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The court of last resort

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Put not your faith in princes,î says the Bible, and that sentiment, we confess, shaped our initial reaction to the idea that international law could effectively protect the rights of indigenous peoples. Even so, the recent vote of the United Nations Human Rights Council to adopt the draft Declaration on the Rights of Indigenous Peoples gives cause to congratulate the American Indian legal minds who have worked so long and hard to shape this document. The more we reflect and read, the more we appreciate the profound wisdom behind this strategy. International law might often seem like empty words; but it is a highly appropriate forum, if not the last ditch, for the stand on Native rights. Indeed, as we have been learning, the modern versions of this doctrine took shape under the impact of European contact with ìthe inhabitants of the Indies lately discovered.î

To be sure, the history of the draft declaration gives plenty of cause for an ambiguous reaction. It was supposed to be the great accomplishment of the United Nationsí Decade of Indigenous Peoples, which ended a year ago and had to be extended. The long delay came in good part from resistance from the great settler states, the United States, Canada, Australia and New Zealand. In spite of their pretensions as protectors of human rights, these countries worried that the draft went beyond the concessions of their own national laws. The vote in the Human Rights Council showed this split. Canada and Russia opposed the draft. Many of the 12 countries which abstained are diplomatic allies of the United States. Emotional support came from countries with large and increasingly assertive Native populations, such as Mexico, Peru and Guatemala, and countries always delighted to embarrass the American superpower.

The fact there was a vote at all shows the limits of the measure. Through years of talks, supporters were working for adoption by consensus, which would have given the nonbinding declaration universal validity. Now it speaks for only 30 of the 47 members of the newly established council, which replaced the previously discredited U.N. Human Rights Commission. (The United States decided not to apply for membership on the council, possibly to avoid embarrassments such as this vote.) The draft now heads to the U.N. General Assembly, where it could well win another majority vote, with the same effect.

We doubt that the declaration would have any immediate effect on, say, the U.S. Supreme Court, which has been willing enough to ignore coherent logic and its own precedents when it comes to tribal rights. Federal court actions have already flouted the declarationís protections for indigenous territory. The justices who acknowledged international opinion against the death penalty ran into a hailstorm of domestic criticism. The general theme was that foreigners shouldnít tell us what to do, hardly a promising atmosphere for the declaration to inspire a change of heart.

But the idea of a declaration of indigenous rights, and of human rights altogether, works at a deeper level. As we said, it goes back to the very foundation of modern international law, and here is where the tribes of the United States can hope for some impact on the Supreme Court. Scholars largely agree that the attempt of modern European thinkers to articulate a body of principles regulating relations among nations dates back to the Spanish wars in the Americas. This large-scale, daily contact with peoples completely alien to Christendom prompted thinking about the basic rights of humanity that for some reason didnít arise from the encounter with Islam and Judaism (although some basic themes, as Robert A. Williams Jr. has shown brilliantly, go back to the Crusades).

These thoughts were first worked out in the 1530s by our old friend Francisco de Vitoria, the Spanish Dominican theologian. He argued, in spite of the self-interested claims of the conquistadors to the contrary, that the Native populations clearly possessed rational souls. They shared the God-given nature, as described by Aristotle, of being social and political animals. Therefore, they had a divinely sanctioned right to ìdominium,î to sovereign self-government, as long as their institutions did not violate other features of natural law. In spite of the religious difference, de Vitoria inspired the Dutch Protestant Hugo Grotius (1583 ñ 1645), whose exhaustive ìLaw of War and Peaceî set the standard for international jurisprudence.

American Indians had a second avenue of influence. Early Modern European thinkers took the North American tribes as examples of pre-political mankind emerging from the state of nature. The seminal authors of Natural Right doctrines, Thomas Hobbes (1588 ñ 1679) and John Locke (1632 ñ 1704), treated the accounts in sources such as the ìJesuit Relationsî and Jose de Acostaís ìThe Natural and Moral History of the Indiesî as empirical evidence in the spirit of modern science. Locke referred to the Huron practice of electing chiefs as a decisive refutation of the divine origin of kingly power. Another giant of international law, the German Samuel Pufendorf (1632 ñ 1694), drew on American examples for his own elaboration of the ìnatural stateî of mankind.

