international law

Carrie Garrow on the Iroquois Nationals

Matthew L.M. Fletcher2 Comments

From the Syracuse Post-Standard, via Indianz:

CarrieGarrow.JPGCarrie Garrow

Earlier this month, the Iroquois Nationals lacrosse team couldn’t participate in the World Lacrosse Championship because British authorities would not accept the team’s Haudenosaunee passports. In news stories and letters to the editor of The Post-Standard, many have focused on one question: Why do the Iroquois care which passport they use? Carrie Garrow, executive director of The Center for Indigenous Law, Governance & Citizenship, at Syracuse University’s College of Law, and a member of the St. Regis Mohawk Tribe, spoke with staff writer Hart Seely.

One news account described the players’ view of being forced to use U.S. passports as “an attack on their identity.” What do they mean by that?
No one would ask a Canadian to travel under a passport from Switzerland or the United States. We have a right as a nation to have our own citizenship laws. We have a right to travel under our own documents.
We’ve been recognized as nations under treaties with the United States and with Great Britain, and we’re simply asking that they continue to recognize that we are nations, and that we can identify our own citizens.

How far back does this go?
Even before the forming of the U.S. Constitution, there were treaties with Great Britain and the United States. … We predate the forming of the Constitution, which is why we are outside of its scope.
Aren’t there counter-arguments that these laws no longer apply?Under international law, treaties are still upheld. We uphold our end of the treaties and we expect the United States to do the same. I think the U.S. would certainly articulate that they’ve broken some treaties and have a right to do so, but under international law, they are bound to uphold their word.

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Dan Lewerenz on the Jay Treaty Free Passage Right

Matthew L.M. Fletcher

Dan Lewerenz has published his award-winning paper, “Historical Context and the Survival of the Jay Treaty Free Passage Right: A Response to Marcia Yablon-Zug,” in the Arizona Journal of International and Comparative Law.

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International Tribunal Sides with Ecuador (and Indigenous Peoples) in Dispute with Oil Company

Matthew L.M. Fletcher

Interesting case from the International Centre for the Settlement of Investment Disputes, Burlington Resources v. Ecuador. One portion of the dispute centered on Ecuador’s alleged failure to prevent Indigenous peoples in the Amazon from interfering with the oil company’s oil exploration. The Centre held that it did not have jurisdiction over the matter.

BurlingtonResourcesInc_v_Ecuador_Jurisdiction_Eng

Article on Applying International Law to Freedmen Disenrollment Cases

Matthew L.M. Fletcher

Greg Rubio published “Reclaiming Indian Civil Rights: The Application of International Human Rights Law to Tribal Disenrollment Actions” in the Oregon Review of International Law.

An excerpt:

A more detailed description of this Article’s warp and woof is in order. Part I highlights the substance and nature of the injury that forms the basis for potential international human rights claims. It describes the history and background of the Cherokee Freedmen, details the events of their disenrollment by the Cherokee tribe, and briefly considers the stakes that attend Indian membership determinations in the present political and economic context. Part II examines the body of domestic law under which an Indian plaintiff might normally seek redress: federal Indian law. This critical section concludes that through the current ascendancy of tribal sovereignty and self-determination in federal and congressional policy and the strict application of the common law doctrine of tribal sovereign immunity in federal courts, federal Indian law as presently constituted leaves the Cherokee Freedmen without any domestic remedy for the allegedly racially discriminatory action. Part III then turns to a discussion of two potentially applicable provisions of international human rights law. After describing the present status of indigenous peoples under international human rights law, Part III considers the two provisions, detailing how the disenrollment action implicates each. This Part finally outlines the relevant characteristics necessary to hold the United States accountable for the tribal disenrollment action under its international human rights obligations. After describing how the United States might find itself answering in an international forum for the allegedly discriminatory acts of the Cherokee, Part IV ponders the potential ramifications of this reality for Indian tribes and for the federal government. This Part suggests that these conclusions may imply a potential shift in the present status of federal Indian policy and portend a new and sober dimension in the ongoing dialogue over that most familiar ground in federal Indian law: the reach of tribal sovereignty.

