Presented in Geneva for the UN High Commissioner on Human Rights:
American Indian Treaties The Consultation Mandate
We opposed this “lecture” to Indigenous leaders who had done international work for years by a lawyer speaking only about US Federal Indian Law, the authority used by the USA to oppress us. We apologized to him personally, but could not let this obvious attempt to undermine traditional leadership in favor of colonial power.
I commend the tireless work of American indigenous leaders in the realm of international law and justice. I am a Johnny Come Lately to that realm and to Geneva; I do not profess to be an expert in that realm. With respect, though, I submit that the demise of domestic enforceability of international indigenous rights norms against the State, and the corollary opportunity to seek redress in international forums for the State’s domestic breach of those norms, have been greatly exaggerated. Taking such norms, most notably the UNDRIP, together with federal laws like Indian Treaties, statutes like Section 106 and/or federal agency policy, and the APA can yield, and has yielded, results for American indigenous peoples in “colonial” courts. Further, although American Indian consultation for example is deemed a purely “procedural duty,” when any or all such international and domestic laws are wielded properly against the State before U.S. District Courts, a de facto veto right sounds, as illustrated by the Quechan preliminary injunction decision in late 2010. In that way, domestic remedies begin to mirror the “prior, free and informed consent” mandate of the UNDRIP. Finally, results such as those obtained by Quechan are far more readily obtainable in domestic courts than in international tribunals, particularly given the need to exhaust domestic remedies before proceeding internationally. Indeed, juxtapose the TRO and preliminary injunction relief that Quechan obtained in a matter of weeks, with the decades-long and infinitely expensive legal battles that must be fought before a remedy, if any, can ever be obtained internationally. In any event, I am pleased to be a part of the old-new debate about domestic enforceability of international indigenous rights norms against the State.
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