Rights of Indigenous Peoples Under International Law Professor Sarah Krakoff Sarah.Krakoff@colorado.edu

Review of Rights of American Indians under U.S. Law Origins: Crusades, “Discovery,” Colonization, Settlement Principles of U.S. American Indian Law Tribes have sovereignty in the first instance that pre-dates the U.S. Constitution Some of tribes’ sovereign powers were lost when European nations and then the U.S. asserted domination and control. Those included powers of foreign relations and power to transfer full legal ownership of property to anyone other than the U.S. Tribes’ retained all powers of local self-government. Tribes’ powers of local self-government include powers over their members and their territory. Tribal territory was compromised by the allotment era. The U.S. federal government has broad power in Indian affairs, and the individual states are generally excluded from asserting control over American Indian tribes or their territory. Exceptions: individual states can regulate some non-Indian behavior within tribes’ territory.

Rights of Indigenous Peoples under International Law Origins Law of Nations used to explain and justify colonization and taking of Indian lands. Crusades ”Discovery” doctrines De Vittoria’s recognition of inherent rights of indigenous peoples, but simultaneous rights of European nations to engage in just wars. Twentieth Century Emergence of International Human Rights Universal Declaration of Human Rights (1948) Covenant on Civil and Political Rights (1966) International Covenant on the Elimination of all forms of Racial Discrimination (1966) International Labour Organisation Convention No. 169 (1991) Review the origins of American Indian law, the same origins as international law of rights of indigenous peoples. Review transformation in international human rights law in the 20th century: this is where Professor Mignoli’s part of the class merges with ours. International law became a tool not just for settling disputes between States (here nation-states) but for recognizing the rights of non-state individuals and groups.

UN Declaration on the Rights of Indigenous Peoples (2007) Process Votes Substance Rights of Self-Determination Rights to Autonomy Rights to be free from discrimination and harm Rights to land and resources Rights to culture Rights to religion Rights to language/traditional knowledge/education Role of States in supporting and securing rights Rights to protection of indigenous children Rights to economic and social development Rights to Free Prior and Informed Consent regarding development, land, political decisions Rights to redress for past harms and takings of land Discuss the PROCESS: UN Working group on Indigenous populations established in 1982. Indigenous peoples from around the world trekked to Geneva every summer to articulate their claims to the members of the working group. In 1993, agreement was reached on a “draft declaration.” This draft became the basis for discussion within the UN Commission on Human Rights, which was replaced by the Human Rights Council in 2006. In June 2006, the Council voted 30-2-12 to adopt the Declaration and pass on to General Assembly. Discuss how these rights are grouped: Rights to self-determination and auronomy; rights to: culture/religion/traditions/language; rights to land and property; rights of access to legal and political protections; rights of consultation/consent; rights for vulnerable populations within the larger group. What about “sovereignty?” The words do not appear. Declaration was adopted, with only four countries voting against: US, Cadanda, Australia, New Zealand. All four have since endorsed the Declaration Discuss the Declaration’s substance: Broadly speaking it includes GROUP rights of self-determination, culture, land, religion, traditional knowledge, and also rights to EQUAL TREATMENT and NON-Discrimination, as well as rights to PROTECTION and SUPPORT from the states, and finally (not exclusively) rights to REDRESS….

Implementation of the Declaration Cal v. Attorney General (Belize 2007) Japanese Legislation to protect the Ainu People African Commission on Human Rights decision recognizing rights of Endorois people (2010) Procedural implementation UN Special Rapporteur on the Rights of Indigenous Peoples UN Expert Mechanism on the Rights of Indigenous Peoples Influence on US law?

Other International Law Tribunals Mayagna Awas Tingni v. Nicaragua (Inter-American Court of Human Rights) Background Law: American Convention on Human Rights and Nicaraguan Constitution Decision Recognizes land rights of the Awas Tingni people Recognizes that indigenous customary law can be the basis for their property rights Decides that Nicaragua is in violation of Awas Tingni rights Requires Nicaragua to adopt measures to recognize, demarcate, and give title to Awas Tingni people in “accordance with customary laws and values.” Background: Awas Tingni people displaced by logging without their consent. Claims brought under American Convention and Nicaraguan Constitution Discuss: the difference between this case and the Marshall case of Johnson v Macintosh. What are the advantages of starting to develop a body if indigenous rights law in the modern era? What are the potential disadvantages. Advantages: law can be developed without assumptions of inferiority that justified colonization Disadvantages: rights are less developed and less entrenched in the legal system.