Fraternal Twins With Different Mothers: Explaining Differences Between Self - Determination and Self-Government Using The Indian Tribal Sovereignty Model As Context

Cheryl Daytec
22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)
Article
Fraternal Twins with Different Mothers:
Explaining Differences between Self
Determination and SelfGovernment Using the
Indian Tribal Sovereignty Model as Context
Cheryl L. Daytec*
Federal Indian policy is, to say the least, schizophrenic.
And this confusion continues to infuse federal Indian
law and our cases.1
Justice Clarence Thomas
Its not the package and the wrapping which counts but
what is inside, underneath the clothes and the skin.
Lame Deer, Lakota
I. INTRODUCTION
In the United States, there are more or less 565 federally
recognized Indian tribes,2 excluding the Alaska Native Peoples.
Nineteenth century jurisprudence is characterized by judicial
rhetorical flourishes on their sovereignty predating
colonization. To provide a legal and, perhaps, moral anchor for
colonial divestiture of their preexisting tribal powers, the 19th
century Supreme Court essentialized Indians as domestic
*
201213 Hubert Humphrey Fellow, University of Minnesota Law
School, Minneapolis, Minnesota; Litigation and Research Officer, Cordillera
Indigenous Peoples Legal Center, Philippines; Founding Member, National
Union of Peoples Lawyers, Quezon City, Philippines; Associate Professor, St.
Louis University, Baguio City, Philippines. Ms. Daytec holds LL.M, J.D., M.M,
and B.A.C. degrees, and is a member of the Kankanaey People of Northern
Luzon, an indigenous group in the Philippines. Many thanks to Dr. Paul
Bloom, University of Minnesota, for his insights.
1. United States v. Lara, 541 U.S. 193, 219 (2004) (Thomas, J.,
concurring).
2. U.S. GOVT ACCOUNTABILITY OFFICE, GAO12348, INDIAN ISSUES:
FEDERAL FUNDING FOR NONFEDERALLY RECOGNIZED TRIBES 6 (2012),
available at http://www.gao.gov/assets/600/590102.pdf.
25
Cheryl Daytec
26
MJIL HUMPHREY SUPPLEMENT
[Vol 22
dependent nations3 in a state of pupilage under the United

States, with reserved rights of sovereignty over their internal
affairs. Hoisting a paternalistic trident, the Supreme Court
warded off state incursion into Indian reservations,4 shooed
away the state taxman,5 fenced out of Indian land the statute
books of the states,6 and decreed that even federal laws could
not be applied to Indians without congressional permission.7
Affirming the inherent sovereignty of tribes was, and still is, a
recurrent judicial mantra as though it is a building block of a
decision that conforms to the Courts theory of justice or that is
acceptable to the tribes.
In recent history, indigenous movements all over the world
organized into a global force and became victorious in pushing
the international community to develop an international
human rights regime that recognized their right of self
determination, which is probably the highest of all group
rights. Before indigenous peoples gained international status
and succeeded in getting their selfdetermination claims
recognized, selfdetermination was already a keyword in
federal Indian policies. One writer said that United States
policymaking has liberally appropriated the word into
legislation, policy statements, and opinions with random
fervor . . . as though [it] is a magical incantation which, by its
mere utterance, will render a policy perfect.8
It is said that in the United States, the movement toward
selfdetermination, which resulted in the reversal of
3. DAVID E. WILKINS, AMERICAN INDIAN POLITICS (2002).
4. See generally Ex Parte Kangishunca, 109 U.S. 556 (1883)
[hereinafter Crow Dog]; Cherokee Nation v. Georgia, 30 U.S. 1 (1831).
5. See Elk v. Wilkins, 112 U.S. 94, 99100 (1884) (Indians and their
property, exempt from taxation by treaty or statute of the United States, could
not be taxed by any state.); see also In re Kansas Indians, 72 U.S. 737 (1866).
6. See Williams v. Lee, 358 U.S. 217, 222 (1959) (holding Arizona courts
did not have authority over Indian dispute in Arizona); In re Kansas Indians,
72 U.S. at 738 (holding that Kansas courts did not have jurisdictions over
tribal organizations in Kansas).
7. See David H. Getches, Conquering the Cultural Frontier: The New
Subjectivism of the Supreme Court in Indian Law, 84 CAL. L. REV. 1573, 1573
(1996); see also Worcester v. Georgia, 31 U.S. 515, 51819 (1932); Elk v.
Wilkins, 112 U.S. at 367; Crow Dog, 109 U. S. at, 398; In re Kansas Indians,
72 U.S. at 738; Cherokee Nation, 30 U.S. at 5. But see The Cherokee Tobacco
Case, 78 U.S. 616 (1870) (implying that general federal laws are effective in
Indian reservations in the absence of a congressional act or treaty to the
contrary).
8. See Samuel R. Cook, What is Indian SelfDetermination? 3 RED INK 1
(May 1994).
Cheryl Daytec
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INDIAN TRIBAL SOVEREIGNTY
27
termination
policies,
began
during
the
Kennedy
administration.9 In 1961, the Declaration of American Indian
Purpose, asserting indigenous selfdetermination was
submitted by the National Congress of Native Americans to
President Kennedy.10 In response, the Kennedy administration
committed that treaty and contractual relationships of the
government with the Indians would not be altered without
their consent and that their cultural heritage and land base
would be protected.11 In his March 1968 address to Congress,
President Johnson, pushed for a [federal] policy of maximum
choice for the American Indian: a policy expressed in programs
of selfhelp, selfdevelopment, and selfdetermination.12 The
support for Indian selfdetermination reached its height
during the Nixon administration. President Nixon called on
Congress to end the termination era and reaffirmed the trust
responsibility13 of the federal government to the tribes. He also
pushed for legislations supporting tribal autonomy.14 This push
culminated in the passage of the Indian SelfDetermination
and Education Assistance Act in 1975. 15 The Act admits that
federal domination of tribes stifled selfgovernment and
development, and that Indian people will never surrender
their desire to control their relationships both among
themselves and with nonIndian governments, organizations,
and persons.16 It considers assuring maximum Indian
9. DAVID H. GETCHES, ET AL., CASES AND MATERIALS ON FEDERAL
INDIAN LAW 224 (4th ed. 1998).
10. Declaration of Indian Purpose, in RED POWER: THE AMERICAN
INDIANS FIGHT FOR FREEDOM 13, 1314 (Alvin M. Josephy, Jr. et al. eds., 2d
ed. 1999).
11. See INDIANS OF NORTH AMERICA, DECLARATION OF INDIAN PURPOSE:
THE VOICE OF AMERICAN INDIANS, Items 62, 11 (1961).
12. Lyndon B. Johnson, President of the United States, The Forgotten
American: The Presidents Message to the Congress on Goals and Programs
for the American Indian at United States Congress (March 6, 1968) (transcript
available in DOCUMENTS OF UNITED STATES INDIAN POLICY 249 (Francis Paul
Prucha ed., 3d ed. 2000)).
13. Cherokee Nation v. Georgia, 30 U.S. 1, 14 (1831) (acknowledging a
trustlike relationship between the U.S. federal government and Indian
tribes).
14. See Cook, supra note 8.
15. ALASKA GOVERNANCE TASK FORCE, SELF GOVERNANCE AND
DETERMINATION (2004) (noting that President Nixons administrations
continuing advocacy for Native Americans provided the impetus for the
passage
of
the
Indian
SelfDetermination
Act),
available
at
http://www.alaskool.org/resources/anc2/ANC2_Sec5.html.
16. 25 U.S.C. 450 (2012).
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28
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participation in the direction of educational as well as other

