Fraternal Twins with Different Mothers: Explaining Differences between Self– Determination and Self–Government Using the Indian Tribal Sovereignty Model as Context

Cheryl Daytec 22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

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Article Fraternal Twins with Different Mothers: Explaining Differences between SelfDetermination and SelfGovernment Using the Indian Tribal Sovereignty Model as Context Cheryl L. Daytec*

Federal Indian policy is, to say the least, schizophrenic. And this confusion continues to infuse federal Indian law and our cases.1 Justice Clarence Thomas Its not the package and the wrapping which counts but what is inside, underneath the clothes and the skin. Lame Deer, Lakota

I. INTRODUCTION

In the United States, there are more or less 565 federally recognized Indian tribes,2 excluding the Alaska Native Peoples.

Nineteenth century jurisprudence is characterized by judicial rhetorical flourishes on their sovereignty predating colonization. To provide a legal and, perhaps, moral anchor for colonial divestiture of their preexisting tribal powers, the 19th century Supreme Court essentialized Indians as domestic

* 201213 Hubert Humphrey Fellow, University of Minnesota Law School, Minneapolis, Minnesota; Litigation and Research Officer, Cordillera Indigenous Peoples Legal Center, Philippines; Founding Member, National Union of Peoples Lawyers, Quezon City, Philippines; Associate Professor, St. Louis University, Baguio City, Philippines. Ms. Daytec holds LL.M, J.D., M.M, and B.A.C. degrees, and is a member of the Kankanaey People of Northern Luzon, an indigenous group in the Philippines. Many thanks to Dr. Paul Bloom, University of Minnesota, for his insights.

1. United States v. Lara, 541 U.S. 193, 219 (2004) (Thomas, J., concurring).

2. U.S. GOVT ACCOUNTABILITY OFFICE, GAO12348, INDIAN ISSUES: FEDERAL FUNDING FOR NONFEDERALLY RECOGNIZED TRIBES 6 (2012), available at http://www.gao.gov/assets/600/590102.pdf.


26 MJIL HUMPHREY SUPPLEMENT [Vol 22

dependent nations3 in a state of pupilage under the United States, with reserved rights of sovereignty over their internal affairs. Hoisting a paternalistic trident, the Supreme Court warded off state incursion into Indian reservations,4 shooed away the state taxman,5 fenced out of Indian land the statute books of the states,6 and decreed that even federal laws could not be applied to Indians without congressional permission.7 Affirming the inherent sovereignty of tribes was, and still is, a recurrent judicial mantra as though it is a building block of a decision that conforms to the Courts theory of justice or that is acceptable to the tribes. In recent history, indigenous movements all over the world organized into a global force and became victorious in pushing the international community to develop an international human rights regime that recognized their right of selfdetermination, which is probably the highest of all group rights. Before indigenous peoples gained international status and succeeded in getting their selfdetermination claims recognized, selfdetermination was already a keyword in federal Indian policies. One writer said that United States policymaking has liberally appropriated the word into legislation, policy statements, and opinions with random fervor . . . as though [it] is a magical incantation which, by its mere utterance, will render a policy perfect.8

It is said that in the United States, the movement toward selfdetermination, which resulted in the reversal of

3. DAVID E. WILKINS, AMERICAN INDIAN POLITICS (2002).

4. See generally Ex Parte Kangishunca, 109 U.S. 556 (1883) [hereinafter Crow Dog]; Cherokee Nation v. Georgia, 30 U.S. 1 (1831).

5. See Elk v. Wilkins, 112 U.S. 94, 99100 (1884) (Indians and their property, exempt from taxation by treaty or statute of the United States, could not be taxed by any state.); see also In re Kansas Indians, 72 U.S. 737 (1866). 6. See Williams v. Lee, 358 U.S. 217, 222 (1959) (holding Arizona courts did not have authority over Indian dispute in Arizona); In re Kansas Indians, 72 U.S. at 738 (holding that Kansas courts did not have jurisdictions over tribal organizations in Kansas).

7. See David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 CAL. L. REV. 1573, 1573 (1996); see also Worcester v. Georgia, 31 U.S. 515, 51819 (1932); Elk v. Wilkins, 112 U.S. at 367; Crow Dog, 109 U. S. at, 398; In re Kansas Indians, 72 U.S. at 738; Cherokee Nation, 30 U.S. at 5. But see The Cherokee Tobacco Case, 78 U.S. 616 (1870) (implying that general federal laws are effective in Indian reservations in the absence of a congressional act or treaty to the contrary).

8. See Samuel R. Cook, What is Indian SelfDetermination? 3 RED INK 1 (May 1994).


2013] INDIAN TRIBAL SOVEREIGNTY 27

termination policies, began during the Kennedy administration.9 In 1961, the Declaration of American Indian Purpose, asserting indigenous selfdetermination was submitted by the National Congress of Native Americans to President Kennedy.10 In response, the Kennedy administration committed that treaty and contractual relationships of the government with the Indians would not be altered without their consent and that their cultural heritage and land base would be protected.11 In his March 1968 address to Congress, President Johnson, pushed for a [federal] policy of maximum choice for the American Indian: a policy expressed in programs of selfhelp, selfdevelopment, and selfdetermination.12 The support for Indian selfdetermination reached its height during the Nixon administration. President Nixon called on Congress to end the termination era and reaffirmed the trust responsibility13 of the federal government to the tribes. He also pushed for legislations supporting tribal autonomy.14 This push culminated in the passage of the Indian SelfDetermination and Education Assistance Act in 1975.15 The Act admits that federal domination of tribes stifled selfgovernment and development, and that Indian people will never surrender their desire to control their relationships both among themselves and with nonIndian governments, organizations, and persons.16 It considers assuring maximum Indian

9. DAVID H. GETCHES, ET AL., CASES AND MATERIALS ON FEDERAL INDIAN LAW 224 (4th ed. 1998).

10. Declaration of Indian Purpose, in RED POWER: THE AMERICAN INDIANS FIGHT FOR FREEDOM 13, 1314 (Alvin M. Josephy, Jr. et al. eds., 2d ed. 1999).

11. See INDIANS OF NORTH AMERICA, DECLARATION OF INDIAN PURPOSE: THE VOICE OF AMERICAN INDIANS, Items 62, 11 (1961). 12. Lyndon B. Johnson, President of the United States, The Forgotten American: The Presidents Message to the Congress on Goals and Programs for the American Indian at United States Congress (March 6, 1968) (transcript available in DOCUMENTS OF UNITED STATES INDIAN POLICY 249 (Francis Paul Prucha ed., 3d ed. 2000)).

13. Cherokee Nation v. Georgia, 30 U.S. 1, 14 (1831) (acknowledging a trustlike relationship between the U.S. federal government and Indian tribes).

14. See Cook, supra note 8.

15. ALASKA GOVERNANCE TASK FORCE, SELF GOVERNANCE AND DETERMINATION (2004) (noting that President Nixons administrations continuing advocacy for Native Americans provided the impetus for the passage of the Indian SelfDetermination Act), available at http://www.alaskool.org/resources/anc2/ANC2_Sec5.html.

16. 25 U.S.C. 450 (2012).



participation in the direction of educational as well as other Federal services to Indian communities as a discharge of the United States obligation to respond to the strong expression of the Indian people for selfdetermination.17

The negative vote of the United States on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), despite the fact that there are many federal policy statements and laws using the term selfdetermination, surfaced the fact that indigenous selfdetermination under international law is not on the same page as selfdetermination under federal Indian policies. Despite claims that Indian tribes are a third form of government in the United States, aside from the federal and state governments,18 with a nationtonation relationship19 with the federal government, some scholars pejoratively describe them as private clubs20 and glorified fraternal organizations.21 The words sovereignty and selfdetermination affirmed in laws, policies, and jurisprudence of the United States are in reality substitutes for participation in decisionmaking processes at the minimum or selfgovernment or autonomy at the maximum.

In Montana v. United States,22 the Court stressed that the exercise of inherent tribal sovereignty is limited to what is necessary for selfgovernment or to control internal relations.

17. 25 U.S.C. 450a (2012) (Recognition of obligation of United States. The Congress hereby recognizes the obligation of the United States to respond to the strong expression of the Indian people for selfdetermination by assuring maximum Indian participation in the direction of educational as well as other Federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities.). 18. N. BRUCE DUTHU, AMERICAN INDIANS AND THE LAW 36 (2008); Sandra Day OConnor, Lessons from the Third Sovereign: Indian Tribal Courts, 33 TULSA L.J. 1, 1 (1997).

19. Philip M. Kannan, Reinstating Treaty Making with Native American Tribes, 16 WM. & MARY BILL RTS. J. 809, 810 (2008) (citing a notice of Department of Justice Policy on Indian Sovereignty and GovernmenttoGovernment Relations with Indian Tribes, available at 61 FED. REG. 29, 424 (June 1, 1995)).

20. Joseph P. Kalt & Joseph William Singer, Myths and Realities of Tribal Sovereignty: The Law and Economics of Indian Self Rule, HARVARD UNIVERSITY JOHN F. KENNEDY SCHOOL OF GOVERNMENT FACULTY RESEARCH WORKING PAPERS SERIES , 18 (March 2005).

