International Responsibility for Human Rights Violations by American Indian Tribes

The American Indian tribes have a unique status in the law of the United States. They are characterized as ‘sovereigns’ that predate the formation of the republic and possess inherent powers and immunities. Their powers permit them to create and enforce laws and generally to operate as autonomous governmental entities with executive, legislative, and judicial branches. They enjoy immunity from suit and exemption from federal and state constitutional provisions which protect individual rights. These powers and immunities provide a connection between tribal governments and US international human rights obligations. This essay explores this connection. It examines whether the tribes may breach the international human rights obligations of the US, whether the tribal violations may incur US international responsibility, and if so, what consequences might result. It constructs an argument that the US has failed to implement fully its international human rights obligations and that it can be held internationally responsible for tribal violations of human rights. This argument leads to policy recommendations for the US and tribal governments. International Responsibility for Human Rights Violations by American Indian Tribes ii TABLE OF CONTENTS Abstract i List of Abbreviations iii Table of Cases iv Table of Treaties and Other International Documents vi Table of National Laws and Other National Documents vii A INTRODUCTION 1 B STATUS OF AMERICAN INDIAN TRIBES IN MUNICIPAL LAW 2 C TRIBAL VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS OBLIGATIONS BINDING ON THE UNITED STATES 7 1 International Human Rights Obligations 7 2 US Implementation of its Human Rights Obligations 8 3 Tribal Human Rights Violations 14 D DOMESTIC REMEDIES FOR TRIBAL VIOLATIONS 19 1 Access to Courts 19 2 Substantive Remedies 23 E ATTRIBUTION OF TRIBAL VIOLATIONS TO THE UNITED STATES 27 1 Tribes as State Organs 27 2 Tribes as Entities Exercising Governmental Authority 31 3 Tribes as Private Entities 32 4 Tribal Agents Exceeding Authority 36 F POTENTIAL INTERNATIONAL REMEDIAL MECHANISMS 37 G CONCLUSION 42 Bibliography 45 International Responsibility for Human Rights Violations by American Indian Tribes iii LIST OF ABBREVIATIONS ACHR American Convention on Human Rights AJCL American Journal of Comparative Law AJIL American Journal of International Law EJIL European Journal of International Law CAT Committee Against Torture CERD Convention to End All Forms of Racial Discrimination Cherokee JAT Cherokee Nation Judicial Appeals Tribunal Cong Rec Congressional Record (US) CUP Cambridge University Press FR Federal Register (US) HRC Human Rights Committee IACHR Inter-American Commission on Human Rights IACtHR Inter-American Court of Human Rights ICAT International Covenant Against Torture and Other Cruel, Inhuman or Degrading Treatment ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICRA Indian Civil Rights Act of 1968 (US) ILC International Law Commission ILR Indian Law Reporter (US) KJLPP Kansas Journal of Law and Public Policy L Ed Lawyers’ Edition Supreme Court Reporter Okla Trib Oklahoma Tribal Court Reporter OAS Organization of American States OUP Oxford University Press RIAA Reports of International Arbitral Awards S Ct Supreme Court Reporter USSC Supreme Court of the United States of America VCCR Vienna Convention on Consular Relations UN United Nations UNGA United Nations General Assembly UNTS United Nations Treaty Series US United States of America International Responsibility for Human Rights Violations by American Indian Tribes iv