The very idea of international law is based on the principle of an inherent justice in human life, extending well beyond the more or less arbitrary statutes enacted by governments. This natural right might be derived from God, or it might be rationally deduced from human origins. But it underlies any attempt to say that the rule of law is more than a deception to protect the interests of the powerful. The Supreme Court certainly would insist the United States is ìa government of law and not of men,î except when it comes to Indian affairs.

Unlike its rulings, say, on criminal rights, the Supreme Court is happy to base tribal rights entirely on the will of Congress. Federal judges these days frequently turn to the unfortunate phrase of Justice Thurgood Marshall in McClanahan v. Arizona Tax Commission (1973): ìThe modern cases ñ tend to avoid reliance on platonic notions of tribal sovereignty.î This sentence in an otherwise positive ruling was both mischievous and ignorant. The argument for tribal sovereignty in de Vitoria came not from Plato but from Aristotle and St. Thomas Aquinas. Furthermore, the court frequently invokes the ìplenary powerî of Congress to override tribal sovereignty, a principle not to be found anywhere in the Constitution or international law. Following this lead, the tone of federal judges toward sovereignty in recent years has become increasingly disrespectful, not to say unprincipled. Itís hard to imagine that the Supreme Court would talk as dismissively about the ìnotionî of constitutional rights for murderers and rapists.

The adoption of the draft declaration could perform the great service of reviving the original idea of tribal rights as an expression of the basic human right of self-government. It would give Natives in the United States recourse beyond the increasingly arbitrary Supreme Court, and perhaps could help shame that body back toward more principled decisions. It underlines that the last resort for indigenous peoples is the appeal to the law of nature.