21. See Robert N. Clinton, There is No Federal Supremacy Clause for Indian Tribes, 34 ARIZ. ST. L. J. 113, 21423 (2002).

22. See Montana v. United States, 450 U.S. 544, 564 (1981) (holding right to selfgovernment did not give Crow Indian Tribe pass binding regulation on how nonIndians used Big Horn Riven).



This sentiment has been echoed in the Montana progeny cases.23 To some scholars, there is no difference between selfgovernment and selfdetermination. They argue that indigenous selfdetermination means autonomy and participation in the life of the States.24 However, the two terms, although sharing family resemblance, are distinct from each other and States are fully cognizant of this. Thus, during the drafting process of the UNDRIP, 25 States were adamant to replace the term selfdetermination or to narrowly define it to mean selfgovernment and autonomy.26 The United States, Australia, Canada, and New Zealand dissented to the UNDRIP27 when it was presented for voting before the UN General Assembly in 2007, because of the word selfdetermination.28 They articulated their apprehension that the UNDRIP could be misrepresented as conferring a right of possible secession and minority groups . . . could . . . exploit [it] to claim the right to selfdetermination, including exclusive control of their territorial resources,29 notwithstanding that the Declaration plainly provides that it does not sanction secession.30 The HRC also noted in its 2000 Concluding

23. I refer to those subsequent cases which relied on Montana v. United States. See, e.g., Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 337 (2008) (Even then, the regulation must stem from the tribe's inherent sovereign authority to set conditions on entry, preserve tribal selfgovernment, or control internal relations.); Atkinson Trading Company v. Shirley, 532 U.S. 645, 658 (2001) (noting that Indian sovereignty is governed by the limited concept of selfgovernment.); Nevada v. Hicks, 533 U.S. 353, 357 (2001); and Brendale v. Confederated Tribes, 492 U.S. 408, 409 (1989).

24. ALEXANDRA XANTHAKI, INDIGENOUS RIGHTS AND UNITED NATIONS STANDARDS: SELF DETERMINATION, CULTURE AND LAND 28283 (2007) (noting that the definition described in the quote is an approach possible in the current international legal land scape and more amenable to States); see also Douglas Sanders, Is Autonomy a Principle of International Law?, NORDIC JOURNAL OF INTERNATIONAL LAW 1, 1721 (1986).

25. See G.A. Res. 61/195, U.N. Doc. A/RES/61/195 (Oct. 2, 2007) (adopted with a vote of 143 in favor and 4 against, with 11 abstentions).

26. See Christian Emi & Marianne Jensen, Editorial, INDIGENOUS AFFAIRS: SELFDETERMINATION 3, 4 (2001).

27. They were the only dissenting States. All of them have subsequently adopted the UNDRIP.

28. Office for the High Commr of Human Rights, Concluding Observations of the Human Rights Committee: Australia, U.N. Doc. A/55/40, 498538 (Jul. 24, 2000) [hereinafter Concluding Observations, Australia].

29. Id.

30. UN Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295, art. 46(1). The Declaration provides: Nothing in this



Observations on Australia31 that the State party prefers selfmanagement and selfempowerment to selfdetermination to express domestically the principle of indigenous peoples exercising meaningful control over their affairs.

While sharing the same gene pool, selfdetermination and selfgovernment or autonomy do not have identical DNA. This paper advances four reasons: First, selfdetermination is an inherent right, whereas selfgovernment is a grant. Clearly, the Supreme Court has since abandoned what for a long time was the gospel truth about Indian tribes: they possessed inherent rights of sovereignty which they may exercise unless curtailed by a treaty or Congress. Lone Wolf v Hitcock,32 Oliphant v. Suquamish Indian Tribe,33 and their derivative cases effectively hold that Indian tribes only have power that Congress has delegated to them through congressional plenary power. Second, selfdetermination is explicitly recognized under international law as a right of peoples, with the status of a jus cogens norm. Although selfgovernment is the political aspect of selfdetermination, it is not by itself the selfdetermination which States are obliged to recognize as a right of peoples within their polities. In fact, the term does not appear in any of the provisions of the International Covenant on Civil and Political Rights (ICCPR). Third, selfgovernment is a democratic entitlement to participate in the processes of the majority who rule the democratic space, which can operate against selfdetermination. As the Supreme Court said in California Democratic Party v. Jones,34 a foundational constitutional doctrine is the eminently democratic principle thatexcept where constitutional imperatives intervenethe majority rules. Indigenous peoples are always a political minority and they cannot be equal players in the majority rules arena. Selfdetermination on the other hand is the

Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

31. See Concluding Observations, Australia, supra note 28, 498538.

32. See Lone Wolf v. Hitchcock, 187 U.S. 553, 56568 (1903) (holding that a treaty did not limit Congresss ability to administer the property of Indians). 33. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 20910 (1978) (holding Indian tribunal courts could not punish nonIndians absent Congressional authorization).

34. California Democratic Party v. Jones, 530 U.S. 567, 584 (2000).



shelter of indigenous peoples from the rule of the majority which might harm their interest as minorities. In the United States, selfdetermination policies are profuse with Indian participation in planning of policies but ultimately decisions are made by the federal government acting for the majority that rules. Fourth, selfgovernment does not necessary entitle the selfgoverning entity sovereignty over natural resources whereas selfdetermination protects the peoples right to its natural resources. Indian tribes are not actually owners of their ancestral lands. The United States is, and indigenous peoples are mere usufructuary owners. Exercising plenary powers, the federal government may sell or condemn tribal lands in favor of outsiders.

Part I briefly traces the legal and normative underpinnings of selfdetermination and its historical context. It argues that the Constitution provides a solid argument for indigenous selfdetermination. It also explores justifications for the recognition of indigenous peoples as peoples. Part II reviews the evolution of the concept of tribal sovereignty as the power of distinct, political entities that are at the same time domestic dependent nations. It follows the judicial terrain beginning from the beginning of the reserved rights doctrine first articulated in United States v. Winans35 to its mutation into the congressional plenary power doctrine improvised in Lone Wolf but sharpened into the congressionalgrant doctrine in Oliphant. It also looks at the selfdetermination era in the United States. Both parts are necessary to lay down the premise for comparing selfgovernment and selfdetermination using the Indian tribes experiences as the context.

Part III explores the differences between selfdetermination and selfgovernment or autonomy. Part IV offers the conclusion that if the judiciary is to be a meaningful instrument toward the realization of Indian selfdetermination, it should revisit the constitutional norms supporting it which offers a wide room for doctrinal reversal and embrace of a new one.

35. United States v. Winans, 198 U.S. 371, 381 (1905).



II. THE LEGAL UNDERPINNINGS OF INDIGENOUS SELFDETERMINATION: HISTORY OF STRUGGLE FOR

INTERNATIONAL LAW RECOGNITION OF INDIGENOUS SELFDETERMINATION

Prior to colonization, indigenous peoples existed for thousands of years in the territories they presently inhabit. For most of the 20th century, indigenous peoples were paternalistically treated as mere objects and not subjects of international and domestic laws.36 Until 1967, indigenous peoples were regarded as part of the flora and fauna and not counted as persons in Australia.37 In the Philippines, indigenous populations were called nonChristian tribes.38 In the United States, even if Indians became citizens under the Indian Citizenship Act of 1924, it took decades before they were allowed to vote.39 The aftermath of decolonization in the mid20th century saw the rise of movements demanding minority and group rights. Indigenous peoples pushed their agenda using minority rights regimes. In Asia and Africa, former colonies embarked on nationbuilding and constitutional projects. Unfortunately, homeland groups distinct from the majority of the colonized were left out.

Indigenous peoples entered the age of rights in international law as mere silhouettes in the human rights discourse. In 1957, the International Labour Organisation Convention 10740 was adopted by the international community. Criticized for its assimilationist policies,41 ILO Convention 107

36. Lee Swepston, Indigenous Peoples in International Law and Organizations, in INTERNATIONAL LAW AND INDIGENOUS PEOPLE 53 (Joshua Castellino et al. eds., 2005).

37. 1967 Referendum, WANGKA MAYA PILBARA ABORIGINAL LANGUAGE CENTER, available at http://www.wangkamaya.org.au/index.php? option=com_content&task=view&id=107&Itemid=1.

38. The People of the Philippines v. Cayat, G.R. No. L45987 (S.C., Dec. 5, 1939) (Phil.).

39. See Mary Sam, History of American Indian Voting Rights, Mille Lacs Band of Ojibwe (2009), http://www.millelacsband.com/Page_culture.aspx?id=270 (noting the Minnesota Supreme Court denied Indian citizens the right to vote because they were not civilized).

40. Indigenous and Tribal Populations Convention, Jun. 26, 1957, available at http://www.unhcr.org/refworld/type,MULTILATERALTREATY,ILO,,3ddb66804,0.html (last visited May 1, 2013).