Federal services to Indian communities as a discharge of the
United States obligation to respond to the strong expression of
the Indian people for selfdetermination.17
The negative vote of the United States on the United
Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP), despite the fact that there are many federal policy
statements and laws using the term selfdetermination,
surfaced the fact that indigenous selfdetermination under
international law is not on the same page as selfdetermination
under federal Indian policies. Despite claims that Indian tribes
are a third form of government in the United States, aside from
the federal and state governments,18 with a nationtonation
relationship19 with the federal government, some scholars
pejoratively describe them as private clubs20 and glorified
fraternal organizations.21 The words sovereignty and self
determination affirmed in laws, policies, and jurisprudence of
the United States are in reality substitutes for participation in
decisionmaking processes at the minimum or selfgovernment
or autonomy at the maximum.
In Montana v. United States,22 the Court stressed that the
exercise of inherent tribal sovereignty is limited to what is
necessary for selfgovernment or to control internal relations.
17. 25 U.S.C. 450a (2012) (Recognition of obligation of United States.
The Congress hereby recognizes the obligation of the United States to respond
to the strong expression of the Indian people for selfdetermination by
assuring maximum Indian participation in the direction of educational as well
as other Federal services to Indian communities so as to render such services
more responsive to the needs and desires of those communities.).
18. N. BRUCE DUTHU, AMERICAN INDIANS AND THE LAW 36 (2008);
Sandra Day OConnor, Lessons from the Third Sovereign: Indian Tribal
Courts, 33 TULSA L.J. 1, 1 (1997).
19. Philip M. Kannan, Reinstating Treaty Making with Native American
Tribes, 16 WM. & MARY BILL RTS. J. 809, 810 (2008) (citing a notice of
Department of Justice Policy on Indian Sovereignty and Governmentto
Government Relations with Indian Tribes, available at 61 FED. REG. 29, 424
(June 1, 1995)).
20. Joseph P. Kalt & Joseph William Singer, Myths and Realities of Tribal
Sovereignty: The Law and Economics of Indian Self Rule, HARVARD
UNIVERSITY JOHN F. KENNEDY SCHOOL OF GOVERNMENT FACULTY RESEARCH
WORKING PAPERS SERIES , 18 (March 2005).
21. See Robert N. Clinton, There is No Federal Supremacy Clause for
Indian Tribes, 34 ARIZ. ST. L. J. 113, 21423 (2002).
22. See Montana v. United States, 450 U.S. 544, 564 (1981) (holding right
to selfgovernment did not give Crow Indian Tribe pass binding regulation on
how nonIndians used Big Horn Riven).
Cheryl Daytec
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29
This sentiment has been echoed in the Montana progeny

cases.23 To some scholars, there is no difference between self
government and selfdetermination. They argue that
indigenous selfdetermination means autonomy and
participation in the life of the States.24 However, the two
terms, although sharing family resemblance, are distinct from
each other and States are fully cognizant of this. Thus, during
the drafting process of the UNDRIP, 25 States were adamant to
replace the term selfdetermination or to narrowly define it to
mean selfgovernment and autonomy.26 The United States,
Australia, Canada, and New Zealand dissented to the
UNDRIP27 when it was presented for voting before the UN
General Assembly in 2007, because of the word self
determination.28 They articulated their apprehension that the
UNDRIP could be misrepresented as conferring a right of
possible secession and minority groups . . . could . . . exploit [it]
to claim the right to selfdetermination, including exclusive
control of their territorial resources,29 notwithstanding that
the Declaration plainly provides that it does not sanction
secession.30 The HRC also noted in its 2000 Concluding
23. I refer to those subsequent cases which relied on Montana v. United
States. See, e.g., Plains Commerce Bank v. Long Family Land & Cattle Co.,
554 U.S. 316, 337 (2008) (Even then, the regulation must stem from the
tribe's inherent sovereign authority to set conditions on entry, preserve tribal
selfgovernment, or control internal relations.); Atkinson Trading Company
v. Shirley, 532 U.S. 645, 658 (2001) (noting that Indian sovereignty is
governed by the limited concept of selfgovernment.); Nevada v. Hicks, 533
U.S. 353, 357 (2001); and Brendale v. Confederated Tribes, 492 U.S. 408, 409
(1989).
24. ALEXANDRA XANTHAKI, INDIGENOUS RIGHTS AND UNITED NATIONS
STANDARDS: SELF DETERMINATION, CULTURE AND LAND 28283 (2007) (noting
that the definition described in the quote is an approach possible in the
current international legal land scape and more amenable to States); see also
Douglas Sanders, Is Autonomy a Principle of International Law?, NORDIC
JOURNAL OF INTERNATIONAL LAW 1, 1721 (1986).
25. See G.A. Res. 61/195, U.N. Doc. A/RES/61/195 (Oct. 2, 2007) (adopted
with a vote of 143 in favor and 4 against, with 11 abstentions).
26. See Christian Emi & Marianne Jensen, Editorial, INDIGENOUS
AFFAIRS: SELFDETERMINATION 3, 4 (2001).
27. They were the only dissenting States. All of them have subsequently
adopted the UNDRIP.
28. Office for the High Commr of Human Rights, Concluding
Observations of the Human Rights Committee: Australia, U.N. Doc. A/55/40,
498538 (Jul. 24, 2000) [hereinafter Concluding Observations, Australia].
29. Id.
30. UN Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295,
U.N. Doc. A/RES/61/295, art. 46(1). The Declaration provides: Nothing in this
Cheryl Daytec
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Observations on Australia31 that the State party prefers self

