Robert Coulter, the founder and executive director of the Indian Resource Law Center (IRLC), reminded us Monday that the field of Indian Law is a shamefully late addition to the field of international human rights, and to in the development of law in general. If the talk had been titled How the Native Americans Fell Through The Cracks, it may have explored the bigotry of the discovery doctrine as enshrined by U.S. Supreme Court Justice John Marshall (the natives never owned the land but simply inhabited it, and the civilizing conquerors have a paternalistic power relationship with them.) It also may have attributed the early latency of international human rights norms to recognize collective peoples’ rights as the weakness inherent in a system enforced by existing states, with no allowance for true self-determination of peoples. But in the time allotted, Coulter chose wisely to let the current state of things speak for itself. If ever we were under an illusion that we live in an enlightened era of equality in the eyes of the law, the fact that Indian nations are still receiving a shockingly low level – if any – of protection under most national constitutions says otherwise. What is being done about it?
Coulter’s Center, and principally Coulter himself, are responsible for the revolution in the law and social consciousness vis-à-vis indian tribes and nations. (Note that even using this term ‘nation’ is framing the issue in a very decisive way.) He wrote the original draft of the UN Declaration on the Rights of Indigenous Peoples, and thirty years later it was adopted by the UN General Assembly. (Also note that UN declarations are not directly binding, so since it took three decades to even get that accomplished, one gets a sense of just how threatening it is to the current regime to recognize peoples’ rights and not just individuals’ rights.) IRLC was the first to bring an indigenous rights complaint to the Inter-American Commission on Human Rights and also the first to lodge a complaint against the U.S. with the Commission for violations of indigenous rights.
For instance…
In Yanomami v. Brazil, the Commission recognized the duty of the Brazilian government to demarcate (recognize and protect) the Yanomami tribe’s land. In Tingni v. Nicaragua the Inter-American Court ruled that an indigenous tribe has a right to own the resources that it traditionally uses in its culture. In Mary & Carrie Dann v. U.S., the Commission ruled that the U.S. had violated the Shoshone tribe’s right to due process of law by taking away its land without any compensation. (Even though the U.S. has not accepted jurisdiction of the Inter-American Court on Human Rights, having ratified the Inter-American Charter on Human Rights, it is subject to decisions by the Commission, which functions like a court.) These and more were all brought by the IRLC in the Inter-American system. Coulter expressed serious doubt that the term ‘jurisprudence’ could be applied to describe the progress of “Indian Law” because precedent of former decisions are not binding on future ones by the Commission or the Court. That said, judgments like these provide a solid framework of interpretation of the rights guaranteed by the American Convention as applied to Indigenous People, and thus empower communities to stand up to defend/claim what is theirs by right, not by the grace of the State.
More so than in any other area of law, to study the development of justiciable human rights reminds lawyers and law students alike that the law is not static, not brought down from the mountain set in stone. To illustrate, Coulter used the Hegelian concept Aufgehoben, which means something like ‘the thing is becoming what it is not yet.’ And in his deep, resonate voice that would have done well as the father figure of the nightly news had he not been so successful as a lawyer, Coulter asserted that the injustices borne by indigenous populations throughout our hemisphere are shameful not only in degree of violation but in the unapologetically unequal application of the law to prevent or remedy them. Good night and good luck.
Jim Milles
lawirth2
SUNY Buffalo Law School
