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Deploying the U.N. Indigenous Rights Declaration in the Courts of the Conqueror

Nobody can deny that the Obama Administration has worked hard on behalf of Indian country. But despite its recent efforts, the United States still routinely violates Indian treaty rights and sovereignty. Often cloaked in the veil of labor interests or states’ rights, or simply as an exercise of outright federal supremacy, the executive branch too frequently exhibits an eagerness to ignore Indian rights in favor of U.S power or special interests. What is disturbing about this Administration’s approach to Indian country is that it professes to honor tribal sovereignty—the president recently said he's "got our back"—while employing increasingly sophisticated legal and political tools to undermine inherent and reserved tribal rights.

The Department of Labor and its National Labor Relations Board continually invade tribal lands and attempt to enforce the National Labor Relations Act against tribal enterprises, for the sake of labor unions and their constituents. The Department of Justice and its various agencies show an unmatched eagerness to enter tribal territories and enforce state tobacco tax laws against tribal governments and members through federal laws like the PACT Act. Their efforts on behalf of state government general revenue raising seek only to protect states’ unholy alliance with Big Tobacco pursuant to the Master Settlement Agreement. Even the agencies primarily charged with exercising the federal fiduciary obligations to tribal governments and members facilitate the unconstitutional taking of individual Indians’ allotted lands and valuable natural resources to benefit particularly powerful industry groups and interests. In other words, even though the portrays himself as a friend to Indian country, the United States does not—and perhaps never will—truly have our back.

Federal encroachment into Indian country, in violation of inherent sovereignty or treaty rights, is nothing new. What is new, however, is the United States’ formal support for the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and its many provisions that set forth in detail and protect the rights of United States tribes and their members in relation to the Federal Government. On December 16, 2010, with much pomp and circumstance before American tribal leaders, President Obama endorsed the Declaration, explaining to the tribal leaders who had gathered in Washington, D.C.:

"The aspirations it affirms—including the respect for the institutions and rich cultures of Native peoples—are one we must always seek to fulfill.... I want to be clear: What matters far more than words—what matters far more than any resolution or declaration—are actions to match those words."

Yet in action, the departments, agencies, and officials within the Obama Administration do not actually live up to the words contained in the Declaration. To the contrary, federal actions too frequently contradict the promises made by the United States to American Indian indigenous people in the Declaration. As United Nations Special Rapporteur on the Rights of Indigenous Peoples S. James Anaya has noted, it is one thing for governments to “incorporate the norms concerning indigenous peoples; it is quite another thing for the norms to take effect in the actual lives of people.”

Indeed, what we now know as “federal Indian law” would not exist were it not for the binding international norms as employed (somewhat inaccurately) nearly 200 years ago in the Marshall Trilogy. Those cases made clear that the federal-tribal relationship was governed by the “universal recognition of [the] principles” accepted and practiced by so-called “civilized nations.” Johnson v. M'Intosh(1823). Keeping in mind that international legal principles are, under very recent federal court decisions, “not stagnant,” the Feds cannot now have it both ways—using those principles as incorporated into the Marshall Trilogy to the detriment of Indians when convenient, while at the same time denying that international norms which protect Indians are binding upon the United States. As Professor Frickey has poignantly argued: “If the only legitimate constitutional justification for an expansive federal power over Indian affairs lies in interpreting the Constitution against the backdrop of international law, then international law is an important framework for constitutional interpretation throughout the field of federal Indian law.” To say it another way, if international law is the only legitimate argument justifying the plenary power doctrine, then international law ought to be applied in other respects as well to interpret the Constitution in regard to Indian rights.

Although U.S. support for the Declaration is relatively recent, it is surprising that the Declaration has yet to be invoked in our domestic courts—which Walter Echo-Hawk has aptly dubbed "the courts of the conqueror"—where laws do affect American indigenous peoples’ lives—in an increasingly negative way. In defense of unlawful federal agency action (or inaction) in Indian Country, the United States’ lawyers will quickly rejoin that the Declaration “is not a law or even a binding document in the United States.” Marrakush Soc. v. New Jersey State Police (D.N.J. 2009).

Such absolute assertions are not, however, absolute. Although the Obama Administration has not surprisingly become so engrossed in its own domestic policies that binding, customary international law is often overlooked by federal actors, ignoring the Declaration’s mandates does not make them nonbinding. International norms that have achieved fully crystallized status as customary international law—such as the rights to indigenous self-determination, territorial autonomy, and cultural integrity embodied in the Declaration—are in fact binding and enforceable domestically, at federal common law. In Murray v. The Charming Betsy (1804), the U.S. Supreme Court made it explicit: Congressional enactments and agency regulations are to be construed so as not to conflict with these international norms, and any conflicting state law is preempted by this federal common law. And, as more recently articulated by the Supreme Court in Sosa v. Álvarez-Machain (2004), “it would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals.” Notwithstanding this firm advice, based on two centuries of jurisprudence, federal lawyers often invite courts not only to “avert their gaze” from international obligations, but to bury their head in the sand.

Fortunately, not all federal courts are so naïve as to believe that customary international law has no force domestically. In Tel-Oren v. Libyan Arab Republic (D.C. Cir. 1984), the D.C. Circuit Court of Appeals recognized that customary international law “is not stagnant and should be construed as it exists today among the nations of the world” and that “one source of that law is the customs and usages of civilized nations.” These canons were reconfirmed recently in Kiobel v. Royal Dutch Petroleum Co. (2nd Cir. 2010).

One shortcoming of this approach, though, is that although a clear rule of binding customary law may exist, the rule likely does not provide a cause of action in domestic courts. Instead, the Declaration may, and should, be used as a source of substantive rights and as a tool of interpretation that the courts can apply when a cause of action derived from some other source of law comes before the court. For example, the Declaration could be used to buttress a tribal counterattack on U.S. agency action in violation of federal laws like Indian treaties and federal statutes and regulations that guarantee rights to American Indians, pursuant to the Administrative Procedures Act and its waiver of federal sovereign immunity. In that way, federal officials will be forced to explain to a United States judge why she should avert her glaze away from the Declaration—a set of international norms that the Obama Administration itself admits through its announced support of the Declaration should protect and positively effect the lives of American indigenous people(s).

Despite federal contention otherwise, the Declaration is not toothless. Indian country should deploy the Declaration and its embodiment of customary international law in domestic courts when necessary to defend against federal behavior that threatens American indigenous ways of life.

Gabriel S. Galanda, an enrolled member of the Round Valley Indian Tribes, is a partner with Galanda Broadman, PLLC, in Seattle.