Publication: Yale Human Rights and Development Law Journal
Publication Date: 01-JAN-06
Delivery: Immediate Online Access
Author: Cowan, Klint A.
Article Excerpt
The American Indian tribes have a unique status in the law of the United States. They are characterized as sovereigns that predate the formation of the republic and possess inherent powers and immunities. Their powers permit them to create and enforce laws and generally to operate as autonomous governmental entities with executive, legislative, and judicial branches. Tribes enjoy immunity from suit and exemption from federal and state constitutional provisions which protect individual rights. These powers and immunities provide a connection between tribal governments and U.S. international human rights obligations. This Article explores that connection. It examines whether the tribes may breach certain international human rights obligations of the United States, whether tribal violations may incur U.S. international responsibility, and if so, what consequences might result. It constructs an argument that the United States has failed to implement fully its international human rights obligations and that it can be held internationally responsible for tribal violations of human rights. This argument leads to policy recommendations for the United States and tribal governments.
INTRODUCTION
Recent work on international human rights and indigenous peoples focuses on the promotion and protection of "self-determination" and on the development of group rights. (1) This work builds upon the significant progress indigenous peoples have made toward the development of collective rights under international law. (2) International human rights tribunals have decided cases dealing with the rights of indigenous peoples, (3) while individual members of indigenous groups have successfully challenged State (4) violations of international human rights. (5) The study of indigenous peoples and international law has thus been mostly limited to the development and conceptualization of indigenous groups' (or indigenous individuals') rights against the State. (6) This narrow approach to the overlap between international human rights law, municipal law, and indigenous rights neglects potential consequences of individual human rights violations by indigenous groups.
The indigenous peoples of the United States, the American Indian tribes, have legislative authority, executive departments, police, and prisons. They resemble sub-State units of government, and exercise extensive governmental authority. This governmental status raises several questions about the potential for tribal entities to violate individual human rights as protected by international law binding on the United States. Can the tribes exercise their governmental powers in a manner which violates an asserted human right? Has the United States implemented human rights protections against the tribes? Can tribal conduct constitute a breach of international human rights obligations binding on the United States and, if so, what are the consequences? And perhaps most importantly, is tribal conduct attributable to the United States under international law?
This Article explores these questions, with a principle focus on whether the United States itself could incur international responsibility for human rights violations committed by American Indian tribes. The scope of the Article is thus modest. It does not attempt to engage with normative problems as to whether indigenous peoples or other sub-State entities should be bound by international human rights norms. In fact, because human rights are so often individual rights, tribes and other sub-State entities do not need to be bound by international norms for accountability still to attach. Only one entity, the State, as a subject of international law, may be internationally responsible for violations of those individual rights. (7) Under the international law of State responsibility, sub-State entities cannot themselves be responsible for violations of a State's international human rights obligations. (8) The obligations which bind the United States extend to every person within U.S. territory or control, regardless of whether such individuals are tribal members, non-tribal members, or foreign nationals. (9) If an individual right is violated and the violation is attributable to the United States, then the United States bears international responsibility for it. These are the presumptions underpinning this work: that the United States is bound by certain conventional and customary international human rights norms and that all individuals within U.S. territory or control hold such basic rights. Although this Article uses language such as "tribal violations of human rights," strictly speaking these statements refer to a tribal act or omission which breaches an individual right that is protected by international law and that binds the United States. A tribe may violate an individual's internationally protected right because the individual is a bearer of such right, not because the international human right law at issue binds the tribe.
The Article is structured as follows. Part I outlines the status of American Indian tribes in U.S. federal law. It explores their status as sovereigns, defines their governmental powers, and identifies the municipal law doctrine of sovereign immunity. This doctrine becomes particularly relevant in later sections which explore the gaps in U.S. implementation of its international human rights obligations. Part II lays out the relevant human rights obligations binding on the United States and then attempts to show that there are substantive and procedural gaps in the implementation of these obligations. However, these gaps are identified in U.S. reservations and declarations to the international community. Because these obligations are neither exempted from coverage under international instruments nor currently enforced under U.S. federal law, the United States may have left itself vulnerable to international enforcement for alleged violations. The last part of Part II examines the possibility of tribal actions violating an individual's international human rights and identifies certain human rights provisions that are particularly susceptible to tribal violation. Part III discusses the potential remedies available for violations of individual rights under municipal law, including both tribal and federal remedies. It demonstrates that most remedies can only be obtained in a tribal forum and addresses the implications of this reality. Part IV completes this examination of accountability, by arguing that international law permits actions of the tribes or of tribal officials to be attributed to the United States and identifying several tribunals with authority to hear a human rights claim against the United States. Finally, Part V concludes by suggesting implementation policies that the United States may choose to adopt to avoid being held internationally responsible for a human rights violation by tribes or tribal officials. As a counterbalance, Part V also identifies means available to tribes to forestall unwanted federal action that might infringe upon their political independence and sovereignty.
