This summer I was honored to speak before the United Nations Office of the High Commissioner for Human Rights regarding American Indian Treaty and consultation rights. During my first visit to the U.N. Palais des Nations, I was affected most by hearing fellow American Indians express to the U.N. their deeply held belief that the doors of United States federal courts are closed to us.
With tremendous respect to the indigenous human rights warriors who have advocated for change long before I ever arrived in Geneva, I disagree. Federal courts can dispense justice to Indian people and in doing so, can enforce international indigenous rights like those recognized in the United Nations Declaration on the Rights of Indigenous Peoples (“U.N. Declaration”).
Of course, as any Indian lawyer will tell you, the deck is stacked in federal court. In Lone Wolf v. Hitchcock (1903), for instance, the U.S. Supreme Court declared that the “plenary power” of Congress gave it authority to unilaterally abrogate federal treaty promises to Indian peoples. Thirty years ago in Oliphant v. Suquamish Indian Tribe (1978), the Court held that tribes had somehow been “implicitly divested” of inherent criminal jurisdiction to punish non-Indians who commit wrongs on Indian lands, as this power was inconsistent with tribes’ status as “domestic dependent nations.” This is the kind of “law” we face, still.
“Indian law” is, after all, a purely non-Indian construct. “Plenary power” and “domestic dependent nations” are not our terms. Instead, Indian law was born of the perceived need of European colonizers to manage the “savage”, the indigenous peoples of the lands they “discovered.” As noted by Professor Robert Clinton, “Indian law developed originally as the white man’s law about Indians, rather than a corpus of rules which Indian voices played a significant role in shaping.” Not surprisingly then, Indian law largely operates to work against Indians.
Despite this limitation, though, American indigenous peoples have become less marginalized in domestic law. In 1966 Congress enacted 28 USC 1362, which gave tribal governments the right to sue in federal courts for claims made under federal law. Tribes were finally given a formal legal voice in “the courts of the conqueror.” More recent Executive Orders and federal agency policies—such as President Obama’s 2009 Memorandum on Tribal Consultation and the U.S. Department of the Interior’s “Protection of Indian Trust Resources Procedures Manual”—call for tribal self-determination in federal decision-making that concerns Indian lands and resources. As discussed below, such federal political gestures can produce real rights that Indians can increasingly enforce in domestic courts.
The most powerful recent development giving indigenous voice to Indian law is the United States’ endorsement of international indigenous rights norms through the U.N. Declaration. The value of that endorsement cannot be under-stated.
Under the doctrine of customary international law, international norms that have “crystalized”—i.e., become sufficiently well-defined and universally accepted by nation-states – can be enforceable domestically. Telltale signs of universal acceptance are nations’ acts, omissions and proclamations regarding those norms.
By proclaiming a recognition of those international indigenous rights memorialized in the U.N. Declaration, the U.S. has helped crystallize, for example, the norm requiring American indigenous peoples’ “prior, free and informed consent” before any federal action of tribal implication is taken. That particular norm is further exhibited and crystallized by the increased promulgation of federal Indian self-determination policies; and, as discussed below, federal laws such as Section 106 of the National Historic Preservation Act.
Notably, the U.S. Supreme Court has recently shown an appetite for incorporating international norms into domestic jurisprudence. In Atkins v. Virginia (2002), America’s highest court looked to customary international law to determine whether the execution of mentally handicapped persons was cruel and unusual. In Grutter v. Bollinger (2003), Justice Ginsberg cited to the International Convention on the Elimination of All Forms of Racial Discrimination in affirming affirmative action. Likewise, in Hamdan v. Rumsfeld (2006), the Court—the Roberts Court no less—reviewed the decisions of international war tribunals to determine what constituted the federal common law of war.
Meanwhile, enforcement of international norms against the U.S. in international tribunals like the International Court of Justice, is as unattainable as ever. Indeed, according to the ICJ’s seminal Switzerland v. U.S. (1959) case, “local remedies must be exhausted before international proceedings may be instituted.” For American indigenous peoples, this means that skipping any point in the domestic process in suit against the U.S.—i.e., federal agency review followed by administrative appeal to the Interior Board of Indian Appeals and then legal review by the U.S. District Court, a federal circuit appeals court, and finally the Supreme Court—is not even an option.
Merely arriving at any international tribunal will take years, if not decades, and hundreds of thousands, if not millions of dollars. Assuming review is then granted, which is very rare, by the time any ruling is handed down from an international court the American Indian plaintiff will have long suffered irreparable injury.
Juxtapose that international process to the posture of Quechan Tribe v. U.S. Dep’t of Interior (2010). In late 2010, the Bureau of Land Management permitted a 709-megawatt solar farm planned for private development on over 6,000 acres of public land in Southern California. Quechan opposed the project because it was not adequately consulted with beforehand. The Tribe filed suit in U.S. District Court, which quickly halted the project because the BLM “reached its approval decision prior to evaluating the eligibility of cultural resources identified in the project area and without engaging required consultation with tribes,” as required by Section 106 of the National Historic Preservation Act and the National Environmental Protection Act.
The development project, which would have resulted in one of the largest solar facilities in the country, was stopped dead in its tracks.
Quechan protected its traditional cultural properties and ways by wielding the Administrative Procedure Act (APA), which prevents the U.S. from acting in a manner that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Agencies violate the APA when they fail to comply with federal “statutory, constitutional, or common law.” Valentini v. Shinseki (C.D. Cal. 2012). Crucially, such law can include “common law claims based on the present-day law of nations”—i.e. those indigenous rights norms that have crystalized through the federal government’s acts, omissions and statements. U.S. v. Dire, 680 F.3d 446 (4th Cir. 2012).
The takeaway: deploying crystalized international norms—together with federal laws such as Indian Treaties, Presidential Orders, Section 106 and other statutes, and agency regulations and policies—through the APA, can provide favorable outcomes for American indigenous peoples who appear before domestic “colonial” courts.
When these international norms and domestic laws are properly employed together against the U.S., tribes exercise a de facto Indian veto right over unacceptable non-Indian commercial development efforts, as illustrated by Quechan. In this way, domestic remedies begin to mirror—and further crystalize—international mandates such as those set forth in the U.N. Declaration. More specifically, a de facto tribal veto right delivered by a federal court, achieves the same outcome as that contemplated by the Declaration’s various “prior, free, and informed consent” requirements.
Domestic Indian law will never rid itself of its colonial vestiges; and U.S. courts may always be hostile to Indians. But American indigenous rights warriors have more weapons to fight age-old as well as new legal doctrines of oppression. And, even though we will never entirely expunge the colonial position from modern Indian law, we will enforce the right of free, prior and informed indigenous consent here in America—today, on a de facto basis; tomorrow, as a matter of law.
Gabriel S. Galanda is a lawyer with Galanda Broadman, PLLC, in Seattle, and a member of the Round Valley Indian Tribes.