State Dept. Seeking Comments on Review of the U.N. Declaration on the Rights of Indigenous Peoples

Matthew L.M. Fletcher

Here:

The Department of State has created a new website to enable public input during the U.S. review of its position on the UN Declaration on the Rights of Indigenous Peoples. On April 20, 2010, United States Permanent Representative to the United Nations Ambassador Susan E. Rice announced at the United Nations Permanent Forum on Indigenous Issues that the United States has decided to review the U.S. position on the Declaration.

The Administration recognizes that, for many around the world, this Declaration provides a framework for addressing indigenous issues. During President Obama’s first year in office, tribal leaders and interested non-governmental organizations (NGOs) encouraged the United States to reexamine its position on the Declaration – an important recommendation that directly complements our commitment to work together with the international community on the many challenges that indigenous peoples face.

As part of the U.S. government’s review, the U.S. Department of State, together with other Federal agencies, will be hosting consultations with federally-recognized tribes and dialogues with interested NGOs and other stakeholders. The consultation and meeting schedules will be listed on the website located athttp://www.state.gov/s/tribalconsultation/declaration/index.htm. Tribal leaders, NGOs, and others are encouraged to contribute to the review by emailing us at Declaration@state.gov, or by submitting comments via mail to the Department of State at: S/SR Global Intergovernmental Affairs, U.S. Department of State, 2201 C Street N.W., Suite 1317, Washington, D.C. 20520.

Written comments are requested by July 15, 2010 to ensure that they can be given due consideration in the review.

Student Note on the UN Declaration of Rights of Indigenous Peoples

Matthew L.M. Fletcher

David Fautsch has published “An Analysis of Article 28 of the United Nations Declaration on the Rights of Indigenous Peoples, and Proposals for Reform” in the Michigan Journal of International Law.

Two New Books by John Borrows from University of Toronto Press

Matthew L.M. Fletcher

John’s work is very thought-provoking, especially for American Indian law scholars and practitioners seeking to discover and perhaps utilize Indian common law, customs and traditions.

1. Canada’s Indigenous Constitution

Canada’s Indigenous Constitution reflects on the nature and sources of law in Canada, beginning with the conviction that the Canadian legal system has helped to engender the high level of wealth and security enjoyed by people across the country. However, longstanding disputes about the origins, legitimacy, and applicability of certain aspects of the legal system have led John Borrows to argue that Canada’s constitution is incomplete without a broader acceptance of Indigenous legal traditions.

With characteristic richness and eloquence, John Borrows explores legal traditions, the role of governments and courts, and the prospect of a multi-juridical legal culture, all with a view to understanding and improving legal processes in Canada. He discusses the place of individuals, families, and communities in recovering and extending the role of Indigenous law within both Indigenous communities and Canadian society more broadly.

This is a major work by one of Canada’s leading legal scholars, and an essential companion to Drawing Out Law: A Spirit’s Guide.

2. Drawing Out Law: A Spirits’ Guide

The Anishinabek Nation’s legal traditions are deeply embedded in many aspects of customary life. In Drawing Out Law, John Borrows (Kegedonce) skillfully juxtaposes Canadian legal policy and practice with the more broadly defined Anishinabek perception of law as it applies to community life, nature, and individuals.

This innovative work combines fictional and non-fictional elements in a series of connected short stories that symbolize different ways of Anishinabek engagement with the world. Drawing on oral traditions, pictographic scrolls, dreams, common law case analysis, and philosophical reflection, Borrows’ narrative explores issues of pressing importance to the future of indigenous law and offers readers new ways to think about the direction of Canadian law.

Shedding light on Canadian law and policy as they relate to Indigenous peoples,Drawing Out Law illustrates past and present moral agency of Indigenous peoples and their approaches to the law and calls for the renewal of ancient Ojibway teaching in contemporary circumstances.