Put not your faith in princes,î says the Bible, and that sentiment, we confess, shaped our initial reaction to the idea that international law could effectively protect the rights of indigenous peoples. Even so, the recent vote of the United Nations Human Rights Council to adopt the draft Declaration on the Rights of Indigenous Peoples gives cause to congratulate the American Indian legal minds who have worked so long and hard to shape this document. The more we reflect and read, the more we appreciate the profound wisdom behind this strategy. International law might often seem like empty words; but it is a highly appropriate forum, if not the last ditch, for the stand on Native rights. Indeed, as we have been learning, the modern versions of this doctrine took shape under the impact of European contact with ìthe inhabitants of the Indies lately discovered.îTo be sure, the history of the draft declaration gives plenty of cause for an ambiguous reaction. It was supposed to be the great accomplishment of the United Nationsí Decade of Indigenous Peoples, which ended a year ago and had to be extended. The long delay came in good part from resistance from the great settler states, the United States, Canada, Australia and New Zealand. In spite of their pretensions as protectors of human rights, these countries worried that the draft went beyond the concessions of their own national laws. The vote in the Human Rights Council showed this split. Canada and Russia opposed the draft. Many of the 12 countries which abstained are diplomatic allies of the United States. Emotional support came from countries with large and increasingly assertive Native populations, such as Mexico, Peru and Guatemala, and countries always delighted to embarrass the American superpower.The fact there was a vote at all shows the limits of the measure. Through years of talks, supporters were working for adoption by consensus, which would have given the nonbinding declaration universal validity. Now it speaks for only 30 of the 47 members of the newly established council, which replaced the previously discredited U.N. Human Rights Commission. (The United States decided not to apply for membership on the council, possibly to avoid embarrassments such as this vote.) The draft now heads to the U.N. General Assembly, where it could well win another majority vote, with the same effect.We doubt that the declaration would have any immediate effect on, say, the U.S. Supreme Court, which has been willing enough to ignore coherent logic and its own precedents when it comes to tribal rights. Federal court actions have already flouted the declarationís protections for indigenous territory. The justices who acknowledged international opinion against the death penalty ran into a hailstorm of domestic criticism. The general theme was that foreigners shouldnít tell us what to do, hardly a promising atmosphere for the declaration to inspire a change of heart.But the idea of a declaration of indigenous rights, and of human rights altogether, works at a deeper level. As we said, it goes back to the very foundation of modern international law, and here is where the tribes of the United States can hope for some impact on the Supreme Court. Scholars largely agree that the attempt of modern European thinkers to articulate a body of principles regulating relations among nations dates back to the Spanish wars in the Americas. This large-scale, daily contact with peoples completely alien to Christendom prompted thinking about the basic rights of humanity that for some reason didnít arise from the encounter with Islam and Judaism (although some basic themes, as Robert A. Williams Jr. has shown brilliantly, go back to the Crusades).These thoughts were first worked out in the 1530s by our old friend Francisco de Vitoria, the Spanish Dominican theologian. He argued, in spite of the self-interested claims of the conquistadors to the contrary, that the Native populations clearly possessed rational souls. They shared the God-given nature, as described by Aristotle, of being social and political animals. Therefore, they had a divinely sanctioned right to ìdominium,î to sovereign self-government, as long as their institutions did not violate other features of natural law. In spite of the religious difference, de Vitoria inspired the Dutch Protestant Hugo Grotius (1583 ñ 1645), whose exhaustive ìLaw of War and Peaceî set the standard for international jurisprudence.American Indians had a second avenue of influence. Early Modern European thinkers took the North American tribes as examples of pre-political mankind emerging from the state of nature. The seminal authors of Natural Right doctrines, Thomas Hobbes (1588 ñ 1679) and John Locke (1632 ñ 1704), treated the accounts in sources such as the ìJesuit Relationsî and Jose de Acostaís ìThe Natural and Moral History of the Indiesî as empirical evidence in the spirit of modern science. Locke referred to the Huron practice of electing chiefs as a decisive refutation of the divine origin of kingly power. Another giant of international law, the German Samuel Pufendorf (1632 ñ 1694), drew on American examples for his own elaboration of the ìnatural stateî of mankind.The very idea of international law is based on the principle of an inherent justice in human life, extending well beyond the more or less arbitrary statutes enacted by governments. This natural right might be derived from God, or it might be rationally deduced from human origins. But it underlies any attempt to say that the rule of law is more than a deception to protect the interests of the powerful. The Supreme Court certainly would insist the United States is ìa government of law and not of men,î except when it comes to Indian affairs.Unlike its rulings, say, on criminal rights, the Supreme Court is happy to base tribal rights entirely on the will of Congress. Federal judges these days frequently turn to the unfortunate phrase of Justice Thurgood Marshall in McClanahan v. Arizona Tax Commission (1973): ìThe modern cases ñ tend to avoid reliance on platonic notions of tribal sovereignty.î This sentence in an otherwise positive ruling was both mischievous and ignorant. The argument for tribal sovereignty in de Vitoria came not from Plato but from Aristotle and St. Thomas Aquinas. Furthermore, the court frequently invokes the ìplenary powerî of Congress to override tribal sovereignty, a principle not to be found anywhere in the Constitution or international law. Following this lead, the tone of federal judges toward sovereignty in recent years has become increasingly disrespectful, not to say unprincipled. Itís hard to imagine that the Supreme Court would talk as dismissively about the ìnotionî of constitutional rights for murderers and rapists.The adoption of the draft declaration could perform the great service of reviving the original idea of tribal rights as an expression of the basic human right of self-government. It would give Natives in the United States recourse beyond the increasingly arbitrary Supreme Court, and perhaps could help shame that body back toward more principled decisions. It underlines that the last resort for indigenous peoples is the appeal to the law of nature.