Thomas M. Antkowiak has posted “Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court,” forthcoming in the University of Pennsylvania Journal of International Law, on SSRN. Here is the abstract:
In 2012, the Inter-American Court of Human Rights handed down Sarayaku v. Ecuador, a crucial decision on indigenous rights. This Article considers how the Sarayaku judgment impacts the Court’s case law on indigenous lands and resources, and evaluates that jurisprudence as a whole. Examining the cases, it becomes evident that the Tribunal now connects a number of key indigenous rights to the right to property, Article 21 of the American Convention on Human Rights. When traditional lands are involved, the right to property has become the Court’s structural basis for indigenous rights.
For significant reasons, however, the right to property cannot serve as the conceptual stronghold for indigenous peoples’ survival and development. First, the Court’s approach limits the autonomy of indigenous peoples and their capacity for change. Second, the right to property inherently has difficulty providing even basic protection for ancestral lands because domestic and international law grants states wide latitude to interfere with property. Though the Court has attempted to create special ‘safeguards’ for indigenous lands and resources, they have proven inadequate.
In response, I urge a distinct way for the Court to conceptualize indigenous rights. The right to property must be subsumed by, and anchored to, a stronger configurative principle to defend indigenous peoples’ livelihood. Other human rights regimes offer the right to self-determination or specific minority protections that can safeguard indigenous rights. The relevant Inter-American legal instruments fail to establish such principles. As a result, I propose that a broad right-to-life concept, known as vida digna in the Court’s case law, serve as the new structural basis for an array of essential indigenous norms — including cultural integrity, nondiscrimination, lands and resources, social development, and self-government.
Cheryl L. Daytec has published “Fraternal Twins with Different Mothers: Explaining Differences between Self-Determination and Self-Government Using the Indian Tribal Sovereignty Model as Context” in the Minnesota Journal of International Law; also on SSRN.
Here is the abstract:
There are various legislative and judicial rhetorical flourishes on the sovereignty of at least 565 federally recognized American Indian tribes in the United States. Several legislative enactments, executive orders, policy statements, and federal opinions textually recognize the right of American Indians to self-determination. However, self-determination with its entitlements under international law particularly the International Covenant on Civil and Political Rights is not equivalent to tribal self-determination or sovereignty expressed in the United States statutes, policy statements, and judicial decisions.
The negative vote of the United States on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), despite the presence of a plenitude of federal policy statements and laws using the term self-determination, surfaced the fact that indigenous self-determination under international law is the same as self-determination under federal Indian policies. Despite claims that Indian tribes are a third form of government in the United States aside from the federal and state governments with a nation-to-nation relationship with Washington, the words ‘sovereignty’ and ‘self-determination’ affirmed in laws, policies, and jurisprudence of the United States are in reality substitutes for participation in decision-making processes at the minimum or self-government or autonomy at the maximum. In Montana v. United States and its derivative cases, it is asseverated that the exercise of inherent tribal sovereignty is limited to what is necessary for self-government or to control internal relations, and this has been re-echoed in Montana’s derivative cases.
While sharing the same gene pool, self-determination and self-government or autonomy do not have identical DNA. This paper advances four reasons: First, self-determination is an inherent right, whereas self-government is a grant. Clearly, the Supreme Court has since abandoned the doctrine that Indian tribes possessed inherent rights of sovereignty which they may exercise unless curtailed by a treaty or by Congress. Lone Wolf v. Hitcock, Oliphant v. Suquamish Indian Tribe and their derivative cases stand for the doctrine that Indian tribes may exercise only those powers federally granted unto them via the exercise of congressional plenary power. Second, self-determination is explicitly recognized under international law as a right of peoples, with the status of a jus cogens norm. Although self-government is the political aspect of self-determination, it is not – by itself – the self-determination which States are obliged to recognize as a right of peoples within their polities. In fact, the term does not appear in any of the provisions of the ICCPR. It is a gift that that flows from the liberality of the grantor. Third, self-government is a democratic entitlement to participate in the processes of the majority who rule the democratic space, which can operate against self-determination. Self-determination on the other hand is the shelter of indigenous peoples from the rule of the majority which might harm their interest as minorities. In the United States, self-determination policies are profuse with Indian participation in planning of policies but ultimately decisions are made by the federal government acting for the majority that rules. Fourth, self-government does not necessary entitle the self-governing entity sovereignty over natural resources whereas self-determination protects the people’s right to its natural resources. Indian tribes are not actually owners of their ancestral lands. The United States is, and they are mere usufructuaries. Exercising plenary powers, the government may sell or condemn tribal lands in favor of outsiders.
Danielle M. Conway has posted her paper, “Promoting Indigenous Innovation, Enterprise, and Entrepreneurship Through the Licensing of Article 31 Indigenous Assets and Resources.” She published the paper in the SMU Law Review.
Here is the abstract:
The notion that indigenous entrepreneurship is inherently paradoxical to participation in the western marketplace must be challenged, even though there is a fine balance indigenous entrepreneurs maintain with their own world and the western world. This balance considers that indigenous entrepreneurs exist within transgenerational communities with complex cross-cultural linkages with the west. Far from fully segregating from western society and the states in which they reside, indigenous entrepreneurs seek to promote indigeneity through indigenous and non-indigenous commerce. As Hindle and Lansdowne explain, “[t]here need be no paradox, no contradiction, no values sacrifice, no false dichotomy between heritage and innovation.” Reference to the goals and objectives of the United Nations Declaration on the Rights of Indigenous Peoples bear this out. For example, article 19 of the Declaration relates to Indigenous peoples’ participation with respect to issues that affect them, their lands, their resources, and their rights. The Declaration also calls for good-faith efforts by states to consult and cooperate with Indigenous peoples about economic and social development that directly or indirectly impacts their rights. Relevant to this paper, article 31 of the Declaration deals with Indigenous peoples’ right to exercise authority and control over their cultural heritage, traditional knowledge, and traditional cultural expressions in addition to any intellectual property rights in these assets and resources. Accordingly, this Article promotes the use of the Declaration on the Rights of Indigenous Peoples as a basis for asserting indigenous control over article 31 assets and resources to spur indigenous enterprise and innovation. After asserting control, Indigenous peoples can then operationalize the use of their article 31 assets and resources to counteract the “history of dispossession, assimilation, child removal and other previous colonial policies [that have] created a legacy” of economic disadvantage, political and structural disadvantage, geographic and cultural disadvantage, and collective and individual disadvantage. This article focuses on licensing as a mechanism to both implement the goals and objectives of the Declaration and to reassert indigenous authority and control over indigenous assets and resources.