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Rethinking international law and indigenous peoples

America owes its foundation in part to then-accepted principles of international law that asserted a superior sovereignty of European powers over Indian tribes. In Johnson v. M'Intosh (1823), Chief Justice John Marshall justified the conquest of Indians using a legal fiction of international law at the time: that through discovery, Europeans gained a right to land notwithstanding Indian occupancy because ''the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy.'' International law has come a long way since then but, unfortunately, the United States has not.

On Sept. 13, the United Nations adopted the Declaration on the Rights of Indigenous Peoples, and by doing so the global community formally acknowledged the human rights of indigenous peoples. More than 20 years of work by member states and by countless indigenous leaders culminated in a document that recognizes, among other things, an indigenous right to self-determination, to maintain a culturally distinct identity, and to traditional lands. The declaration is now international law with only four states - Canada, New Zealand, Australia and the United States - voting against its adoption.

While the U.S. opposition to the declaration is not surprising, the irony of such a position should not be lost. In some respects the U.S. government had its hands tied with regard to the declaration by recent opinions of the Supreme Court that worked to continue the conquest of Indian tribes and of Indian lands. The Supreme Court recently denied Indian land claims in upstate New York based on the effect of the passage of time, yet the court has simultaneously - when it is convenient - not hesitated to rely on 19th century cases describing the rights of Indian tribes whose language is openly racist. The U.S. government was in no position to sign the declaration when the Supreme Court does not seem to recognize those rights when they conflict with non-Indian concerns or demands for Indian land.

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There is irony in the U.S. rejection of international law regarding indigenous peoples despite the fact that an international law concept of indigenous peoples underpins our very nationhood. Most Americans will not even recognize this as ironic because, for most Americans, Indians are a purely historical people. The international community knows better and, through bodies at the inter-American level and at the U.N. level, has condemned U.S. policies that violate the rights of Indian tribes.

Indian advocates are confronted by a harsh choice. They can attempt to draw attention to international human rights norms that support the rights of Indian tribes, an effort that is unlikely to be received or even understood by unsympathetic courts. Or (and this is the choice made by most members of the private bar) they can decide to give up on international law and base arguments upon problematic Supreme Court precedent. By rejecting - along with Canada, Australia and New Zealand - the international community's more enlightened view of indigenous peoples, the U.S. government seems to be signaling to Indian advocates that they should limit their arguments to the bounds of domestic law.

What the United States is really doing is selectively incorporating international law. Conquest of Indian tribes was justified in part because at the time, international law said it was justified given the perceived difference in character of Indians. But it is one thing to accept international law when it advances the goals of non-Indians who coveted Indian land. It is quite another to join with the international community when it passes a declaration that calls for respecting the rights of Indian tribes. By not acknowledging indigenous rights under international law, we end up enshrining in our domestic law discredited notions of cultural superiority.

Ezra Rosser teaches federal Indian law at American University Washington College of Law, where he is an assistant professor.