International Lawyers Amicus Brief in Indigenous Maya Q’eqchi’ Agua Caliente Community v Guatemala

Here:

More details on the case here.

CU/NARF Conference Pics

Kristen Carpenter

Dean James Anaya

John Echohawk

Heather Whiteman Runs Him, Dalee Sambo Dorough, Nathaniel Brown

Kristen Carpenter, James Anaya, Steven Moore, Greg Johnson

Rob Williams

Charles Wilkinson, Rebecca Tsosie, Kristen Carpenter

Erika Yamada, Alexey Tsykatev, Cristina Coc, Tracey Whare, Kunihiko Yoshida

Heather Whiteman Runs Him, Greg Bigler, Wenona Singel, Angela Riley, Carla Fredericks

New Scholarship on UNDRIP and the Rights of Indigenous Peoples to Existence, Cultural Integrity and Identity, and Non-Assimilation

Dr. Jesse Hohman has posted “The UNDRIP and the Rights of Indigenous Peoples to Existence, Cultural Integrity and Identity, and Non-Assimilation” on SSRN. It is forthcoming in Oxford Commentaries on International Law – A Commentary on the United Nations Declaration on the Rights of Indigenous Peoples.

Here is the abstract:

The importance of international legal provisions protecting the right to indigenous survival, both individually and collectively, can only be understood in light of the fact that to date, legal standards have not protected indigenous peoples from much of the violence perpetrated against them. Rather, international and domestic laws have often served as instruments to perpetrate cultural and personal extinction and assimilation. From the earliest encounters between Westphalian international law and indigenous peoples, international law operated so as to bring indigenous peoples within its reach, yet deny them the benefits of its protection.

This chapter of a forthcoming Oxford Commentary, considers the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), specifically Articles 7(2); 8 & 43. The paper maps out how these provisions relate to the existing legal landscape of indigenous rights, and assesses what they have added to that landscape.

The specific issues raised by these provisions are the issue of collective rights; the relationship between cultural and individual assimilation; the prohibition of genocide; the legal status of the concept of ethnocide or cultural genocide; the question of legal duties to prevent harms and violence against indigenous peoples and communities; and the concept of minimum standard rights in the context of indigenous peoples’ dignity and well-being.

These provisions of the UNDRIP are, accordingly, some of the most central, if under-examined, of the Declaration.

Gabe Galanda on Native Prisoners’ Religious Rights under International Law

Here is “To Geneva With Love: Native Prisoners’ Religious Rights Movement Goes Global,” published in the King County Bar Association Bar Bulletin:

Bar Bulletin Native Prisoners’ Religious Rights Movement Goes Global

New Student Scholarship on Treaty Rights as Intangible Cultural Property

The Oregon Law Review has published New Ways to Fulfill Old Promises: Native American Hunting and Fishing Rights as Intangible Cultural Property.

Here is an excerpt:

Current law and policy in the United States has failed to develop a framework that accounts for the unique nature of intangible cultural heritage. Therefore, intangible cultural heritage, such as Native American hunting and fishing rights, lacks adequate protection. However, international laws—such as the United Nations Declaration on the Rights of Indigenous Peoples, and the United Nations Educational, Scientific, and Cultural Organization (UNESCO) Convention for the Safeguarding of Intangible Cultural Heritage—can help United States lawmakers develop a framework that recognizes Native American hunting and fishing rights as intangible cultural heritage, and adequately protects them as such.

Carpenter & Riley: “Indigenous Peoples and the Jurisgenerative Moment in Human Rights”

Kristen A. Carpenter & Angela R. Riley have published “Indigenous Peoples and the Jurisgenerative Moment in Human Rights” (PDF) in the California Law Review.