management and selfempowerment to selfdetermination to
express domestically the principle of indigenous peoples
exercising meaningful control over their affairs.
While sharing the same gene pool, selfdetermination and
selfgovernment or autonomy do not have identical DNA. This
paper advances four reasons: First, selfdetermination is an
inherent right, whereas selfgovernment is a grant. Clearly,
the Supreme Court has since abandoned what for a long time
was the gospel truth about Indian tribes: they possessed
inherent rights of sovereignty which they may exercise unless
curtailed by a treaty or Congress. Lone Wolf v Hitcock,32
Oliphant v. Suquamish Indian Tribe,33 and their derivative
cases effectively hold that Indian tribes only have power that
Congress has delegated to them through congressional plenary
power. Second, selfdetermination is explicitly recognized
under international law as a right of peoples, with the status of
a jus cogens norm. Although selfgovernment is the political
aspect of selfdetermination, it is not by itself the self
determination which States are obliged to recognize as a right
of peoples within their polities. In fact, the term does not
appear in any of the provisions of the International Covenant
on Civil and Political Rights (ICCPR). Third, selfgovernment
is a democratic entitlement to participate in the processes of
the majority who rule the democratic space, which can operate
against selfdetermination. As the Supreme Court said in
California Democratic Party v. Jones,34 a foundational
constitutional doctrine is the eminently democratic principle
thatexcept where constitutional imperatives intervenethe
majority rules. Indigenous peoples are always a political
minority and they cannot be equal players in the majority
rules arena. Selfdetermination on the other hand is the
Declaration may be interpreted as implying for any State, people, group or
person any right to engage in any activity or to perform any act contrary to the
Charter of the United Nations or construed as authorizing or encouraging any
action which would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent States.
31. See Concluding Observations, Australia, supra note 28, 498538.
32. See Lone Wolf v. Hitchcock, 187 U.S. 553, 56568 (1903) (holding that
a treaty did not limit Congresss ability to administer the property of Indians).
33. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 20910 (1978)
(holding Indian tribunal courts could not punish nonIndians absent
Congressional authorization).
34. California Democratic Party v. Jones, 530 U.S. 567, 584 (2000).
Cheryl Daytec
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31
shelter of indigenous peoples from the rule of the majority

which might harm their interest as minorities. In the United
States, selfdetermination policies are profuse with Indian
participation in planning of policies but ultimately decisions
are made by the federal government acting for the majority
that rules. Fourth, selfgovernment does not necessary entitle
the selfgoverning entity sovereignty over natural resources
whereas selfdetermination protects the peoples right to its
natural resources. Indian tribes are not actually owners of their
ancestral lands. The United States is, and indigenous peoples
are mere usufructuary owners. Exercising plenary powers, the
federal government may sell or condemn tribal lands in favor of
outsiders.
Part I briefly traces the legal and normative underpinnings
of selfdetermination and its historical context. It argues that
the Constitution provides a solid argument for indigenous self
determination. It also explores justifications for the recognition
of indigenous peoples as peoples. Part II reviews the evolution
of the concept of tribal sovereignty as the power of distinct,
political entities that are at the same time domestic dependent
nations. It follows the judicial terrain beginning from the
beginning of the reserved rights doctrine first articulated in
United States v. Winans35 to its mutation into the
congressional plenary power doctrine improvised in Lone Wolf
but sharpened into the congressionalgrant doctrine in
Oliphant. It also looks at the selfdetermination era in the
United States. Both parts are necessary to lay down the
premise for comparing selfgovernment and selfdetermination
using the Indian tribes experiences as the context.
Part III explores the differences between self
determination and selfgovernment or autonomy. Part IV
offers the conclusion that if the judiciary is to be a meaningful
instrument toward the realization of Indian self
determination, it should revisit the constitutional norms
supporting it which offers a wide room for doctrinal reversal
and embrace of a new one.
35. United States v. Winans, 198 U.S. 371, 381 (1905).
Cheryl Daytec
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II. THE LEGAL UNDERPINNINGS OF INDIGENOUS SELF

DETERMINATION: HISTORY OF STRUGGLE FOR
INTERNATIONAL LAW RECOGNITION OF INDIGENOUS
SELFDETERMINATION
Prior to colonization, indigenous peoples existed for
thousands of years in the territories they presently inhabit. For
most of the 20th century, indigenous peoples were
paternalistically treated as mere objects and not subjects of
international and domestic laws.36 Until 1967, indigenous
peoples were regarded as part of the flora and fauna and not
counted as persons in Australia.37 In the Philippines,
indigenous populations were called nonChristian tribes.38 In
the United States, even if Indians became citizens under the
Indian Citizenship Act of 1924, it took decades before they were
allowed to vote.39 The aftermath of decolonization in the mid
20th century saw the rise of movements demanding minority
and group rights. Indigenous peoples pushed their agenda
using minority rights regimes. In Asia and Africa, former
colonies embarked on nationbuilding and constitutional
projects. Unfortunately, homeland groups distinct from the
majority of the colonized were left out.
Indigenous peoples entered the age of rights in
international law as mere silhouettes in the human rights
discourse. In 1957, the International Labour Organisation
Convention 10740 was adopted by the international community.
Criticized for its assimilationist policies,41 ILO Convention 107
36. Lee Swepston, Indigenous Peoples in International Law and
Organizations, in INTERNATIONAL LAW AND INDIGENOUS PEOPLE 53 (Joshua
Castellino et al. eds., 2005).
37. 1967 Referendum, WANGKA MAYA PILBARA ABORIGINAL LANGUAGE
CENTER,
available
at
http://www.wangkamaya.org.au/index.php?
option=com_content&task=view&id=107&Itemid=1.
38. The People of the Philippines v. Cayat, G.R. No. L45987 (S.C., Dec. 5,
1939) (Phil.).
39. See Mary Sam, History of American Indian Voting Rights, Mille Lacs
Band
of
Ojibwe
(2009),
http://www.millelacsband.com/Page_culture.aspx?id=270
(noting
the
Minnesota Supreme Court denied Indian citizens the right to vote because
they were not civilized).
40. Indigenous and Tribal Populations Convention, Jun. 26, 1957,
available
at
http://www.unhcr.org/refworld/type,MULTILATERALTREATY,ILO,,3ddb6680
4,0.html (last visited May 1, 2013).
41. It regarded indigenous populations as transient societies on the road
to integration into or absorption by the dominant ones and assumed that the
only possible future for indigenous and tribal peoples was integration into the
Cheryl Daytec
2013]
33
was nonetheless a landmark treaty, being the first

