Buy Back Violates International Human Rights
Under these international laws, American indigenous peoples enjoy an inviolable and sacred right to full enjoyment of their allotted or restricted fee lands. Under any legal measure, a tribal member’s land rights cannot be taken unless under the condition of just and prior indemnity or compensation. But, critically, unlike non-indigenous peoples’ property rights, lands owned by indigenous peoples cannot simply be taken “for public use” or when “demanded by public necessity.” Indeed, the Annex to the UNDRIP recognizes the unique relationship between indigenous peoples and their homelands vis-à-vis indigenous peoples’ “cultures, spiritual traditions, histories and philosophies.” Thus, Article 10 of UNDRIP proclaims that indigenous lands can only be taken upon the “free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation.”
While Article 10 of UNDRIP contemplates collective rather than individual indigenous land and occupancy rights, the point remains. Along with the United States-endorsed human right that American indigenous peoples not be forcibly removed from their lands absent those peoples’ free, prior and informed consent, comes a corollary responsibility: the responsibility of those same American indigenous peoples — tribal governments — to not forcibly remove their members from their lands absent those members’ full consent. Domestic law is in harmony with Article 10, mandating that “individual Indian owner of trust lands . . . give truly informed consent to the sale of trust corpus.” Cobell v. Norton, 225 F.R.D. 41, 46 (D.D.C. 2004).
Article 46(2) of the UNDRIP requires tribal governments in America to respect all human rights while exercising their rights under the Declaration: “In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected.” In addition, Article 34 states that “[i]ndigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs . . . traditions, procedures . . . in accordance with international human rights standards.” Thus, UNDRIP imposes the duty to respect individual indigenous human rights directly upon tribal governments themselves, including through land acquisition or “consolidation” practices and procedures.
The responsibility of tribal governments was recently well explained by the Special Rapporteur on the Rights of Indigenous Peoples:
[The] wide affirmation of the rights of indigenous peoples in the Declaration does not only create positive obligations for States, but also bestows important responsibilities upon the rights-holders themselves. This interaction between the affirmation of rights and the assumption of responsibilities is particularly crucial in areas in which the Declaration affirms for indigenous peoples a large degree of autonomy in managing their internal and local affairs. . . . In exercising their rights and responsibilities under the [Declaration], indigenous peoples themselves should be guided by the normative tenets of the Declaration.
The internationally recognized duty of tribal governments to not violate tribal members’ inviolable and sacred individual lands, coupled those tribes’ own laws, customs, and traditions prohibiting non-consensual acquisition such lands, may be judicially enforceable against American tribal officials under Ex parte Young, 209 U.S. 123 (1908). In addition, because “host nations are ultimately responsible to all their respective citizens for individual rights,” federal liability can attach to any forced Indian “buy back” that violates international human rights norms. Collective v. Individual Human Rights in Membership Governance for Indigenous Peoples, 26 Am. U. Int’l L. Rev. 485 (2011). Indeed, “common law claims based on the present-day law of nations” can be brought against Interior and its offending officers, per the federal Administrative Procedure Act. U.S. v. Dire, 680 F.3d 446 (4th Cir. 2012).
In December 2010, the State Department further proclaimed that “U.S. support for the Declaration goes hand in hand with the U.S. commitment to address the consequences of a history in which, as President Obama recognized, ‘few have been more marginalized and ignored by Washington for as long as Native Americans — our First Americans.’” Sadly, this rhetoric appears to be just words. The United States is now again poised to again remove the First Americans from their lands, and Interior officials are, as they have for the last 125 years, marginalizing tribal members.
Gabriel S. Galanda is the managing partner at Galanda Broadman, PLLC, an American Indian owned law firm. www.galandabroadman.com
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