Here is the abstract:

As indigenous peoples have become actively engaged in the human rights movement around the world, the sphere of international law, once deployed as a tool of imperial power and conquest, has begun to change shape. Increasingly, international human rights law serves as a basis for indigenous peoples’ claims against states and even influences indigenous groups’ internal processes of decolonization and revitalization. Empowered by a growing body of human rights instruments, some as embryonic as the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), indigenous peoples are embracing a global “human rights culture” to articulate rights ranging from individual freedom and equality to collective self-determination, property, and culture. Accordingly, this Essay identifies and provides an account of what we see as an unprecedented, but decidedly observable, phenomenon: the current state of indigenous peoples’ rights-manifesting in tribal, national, and international legal systems-reflects the convergence of a set of dynamic, mutually reinforcing conditions. The intersection of the rise of international human rights with paradigm shifts in postcolonial theory has, we argue, triggered a “jurisgenerative moment” in indigenous rights. Bringing indigenous norms and values to their advocacy, indigenous peoples have worked to assert their voices in, and indeed to influence, the human rights movement. Indigenous peoples are now using the laws and language of human rights, shaped by indigenous experiences, not only to engage states but also as a tool of internal reform in tribal governance. This is, in our view, a jurisgenerative moment in indigenous rights-a moment when both the concept and practice of human rights have the potential to become more capacious and reflect the ways that individuals and peoples around the globe live, and want to live, today.

 

New Scholarship on Tribal Membership and UNDRIP

Shin Amai and Kate Buttery have posted “Indigenous Belonging: A Commentary on Membership and Identity in the United Nations Declaration on the Rights of Indigenous People,” forthcoming in Oxford Commentaries on International Law: A Commentary on the United Nations Declaration on the Rights of Indigenous Peoples, on SSRN.

Here is the abstract:

The recognition of indigenous peoples’ right to determine their own membership is crucial to the survival of indigenous groups and for their ability to meaningfully exercise their right to self-determination. This chapter will begin with a discussion of who indigenous peoples are, and will then proceed to review the specific provisions of the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) as they pertain to indigenous-determined group membership and duties: Articles 9 (right to belong); 33 (right to determine membership); 35 (right to determine responsibilities of members); and 36 (right to maintain relations across borders). Together, these provisions reinforce the right of indigenous peoples to define themselves, both in terms of membership and geographic scope. These rights are not absolute, however, and are constrained by Articles 44 (gender equality) and Article 46 (compliance with international human rights standards).

Wenona Singel: “Indian Tribes and Human Rights Accountability”

Our own Wenona T. Singel has posted her paper, “Indian Tribes and Human Rights Accountability,” on SSRN. The San Diego Law Review recently published it.

Here is the abstract:

In Indian country, the expansion of self-governance, the growth of the gaming industry, and the increasing interdependence of Indian and non-Indian communities have intensified concern about the possible abuse of power by tribal governments. As tribes gain greater political and economic clout on the world stage, expectations have risen regarding the need for greater government accountability in Indian country. Despite these expectations, Indian tribes are largely immune from external accountability with respect to human rights. In fact, tribes have effectively slipped into a gap in the global system of human rights responsibility. The gap exists in the sense that tribal governments are not externally accountable in any broad sense for abuses of human rights that they commit. The failure of the legal system to provide for tribal accountability for human rights produces serious harms for Indian tribes and their polities. In this Article, I argue that the conventional understanding of tribal sovereignty must be reformed to reflect the transformative international law principle that all sovereigns are externally accountable for human rights violations. I then offer a proposal based on tribal accountability and respect for tribal sovereignty. I propose that tribes develop an intertribal human rights regime that includes the formation of an intertribal treaty recognizing tribal human rights obligations and establishing an intertribal institution with the capacity to enforce human rights violations. An intertribal human rights regime offers the best possible method for providing external accountability for tribal abuses of human rights. It allows tribes to address human rights violations without relying upon solutions supplied or imposed by the federal government. It also allows tribes to articulate and interpret universal human rights in light of their cultural, philosophical, spiritual, political, and social perspectives, and it allows them to develop effective and culturally appropriate institutional enforcement mechanisms.

You may recall that Michigan State Law Review hosted a symposium on Wenona’s paper. We will post those papers as soon as they’re published.