41. It regarded indigenous populations as transient societies on the road to integration into or absorption by the dominant ones and assumed that the only possible future for indigenous and tribal peoples was integration into the



was nonetheless a landmark treaty, being the first international document to deal with indigenous peoples that it called indigenous populations.42 It brought indigenous populations to the attention of the international community and fueled international efforts to address their issues and opened the doors for indigenous participation in national and international fora on indigenous concerns.43

The latter part of the 20th century witnessed the renascence of ethnic identities and demands for minority rights.44 It also witnessed the rise of private corporations and their mad rush for the exploitation of natural resources. Since indigenous peoples sit on the bulk of the Earths remaining natural resources,45 and as a result of their resource management system that believes in intergenerational responsibility to preserve the planets resources for posterity,46 their territories became natural targets for industrial expansion. Such expansion brought into their domains a host of human rights abuses and even more abject poverty. Indigenous peoples are said to bear disproportionately the costs of resourceintensive and resourceextractive industries,

larger society and that the State should make decisions on their development. INTERNATIONAL LABOUR ORGANIZATION, History of ILOs Work, INTERNATIONAL LABOUR ORGANIZATION (2013), available at http://www.ilo.org/indigenous/Aboutus/HistoryofILOswork/lang--en/index.htm.

42. See id. (noting that the title contains the term indigenous populations). 43. See Swepston, supra note 36, at 56 (noting that ILO Convention 169 would not likely have been possible without ILO convention 107).

44. See generally, Claus Offe, Political Liberalism, Group Rights, and the Politics of Fear and Trust, 55 STUDIES IN EAST EUROPEAN THOUGHTS 167, 168 (2001) (arguing the 20th century was marked by a fourth wave of ethnic minority demands for rights).

45. When she was Chair of the UN Permanent Forum on Indigenous Issues, Victoria TauliCorpuz said that majority of the worlds remaining natural resourcesminerals, freshwater, potential energy sources and moreare found within indigenous peoples domains. UNITED NATIONS PERMANENT FORUMS ON INDIGENOUS ISSUES, BACKGROUNDER: INDIGENOUS PEOPLES LAND, TERRITORIES AND NATURAL RESOURCES (2007), available at http://www.un.org/esa/socdev/unpfii/documents/6_session_factsheet1.pdf. According to the University of Minnesota Human Rights Center, indigenous peoples embody and nurture 80% of the worlds cultural and biological diversity, and occupy 20% of the worlds land surface. UNIVERSITY OF MINNESOTA HUMAN RIGHTS LIBRARY, Study Guide: The Rights of Indigenous Materials, UNIVERSITY OF MINNESOTA (2003), available at http://www1.umn.edu/humanrts/edumat/studyguides/indigenous.html.

46. For the indigenous concept of stewardship over lands, see S. James Anaya, International Human Rights and Indigenous Peoples: The Move Toward the Multicultural State, 21 ARIZ. J. INTL & COMP. L. 13 (2004).



large dams and other infrastructure projects, logging and plantations, bioprospecting, industrial fishing and farming, and also ecotourism and imposed conservation projects.47 National resistance movements rose against unfettered expansion of industry into indigenous domains. As rightly observed:

[G]lobalization has triggered greater awareness among the indigenous peoples of selfempowerment and democratization, which are important forces in capturing globalization. . . . Through their [Sarawak] blockades and protest movements, they have shown that they know how to use power to speak and to resist the globalizing forces that threaten their way of life and economic activities.48

States were apathetic to indigenous oppositions to forced dislocation and other human rights abuses. Indigenous movements built global networks and, emerging from the shadows, their ignored, if not forgotten, identities began to take shape before the eyes of the international community.49 Asserting and pursuing the recognition of their selfdetermination claims, indigenous populations rose as actors in UN instruments.50 As a milestone, the international community adopted International Labour Organization Convention 16951 and declared 19952004 as the United Nations International Decade of the Worlds Indigenous

47. Commn on Human Rights, Indigenous Issues: Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, 59th Sess., U.N. Doc. E/CN.4/2003/90 (2003).

48. Sabihah Osman, Globalization and Democratization: the Response of the Indigenous Peoples of Sarawak, 21 THIRD WORLD QUARTERLY 987 (2000).

49. See Swepston, supra note 36, at 53 (noting the rise in concern about indigenous groups thanks to successful lobbying efforts by indigenous groups).

50. See Cherie Metcalf, Indigenous Rights and the Environment: Evolving International Law, 35 OTTAWA L. REV. 101, 103 (2003). For a detailed narration of how indigenous rights reached the United Nations, see Augusto Willemsen Diaz, How Indigenous Peoples Rights Reached the UN, in MAKING THE DECLARATION WORK: THE UNITED NATION DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 16 (Claire Charters et al. eds., 2009).

51. This is the only international treaty that applies specifically to indigenous peoples. It is the first to use the term indigenous peoples although its Article 1(3) States: The use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law. Indigenous and Tribal Populations Convention, No. 107, Art. 1(3) (1957).



People.52

These developments fueled international legal dialogues on group rights. In the last decades, major efforts by indigenous organizations and individuals led to the evolution of international law on selfdetermination. Traditionally, selfdetermination was regarded as a right of States from colonial domination,53 but indigenous peoples pushed international legal boundaries. Due to the failure of domestic legal systems to protect them, many indigenous populations utilized supranational remedies as shelter from the deleterious consequences of economic globalization and industrial expansion.54 They used the notion of selfdetermination to press for protection before the Human Rights Committee (HRC).55 During the drafting of the ICCPR, it was questionable whether minorities qualified as peoples,56 and some scholars

52. International Decade of the Worlds Indigenous People, G.A. Res. 48/163, U.N. GAOR, 48th Sess., Agenda Item 114(b), U.N. Doc. A/RES/48/163 (Feb. 18, 1994).

53. A. A. Idowu, Revisiting the Right to SelfDetermination in Modern International Law: Implications for African States, 6(4) EUR. J. SOC. SCI. 43, 4346 (2008); EDWARD MCWHINNEY, SELFDETERMINATION OF PEOPLES AND PLURALETHNIC STATES IN CONTEMPORARY INTERNATIONAL LAW: FAILED STATES, NATION BUILDING AND THE ALTERNATIVE, FEDERAL OPTION 2 (2007).

54. See, e.g., Lubicon Lake Band v. Canada, U.N. H.R. Comm., Commcn No. 167/1984, U.N. Doc. Supp. No. 40 (A/45/40) at 1 (1990); Mikmaq v. Canada, U.N. H.R. Comm., Commcn No. 78/1980, U.N. Doc. Supp. No. 40 (A/39/40) at 200 (1984); R. L. et al. v. Canada, U.N. H.R. Comm., Commcn No. 358/1989, U.N. Doc. CCPR/C/43/D/358/1989 at 16 (1991); J.G.A. Diergaardt et al. v. Namibia, U.N. H.R. Comm., Commcn No. 760/1997, U.N. Doc. CCPR/C/69/D/760/1997 (2000); A. B. et. al. v. Italy, U.N. H.R. Comm., Commcn No. 413/1990, U.N. Doc. CCPR/C/40/D/413/1990 (1990).

55. The HRC is the international oversight mechanism to monitor States compliance with obligations under the ICCPR, International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171; S. Exec. Doc. E, 95-2 (1978); S. Treaty Doc. 95-20, 6 I.L.M. 368 (1967)the first treaty to formally oblige States to respect, promote, and fulfill the right of selfdetermination of all peoples. The relevant provisions of what is considered the International Bill of Rights are found in Article 1, Sections 1 and 2 of both the ICCPR and the International Covenant on Economic, Social, and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3; S. Exec. Doc. D, 95-2 (1978); S. Treaty Doc. No. 95-19, 6 I.L.M. 360 (1967) (ICESCR), which identically state: 1. All peoples have the right of selfdetermination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 56. See PAUL KEAL, EUROPEAN CONQUEST AND THE RIGHTS OF



interpret this to mean that indigenous peoples were excluded from coverage under the protection of the ICCPR.57 For a long time, the HRC was hesitant to acknowledge the peoplehood of indigenous peoples out of deference to Stateswhich always saw the potential of secession rising with every selfdetermination claim.58 This hesitancy invited the displeasure of scholars, who equivocated that an indigenous selfdetermination claim is more promisingly understood as a generalized right and that its realization does not always entail the option of separate statehood . . . .59 While selfdetermination dominates the rights agenda of indigenous peoples, it is not necessarily a demand for statehood, but can be comprehended in ways that need not challenge sovereignty,60 and allow for independence within the

INDIGENOUS PEOPLES 11416 (2003). 57. See generally id. (Chapters 46 in particular contain relevant discussion on the protection of indigenous peoples under international law).

58. Numerous communications asserting indigenous selfdetermination (primarily invoking the treatys Optional Protocol I, which provides for individual complaints) were dismissed by the HRC. The HRC ruled in such cases that the complaints were inadmissible because selfdetermination claims are collective rights and may not be raised by individuals, and are therefore beyond the ambit of its competence. See, e.g., Lubicon Lake Band v. Canada, U.N. H.R. Comm., Commcn No. 167/1984, U.N. Doc. Supp. No. 40 (A/45/40) at 1 (1990); Mikmaq v. Canada, U.N. H.R. Comm., Commcn No. 78/1980, U.N. Doc. Supp. No. 40 (A/39/40) at 200 (1984); R. L. et al. v. Canada, U.N. H.R. Comm., Commcn No. 358/1989, U.N. Doc. CCPR/C/43/D/358/1989 at 16 (1991); J.G.A. Diergaardt et al. v. Namibia, U.N. H.R. Comm., Commcn No. 760/1997, U.N. Doc. CCPR/C/69/D/760/1997 (2000); A. B. et. al. v. Italy, U.N. H.R. Comm., Commcn No. 413/1990, U.N. Doc. CCPR/C/40/D/413/1990 (1990).

