Penn Law Review Comment on the UN Declaration & Indigenous Courts

The University of Pennsylvania Law Review has published a paper (with a really long title I don’t feel like typing) on the UN Declaration and Indigenous Peoples’ courts. It is here. It looks like a good read. Here is the summary of the argument in the paper:

This Comment makes two arguments, one broad and one narrow. Broadly, it argues that concerns of the United States and others about the “workability” of the DRIP–at least regarding self-determination–are misplaced, and that the meaning of self-determination is clearly delimited, not merely by Article 46(1), but by the substantive rights conferred in the DRIP. The Comment argues that the appropriate way to understand the DRIP’s self-determination provisions involves a two-stage process, moving first from the skeletal right conferred in Article 3 to the more substantive Article 4, and then to specific features of the right conferred in subsequent provisions. This broader argument is woven through a more narrowly focused argument that examines the applicability of a single provision in the DRIP–Article 34, which confers rights to “juridical systems”–to “egalitarian juridical pluralism” (EJP), the emerging recognition of the exclusive jurisdiction of indigenous courts. On this score, the Comment argues that EJP is an appropriate exercise of the rights guaranteed by Article 34. By examining the applicability of EJP to Article 34, this Comment seeks to shed light not only on the meaning and workability of Article 34, but also on the content and functionality of the overarching right of self-determination conferred in Article 3. As the United States has asserted, this right is “fundamental” “to interpreting all of the provisions” in the DRIP.

One quibble. Footnote 168 is just a bit off:

To contrast with just one example, tribal courts in the U.S. system are not constitutionally mandated; rather, they are created under the auspices of Congress’s Article I powers and are thus akin to administrative courts. Any decisions by U.S. tribal courts can be overturned by a simple act of Congress. See Catherine T. Struve, Tribal Immunity and Tribal Courts, 36 Ariz. St. L.J. 137, 137 (2004) (“[T]he Supreme Court has stripped tribes of many of the positive aspects of governmental authority[, including] key aspects of legislative and adjudicative authority ….”); id. at 145 (discussing “Congress’s plenary power over Indian tribes”).

Most tribal courts have developed without federal government control, although many have been funded in part by federal grants. Some tribal courts originated as “CFR Courts” or “Courts of Indian Offenses,” created by the Dept. of Interior, but few of these remain under federal control. So, contrary to the assertion made in the footnotes, tribal courts are Indigenous, meaning that the power they exercise is tribal sovereign power, not federal power. See United States v. Lara, 541 U.S. 193 (2004).