I. STATUS OF AMERICAN INDIAN TRIBES IN MUNICIPAL LAW
A. Tribes as Political Communities
American Indian tribes, as acknowledged in the U.S. Constitution, (10) are distinct, self-governing political communities with their own legal systems separate from federal or state governments. (11) The several hundred tribal governments operating in the continental United States vary in size and complexity and assert authority over a broad diversity of polities and territories. (12) Certain California rancherias, for instance, comprise only a few families and acres of land, (13) whereas the Navajo Nation, one of the largest tribes, operates as a complex political community whose population approximates Iceland's and whose territorial extent rivals that of the Republic of Ireland. (14)
Citizens of tribes are typically referred to as "members," and most tribes have exclusive authority to define their membership or enrollment. (15) Membership in a tribal polity is a political, not a racial or ethnic, classification. (16) Although the tribes comprise mainly indigenous individuals descended from pre-Columbian inhabitants of North America, tribes are not necessarily ethnically homogenous. They have been voluntarily and forcibly integrated with others, (17) and several tribes historically naturalized non-indigenous peoples, such as escaped or freed African slaves. (18) In addition to tribal membership, American Indians born in U.S. territory hold both national and state citizenship. (19) Certain tribes whose territory has been severed by the U.S.-Mexican or U.S.-Canadian national borders may enroll members from the non-U.S. side of the boundary, making it possible for some tribal members to be foreign nationals but not others.
B. Tribal Sovereignty
U.S. municipal law conceptualizes tribal governments as one of three "sovereign" institutions, in addition to federal and state governments. This system regards American Indian tribes as pre-existing entities outside the federal framework. (20) Yet even the structural interaction of tribes with the United States government has not been simple. In several respects, United States law categorizes tribes as entities analogous to foreign States rather than regional sub-State entities. (21) Notably, until 1871 the federal government dealt with the tribes through treaties which U.S. courts continue to classify as equivalent to international treaties in municipal law. (22)
Each tribe's governmental powers vary depending on its unique treaty history and applicable acts of Congress. To encompass this diversity, and to evaluate effectively the tribal-international human rights law nexus, this Article uses a broad concept of tribal authority. (23) Within this broad category, two general types of American Indian tribes must be distinguished: those recognized by the federal government and those without such recognition. Federal recognition weaves tribes into the fabric of U.S. constitutional law by accommodating certain tribal powers and immunities within municipal law. (24) Unrecognized tribes may possess rights normally held by political communities (such as treaty-based hunting or fishing rights) against the United States, but municipal law largely regards tribes without federal recognition as private collective associations rather than as governments with legislative or enforcement jurisdiction. (25)
In the U.S. Supreme Court's foundational Indian-law trilogy of cases, (26) Chief Justice Marshall articulated a view of tribes as distinct independent political communities with exclusive authority in their territories derived from their original tribal sovereignty. Nonetheless, the Court found that the tribes' comparative weakness and dependence upon the United States required divestiture of external sovereignty: specifically, the tribes' rights to establish relations with foreign States (27) and to cede lands to any entity other than the federal government. (28) Though the Court disagreed with tribal claims to full independence, the tribes retained internal aspects of sovereignty to govern themselves and others within their territory. (29) Municipal law today continues to characterize the tribes' powers as derivative of their sovereign status predating formation of the republic. Their legislative and enforcement jurisdiction is inherent; it does not depend upon federal delegation, though the federal government may delegate additional authority to the tribes. (30)