59. Paul Keal, Indigenous SelfDetermination and the Legitimacy of Sovereign States, 44 INTL POL. 287, 288 (2007); see also Benedict Kingsbury, Claims by NonState Groups in International Law, 25 CORNELL INTL L. J. 481, 498 (1992); Omar Dahbour, The Ethics of SelfDetermination: Democratic, National, Regional, in CULTURAL IDENTITY AND THE NATIONSTATE 1, 911 (Carol C. Goulde & Pasquale Pasquino eds., 2001). According to Dahbour, indigenous peoples have not shown interest in Statehood, but rather in regional autonomy, which does not challenge the sovereignty of the States in which they reside. Id. Dahbour, however, likely understands regional autonomy as meaning more than just selfgovernment; including, for example, control of resources. Id.

60. Keal, supra note 56, at 146. Keal may be correct that most indigenous peoples do not interpret selfdetermination as statehood or sovereignty but this does not necessarily remove secession as one of their options. To be very sure, while there is no right to secession under international law, there is nothing that interdicts it either. Scholars who espouse the position that secession is unacceptable under international law invoke Provision 6 of the Declaration of the Granting of Independence to Colonial Peoples which States:



framework of existing States,61 removed from the colonial context.62 Despite the initial reluctance of the HRC, indigenous peoples did not let up63 until it finally recognized their international status as rightful bearers of selfdetermination. Since 1999, the HRC has been calling on States to respect the right of selfdetermination64 of those among the most disadvantaged in the world.65

Recently, the international community adopted the UNDRIP.66 Currently, the right of selfdetermination is enshrined in a number of international treaties and other

Any attempt at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the United Nations Charter. Declaration of the Granting of Independence to Colonial Peoples, G.A. Res. 1514 (XV), 6, A/RES/1514(XV) (December 14, 1960).

61. Reference re Secession of Quebec, Advisory Opinion, 1998 2 R.C.S. 217, 28184 (Aug.20, 1998) (Can.).

62. Hurst Hannum, The Specter of Secession: Responding to Claims for Ethnic SelfDetermination, 77(2) FOREIGN AFF. 13, 13 (1998) [hereinafter Hannum, Specter of Secession].

63. See cases cited supra in note 58. The cases cited were serially dismissed by the HRC. After every dismissal, a new case would crop up raising selfdetermination claims, seemingly unmindful of the HRCs previous ruling(s).

64. The first time the HRC made such a determination was in its Observations on Canada in 1999. See Concluding observations of the U.N. H.R. Comm.: Canada, 65th Sess., Apr. 7, 1999, 8, U.N. Doc. CCPR/C/79/Add. 105 (1999). Subsequent cases include: Apirana Mahuika v. New Zealand, U.N. H.R. Comm., Commcn No. 547/1993, U.N. Doc. CCPR/C/70/D/547/1993 (Nov. 15, 2000); Concluding observations of the U.N. H.R. Comm.: Norway, 67th Sess., Nov. 1, 1999, U.N. Doc. CCPR/C/79/Add.112 (1999); Concluding observations of the U.N. H.R. Comm.: Mexico, 66th Sess., Jul. 27, 1999, U.N. Doc. CCPR/C/79/Add.109 (1999); Concluding observations of the U.N. H.R. Comm.: Brazil, 85th Sess., Dec. 1, 2005, U.N. Doc. CCPR/C/BRA/CO/2; Concluding observations of the U.N. H.R. Comm.: Denmark, 70th Sess.,Oct.31, 2000, U.N. Doc. CCPR/CO/70/DNK (2000); Concluding observations of the U.N. H.R. Comm.: Australia, 69th Sess.,Jul. 24, 2000, U.N. Doc. CCPR/A/55/40 (2000); Concluding observations of the U.N. H.R. Comm.: Sweden, 74th Sess., Apr. 24, 2002, U.N. Doc. CCPR/CO/74/SWE (2002); Concluding observations of the U.N. H.R. Comm.: United States of America, 87th Sess., Dec. 18, 2006, U.N. Doc. CCPR/C/USA/CO/3/Rev.1 (2006); Fifth Periodic Report of the U.N. H.R. Comm.: Canada, 66th Sess., Nov. 18, 2004, U.N. Doc. CCPR/C/CAN/2004/5 (2004); Concluding observations of the U.N. H.R. Comm.: Canada, 85th Sess., Apr. 20, 2006, U.N. Doc. CCPR/C/CAN/CO/5 (2006); ngela Poma Poma v. Peru, U.N. H.R. Comm., Commcn No. 1457/2006, U.N. Doc. CCPR/C/95/D/1457/2006 (Mar. 27, 2009).

65. JAN KNIPPERS BLACK, THE POLITICS OF HUMAN RIGHTS PROTECTION: MOVING INTERVENTION UPSTREAM WITH IMPACT ASSESSMENT 11718 (2009).

66. United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007), 46 I.L.M. 1013 (2007).



documents, and has crystallized into a rule of customary international law, applicable to and binding on all states.67

III. THE LEGAL PARADIGM OF INDIAN TRIBAL SOVEREIGNTY: A STORY OF BEGINNINGS, EVOLUTION,

AND RETROGRESSION

A. CONSTITUTIONAL UNDERPINNINGS OF INDIAN SELFDETERMINATION

Before indigenous selfdetermination became part of international law lexicon, the United States already recognized tribal sovereignty. A common tragedy of indigenous peoples all over the world is exclusion from constitutionbuilding projects of the States that absorbed them.68 In the case of American Indians, the United States founding fathers did not intend to include them as subjects or citizens under the U.S. Constitution. Nonetheless, their presence in the United States was acknowledged constitutionally.69 The American Indians have been considered a lurking shadow that could not be completely ignored in constitutionbuilding.70 Hence the Constitution, as ratified in 1789, granted Congress the power to regulate Commerce with . . . the Indian tribes, which can be seen as an affirmation of Indian sovereignty.71 The U.S. federal government relied on the Constitutions provision on treatymaking in its relationship with tribes.72 The process outlined in the provision73 was observed in the treaties concluded with the Indian tribes: the Executive Branch, through the President, would submit an agreement with tribes to the Senate for ratification.74 Treatymaking, and legislation made pursuant

67. Michael P. Scharf, Earned Sovereignty: Judicial Underpinnings, 31 DENV. J. INTL L. & POLY 373, 378 (2003).

68. EricaIrene Daes, An overview of the history of indigenous peoples: selfdetermination and the United Nations, 21(1) CAMBRIDGE REV. INTL AFF. 7, 13 (2008).

69. FRANK POMMERSHEIM, BROKEN LANDSCAPES 4 (2009).

70. Id.

71. The Full Commerce Clause reads: Congress shall have the power . . . To regulate Commerce with foreign Nations, among the several States, and with the Indian Tribes. U.S. CONST., Art. I, 8, cl. 3.

72. POMMERSHEIM, supra note 69, at 4.

73. U.S. CONST., Art. II, 2, cl. 2 ([The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . . . .).

74. Kannan, supra note 19, at 816; United States v. Sioux Nation of Indians, 448 U.S. 371 (1980) (discussing how treaties were negotiated with



to those treaties, governed relations between the Federal Government and the Indian tribes,75 an implicit acknowledgment of their capacity to do so as collectives.76 Treaties rested upon a concept of Indian sovereignty . . . and in turn greatly contributed to that concept.77 In 1831, the U.S. Supreme Court noted in Cherokee Nation v. Georgia78 that the federal treatymaking with Indian tribes was tantamount to recognition of their peoplehood, capable of maintaining the relations of peace and war, of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States by any individual of their community. In United States v. Winans,79 the U.S. Supreme Court, affirming that treaties between the United States and Indian tribes were between two sovereign nations, proffered what has become known as the reserved rights doctrine. Indians had reserved rights not surrendered to the US, and a treaty was not a grant of rights to the Indians, but rather a grant of rights from them, a reservation of those not granted.80

The House of Representatives had no voice in the development of substantive Indian policy within a treaty, and could only appropriate such funds as were necessary to put the treaty into effect.81 The House refused to appropriate funds to implement new treaties until 1871, by which time Congress abolished treatymaking with tribes.82

tribes); Washington v. Fishing Vessel Assn, 443 U.S. 658, 666 (same).

75. United States v. Lara, 541 U.S. 193, 201 (2004).

76. See generally ROBERT WILLIAMS, LINKING ARMS TOGETHER: AMERICAN INDIAN TREATY VISIONS OF LAW AND PEACE, 16001800 (1997).