international document to deal with indigenous peoples that it
called indigenous populations.42 It brought indigenous
populations to the attention of the international community
and fueled international efforts to address their issues and
opened the doors for indigenous participation in national and
international fora on indigenous concerns.43
The latter part of the 20th century witnessed the
renascence of ethnic identities and demands for minority
rights.44 It also witnessed the rise of private corporations and
their mad rush for the exploitation of natural resources. Since
indigenous peoples sit on the bulk of the Earths remaining
natural resources,45 and as a result of their resource
management system that believes in intergenerational
responsibility to preserve the planets resources for posterity,46
their territories became natural targets for industrial
expansion. Such expansion brought into their domains a host of
human rights abuses and even more abject poverty.
Indigenous peoples are said to bear disproportionately the
costs of resourceintensive and resourceextractive industries,
larger society and that the State should make decisions on their development.
INTERNATIONAL LABOUR ORGANIZATION, History of ILOs
Work,
INTERNATIONAL
LABOUR
ORGANIZATION
(2013),
available
at
http://www.ilo.org/indigenous/Aboutus/HistoryofILOswork/lang--en/index.htm.
42. See id. (noting that the title contains the term indigenous
populations).
43. See Swepston, supra note 36, at 56 (noting that ILO Convention 169
would not likely have been possible without ILO convention 107).
44. See generally, Claus Offe, Political Liberalism, Group Rights, and the
Politics of Fear and Trust, 55 STUDIES IN EAST EUROPEAN THOUGHTS 167, 168
(2001) (arguing the 20th century was marked by a fourth wave of ethnic
minority demands for rights).
45. When she was Chair of the UN Permanent Forum on Indigenous
Issues, Victoria TauliCorpuz said that majority of the worlds remaining
natural resourcesminerals, freshwater, potential energy sources and more
are found within indigenous peoples domains. UNITED NATIONS PERMANENT
FORUMS ON INDIGENOUS ISSUES, BACKGROUNDER: INDIGENOUS PEOPLES
LAND, TERRITORIES AND NATURAL RESOURCES (2007), available at
http://www.un.org/esa/socdev/unpfii/documents/6_session_factsheet1.pdf.
According to the University of Minnesota Human Rights Center, indigenous
peoples embody and nurture 80% of the worlds cultural and biological
diversity, and occupy 20% of the worlds land surface. UNIVERSITY OF
MINNESOTA HUMAN RIGHTS LIBRARY, Study Guide: The Rights of Indigenous
Materials,
UNIVERSITY
OF
MINNESOTA
(2003),
available
at
http://www1.umn.edu/humanrts/edumat/studyguides/indigenous.html.
46. For the indigenous concept of stewardship over lands, see S. James
Anaya, International Human Rights and Indigenous Peoples: The Move
Toward the Multicultural State, 21 ARIZ. J. INTL & COMP. L. 13 (2004).
Cheryl Daytec
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large dams and other infrastructure projects, logging and

