Does UNDRIP Matter?: Indian Law in the United States & the International Right to Self-Determination

Date01 January 2014
Does UNDRIP Matter?: Indian Law in
theUnited States & the International
Rightto Self-Determination
Part A. Introduction
The United States has recognised the sovereignty of Indigenous tribal nations
within the United States since the early 1800s1 and has explicitly recognised
a right to self-determination for Indigenous peoples of the United States
since the 1970s.2 The exact nature of this right, however, has been the focus
of much scholarly debate both in the United States and around the world.3
Erosions in the nature of U.S. tribal sovereignty since the early 1980s
coupled with an accelerating development of the international principle of
self-determination call the extent and nature of Indian4 self-determination
into question. Accordingly, this paper seeks to explore three key issues.
First, what is the nature and scope of the right to self-determination for the
Indigenous peoples of the United States? Second, does the United States’
version of tribal self-determination meet its obligations under international
law (in particular, under the U.N. Declaration on the Rights of Indigenous
Peoples)? Finally, how do recent developments in international law affect
the Indigenous right to self-determination in the United States?
Part B of this paper will provide a brief overview of the current state
of the international principle of self-determination and its relationship
to the United States. Part C will describe the current state of Indian law,
with emphasis on how the special relationship between states, tribes, and
* LLM, London School of Economics; JD, University of Southern California; BA,
University of Washington
1 William Canby, Jr., American Indian Law in a Nutshell, 5th edn (Minnesota: West
Publishing, 2009), p.4
2 Ibid, p.22
3 See e.g. Nichole Friedrichs, “A Reason to Revisit Maine’s Settlement Acts: The United
Nations Declaration on the Rights of Indigenous Peoples” (2010–2011) 35 American
Indian Law Review 497; Julie Anne Fishel, “United States Called to Task on Indigenous
Rights: The Western Shoshone Struggle and Success at the International Level” (2006–
2007) 31 American Indian Law Review 619; Judith Kimberling, “Oil, Contact, and
Conservation in the Amazon: Indigenous Huaorani, Chevron, and Yasuni” (2013) 24
Colorado Journal of International Environmental Law and Policy 43; see generally
Anaya, infra note 5.
4 Although the term “Indian” is neither ethnologically nor politically correct in referring
to the Indigenous peoples of the United States, the body of law governing those people
is known as Indian Law, so I will continue to refer to it as such in this paper.
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120  
the federal government affect tribal sovereignty. Part D will examine the
case of the Western Shoshone Nation and its decades-long dispute with the
U.S. federal government in an attempt to draw attention to both static and
dynamic characteristics of Indian law in the context of the international
right to self-determination. Part E will combine the information presented in
the previous sections to argue that the current state of U.S. Indian Law does
not live up to the U.S.’s self-determination obligations under international
law, but that (notwithstanding ambiguities regarding international law’s
authority in matters of Indian Law) the international right to self-deter-
mination—especially as articulated in UNDRIP—may provide support for
greater tribal self-determination in the future. Part F concludes.
Part B. The International Law of Self-Determination and the
Rights of Indigenous Peoples
The International Law of Self-Determination: Internal and External Self-
The concept of self-determination is rooted in a “philosophical afrmation
of the human drive to translate aspiration into reality.5 It arose globally,
with elements traceable in almost every social arrangement in recorded
history, but the term “self-determination” rose to prominence in the after-
math of WWI. It was embraced rst by Woodrow Wilson, then by Lenin,
and later by Stalin in the aftermath of WWII.6 Following its articulation in
the United Nations Charter, it has been used as a measure of governmental
legitimacy, not separate from the rights of people under governance, but
rather expressed through them as a sort of right to assert inherent rights.7
Nevertheless, its precise denition and its implications for Indigenous
peoples remains problematic.8
The U.N. Charter mentions the principle of self-determination in articles
1(2) and 55. 9 These articles propose that friendly relations between nations
“be based on respect for the principle of equal rights and self-determination
5 S. James Anaya, Indigenous Peoples in International Law, 2nd edn (Oxford: Oxford
University Press, 2004), p.98
6 Ibid, p.99
7 Ibid, p.101
8 Ibid, pp.97–128; see also Hurst Hannum, Autonomy, Sovereignty, and Self-Determination:
The Accommodation of Conicting Rights, rev. ed. (Philadelphia: University of
Pennsylvania Press), p.27 (“Perhaps no contem porary norm of international law
has been so vigorously promoted or widely accepted as the right of all peoples to
self-determination. Yet the meaning and content of that right remain as vague and
imprecise as when they were enunciated by President Woodrow Wilson and others
at Versailles.”); Mitchell A. Hill, “What the Principle of Self-Determination Means
Today” (1995) 1 International Law Students Association Journal of International and
Comparative Law 119, p.120
9 United Nations Charter art. 1 and 55
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