77. FRANCIS PAUL PRUCHA, AMERICAN INDIAN TREATIES: THE HISTORY OF A POLITICAL ANOMALY 2 (1994).

78. Cherokee Nation v. Georgia, 30 U.S. 1, 16 (1831).


80. Id. at 381.

81. Antoine v. Washington, 420 U.S. 194, 202 (1975).

82. Id. The Supreme Court said, In 1871, however, the insolence of conscious strength, and the growing jealousy of the House of Representatives towards the prerogativearrogated by the Senateof determining, in connection with the executive, all questions of Indian right and title, and of committing the United States incidentally to pecuniary obligations limited only by its own discretion, for which the House should be bound to make provision without inquiry, led to the adoption, after several severe parliamentary struggles, of the declaration . . . that hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power, with whom the United States may contract by treaty. Id. (citing FRANCIS A. WALKER, THE INDIAN



B. THE INDEPENDENT, DISTINCT POLITICAL ENTITIES BUT DOMESTIC, DEPENDENT NATIONS

In Cherokee Nation v. Georgia, the U.S. Supreme Court recognized the precontact sovereignty of Indian tribes. However, the Court referred to them as domestic, dependent nations in a state of pupilage whose relationship to the U.S. resembles that of a ward to his guardian.83 The U.S. Supreme Court stated [t]hey look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father.84 The ensuing Worcester v. Georgia85 [laid] the cornerstone for the legal systems continuing recognition of tribal sovereignty.86 Decided in 1832, the Worcester decision enunciated that Indian nations always enjoyed recognition as distinct, independent political communities and had the power of selfgovernmentflowing from their original tribal sovereignty and not from a grant of power by the U.S. federal government.87 The U.S. Supreme Court held that:

The settled doctrine of the law of nations is that a weaker power does not surrender its independenceits right to selfgovernment, by associating with a stronger, and taking its

QUESTION 21112 (1874)). The law that ended treaty making with tribes was the Act of Mar. 3, 1871, ch. 120, 1, 16 Stat. 544, 566 (codified as amended at 25 U.S.C. 71 (1988)).

83. Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831).

84. Id.

85. Worcester v. Georgia, 31 U.S. 515 (1832).

86. Getches, supra note 7, at 1582.

87. Worcester v. Georgia, 31 U.S. 515 (1832); see also Ex Parte Crow Dog, 109 U. S. 556, 571 (1883) (involving the killing by an Indian of another Indian on Indian land). The case was settled according to tribal law. However, Crow Dog, the accused, was indicted for murder in Nebraska and was convicted and sentenced to die by hanging, a decision affirmed by the territorial Supreme Court. He applied for a Writ of Habeas Corpus with the Federal Supreme Court. Recognizing tribal sovereignty, the Court speaking through Justice Matthews said of the case: It is a case where, against an express exception in the law itself, that law, by argument and inference only, is sought to be extended over aliens and strangers; over the members of a community, separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others, and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it. Ex Parte Crow Dog, 109 U. S. 556, 571 (1883).



protections. A weak State, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state.88

Under Chief Justice Marshall, the U.S. Supreme Court recognized only two limitations to Indian sovereignty: (1) Tribes could not alienate their lands except to the United States; and (2) They could not enter into treaties with foreign nations.89 Thus, in Ex Parte Crow Dog,90 the U.S. Supreme Court overturned the conviction by the colonizers court of an Indian accused of killing another Indian; a matter earlier settled according to tribal law. Recognizing tribal sovereignty, the U.S. Supreme Court said that the application of the colonizers law

[T]ries [Indians] not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social State of which they have an imperfect conception and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red mans revenge by the maxims of the white mans morality.91

The U.S. Supreme Court declared, and would reiterate in Talton v Mayes,92 that the long arm of federal laws did not extend to reservations without express authorization by Congress. In Talton, it also said that tribal powers were beyond judicial review.93

88. Worcester v. Georgia, 31 U.S. at 520.

89. Steven Paul McSloy, American Indians and the Constitution: An Argument for Nationhood, 14 AM. INDIAN L. REV. 139, 140 n.4 (1989) (quoting William C. Canby Jr., The Status of Indian Tribes in American Law Today, 62 Wash. L. Rev. 1, 8 (1987)).

90. Crow Dog, 109 U.S. 556.

91. Id. at 571.

92. Talton v. Mayes, 163 U.S. 376, 384 (1896).

93. Id.



C. THE BIRTH OF PLENARY POWERS: PREEXISTING RESERVED RIGHTS BECOME SUBJECT TO CONGRESSIONAL CURTAILMENT

Even as jurisprudence on American Indian sovereignty first developed as the principle that tribes possessed preexisting powers of sovereignty, this jurisprudence evolved judicially and made tribes subject to the supreme legislative authority of the United States.94 This subjugation of tribal sovereignty to the U.S. Congress was later repackaged as Congress plenary powers. Under this rule, tribes reserved their preexisting powers which they could exercise, unless curtailed by Congress. Cohen wrote in 1941:

The whole course of judicial decision on the nature of Indian tribal powers is marked by adherence to three fundamental principles: (1) An Indian tribe possesses, in the first instance, all the powers of any sovereign state. (2) Conquest renders the tribe subject to the legislative power of the United States and, in substance, terminates the external powers of sovereignty of the tribe, e.g., its power to enter into treaties with foreign nations, but does not by itself affect the internal sovereignty of the tribe, i.e., its powers of local selfgovernment. (3) These powers are subject to qualification by treaties and by express legislation of Congress, but, save as thus expressly qualified, full powers of internal sovereignty are vested in the Indian tribes and in their duly constituted organs of government.95

The abounding judicial rhetoric recognizing tribal sovereignty recognition is matched by doctrinal pronouncements that impair it. The U.S. Supreme Courts earliest and longest lasting infringement on tribal sovereignty was the creation of congressional plenary power over tribes. Ex Parte Crow Dog braced the infrastructure for the rise of this formidable legal edifice when the U.S. Supreme Court, in voiding a conviction of an Indian by a federal court, said that without congressional authorization, the federal government could not take cognizance of a crime committed by one Indian on a reservation

94. Lone Wolf v. Hitchcock, 187 U. S. 553 (1903).

95. FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 123 (1941).



against another Indian. This led to the passage of the Major Crimes Act, which conferred federal jurisdiction on certain crimes committed by Indians within reservations. The law, held out as a valid exercise of plenary power over Indian affairs, passed judicial review in United States v. Kagama.96 Plenary power became an enduring doctrine after it was declared a political question and thereby beyond judicial review in Lone Wolf v Hitchcock.97

Kannan opines that [t]he status of tribes as domestic dependent sovereigns, the existence of a guardian/ward relationship between Indians and the United States, . . . and provisions in the Constitution . . . combine to vest in Congress plenary power over Indian tribes.98 This view concedes that there is constitutional basis for disregarding tribal sovereignty. However, such basis does not exist. The U.S. Constitution explicitly recognizes tribal sovereignty under the Commerce Clause99 and nowhere grants legislative plenary power over the tribes. Whatever broad powers the federal government has over tribes that negated their precontact sovereignty is not a constitutional grant, nor could it be justified under any democratic principle. Pommersheim maintains that the source is judicial plenary power100 that the Supreme Court has been consistently exercising to grant, and reaffirm the grant of, plenary and unilateral authority on Congress. In other words, plenary power is not constitutionally derived; rather, it is judicially evolved. The excision of tribal powers might be the immediate result of plenary powers, but is ultimately the aftermath of judicial misinterpretation of the Constitution.

The plenary power doctrine was invented to facilitate the unilateral expansion of federal land acquisition and power in Indian affairs.101 As it mutated by judicial fiat, it became the legal leg upon which stood the legitimacy of further diminution

96. See United States v. Kagama, 118 U. S. 375 (1886). The court also said that Indian tribes were treated by the US not as states, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union, or of the state within whose limits they resided. Id. at 38182.

97. Lone Wolf v. Hitchcock, 187 U. S. at 508, affd 541 U.S. 193, 201 (2004).

98. Kannan, supra note 19, at 816.

99. U.S. CONST. art. I, 8, cl. 3.

100. POMMERSHEIM, supra note 69, at 142.

101. Id. at 13940.



of Indian lands and tribal powers and assumption by federal apparatuses of powers originally held by tribes. It has been invoked, among others, to justify unilateral abrogation of treaties with tribes,102 the revision of reservation boundaries,103 the sale of Indian lands without their consent,104 federal veto power over tribal decision to lease lands,105 federal unilateral decision to lease tribal lands,106 the exercise of eminent domain over tribal lands,107 the determination of tribal membership,108 and the divestiture of tribal powers over reservations.109 Although challenged several times, it remains very wellentrenched and in fact has grown more teeth. It shaped, reshaped, distorted, and redistorted tribal sovereignty.

The Supreme Court has vacillated from sympathetic, condescending, and outright hostile in ruling on indigenous sovereignty and selfdetermination. At its sympathetic mode, the Court attested the inherent sovereignty of tribes,110 held that treaties are not rights devised to tribes, but rather a reservation by the Indians of rights already possessed and not granted away by them,111 warded off state incursion into Indian reservations by holding that they were beyond the taxing arm112 and laws of states,113 decreed that even federal laws could not be applied to Indians without congressional permission,114 and recognized the taxing power of tribes over

102. See United States v. Dion, 476 U.S. 734 (1986); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

103. See Lone Wolf v. Hitchcock, 187 U.S. 553.

104. See Sioux Tribe v. United States, 316 U.S. 317 (1942).

105. 25 U.S.C. 396 (2000).