plantations, bioprospecting, industrial fishing and farming,
and also ecotourism and imposed conservation projects.47
National resistance movements rose against unfettered
expansion of industry into indigenous domains. As rightly
observed:
[G]lobalization has triggered greater awareness
among the indigenous peoples of self
empowerment and democratization, which are
important
forces
in
capturing
globalization. . . . Through
their
[Sarawak]
blockades and protest movements, they have
shown that they know how to use power to
speak and to resist the globalizing forces that
threaten their way of life and economic
activities.48
States were apathetic to indigenous oppositions to forced
dislocation and other human rights abuses. Indigenous
movements built global networks and, emerging from the
shadows, their ignored, if not forgotten, identities began to take
shape before the eyes of the international community.49
Asserting and pursuing the recognition of their self
determination claims, indigenous populations rose as actors in
UN instruments.50 As a milestone, the international
community adopted International Labour Organization
Convention 16951 and declared 19952004 as the United
Nations International Decade of the Worlds Indigenous
47. Commn on Human Rights, Indigenous Issues: Report of the Special
Rapporteur on the Situation of Human Rights and Fundamental Freedoms of
Indigenous People, 59th Sess., U.N. Doc. E/CN.4/2003/90 (2003).
48. Sabihah Osman, Globalization and Democratization: the Response of
the Indigenous Peoples of Sarawak, 21 THIRD WORLD QUARTERLY 987 (2000).
49. See Swepston, supra note 36, at 53 (noting the rise in concern about
indigenous groups thanks to successful lobbying efforts by indigenous groups).
50. See Cherie Metcalf, Indigenous Rights and the Environment: Evolving
International Law, 35 OTTAWA L. REV. 101, 103 (2003). For a detailed
narration of how indigenous rights reached the United Nations, see Augusto
Willemsen Diaz, How Indigenous Peoples Rights Reached the UN, in MAKING
THE DECLARATION WORK: THE UNITED NATION DECLARATION ON THE RIGHTS
OF INDIGENOUS PEOPLES 16 (Claire Charters et al. eds., 2009).
51. This is the only international treaty that applies specifically to
indigenous peoples. It is the first to use the term indigenous peoples although
its Article 1(3) States: The use of the term peoples in this Convention shall
not be construed as having any implications as regards the rights which may
attach to the term under international law. Indigenous and Tribal
Populations Convention, No. 107, Art. 1(3) (1957).
Cheryl Daytec
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35
People.52
These developments fueled international legal dialogues on
group rights. In the last decades, major efforts by indigenous
organizations and individuals led to the evolution of
international law on selfdetermination. Traditionally, self
determination was regarded as a right of States from colonial
domination,53 but indigenous peoples pushed international
legal boundaries. Due to the failure of domestic legal systems to
protect them, many indigenous populations utilized
supranational remedies as shelter from the deleterious
consequences of economic globalization and industrial
expansion.54 They used the notion of selfdetermination to
press for protection before the Human Rights Committee
(HRC).55 During the drafting of the ICCPR, it was questionable
whether minorities qualified as peoples,56 and some scholars
52. International Decade of the Worlds Indigenous People, G.A. Res.
48/163, U.N. GAOR, 48th Sess., Agenda Item 114(b), U.N. Doc. A/RES/48/163
(Feb. 18, 1994).
53. A. A. Idowu, Revisiting the Right to SelfDetermination in Modern
International Law: Implications for African States, 6(4) EUR. J. SOC. SCI. 43,
4346 (2008); EDWARD MCWHINNEY, SELFDETERMINATION OF PEOPLES AND
PLURALETHNIC STATES IN CONTEMPORARY INTERNATIONAL LAW: FAILED
STATES, NATION BUILDING AND THE ALTERNATIVE, FEDERAL OPTION 2 (2007).
54. See, e.g., Lubicon Lake Band v. Canada, U.N. H.R. Comm., Commcn
No. 167/1984, U.N. Doc. Supp. No. 40 (A/45/40) at 1 (1990); Mikmaq v.
Canada, U.N. H.R. Comm., Commcn No. 78/1980, U.N. Doc. Supp. No. 40
(A/39/40) at 200 (1984); R. L. et al. v. Canada, U.N. H.R. Comm., Commcn No.
358/1989, U.N. Doc. CCPR/C/43/D/358/1989 at 16 (1991); J.G.A. Diergaardt et
al. v. Namibia, U.N. H.R. Comm., Commcn No. 760/1997, U.N. Doc.
CCPR/C/69/D/760/1997 (2000); A. B. et. al. v. Italy, U.N. H.R. Comm.,
Commcn No. 413/1990, U.N. Doc. CCPR/C/40/D/413/1990 (1990).
55. The HRC is the international oversight mechanism to monitor States
compliance with obligations under the ICCPR, International Covenant on
Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171; S. Exec. Doc. E, 952 (1978); S. Treaty Doc. 95-20, 6 I.L.M. 368 (1967)the first treaty to formally
oblige States to respect, promote, and fulfill the right of selfdetermination of
all peoples. The relevant provisions of what is considered the International
Bill of Rights are found in Article 1, Sections 1 and 2 of both the ICCPR and
the International Covenant on Economic, Social, and Cultural Rights, Dec. 16,
1966, 993 U.N.T.S. 3; S. Exec. Doc. D, 95-2 (1978); S. Treaty Doc. No. 95-19, 6
I.L.M. 360 (1967) (ICESCR), which identically state: 1. All peoples have the
right of selfdetermination. By virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural
development. 2. All peoples may, for their own ends, freely dispose of their
natural wealth and resources without prejudice to any obligations arising out
of international economic cooperation, based upon the principle of mutual
benefit, and international law. In no case may a people be deprived of its own
means of subsistence.
56. See PAUL KEAL, EUROPEAN CONQUEST AND THE RIGHTS OF
Cheryl Daytec
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interpret this to mean that indigenous peoples were excluded

from coverage under the protection of the ICCPR.57 For a long
time, the HRC was hesitant to acknowledge the peoplehood of
indigenous peoples out of deference to Stateswhich always
saw the potential of secession rising with every self
determination claim.58 This hesitancy invited the displeasure of
scholars, who equivocated that an indigenous self
determination claim is more promisingly understood as a
generalized right and that its realization does not always
entail the option of separate statehood . . . .59 While self
determination dominates the rights agenda of indigenous
peoples, it is not necessarily a demand for statehood, but can
be comprehended in ways that need not challenge
sovereignty,60 and allow for independence within the
INDIGENOUS PEOPLES 11416 (2003).
57. See generally id. (Chapters 46 in particular contain relevant
discussion on the protection of indigenous peoples under international law).
58. Numerous communications asserting indigenous selfdetermination
(primarily invoking the treatys Optional Protocol I, which provides for
individual complaints) were dismissed by the HRC. The HRC ruled in such
cases that the complaints were inadmissible because selfdetermination
claims are collective rights and may not be raised by individuals, and are
therefore beyond the ambit of its competence. See, e.g., Lubicon Lake Band v.
Canada, U.N. H.R. Comm., Commcn No. 167/1984, U.N. Doc. Supp. No. 40
(A/45/40) at 1 (1990); Mikmaq v. Canada, U.N. H.R. Comm., Commcn No.
78/1980, U.N. Doc. Supp. No. 40 (A/39/40) at 200 (1984); R. L. et al. v. Canada,
U.N. H.R. Comm., Commcn No. 358/1989, U.N. Doc. CCPR/C/43/D/358/1989
at 16 (1991); J.G.A. Diergaardt et al. v. Namibia, U.N. H.R. Comm., Commcn
No. 760/1997, U.N. Doc. CCPR/C/69/D/760/1997 (2000); A. B. et. al. v. Italy,
U.N. H.R. Comm., Commcn No. 413/1990, U.N. Doc. CCPR/C/40/D/413/1990
(1990).
59. Paul Keal, Indigenous SelfDetermination and the Legitimacy of
Sovereign States, 44 INTL POL. 287, 288 (2007); see also Benedict Kingsbury,
Claims by NonState Groups in International Law, 25 CORNELL INTL L. J.
481, 498 (1992); Omar Dahbour, The Ethics of SelfDetermination: Democratic,
National, Regional, in CULTURAL IDENTITY AND THE NATIONSTATE 1, 911
(Carol C. Goulde & Pasquale Pasquino eds., 2001). According to Dahbour,
indigenous peoples have not shown interest in Statehood, but rather in
regional autonomy, which does not challenge the sovereignty of the States
in which they reside. Id. Dahbour, however, likely understands regional
autonomy as meaning more than just selfgovernment; including, for example,
control of resources. Id.
60. Keal, supra note 56, at 146. Keal may be correct that most indigenous
peoples do not interpret selfdetermination as statehood or sovereignty but
this does not necessarily remove secession as one of their options. To be very
sure, while there is no right to secession under international law, there is
nothing that interdicts it either. Scholars who espouse the position that
secession is unacceptable under international law invoke Provision 6 of the
Declaration of the Granting of Independence to Colonial Peoples which States:
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framework of existing States,61 removed from the colonial

