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Buy Back Violates International Human Rights

On December 16, 2010, President Barack Obama endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) with great fanfare. The U.S. State Department then proclaimed that the declaration expresses “aspirations that this country seeks to achieve within the structure of the U.S. Constitution, laws, and international obligations, while also seeking, where appropriate, to improve our laws and policies.”

Five days later, the U.S. District Court for the District of Columbia approved a settlement of Cobell v. Norton, which resulted in a $3.4 billion payout to a class of tribal members – $1.9 billion of which would eventually fund what is today the U.S. Department of the Interior’s Indian Land Buy Back Program. Unfortunately, the Buy Back Program does not mark any improvement in federal Indian law or policy. To the contrary, that program runs counter to UNDRIP and other international human rights laws.

The most troublesome part of the program is that it will facilitate the forced sale of tribal members’ allotted or restricted fee lands, and, in turn, forcibly and permanently remove individual Indians from their ancestral lands. This was not the result of Interior oversight — Interior has spoken in code about this reality from day one. In 2012, the department articulated a strategy to “identify tracts with relatively low fractionation and a few ‘large’ interest owners, the acquisition of whose interests could bring a tribe to a controlling level of interest in that tract with a minimal number of acquisitions.” As is now clear, “controlling level of interest” referred to a mechanism in the federal Indian Land Consolidation Act (ILCA) that permits tribes that acquire a simple 51 percent majority interest in allotted or restricted fee lands to obtain the minority owners’ land interests by forced sale. 25 U.S.C. § 2204(a).

A year later, after folks began to crack Interior’s code, the agency proclaimed: “There will be NO forced sales.” But when pressed for a more honest answer during consultations with tribal governments in early 2013 — roughly an entire year after the Buy Back strategy was pronounced (hardly “meaningful collaboration with tribal officials” promised by the Obama administration — agency top brass were forced to admit that once Interior brings a tribe into a controlling 51 percent interest, the controlling tribe is empowered by federal law to force the sale of the remaining minority interest(s). In other words, the Buy Back Program equates to forced sales of individual Indian landholdings.

Still, even in late 2013, Interior continued to pretend that “the Buy Back Program is strictly voluntary.” Most recently, Interior buried the following statement in an appendix to its Updated Buy Back Implementation Plan: “Under the March 2011 terms of the Settlement and the Claims Resolution Act of 2010, all sales are voluntary.” But, “The Department has no control over the prerogatives of sovereign tribal nations to exercise whatever rights they may have regarding the purchase of land outside of the confines of the Buy Back Program.” Again, Interior is misleading when discussing the forced sale provision of 25 U.S.C. § 2204(a).

Interior’s continued sleight of hand is appalling. But more importantly, the fundamental underpinning of the federal Buy Back strategy — catalyzing forced sales of individual Indian owned lands — violates international human rights.

Article I of UNDRIP makes clear that indigenous individuals “have the right to full enjoyment . . . of all human rights and fundamental freedoms as recognized in . . . international human rights law.” Article 17 of the Declaration of the Rights of Man and of the Citizen guarantees that “[p]roperty being an inviolable and sacred right, no one can be deprived of it, unless demanded by public necessity, legally constituted, explicitly demands it, and under the condition of a just and prior indemnity.” Article 17, of course, reads very similar to the Fifth Amendment of the U.S. Constitution, which prevents takings of private property for public use without just compensation (and incidentally, served as the basis for the U.S. Supreme Court’s smack down of the ILCA’s escheat provision in Irving v. Hodel, 481 U.S. 704 (1987)).

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Under these international laws, American indigenous peoples enjoy an inviolable and sacred right to full enjoyment of their allotted or restricted fee lands. Under any legal measure, a tribal member’s land rights cannot be taken unless under the condition of just and prior indemnity or compensation. But, critically, unlike non-indigenous peoples’ property rights, lands owned by indigenous peoples cannot simply be taken “for public use” or when “demanded by public necessity.” Indeed, the Annex to the UNDRIP recognizes the unique relationship between indigenous peoples and their homelands vis-à-vis indigenous peoples’ “cultures, spiritual traditions, histories and philosophies.” Thus, Article 10 of UNDRIP proclaims that indigenous lands can only be taken upon the ��free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation.”

While Article 10 of UNDRIP contemplates collective rather than individual indigenous land and occupancy rights, the point remains. Along with the United States-endorsed human right that American indigenous peoples not be forcibly removed from their lands absent those peoples’ free, prior and informed consent, comes a corollary responsibility: the responsibility of those same American indigenous peoples — tribal governments — to not forcibly remove their members from their lands absent those members’ full consent. Domestic law is in harmony with Article 10, mandating that “individual Indian owner of trust lands . . . give truly informed consent to the sale of trust corpus.” Cobell v. Norton, 225 F.R.D. 41, 46 (D.D.C. 2004).

Article 46(2) of the UNDRIP requires tribal governments in America to respect all human rights while exercising their rights under the Declaration: ���In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected.” In addition, Article 34 states that “undefinedndigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs . . . traditions, procedures . . . in accordance with international human rights standards.” Thus, UNDRIP imposes the duty to respect individual indigenous human rights directly upon tribal governments themselves, including through land acquisition or “consolidation” practices and procedures.

The responsibility of tribal governments was recently well explained by the Special Rapporteur on the Rights of Indigenous Peoples:

[The] wide affirmation of the rights of indigenous peoples in the Declaration does not only create positive obligations for States, but also bestows important responsibilities upon the rights-holders themselves. This interaction between the affirmation of rights and the assumption of responsibilities is particularly crucial in areas in which the Declaration affirms for indigenous peoples a large degree of autonomy in managing their internal and local affairs. . . . In exercising their rights and responsibilities under the [Declaration], indigenous peoples themselves should be guided by the normative tenets of the Declaration.

The internationally recognized duty of tribal governments to not violate tribal members’ inviolable and sacred individual lands, coupled those tribes’ own laws, customs, and traditions prohibiting non-consensual acquisition such lands, may be judicially enforceable against American tribal officials under Ex parte Young, 209 U.S. 123 (1908). In addition, because “host nations are ultimately responsible to all their respective citizens for individual rights,” federal liability can attach to any forced Indian “buy back” that violates international human rights norms. Collective v. Individual Human Rights in Membership Governance for Indigenous Peoples, 26 Am. U. Int’l L. Rev. 485 (2011). Indeed, “common law claims based on the present-day law of nations” can be brought against Interior and its offending officers, per the federal Administrative Procedure Act. U.S. v. Dire, 680 F.3d 446 (4th Cir. 2012).

In December 2010, the State Department further proclaimed that “U.S. support for the Declaration goes hand in hand with the U.S. commitment to address the consequences of a history in which, as President Obama recognized, ‘few have been more marginalized and ignored by Washington for as long as Native Americans — our First Americans.’” Sadly, this rhetoric appears to be just words. The United States is now again poised to again remove the First Americans from their lands, and Interior officials are, as they have for the last 125 years, marginalizing tribal members.

Gabriel S. Galanda is the managing partner at Galanda Broadman, PLLC, an American Indian owned law firm.