106. See Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765 (1984).

107. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978).

108. Id.

109. See, e.g., United States v. Lara, 541 U.S. 193 (2004); Duro v. Reina, 495 U.S. 676 (1990); Montana v. United States, 450 U.S. 544 (1981); Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978); Wheeler v. United States, 435 U.S. 313 (1978).

110. See Worcester v. Georgia, 31 U.S. 515 (1932).


112. See, e.g., White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980) (holding that a state cannot impose taxes even on nonIndians for use of Bureau of Indian Affairs Roads to transport lumber under a contract with tribes); see also Elk v. Wilkins, 112 U.S. 94, 99 (1884) (Indians and their property, exempt from taxation by treaty or statute of the United States, could not be taxed by any state.). 113. Williams v. Lee, 358 U.S. 217 (1959).

114. Getches, supra note 7, at 1573.



activities of nonIndians within their reservations reasoning that the power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of selfgovernment and territorial management.115 At its unsympathetic state, it would take back with its right hand what it gave with the left.116 For example, while the Court laid down the doctrine that a general Act of Congress does not apply to Indians or their lands,117 it virtually had a diametrically opposed holding in Case of the Cherokee Tobacco,118 when it extended federal taxation law to an activity within a reservation despite the absence of a law providing it. Years later in Tuscarora,119 the Court was categorical that federal laws of general application extended to Indians and their governments unless Congress provided otherwise. This has perhaps moved Justice Souter, dissenting in US v. Lara,120 to say that the Supreme Court leaves a legacy of confusion for our failure to stand by what we have previously said reveals that our conceptualizations of sovereignty and dependent sovereignty are largely rhetorical.121 Indeed, the Supreme Court has been consistently treating tribal sovereignty as an elastic band.

D. THE RETROGRESSION OF SOVEREIGNS: RESERVED POWERS JUDICIALLY MUTATE INTO STATUTORY GRANTS

The period from the 1960s to the present is called the selfdetermination era122 in view of the surge of more federal policies and laws that purport to promote Indian selfdetermination. This movement was most likely borne out of the realization that past policies invisibilized the Indians whose

115. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 149 (1982).

116. See, e.g., Sioux Tribe v. United States, 316 U.S. 317 (1942); United States v. Sandoval, 231 U.S. 28 (1913); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

117. Fed. Power Commn v. Tuscarora Indian Nation, 362 U.S. 99, 115 (1960).

118. Cherokee Tobacco, 78 U.S. 616 (1870).

119. Fed. Power Commn v. Tuscarora Indian Nation, 362 U.S. 99 (1960).

120. See United States v. Lara, 541 U.S. 193 (2004) (the Court laid down the doctrine that double jeopardy did not attach when an individual is tried by the federal and tribal courts for the same acts constituting offenses under federal and tribal laws reversing previous holdings).

121. Lara, 541 U.S. at 226 (Souter, J., dissenting).

122. See GETCHES ET AL., supra note 9, at xv (claiming that the Indian legal history is often divided into eras, which underscore the governments Indian policy of the time.).



destinies were being decided in ivory towers without their participation. Laws have been passed under the banner of selfdetermination to ensure Indian participation in crafting and implementing policies that affect them. Yet, it is during this era that [t]he Supreme Court has become more hostile to [Indian] interests in its resolution of issues of tribal selfdetermination, highlighting the dearth of secure footholds in judicial doctrine for Native American law.123 The courts have been shrinking the powers of the tribes as they have been expanding federal powers over them. In fact, the Court revolutionarily reshaped tribal sovereignty. Whereas it used to be an exercise of retained powers not divested by congress,124 it became an exercise of those powers that Congress granted. As they are presently contoured, Indian tribes bear little or no semblance to the domestic dependent nations of the 19th century.

While the U.S. Supreme Court facially acknowledges the concept of inherent tribal sovereignty, the Courts decisions have actually created a contradictory body of jurisprudence that often undermines tribal sovereignty. In Oliphant v Suquamish Tribe,125 the Court did not expressly acknowledge tribal sovereignty. But it made a bizarre assertion that the effort by Indian tribal courts to exercise criminal jurisdiction over nonIndians . . . is a relatively new phenomenon. Why should jurisdiction over acts that happen within a territory of a sovereignhowever domestic and dependentbe a new phenomenon? It is in fact older than the United States assertion of sovereignty over the Indians themselves. As pointed out by Justice Marshall in his terse dissent, the power to preserve order on the reservation . . . is a sine qua non of the sovereignty that the Suquamish originally possessed. . . . In the absence of affirmative withdrawal by treaty or statute, . . . Indian tribes enjoy as a necessary aspect of their retained sovereignty the right to try and punish all persons who commit offenses against tribal law within the reservation.126 The same attitude impelled the Court to ground its decision on the discovery doctrine which while acceptable under the law of nations in the early 19th century, was hurled

123. Note, Intergovernmental Compacts in Native American Law: Models for Expanded Usage, 112 HARV. L. REV. 922, 922 (1999).

124. See United States v. Winans, 198 U.S. 371 (1905).

125. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195 (1978).

126. Id. at 212.



into the trash bin by civilized countries in the 20th century:127 Indian tribes hold and occupy [the reservations] with the assent of the United States, and under their authority.128 The decision stated that Indian tribal courts do not have inherent criminal jurisdiction to try and to punish nonIndians, and may not assume such jurisdiction unless specifically authorized to do so by Congress.

But in US v. Wheeler,129 the Court with seeming language facility restated the 19th century doctrine that tribes possessed inherent powers of a limited sovereignty which has never been extinguished.130 The Court said that [t]ribes possess all of the powers of governance of sovereign nations except those withdrawn by treaty or by congress, qualifying however that tribal sovereignty exists only at the sufferance of Congress and is subject to complete defeasance.131

More recent Supreme Court decisions have made romantic references to inherent tribal sovereignty. But the net effect of such decisions is to decimate tribal powers. For example, Montana acknowledged that tribal courts possess inherent sovereignty. But it is actually the grandmother of recent Supreme Court decisions cumulatively shrinking tribal civil jurisdiction and Indian lands. It held that tribal courts do not have jurisdiction to regulate activities of nonIndians in Indian country. The evolution of the Montana rule reflecting a gradual conservative trend in the Court from 1981 to 2008, occurred in a series of decisions in which the Court, while never

127. For example, in Mabo v. Queensland, the Australian High Court said: The fiction by which the rights and interests of indigenous inhabitants in land were treated as nonexistent was justified by a policy which has no place in the contemporary law of this country. Mabo v. Queensland (No. 2) (1992) 175 CLR 1 (Austl.). The International Court of Justice, in its Advisory Opinion on Western Sahara, said that a determination that Western Sahara was a 'terra nullius' at the time of colonization by Spain would be possible only if it were established that at that time the territory belonged to no one in the sense that it was then open to acquisition through the legal process of occupation. Western Sahara, Advisory Op., I.C.J. Reports 1975, at 39 (16 Oct. 1975). In Carino v. Insular Govt, the U.S. Supreme Court rejected the Regalian Doctrine, the equivalent of discovery, which Spain invoked to justify the dispossession of the Philippine natives. The Court called the doctrine feudal, an almost forgotten law of Spain. Carino v. Insular Govt, 212 U.S. 449 (1909).

128. Oliphant v. Suquamish Indian Tribe, 435 U.S. at 209.

129. United States v. Wheeler, 316 U.S. 313, 322 (1942) (quoting FELIX COHEN, HANDBOOK OF FEDERAL INDIAN LAW 122 (1945)).

130. Id.

131. Id. at 321.



abandoning its 1981 decision, qualified, amended, and fundamentally reinterpreted it to severely limit tribal jurisdiction.132 Along with Oliphant, it veered away from the recognition of tribes as unique aggregations possessing attributes of sovereignty over both their members and their territory.133 By holding that tribes could not regulate nonIndian activities within Indian reservation and proclaiming that tribal sovereignty is limited to exercise of powers over Indians, the Court treated tribal jurisdiction as personal rather than territorial. This has led some scholars to pejoratively describe tribes as private clubs134 and glorified fraternal organizations135 despite judicial claim that they are a good deal more than private, voluntary organizations.136

Cornell, who equates selfgovernment with selfdetermination, is critical of the policy directions on Indians that the United States has taken under the banner of selfdetermination:

The federal idea was to treat selfgovernment as selfadministration, turning tribal governments into adjuncts of the federal administrative apparatus. In the years since, most federal involvement in Indian affairs has been more concerned with addressing social problems than with building Indigenous capacities for genuine selfrule. This trend has been supported by recent U.S. court decisions that have severely curtailed tribal jurisdiction and undermined Indigenous rights of selfgovernment.

In sum, central governments have tended to respond to Indigenous peoples in the same ways they have responded to immigrant and other minority populations: with egalitarian and assimilative policies that attempt to address Indigenous disadvantage and facilitate

132. Brian L. Pierson, Determining Tribal Jurisdiction over NonTribe Members, 81 WIS. LAWYER, Nov. 2008, available at http://www.wisbar.org/AM/Template.cfm?Section=Search&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=75595.