context.62 Despite the initial reluctance of the HRC, indigenous
peoples did not let up63 until it finally recognized their
international status as rightful bearers of selfdetermination.
Since 1999, the HRC has been calling on States to respect the
right of selfdetermination64 of those among the most
disadvantaged in the world.65
Recently, the international community adopted the
UNDRIP.66 Currently, the right of selfdetermination is
enshrined in a number of international treaties and other
Any attempt at the partial or total disruption of the national unity and the
territorial integrity of a country is incompatible with the purposes and
principles of the United Nations Charter. Declaration of the Granting of
Independence to Colonial Peoples, G.A. Res. 1514 (XV), 6, A/RES/1514(XV)
(December 14, 1960).
61. Reference re Secession of Quebec, Advisory Opinion, 1998 2 R.C.S.
217, 28184 (Aug.20, 1998) (Can.).
62. Hurst Hannum, The Specter of Secession: Responding to Claims for
Ethnic SelfDetermination, 77(2) FOREIGN AFF. 13, 13 (1998) [hereinafter
Hannum, Specter of Secession].
63. See cases cited supra in note 58. The cases cited were serially
dismissed by the HRC. After every dismissal, a new case would crop up raising
selfdetermination claims, seemingly unmindful of the HRCs previous
ruling(s).
64. The first time the HRC made such a determination was in its
Observations on Canada in 1999. See Concluding observations of the U.N.
H.R. Comm.: Canada, 65th Sess., Apr. 7, 1999, 8, U.N. Doc. CCPR/C/79/Add.
105 (1999). Subsequent cases include: Apirana Mahuika v. New Zealand, U.N.
H.R. Comm., Commcn No. 547/1993, U.N. Doc. CCPR/C/70/D/547/1993 (Nov.
15, 2000); Concluding observations of the U.N. H.R. Comm.: Norway, 67th
Sess., Nov. 1, 1999, U.N. Doc. CCPR/C/79/Add.112 (1999); Concluding
observations of the U.N. H.R. Comm.: Mexico, 66th Sess., Jul. 27, 1999, U.N.
Doc. CCPR/C/79/Add.109 (1999); Concluding observations of the U.N. H.R.
Comm.: Brazil, 85th Sess., Dec. 1, 2005, U.N. Doc. CCPR/C/BRA/CO/2;
Concluding observations of the U.N. H.R. Comm.: Denmark, 70th Sess.,Oct.31,
2000, U.N. Doc. CCPR/CO/70/DNK (2000); Concluding observations of the
U.N. H.R. Comm.: Australia, 69th Sess.,Jul. 24, 2000, U.N. Doc. CCPR/A/55/40
(2000); Concluding observations of the U.N. H.R. Comm.: Sweden, 74th Sess.,
Apr. 24, 2002, U.N. Doc. CCPR/CO/74/SWE (2002); Concluding observations of
the U.N. H.R. Comm.: United States of America, 87th Sess., Dec. 18, 2006,
U.N. Doc. CCPR/C/USA/CO/3/Rev.1 (2006); Fifth Periodic Report of the U.N.
H.R. Comm.: Canada, 66th Sess., Nov. 18, 2004, U.N. Doc.
CCPR/C/CAN/2004/5 (2004); Concluding observations of the U.N. H.R. Comm.:
Canada, 85th Sess., Apr. 20, 2006, U.N. Doc. CCPR/C/CAN/CO/5 (2006);
ngela Poma Poma v. Peru, U.N. H.R. Comm., Commcn No. 1457/2006, U.N.
Doc. CCPR/C/95/D/1457/2006 (Mar. 27, 2009).
65. JAN KNIPPERS BLACK, THE POLITICS OF HUMAN RIGHTS PROTECTION:
MOVING INTERVENTION UPSTREAM WITH IMPACT ASSESSMENT 11718 (2009).
66. United Nations Declaration on the Rights of Indigenous Peoples, G.A.
Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007), 46 I.L.M. 1013 (2007).
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documents, and has crystallized into a rule of customary

international law, applicable to and binding on all states.67
III. THE LEGAL PARADIGM OF INDIAN TRIBAL

SOVEREIGNTY: A STORY OF BEGINNINGS, EVOLUTION,
AND RETROGRESSION
A. CONSTITUTIONAL UNDERPINNINGS OF INDIAN SELF
DETERMINATION
Before indigenous selfdetermination became part of
international law lexicon, the United States already recognized
tribal sovereignty. A common tragedy of indigenous peoples
all over the world is exclusion from constitutionbuilding
projects of the States that absorbed them.68 In the case of
American Indians, the United States founding fathers did not
intend to include them as subjects or citizens under the U.S.
Constitution. Nonetheless, their presence in the United States
was acknowledged constitutionally.69 The American Indians
have been considered a lurking shadow that could not be
completely ignored in constitutionbuilding.70 Hence the
Constitution, as ratified in 1789, granted Congress the power
to regulate Commerce with . . . the Indian tribes, which can be
seen as an affirmation of Indian sovereignty.71 The U.S. federal
government relied on the Constitutions provision on treaty
making in its relationship with tribes.72 The process outlined in
the provision73 was observed in the treaties concluded with the
Indian tribes: the Executive Branch, through the President,
would submit an agreement with tribes to the Senate for
ratification.74 Treatymaking, and legislation made pursuant
67. Michael P. Scharf, Earned Sovereignty: Judicial Underpinnings, 31
DENV. J. INTL L. & POLY 373, 378 (2003).
68. EricaIrene Daes, An overview of the history of indigenous peoples:
selfdetermination and the United Nations, 21(1) CAMBRIDGE REV. INTL AFF.
7, 13 (2008).
69. FRANK POMMERSHEIM, BROKEN LANDSCAPES 4 (2009).
70. Id.
71. The Full Commerce Clause reads: Congress shall have the power . . .
To regulate Commerce with foreign Nations, among the several States, and
with the Indian Tribes. U.S. CONST., Art. I, 8, cl. 3.
72. POMMERSHEIM, supra note 69, at 4.
73. U.S. CONST., Art. II, 2, cl. 2 ([The President] shall have Power, by
and with the Advice and Consent of the Senate, to make Treaties, provided
two thirds of the Senators present concur . . . .).
74. Kannan, supra note 19, at 816; United States v. Sioux Nation of
Indians, 448 U.S. 371 (1980) (discussing how treaties were negotiated with
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to those treaties, governed relations between the Federal