This is a major work by one of Canada’s leading legal scholars, and an essential companion to Canada’s Indigenous Constitution.

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Ezra Rosser on Tribal Natural Resources and Economic Development

Matthew L.M. Fletcher

Ezra Rosser, Ahistorical Indians and Reservation Resources, 40 Envtl. L. __ (forthcoming 2010).  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1539703.  The abstract is below:

This article is an in-depth exploration of the impacts of an Indian tribe deciding to pursue environmentally destructive forms of economic development. The article makes two principal contributions. First, it establishes the Navajo Nation’s decision-making role. Prior mineral resource forms of development may have been formally approved by the tribe but the agreements did not truly belong to the Navajo Nation. Extensive research into earlier agreements shows the heavy influence of the federal government and mining interests historically. Existing scholarship on reservation environmental harm tends to deflect tribal responsibility, attributing such decisions to outside forces. Without denying the challenges the Navajo Nation is facing, the article calls for recognition, despite the romanticism that surrounds Indians and the environment, of tribal agency and responsibility for the proposed environmental destruction. Second, I argue that environmental organizations that make use of federal environmental review processes are complicit in the systematic denial of Indian sovereignty that federal primacy entails. Although there is a strong theoretical argument that the only limits appropriate for Indian nations are those of nation-states under international law, the Article concludes that the relationship between environmental organizations and Indian nations ought to be guided by international human rights law.

UCLA Conference Announcement on Indigenous Peoples and International Law — Jan. 22, 2010

Matthew L.M. Fletcher
Indigenous Peoples’ Rights in the International Human Rights Framework – A Comfortable Fit?

Here is the flyer: FINAL FLYER, and the agenda is here.

The UCLA American Indian Studies Center in conjunction with The Journal of International Law and Foreign Affairs at UCLA School of Law and The UCLA Tribal Learning Community and Educational Exchange with additional support from the Sanela Diana Jenkins Human Rights Project David J. Epstein Program in Public Interest Law and Policy Native Nations Law and Policy Center Presents:

Symposium: Indigenous Peoples’ Rights in the International Human Rights Framework — A Comfortable Fit?

January 22, 2010

Registration and Breakfast: 8:00 a.m. – 9:00 a.m.

Blessing, Welcome, and Introduction of Keynote: 9:00 am – 9:30 a.m.

• Anthony Morales, Chief of the Gabrielino-Tongva Band of Mission Indians

• Stephen Yeazell, Interim Dean, UCLA School of Law (invited)

• Angela R. Riley, Visiting Professor of Law and Acting Associate Director, UCLA American Indian Studies Center

Opening Keynote Address: 9:30 a.m. – 10:15 a.m.

S. James Anaya, United Nations Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, and Professor of Law, University of Arizona Continue reading →

Lorie Graham on International Trade and the UN Declaration

Matthew L.M. Fletcher

Lorie Graham has posted “Trade Trumps Basic Human Rights?: Why the United States Should Endorse the UN Declaration on the Rights of Indigenous Peoples” on SSRN.

Here is the abstract:

The recent uprising in the Peruvian Amazon highlights why the time is right for the United States to endorse the UN Declaration on the Rights of Indigenous Peoples. One might wonder how the endorsement of this Declaration by the United States could affect a crisis thousands of miles away in the Peruvian Amazon.

The latest crisis results from investment concessions made by Peru to various extractive industries without any consultation or consent from the Indigenous Peoples of the area. The Chair of the United Nations Permanent Forum on Indigenous Issues recently issued two emergency statements expressing her “deep concern” on “the reports of atrocities committed… against indigenous peoples in the Amazon region.” The Chair noted in particular the Peruvian Government’s obligations under international human rights law to consult and respect indigenous peoples’ rights to their lands and resources. As reported by the New York Times on June 12th, Peruvian officials attributed their recent concessions without consultation as a necessary step to bringing “Peru’s rules for investment… into line with the [U.S.-Peru] trade agreement.”

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