International Treaty to Protect the Sacred from Tar Sands Projects

Text here. Video here.

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).

UN Indigenous Rights Special Rapporteur Calls for Dialogue with Canadian Aboriginal Rights Protesters


An excerpt:

The United Nations Special Rapporteur on the rights of indigenous peoples, James Anaya, urged the Government of Canada and Aboriginal leaders to undertake meaningful dialogue in light of First Nations protests and a month-long hunger strike by Chief Theresa Spence of the Attawapiskat First Nation.

“I am encouraged by reports that Prime Minister Stephen Harper has agreed to meet with First Nations Chiefs and leadership on 11 January 2013 to discuss issues related to Aboriginal and treaty rights as well as economic development,” Mr. Anaya said. “Both the Government of Canada and First Nations representatives must take full advantage of this opportunity to rebuild relationships in a true spirit of good faith and partnership.”

The announcement of the meeting followed weeks of protests carried out by Aboriginal leaders and activists within a movement referred to as ‘Idle no more.’ The movement has been punctuated by Chief Spence’s hunger strike that has been ongoing since 11 December 2012. “I would like to add my voice to the concern expressed by many over the health condition of Chief Spence, who I understand will be joining indigenous leaders at this week’s meeting,” the independent expert said.

The protests and hunger strike are carried in the context of complaints about aspects of the relationships between First Nations in Canada and the Government, including in the context of recent federal legislation and executive decisions affecting Aboriginal peoples.

“Dialogue between the Government and First Nations should proceed in accordance with the standards expressed in the UN Declaration* on the Rights of Indigenous Peoples,” the Special Rapporteur emphasized. Mr. Anaya recalled that the Government affirmed a “commitment to continue working in partnership with Aboriginal peoples and in accordance with a relationship based on good faith, partnership and mutual respect,” in its statement of support for the Declaration on 12 November 2010.

Student Article Recommending Applying UNDRIP to Indian Tribes

The Virginia Law Review has published “Closing the Accountability Gap for Indian and Alaska Native Tribes.”

Here is the abstract:

The recognition of the right of Indian tribes to self-determination in federal and international law generates strong protections for tribal autonomy, allowing tribes to exercise extensive governmental powers. But federal and international law also combine to create an accountability gap for tribal human rights violations—that is, a space in which victims lack access to a remedy and tribes are able to act with impunity. Just as U.S. states and municipalities can use their governmental powers to both protect and violate human rights, so too can tribes. But when a tribe fails to provide a remedy for its violation, a victim may be unable to access a remedy under federal law due to federal deference to tribal sovereignty. A victim has no recourse directly against the tribe under international law, and tribal self-determination limits the ability of a victim to bring a complaint against the U.S under international law.
This Note proposes filling the accountability gap by recognizing that the right of Indian tribes to self-determination under international law contains a duty to respect, protect, and fulfill human rights. Rather than looking to the United States to provide recourse, which would infringe on tribal self-determination, this proposal recognizes that when a tribe violates a human right, the tribe is breaching international law and owes the victim a remedy. This Note argues that recognition of such a duty would benefit tribes by legitimizing tribal self-determination and governance and closes by discussing how the duty would be implemented in practice.

Keweenaw Bay Indian Community Release on UN Special Rapporteur Recommendations re: Eagle Rock

Here is the release:

Media Release_KBIC 9-26-12

Above is the media release from the Keweenaw Bay Indian Community in regards to a recent report released by the United Nations.The full report is available at here. A UN news release is available here.

New Scholarship on Foreign Direct Investment and Indigenous Peoples

George K. Foster has published “Foreign Investment and Indigenous Peoples: Options for Promoting Equilibrium Between Economic Development and Indigenous Rights” in the Michigan Journal of International Law.

International Law Association Committee Draft Report on the Rights of Indigenous Peoples

The 2012 Draft Report of the ILA Rights of Indigenous People Committee on the rights of indigenous peoples is now available here. Siegfried Wiessner and Lorie Graham from the USA are in on this one.

Other reports available this website include:

Conference Report The Hague (2010)

Conference Report Rio (2008)


Commentary: Using the UN Declaration to End the Epidemic of Violence Against Native Women

Jana L. Walker is a Senior Staff Attorney and the Director of the Indian Law Resource Center’s Safe Women, Strong Nations project.

The UN Declaration on the Rights of Indigenous Peoples signals a new means to change federal law and policy to restore safety to Native women, to strengthen Indian nations and advance their jurisdiction over crimes within their territories, and to end the cycle of violence in Native communities.

The right to be safe and live free from violence is one of the most fundamental and important human rights recognized internationally.  Continue reading

Commentary: Tribes Lead Efforts to Implement UN Declaration

by Robert T. Coulter*

Photo for Robert T. Coulter
Robert T. Coulter is Executive Director of the Indian Law Resource Center. He is a member of the Citizen Potawatomi Nation and has more than 30 years of experience in the field of Indian law.

It has been just a year since President Obama announced the Administration’s support for the UN Declaration on the Rights of Indigenous Peoples and promised action to implement at least some of those rights.  Across the country, tribal governments are seizing the Declaration and using it creatively to protect their lands and resources, and especially their rights to cultural and sacred sites.

For example, the Navajo Nation has used the Declaration in its efforts to protect the San Francisco Peaks, and the Seneca Nation has pointed out Article 37 (“Indigenous peoples have the right to the recognition, observance and enforcement of treaties”) in its efforts to resolve a 60-year occupation of Seneca territory by the New York State Thruway that violates the 1794 Treaty of Canandaigua. Continue reading

Witness List in Tomorrow’s Senate Committee Hearing on the UN Declaration

From the SCIA website:

OVERSIGHT HEARING on Setting the Standard: Domestic Policy Implications of the UN Declaration on the Rights of Indigenous Peoples

Thursday, June 9 2011
Dirksen Senate Office Building 628


The hearing will explore the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) as an international policy goal to which the United States is signatory, the current ways existing domestic policy achieves the UNDRIP goals, and additional domestic policy considerations to make the United States a world leader in indigenous rights and implementation of the UNDRIP.


Panel I

MR. DONALD “DEL” LAVERDURE, Principal Deputy Assistant Secretary of Indian Affairs, U.S. Department of the Interior, Washington, DC

Panel II

MR. ROBERT T. COULTER, Executive Director, Indian Law Resource Center, Helena, MT

MR. JAMES ANAYA, Special Rapporteur on the Rights of Indigenous Peoples, United Nations, Tucson, AZ

MR. LINDSAY G. ROBERTSON, Professor of Law / Faculty Director of the American Indian Law and Policy Center / Judge Haskell A. Holloman Professor / and Sam K. Viersen Presidential Professor, University of Oklahoma College of Law, Norman, Oklahoma

MR. RYAN RED CORN, Filmmaker / Member, 1491s, Pawhuska, OK

Panel III

THE HONORABLE FAWN SHARP, President, Quinault Indian Nation, Taholah, WA

MR. FRANK ETTAWAGESHIK, Executive Director, United Tribes of Michigan, Harbor Springs, MI

MR. DUANE YAZZIE, Chairperson, Navajo Nation Human Rights Commission, Window Rock, AZ

MS. MELANIE KNIGHT, Secretary of State, Cherokee Nation of Oklahoma, Tahlequah, OK