Government and the Indian tribes,75 an implicit
acknowledgment of their capacity to do so as collectives.76
Treaties rested upon a concept of Indian sovereignty . . . and in
turn greatly contributed to that concept.77 In 1831, the U.S.
Supreme Court noted in Cherokee Nation v. Georgia78 that the
federal treatymaking with Indian tribes was tantamount to
recognition of their peoplehood, capable of maintaining the
relations of peace and war, of being responsible in their
political character for any violation of their engagements, or for
any aggression committed on the citizens of the United States
by any individual of their community. In United States v.
Winans,79 the U.S. Supreme Court, affirming that treaties
between the United States and Indian tribes were between
two sovereign nations, proffered what has become known as
the reserved rights doctrine. Indians had reserved rights not
surrendered to the US, and a treaty was not a grant of rights to
the Indians, but rather a grant of rights from them, a
reservation of those not granted.80
The House of Representatives had no voice in the
development of substantive Indian policy within a treaty, and
could only appropriate such funds as were necessary to put the
treaty into effect.81 The House refused to appropriate funds to
implement new treaties until 1871, by which time Congress
abolished treatymaking with tribes.82
tribes); Washington v. Fishing Vessel Assn, 443 U.S. 658, 666 (same).
75. United States v. Lara, 541 U.S. 193, 201 (2004).
76. See generally ROBERT WILLIAMS, LINKING ARMS TOGETHER:
AMERICAN INDIAN TREATY VISIONS OF LAW AND PEACE, 16001800 (1997).
77. FRANCIS PAUL PRUCHA, AMERICAN INDIAN TREATIES: THE HISTORY OF
A POLITICAL ANOMALY 2 (1994).
78. Cherokee Nation v. Georgia, 30 U.S. 1, 16 (1831).
80. Id. at 381.
81. Antoine v. Washington, 420 U.S. 194, 202 (1975).
82. Id. The Supreme Court said, In 1871, however, the insolence of
conscious strength, and the growing jealousy of the House of Representatives
towards the prerogativearrogated by the Senateof determining, in
connection with the executive, all questions of Indian right and title, and of
committing the United States incidentally to pecuniary obligations limited
only by its own discretion, for which the House should be bound to make
provision without inquiry, led to the adoption, after several severe
parliamentary struggles, of the declaration . . . that hereafter no Indian
nation or tribe within the territory of the United States shall be acknowledged
or recognized as an independent nation, tribe, or power, with whom the United
States may contract by treaty. Id. (citing FRANCIS A. WALKER, THE INDIAN
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B. THE INDEPENDENT, DISTINCT POLITICAL ENTITIES BUT

DOMESTIC, DEPENDENT NATIONS
In Cherokee Nation v. Georgia, the U.S. Supreme Court
recognized the precontact sovereignty of Indian tribes.
However, the Court referred to them as domestic, dependent
nations in a state of pupilage whose relationship to the U.S.
resembles that of a ward to his guardian.83 The U.S. Supreme
Court stated [t]hey look to our government for protection; rely
upon its kindness and its power; appeal to it for relief to their
wants; and address the president as their great father.84 The
ensuing Worcester v. Georgia85 [laid] the cornerstone for the
legal systems continuing recognition of tribal sovereignty. 86
Decided in 1832, the Worcester decision enunciated that Indian
nations always enjoyed recognition as distinct, independent
political communities and had the power of selfgovernment
flowing from their original tribal sovereignty and not from a
grant of power by the U.S. federal government.87 The U.S.
Supreme Court held that:
The settled doctrine of the law of nations is that
a weaker power does not surrender its
independenceits right to selfgovernment, by
associating with a stronger, and taking its
QUESTION 21112 (1874)). The law that ended treaty making with tribes was
the Act of Mar. 3, 1871, ch. 120, 1, 16 Stat. 544, 566 (codified as amended at
25 U.S.C. 71 (1988)).
83. Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831).
84. Id.
85. Worcester v. Georgia, 31 U.S. 515 (1832).
86. Getches, supra note 7, at 1582.
87. Worcester v. Georgia, 31 U.S. 515 (1832); see also Ex Parte Crow Dog,
109 U. S. 556, 571 (1883) (involving the killing by an Indian of another Indian
on Indian land). The case was settled according to tribal law. However, Crow
Dog, the accused, was indicted for murder in Nebraska and was convicted and
sentenced to die by hanging, a decision affirmed by the territorial Supreme
Court. He applied for a Writ of Habeas Corpus with the Federal Supreme
Court. Recognizing tribal sovereignty, the Court speaking through Justice
Matthews said of the case: It is a case where, against an express exception in
the law itself, that law, by argument and inference only, is sought to be
extended over aliens and strangers; over the members of a community,
separated by race, by tradition, by the instincts of a free though savage life,
from the authority and power which seeks to impose upon them the restraints
of an external and unknown code, and to subject them to the responsibilities of
civil conduct, according to rules and penalties of which they could have no
previous warning; which judges them by a standard made by others, and not
for them, which takes no account of the conditions which should except them
from its exactions, and makes no allowance for their inability to understand
it. Ex Parte Crow Dog, 109 U. S. 556, 571 (1883).
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protections. A weak State, in order to provide for

its safety, may place itself under the protection
of one more powerful, without stripping itself of
the right of government, and ceasing to be a
state.88
Under Chief Justice Marshall, the U.S. Supreme Court
recognized only two limitations to Indian sovereignty: (1)
Tribes could not alienate their lands except to the United
States; and (2) They could not enter into treaties with foreign
nations.89 Thus, in Ex Parte Crow Dog,90 the U.S. Supreme
Court overturned the conviction by the colonizers court of an
Indian accused of killing another Indian; a matter earlier
settled according to tribal law. Recognizing tribal sovereignty,
the U.S. Supreme Court said that the application of the
colonizers law
[T]ries [Indians] not by their peers, nor by the
customs of their people, nor the law of their
land, but by superiors of a different race,
according to the law of a social State of which
they have an imperfect conception and which is
opposed to the traditions of their history, to the
habits of their lives, to the strongest prejudices
of their savage nature; one which measures the
red mans revenge by the maxims of the white
mans morality.91
The U.S. Supreme Court declared, and would reiterate in
Talton v Mayes,92 that the long arm of federal laws did not
extend to reservations without express authorization by
Congress. In Talton, it also said that tribal powers were beyond
judicial review.93
88. Worcester v. Georgia, 31 U.S. at 520.

