the Executive Branch and, if valid, might be assessed against treaty annuities. Federal-Indian relations were issues for the political branches and Indian nations had inherent sovereign immunity from federal court jurisdiction.

Most importantly, all men and women are created equal. As Chief Joseph said, “The earth is the mother of all peoples and all peoples should have equal rights upon it.” Our Native peoples had an absolute, human right to found our original American democracies to govern ourselves thousands of years ago – just as Americans had a right to found the United States. As the prior sovereigns, Native nations have an ongoing sovereignty that no other nation has the right or authority to infringe upon. Although the Supreme Court ignores this law, in 1787 Congress passed the Northwest Ordinance, recognizing that the U.S. shall not infringe upon the “liberty” or “property” of Native peoples.

The Supreme Court is an institution of the U.S. and its judgments are matters of domestic law; as such, the court is not competent to decide disputes based on treaties between the United States and Indian nations.

Our treaties establish an international framework for our nation-to-nation relationship with the United States. Today, the United Nations Charter makes clear that the principle guide for nation-to-nation relationships is the “equality of sovereigns.” The Vienna Convention on Treaties provides: “Every treaty. … is binding upon the parties to it and must be performed by them in good faith.” The convention “affirms that disputes concerning treaties. … should be settled by peaceful means and in conformity with the principles of justice and international law.” One party “may not invoke. … its internal law as justification for its failure to perform a treaty.”

The Supreme Court is an institution of the U.S. and its judgments are matters of domestic law; as such, the court is not competent to decide disputes based on treaties between the United States and Indian nations. The courts domestic law rulings simply cannot substitute for a nation-to-nation resolution. In short, one party to a treaty cannot, unilaterally, decide the meaning of a bi-lateral treaty for the other nation.

Today, we seek affirmation of our treaties upon their original terms. We can no longer be bound to a domestic American law resolution of our international claims. As Indian peoples, we call upon the world to honor our human rights. We respectfully call upon President Obama to “honor our treaties” and “respect our sovereignty,” as he has pledged to do. To accomplish this, Obama should establish an international treaty commission with appointments made by him to represent the United States and an equal number of appointments from Native nations to represent our peoples. It should be empowered to make recommendations to the president, Congress and Native nations on the enforcement of our treaties.

The commission should also operate as a truth, justice and reconciliation commission and should annually report to the United Nations on the United States’ enforcement of its trust responsibilities to Native nations.

Only then can we stop the United States’ mistreatment of Native Americans, past, present and future.

Shenan Atcitty, Esq., is a member of the Navajo Nation and a partner with Holland & Knight.