1. Rights of Indigenous Peoples Under International Law
Professor Sarah Krakoff

2. 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.

3. 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 (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.

4. 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 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 In June 2006, the Council voted 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….

5. 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?

6. 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.