Legal analysis on the import of the treaty from the international law scholars at Opinio Juris, here. An excerpt:
Beyond the U.S. law, there’s also a fairly interesting issue of how international law regards this sort of treaty-making. As I’ve written previously, international law imposes two conditions on treaty-making by a sub-national actor: (1) explicit treaty-making authority from the State of which it is a component part (whether ex-ante or ex-post); and (2) the consent of potential treaty-partners to the sub-national actors’ participation in the treaty itself. Here, it seems we have a willing group of treaty partners, so the treaty seems OK on the second element (that is, assuming the Canadian First Nations are themselves authorized to make treaties under Canadian law). Still, there are questions as to whether the United States has to authorize this treaty, whether it has done so (or will need to do so going forward), and why it would ever do so when the treaty’s objective would be to lobby and/or constrain federal government behavior. Now, there is an argument that, as indigenous peoples, Native American tribes should not be subject to the standard rules for treaty-making by sub-national actors (indeed, Article 36(1) of the UN Declaration on Indigenous Rights makes just such a claim). But, the United States was one of four nations to object to that Declaration (along with Canada, Australia and New Zealand), so I’m hard pressed to see it getting traction in this case, especially where the treaty involves an alliance of indigenous peoples to oppose federal licensing efforts (and with it perhaps some key aspects of U.S. energy policy).
As such, I think the ball is now firmly in the Obama Administration’s court. I’m interested to see how it responds to this treaty (including, which Agency takes the lead in responding to it). I suppose silence is a possible course of action. But, if the federal government remains silent, I think that might lead to arguments of U.S. tacit approval for this treaty in particular, and even more broadly, a right of treaty making with foreign powers for U.S. Native American tribes.
For a primer on intertribal treaty making, see Wenona Singel’s Indian Tribes and Human Rights Accountability (email me if you want a pdf).
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