Following this deprivation of external sovereignty, Congress and the courts have steadily eroded tribal powers. (31) The federal common law doctrine of congressional plenary power over tribes (32) permits Congress to eliminate or reduce tribal powers. The doctrine extends to the point of termination of the U.S.-tribal relationship (33) (changing a tribe's status from recognized to unrecognized), although certain tribal powers or immunities may survive this termination. (34) One might infer that this congressional power over tribal governments makes tribal sovereignty an illusory doctrine in terms of U.S. municipal law. (35) While this may be the case, tribal governments do exercise significant governmental powers, and the official federal government policy of self-determination has aided development of these governmental powers. (36) Federal courts also assert authority to divest tribal powers pursuant to a common-law doctrine that the tribes occupy a dependent position in the hierarchy of American sovereigns: federal courts may thus refuse to recognize tribal powers seen as inconsistent with their status as dependents of the federal government. (37)
C. Tribal Sovereign Immunity
The vital component of federal Indian law for purposes of this study is the doctrine of tribal sovereign immunity. Because federal common law conceptualizes tribes as a sort of sovereign, its sovereign immunity doctrine extends to them. (38) As the Supreme Court said in Santa Clara Pueblo v. Martinez, "Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers." (39) This immunity shields the tribe, tribal agencies, and tribal officials acting in an official capacity against lawsuits challenging public acts (jure imperii) or commercial acts (jure gestionis) in federal, state, or tribal courts. It is the same doctrine that shields foreign States, the federal government, and state governments from suit. In practice, however, tribal immunity can be more extensive than that accorded to other governments, because statutory and judicial limitations restricting immunity do not generally apply to the tribes. (40) For instance, although the federal and state governments statutorily waive immunity against tort claims, enabling individuals injured by governmental officials to seek compensation, many tribes have not done so. (41) This immunity will be explored in greater detail in the sections that follow. (42)
D. Tribal Governmental Powers
Tribes retain legislative and enforcement jurisdiction over their internal affairs. This jurisdiction includes the power to define their polity, (43) to create their own form of government, (44) to exclude individuals from their lands, (45) to make and enforce criminal and civil laws, (46) to levy taxes, (47) to regulate domestic relations, (48) and to decide whether to develop natural resources within their territories. (49) Tribal law enforcement officers have authority to stop and investigate non-Indians on tribal lands for violations of state or federal law and may detain and transport alleged offenders to the authorities with adjudicative jurisdiction. (50) More fundamentally, the tribes organize their own governmental and political institutions. (51) Most model their governments on the United States and create formal branches with partial separation of powers. (52) Others have retained traditional forms of government and customary legal systems. Certain pueblos in the southwest United States, for example, retain traditional governments based on unwritten customary law, without a formal court structure, (53) while the Navajo Nation operates a sophisticated judiciary and has an exhaustive tribal code, but no written constitution. (54)
Whether a tribal court possesses jurisdiction over a matter often depends upon the nature of the claim, the identity of the claimant or defendant, and where the claim arose. Jurisdiction might lie exclusively in tribal court, might be shared with a federal court, or might lie exclusively in a federal court. (55) Where concurrent jurisdiction exists, claimants must exhaust tribal remedies before pursuing a claim in the federal system. (56) Tribal courts retain inherent criminal jurisdiction over Indians, but their criminal jurisdiction over non-Indians has been judicially restricted. (57)
In Talton v. Mayes, (58) the Supreme Court found that the Bill of Rights only applies to the federal and state governments. Because tribes were not subordinate to these governments and were not signatories to the federal constitution, individuals claiming substantive or procedural violations of their rights by Indian tribes were left without a federal remedy. Talton, a non-Indian, had been convicted of the murder of a Cherokee in a Cherokee Nation court. He challenged his conviction in federal court alleging violation of his Fifth Amendment due process rights, because the Cherokee grand jury was not a grand jury within the contemplation of the Fifth Amendment. The Supreme Court rejected his argument and stated that the powers of self-government "enjoyed by the Cherokee Nation existed prior to the constitution" and were not bound by constitutional protections of individual rights. Several subsequent cases extended Talton's holding to other provisions of the Bill of Rights and the Fourteenth Amendment. (59) Individuals, whether members or non-members of an American Indian tribe, who alleged violation of their rights by tribal governments were thus permitted to seek remedies solely in tribal fora.