133. United States v. Mazurie, 419 U.S. 544, 557 (1975).

134. Kalt & Singer, supra note 20, at 18.

135. Robert N. Clinton, There is No Federal Supremacy Clause for Indian Tribes, 34 ARIZ. ST. L.J. 113, 21423 (2002). 136. United States v. Mazurie, 419 U.S. at 556.



integration into encompassing societies.137

This affirms the allegation of the accused in Wheeler who contested federal jurisdiction over him after he was convicted by the tribal court for an act necessarily included in the graver federal offense. Invoking the allencompassing plenary power of Congress over tribes, he concluded that tribes were just arms of the federal government that owe their existence and vitality solely to the political department of the federal government.138 This view has since been echoed by scholars who claim that tribes are more adjuncts of the federal government dispensing powers with congressional authority or sufferance, rather than exercising inherent powers as selfdetermining peoples. Alfred observes that the administrative units within tribes are colonial impositions patterned after nonindigenous arrangements.139

E. SELFDETERMINATION AND SELFGOVERNMENT: A ROSE THAT DOES NOT SMELL LIKE A ROSE IS NOT A ROSE

In several federal policy statements, selfdetermination is invoked as the premise. But it has always meant selfgovernment. As Cook says, congressional emphasis seems to be most often on tribal selfgovernance even if legislations adopt the word selfdetermination in their policy statements. Clarifying the entitlements of selfgovernment, Congress provides that powers of selfgovernment means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.140 Courts acknowledge that congressional policy now seeks greater tribal autonomy within the framework of a governmenttogovernment relationship with federal agencies.141 Jurisprudence which

137. STEPHEN CORNELL, INDIGENOUS PEOPLES, POVERTY AND SELFDETERMINATION IN AUSTRALIA, NEW ZEALAND, CANADA AND THE UNITED STATES, JOINT OCCASIONAL PAPERS ON NATIVE AFFAIRS NO. 200602, at 10 (2006).

138. United States v. Wheeler, 316 U.S. 313, 319 (1942).

139. See generally TAIAIAKE ALFRED, PEACE, POWER, AND RIGHTEOUSNESS: AN INDIGENOUS MANIFESTO (1999).

140. 25 U.S.C. 1301(2) (2006).

141. United States. v. Lara, 541 U.S. 193, 202 (2004).



profusely uses tribal sovereignty limits it to selfgovernment142 regarded as one of the foundational aspects of tribal existence. Cornell cautions that it must be made clear that selfgovernment merely connotes governmental power over a limited class of persons, i.e., tribal members, whereas true sovereignty includes governmental power over territory and all persons within that territory.143 Their right of internal selfgovernment includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions.144 Federal courts regard the exercise of tribal jurisdiction as acts of selfgovernment.145

IV. SELFDETERMINATION AND SELFGOVERNMENT: SIMILAR YET DIFFERENT

A. THE DIFFERENCE BETWEEN GIFT AND RIGHT

Legal scholarship and jurisprudence on Indians surface two competing theories of tribal sovereignty. First, it is inherent and preconstitutional or older than the government of the United States. Therefore, tribal sovereignty is an exercise of rights and powers retained or reserved and not surrendered to the United States as established in Winans.146 The theory is interpreted by some scholars, thus: Tribes do not exercise rights because Congress granted them rights. Tribes exercise rights based on their original and indigenous sovereignty.147 The second theory holds that tribal sovereignty is an exercise of those powers that Congress suffers tribes to exercise as held in Wheeler. The source of tribal powers is

142. See White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); United States v. Wheeler, 435 U.S. 313 (1978); McClanahan v. Ariz. Tax Commn, 411 U.S. 164 (1973); Worcester v. Georgia, 31 U.S. 515 (1832); see also Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (regarding the exercise of tribal jurisdiction as an exercise of selfgovernment). 143. Bradley B. Furber, Two Propositions: The WheelerHoward Act As a Reconciliation of the Indian Law Civil War, 14 PUGET SOUND L. REV. 211, 218 (1991).

144. United States v. Antelope, 430 U.S. 641 (1977).

145. See Wheeler v. United States, 811 F.2d 549 (10th Cir. 1987); Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); White v. Pueblo of San Juan, 728 F.2d 1307 (10th Cir. 1984); cf. Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980) (plaintiff permitted to pursue action in district court when no tribal forum was available). The policy we adopt here is consistent with these cases.

146. United States v. Winans, 198 U.S. 371 (1905).

147. DAVID E. WILKINS & K. TSIANINA LOMAWAIMA, UNEVEN GROUND: AMERICAN INDIAN SOVEREIGNTY AND FEDERAL LAW 125 (2002).



essentially congressional authorization and these powers may be restricted or altered by Congress exercising its plenary power over Indian affairs. The tension between these two theories spells the difference between selfdetermination and selfgovernment. A gift is neither a claim nor an entitlement that may be demanded by the grantee. A right on the other hand is the correlative of duty or obligation.148 A right grounds an affirmative claim against the dutybearer which is enforceable under the law. As Feinberg put it,

Rights are not mere gifts or favors, motivated by love or pity, for which gratitude is the sole fitting response. A right is. . . something that can be demanded or insisted upon without embarrassment or shame. When that to which one has a right is not forthcoming, the appropriate reaction is indignation; when it is duly given there is no reason for gratitude, since it is simply ones own or ones due that one received.149

A right is therefore enforceable against the bearer of the obligation to respect it. In respect to duty or obligation, Kant has this to say:

Duty is the necessity of acting from respect for the law. . . . It is only what is connected with my will as a principle, by no means as an effectwhat does not subserve my inclination, but overpowers it, or at least in case of choice excludes it from its calculationin other words, simply the law of itself, which can be an object of respect, and hence a command. Now an action done from duty must wholly exclude the influence of inclination, and with it every object of the will, so that nothing remains which can determine the will except objectively the law, and subjectively pure respect for this practical law, and consequently the maxim that I should follow this law even to the thwarting of all my inclinations.150

148. See Marcus Singer, The Basis of Rights and Duties, 23 PHIL. STUD. 48 (1972).

149. JOEL FEINBERG, SOCIAL PHILOSOPHY 59 (1973).

150. IMMANUEL KANT, FUNDAMENTAL PRINCIPLES OF THE METAPHYSIC OF MORALS 18 (2007).



According to Thornberry, selfgovernment or autonomy is essentially a gift by the states . . . though it can be entrenched [and] it does not flow freely from the sources of international law as an obligation on States.151 Selfdetermination, on the other hand, is a human right.152 The primary human rights instruments that protect selfdetermination are therefore enforceable against Statesparties. Since selfdetermination is also a peremptory norm and therefore customary international law, it is enforceable against States that did not ratify it. It is independent of the outsiders recognition, and proceeds not from a positive grant of power from a government but from the people who make up the self.153

Essentially, Indian tribal sovereignty in its present contour is a gift from the federal government. Based on the Indian experience, there might be truth in what Sophocles said: The gifts of enemies are no gifts and bring no good.154 The paternalistic undercurrent in every federal policy on Indians, while it may be impelled by liberality which presumably underpins every gift or grant, actually prevents tribes from charting their own destiny and continue to facilitate full assimilation. Oliphant, decided out of concerns that Indian tribal justice may miscarry justice to the prejudice of a nonIndian, redrew the map showing the source of tribal powers. It held that tribes were shrived of their preconstitutional inherent jurisdiction the moment they surrendered to the sovereignty of the United States.155 However, such jurisdiction may be reinstated by the delegation of federal powers through congressional plenary power. The judicial logic that inspired Oliphant, which is now the controlling doctrine in criminal jurisdiction, can only proceed from the belief that Indian

151. Patrick Thornberry, SelfDetermination and Indigenous Peoples: Objections and Responses, in OPERATIONALIZING THE RIGHTS OF INDIGENOUS PEOPLES TO SELFDETERMINATION 55, 5557 (Pekka Aikio et al. eds., 2000). 152. Hurst Hannum, The Right of SelfDetermination in the TwentyFirst Century, 55 WASH. & LEE L. REV. 773, 773 (1998).

153. See Term Limits v. Thornton, 514 U.S. 779 (1995). In this case, the Supreme Court said that sovereignty is vested in the people. Sovereignty and selfdetermination while not the same, they are related. Selfdetermination is a necessary attribute of sovereign people.

154. A. J. A. WALDOCK, SOPHOCLES THE DRAMATIST 69 (1951).

155. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 209 (1978) (Upon incorporation into the territory of the United States, the Indian tribes thereby come under the territorial sovereignty of the United States and their exercise of separate power is constrained so as not to conflict with the interests of this overriding sovereignty.).



sovereignty is a federal grant, not the exercise of inherent powers.