In 1968, Congress enacted the Indian Civil Rights Act (60) to mitigate the impact of Talton and its progeny by granting individual rights against tribal governments similar to those guaranteed in the Bill of Rights and Fourteenth Amendment. (61) However, the only remedial provision that Congress included in the Act was the "privilege of the writ of habeas corpus" given to any person in a federal court to "test the legality of his detention by order of an Indian tribe." (62) The purpose of the Act was to ensure that individuals are protected from arbitrary acts by tribal governments. But the remedies were restricted because the federal government also wanted to foster tribal self-government and preserve cultural identity. (63)
The Indian Civil Rights Act as interpreted by the Martinez decision guarantees significant substantive and procedural rights to individuals against tribal governments, but it places the remedial mechanisms for such rights in tribal, rather than federal, courtso. (64) As discussed below in greater detail, claimants may not assert individual rights against a tribe in federal court except in the case of habeas relief or where the tribal judiciary has ruled without subject matter jurisdiction and tribal remedies have been exhausted. (65) The gaps between the Act and the Bill of Rights, Fourteenth Amendment, and other civil rights legislation (not applicable to tribes) also leave gaps in the implementation of U.S. international human rights obligations. The failure of federal enforceability of most of the Act's rights-protecting provisions means that tribal courts remain the exclusive forum for allegations of violations of many of these rights. (66)
II. TRIBAL VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS OBLIGATIONS BINDING ON THE UNITED STATES
A. International Human Rights Obligations
Myriad human rights instruments bind the United States under international law. Those susceptible to tribal violations include the International Covenant on Civil and Political Rights (ICCPR), (67) the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, (68) and the International Convention on the Elimination of All Forms of Racial Discrimination. (69) Inter-American jurisprudence demonstrates that the American Declaration of the Rights and Duties of Man (American Declaration) (70) also binds the United States under international law. (71) Further, tribal law enforcement officials could potentially breach Article 36 of the Vienna Convention on Consular Relations. (72) The United States is legally obligated to adopt such laws or other measures as may be required to give effect to the substantive rights recognized in these documents.
B. U.S. Implementation of its Human Rights Obligations
1. Self-Execution Doctrine
When the Senate ratifies an international human rights convention, it typically enters reservations, declarations, and understandings, which often attempt to restrict U.S. international obligations to the extent they differ from U.S. municipal law. (73) Municipal law governs whether statutory implementation is necessary for these instruments and whether judicial enforceability is available. If the Senate declares a treaty non-self-executing, as it has done for each of the human rights conventions discussed herein, the treaty provisions create no private cause of action and can only be enforced when implemented through federal legislation. (74) For example, while the ICCPR, CERD, and CAT, bind the United States under international law, several federal courts have found that they are not self-executing and are therefore not subject to judicial enforcement. (75) The United States believes its commitment to comply with these conventions requires no implementing legislation because pre-existing federal, state, and local laws provide sufficient and equivalent protection to individuals. As a legal advisor to the State Department testified before a Senate hearing on whether to ratify the International Convention on the Elimination of All Forms of Racial Discrimination: "As was the case with the earlier [human rights] treaties, existing U.S. law provides extensive protection and remedies.... There is thus no need for the establishment of additional causes of action to enforce the requirements of the convention." (76) While this may be true with regard to federal and state governments, it is not true with regard to tribal governments.
2. Municipal Enforcement of International Obligations Against Tribal Governments
The Bill of Rights and the Fourteenth Amendment, among other constitutional and statutory provisions, provide broad protection for individual rights that are enforceable in federal and state courts. Most international human rights provisions that bind the United States find expression through the implementation of these municipal laws. Judicial decisions and federal civil rights legislation have created remedies for their violation by government officers. (77) Yet these enforcement mechanisms are inapplicable to tribal governments, creating a gap between municipal law and international human rights obligations of the United States.
Congress's singular attempt to implement human rights protections against the tribes, the Indian Civil Rights Act of 1968, (78) contains provisions analogous to those found in the Bill of Rights and provides the only protection (apart from tribal law) for Indians and non-Indians alike against potential tribal violations of U.S. international human rights obligations. Though it became law before U.S. accession to any human rights conventions, the Act reflects several convention provisions. Still, it does not reflect them all, and this is important.
A juxtaposition of the Indian Civil Rights Act and U.S. international human rights obligations reveals substantive discrepancies. For example, article 14 of the ICCPR requires that indigent...
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