The doctrine now is that tribal power thereby exists only at the sufferance of Congress and is subject to complete defeasance.156 Winans,157 which treated tribal sovereignty as the exercise of preconstitutional powers reserved by the tribes, has been virtually abandoned. As essentially held in Oliphant and Montana, tribes could not exercise jurisdiction over nonIndians in their territories, not because Congress stripped them of such powers, but because Congress never granted them in the first place. There is then a question of how Congress treats tribal powers over other Indians. The Supreme Court provides the answer in Wheeler: [U]ntil Congress acts, the tribes retain their existing sovereign powers.158 In essence, when tribal powers are limited to internal affairs between Indians, it is only the consequence of federal toleration and, therefore, a gift from the United States. As Carlos Ruiz Zafon aptly said, [p]resents are made for the pleasure of who gives them, not the merits of who receives them.159 The Court in Lara claims that plenary power allows Congress to treat sovereignty as a clay that can be shaped, reshaped, fragmented, or made whole.160 It is Congress prerogative to give and to curtail tribal powers.161

156. United States v. Mazurie, 419 U.S. 544 (1975); United States v. Wheeler, 316 U.S. 313 (1942).

157. United States v. Winans, 198 U.S. 371 (1905).

158. United States v. Wheeler, 435 U.S. at 323 (1978).

159. CARLOS RUIZ ZAFN, THE SHADOW OF THE WIND (Lucia Graves trans., 2001).

160. In United States v. Lara, the Court said, The political branches, drawing upon analogous constitutional authority, have made adjustments to the autonomous status of other such dependent entitiessometimes making far more radical adjustments than those at issue here. . . . Congress, with this Courts approval, has interpreted the Constitutions plenary grants of power as authorizing it to enact legislation that both restricts and, in turn, relaxes those restrictions on tribal sovereign authority. From the Nations beginning Congress need for such legislative power would have seemed obvious. After all, the Governments Indian policies, applicable to numerous tribes with diverse cultures, affecting billions of acres of land, of necessity would fluctuate dramatically as the needs of the Nation and those of the tribes changed over time. United States v. Lara, 541 U.S. at 20203. 161. The Court in Lara further said, Congress has in fact authorized at different times very different Indian policies (some with beneficial results but many with tragic consequences). Congressional policy, for example, initially favored Indian removal, then assimilation and the breakup of tribal lands, then protection of the tribal land base (interrupted by a movement toward greater state involvement and termination of recognized tribes); and it now



What are the obligations of the federal government? Since Indian selfgovernance is a gift from Congress, it does not generate obligations, except those that Congress assumes voluntarily. Plenary authority can override a treaty or agreement with the tribes.162 In fact, Congress possesses a plenary authority on all matters affecting Indians, including their form of government,163 and it can limit, modify or eliminate the powers of local selfgovernment that the tribes otherwise possess.164 The very foundation of the tribes exercise of powers is their constitutions, which they could only adopt with the permission of United States provided to them under the Indian Reorganization Act. Because selfrule was premised as a grant under Congress authority, Congress gave itself the power to impose federal oversight over the tribes. A boilerplate constitution was virtually imposed,165 and although rejected by some tribes, most tribal governments are patterned after it.166 As the Court said, the United States from the beginning permitted, then protected, the tribes in their continued internal government.167 All this was, and still is, possible because selfgovernment is a gift, not an inherent right.

B. SELFDETERMINATION IN INTERNATIONAL LAW Gudmundur Alfredsson rightly claims that international

human rights instruments do not expressly provide for a right

seeks greater tribal autonomy within the framework of a governmenttogovernment relationship with federal agencies. . . . Such major policy changes inevitably involve major changes in the metes and bounds of tribal sovereignty. The 1871 statute, for example, changed the status of an Indian tribe from a powe[r] . , , ,capable of making treaties to a power with whom the United States may [not] contract by treaty. United States v. Lara, 541 U.S. at 20203. 162. See United States v. Dion, 476 U.S. 734, 738 (1986) (citing Fong Yue Ting v. United States, 149 U.S. 698, 720 (1893)) (It is long settled that the provisions of an act of Congress, passed in the exercise of its constitutional authority, . . . if clear and explicit, must be upheld by the courts, even in contravention of express stipulations in an earlier treaty with a foreign power. This Court applied that rule to congressional abrogation of Indian treaties.).

163. See Winton v. Amos, 255 U.S. 373, 391 (1921) (It is thoroughly established that Congress has plenary authority over the Indians and all their tribal relations, and full power to legislate concerning their tribal property.).

164. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978) (Congress has plenary authority to limit, modify or eliminate the powers of local selfgovernment which the tribes otherwise possess.).

165. MATTHEW FLETCHER, AMERICAN INDIAN TRIBAL LAW 146 (2011).

166. Id. at 146.

167. Wheeler v. U.S. Dept. of Interior, 811 F.2d 548,551 (10th Cir. 1987).



to autonomy,168 that has firmly anchored in international and regional human rights instruments.169 Autonomy or selfgovernment, therefore, cannot be enforced against States, either in the domestic or international legal systems. On the other hand, selfdetermination is guaranteed under international law.

It is now settled that selfdetermination is a principle of customary international law and a jus cogens or peremptory norm.170 The International Court of Justice pronounced this in the East Timor Case171 calling the right an erga omnes obligation of States. The Court reprised this doctrine in its Advisory Opinion on the Construction of a Wall in the Occupied Palestinian Territory172 to the UN General Assembly in 2004. Being jus cogens and a peremptory norm, selfdetermination is a nonderogable right of the highest order173 and does not have to be expressed in the positive laws of States; it is already considered incorporated and enforceable as a claim in states domestic legal systems. Independent of its expression in positive law or international doctrine,174 selfdetermination has an existence in the moral order.175 The recognition of this right is implicit in every States constitution and is thus:

[A] powerful expression of the underlying

168. Gudmundur Alfredsson, Autonomy and Human Rights, in CONSTITUTIONAL AND ECONOMIC SPACE OF THE SMALL NORDIC JURISDICTIONS 34, 34 (Lise Lyck ed., 1997).

169. Id. at 40.

170. See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 515 (4th ed. 1990).

171. Case Concerning East Timor (Port. v. Austl.), 1995 I.C.J. 90, 102 (June 30).

172. Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, including in and around East Jerusalem, G.A. Res. ES10/15, 10th emergency special sess., U.N. Doc. A/RES/ES10/15 (Aug. 2, 2004). 173. Maivan Clech Lam, Indigenous Peoples Right to SelfDetermination and Territoriality, in HUMAN RIGHTS IN THE WORLD COMMUNITY: ISSUES AND ACTION 148, 155 (Richard Pierre Claude & Burns H. Weston eds., 2006).

174. See, e.g., ICCPR, supra note 55; see also ICESCR, supra note 55; United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007), 46 I.L.M. 1013 (2007) [hereinafter UNDRIP].

175. Charles Beitz, Human Rights and the Law of Peoples, in THE ETHICS OF ASSISTANCE MORALITY AND THE DISTANT NEEDY 196 (Deen K. Chatterjee ed., 2004) (take note however that Beitz himself considers this an orthodox view of human rights which he rejects as he believes in a practical conception of human rights).



tensions and contradictions of international legal theory: it perfectly reflects the cyclical oscillation between positivism and natural law, between an emphasis on consent, that is voluntarism, and an emphasis on binding objective legal principles, between a statist and communitarian vision of world order.176

In the United States, it is settled that customary international law is regarded as federal common law177 and is therefore part of the supreme law of the land. Indians may therefore sue in the courts to enforce their selfdetermination rights. However, such suits are limited to their rights within domestic law. On the other hand, they may sue to enforce all rights which are entitlements of selfdetermination, whether or not positive law expressly provides them. Independent of its being customary law, selfdetermination is explicitly recognized under international law. Both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), two covenants which form part of the International Bill of Rights, identically provide: All peoples have the right of selfdetermination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.178 The same provision is in the Declaration on the Rights of Indigenous Peoples (UNDRIP)179 which the United States recently adopted,180 reversing its dissent registered when the landmark instrument on indigenous rights was presented to the UN General Assembly in 2007.181

176. ANTONIO CASSESE, SELFDETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL (New York: Cambridge University Press, 1995).

177. See Filartiga v. PenaIrala, 630 F.2d 876, 885 (2nd Cir. 1980); see also Estate of Ferdinand E. Marcos v. Marcos, 978 F.2d 493, 502 (9th Cir. 1992); see also Louis Henkin, International Law as Law in the United States, 82 MICH. L. REV. 1555, 156062 (1984). 178. See ICCPR, supra note 55, art. 1; see also ICESCR, supra note 55, art. 1.

179. See UNDRIP, supra note 174, art. 3 (Indigenous peoples have the right to selfdetermination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.). 180. International Forum on Globalization, US Announces its Support of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), http://ifg.org/programs/indig/USUNDRIP.html (last visited January 28, 2013).

181. See Press Release, UN General Assembly, General Assembly Adopts



While the United States has not ratified the ICESCR, it has ratified the ICCPR which came into force on 8 September 1992,182 making the treaty part of the supreme law of the land.183 It is worth noting that the United States ratification was subject to the declaration that the ICCPR is not selfexecuting, implying that that an enabling legislation is a sine qua non for the direct enforcement of the treaty in U.S. courts. It is, however, correctly observed that this attempt to undermine the efficacy of the ICCPR is void, since it diametrically opposes the ICCPRs object and purpose to promote human rights.184 Debates as to whether the United States declaration is binding is an academic exercise.

Documents

Fraternal Twins with Different Mothers: Explaining Differences between Self– Determination and Self–Government Using the Indian Tribal Sovereignty Model as Context