89. Steven Paul McSloy, American Indians and the Constitution: An
Argument for Nationhood, 14 AM. INDIAN L. REV. 139, 140 n.4 (1989) (quoting
William C. Canby Jr., The Status of Indian Tribes in American Law Today, 62
Wash. L. Rev. 1, 8 (1987)).
90. Crow Dog, 109 U.S. 556.
91. Id. at 571.
92. Talton v. Mayes, 163 U.S. 376, 384 (1896).
93. Id.
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C. THE BIRTH OF PLENARY POWERS: PREEXISTING

RESERVED RIGHTS BECOME SUBJECT TO CONGRESSIONAL
CURTAILMENT
Even as jurisprudence on American Indian sovereignty
first developed as the principle that tribes possessed pre
existing powers of sovereignty, this jurisprudence evolved
judicially and made tribes subject to the supreme legislative
authority of the United States.94 This subjugation of tribal
sovereignty to the U.S. Congress was later repackaged as
Congress plenary powers. Under this rule, tribes reserved their
preexisting powers which they could exercise, unless curtailed
by Congress. Cohen wrote in 1941:
The whole course of judicial decision on the
nature of Indian tribal powers is marked by
adherence to three fundamental principles: (1)
An Indian tribe possesses, in the first instance,
all the powers of any sovereign state. (2)
Conquest renders the tribe subject to the
legislative power of the United States and, in
substance, terminates the external powers of
sovereignty of the tribe, e.g., its power to enter
into treaties with foreign nations, but does not
by itself affect the internal sovereignty of the
tribe, i.e., its powers of local selfgovernment. (3)
These powers are subject to qualification by
treaties and by express legislation of Congress,
but, save as thus expressly qualified, full powers
of internal sovereignty are vested in the Indian
tribes and in their duly constituted organs of
government.95
The abounding judicial rhetoric recognizing tribal sovereignty
recognition is matched by doctrinal pronouncements that
impair it. The U.S. Supreme Courts earliest and longest
lasting infringement on tribal sovereignty was the creation of
congressional plenary power over tribes. Ex Parte Crow Dog
braced the infrastructure for the rise of this formidable legal
edifice when the U.S. Supreme Court, in voiding a conviction of
an Indian by a federal court, said that without congressional
authorization, the federal government could not take
cognizance of a crime committed by one Indian on a reservation
94. Lone Wolf v. Hitchcock, 187 U. S. 553 (1903).
95. FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 123 (1941).
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against another Indian. This led to the passage of the Major

Crimes Act, which conferred federal jurisdiction on certain
crimes committed by Indians within reservations. The law, held
out as a valid exercise of plenary power over Indian affairs,
passed judicial review in United States v. Kagama.96 Plenary
power became an enduring doctrine after it was declared a
political question and thereby beyond judicial review in Lone
Wolf v Hitchcock.97
Kannan opines that [t]he status of tribes as domestic
dependent sovereigns, the existence of a guardian/ward
relationship between Indians and the United States, . . . and
provisions in the Constitution . . . combine to vest in Congress
plenary power over Indian tribes.98 This view concedes that
there is constitutional basis for disregarding tribal sovereignty.
However, such basis does not exist. The U.S. Constitution
explicitly recognizes tribal sovereignty under the Commerce
Clause99 and nowhere grants legislative plenary power over the
tribes. Whatever broad powers the federal government has over
tribes that negated their precontact sovereignty is not a
constitutional grant, nor could it be justified under any
democratic principle. Pommersheim maintains that the source
is judicial plenary power100 that the Supreme Court has been
consistently exercising to grant, and reaffirm the grant of,
plenary and unilateral authority on Congress. In other words,
plenary power is not constitutionally derived; rather, it is
judicially evolved. The excision of tribal powers might be the
immediate result of plenary powers, but is ultimately the
aftermath of judicial misinterpretation of the Constitution.
The plenary power doctrine was invented to facilitate the
unilateral expansion of federal land acquisition and power in
Indian affairs.101 As it mutated by judicial fiat, it became the
legal leg upon which stood the legitimacy of further diminution
96. See United States v. Kagama, 118 U. S. 375 (1886). The court also said
that Indian tribes were treated by the US not as states, not as nations, not as
possessed of the full attributes of sovereignty, but as a separate people, with
the power of regulating their internal and social relations, and thus far not
brought under the laws of the Union, or of the state within whose limits they
resided. Id. at 38182.
97. Lone Wolf v. Hitchcock, 187 U. S. at 508, affd 541 U.S. 193, 201
(2004).
98. Kannan, supra note 19, at 816.
99. U.S. CONST. art. I, 8, cl. 3.
101. Id. at 13940.
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of Indian lands and tribal powers and assumption by federal

apparatuses of powers originally held by tribes. It has been
invoked, among others, to justify unilateral abrogation of
treaties with tribes,102 the revision of reservation boundaries,103
the sale of Indian lands without their consent,104 federal veto
power over tribal decision to lease lands,105 federal unilateral
decision to lease tribal lands,106 the exercise of eminent domain
over tribal lands,107 the determination of tribal membership, 108
and the divestiture of tribal powers over reservations.109
Although challenged several times, it remains very well
entrenched and in fact has grown more teeth. It shaped,
reshaped, distorted, and redistorted tribal sovereignty.
The Supreme Court has vacillated from sympathetic,
condescending, and outright hostile in ruling on indigenous
sovereignty and selfdetermination. At its sympathetic mode,
the Court attested the inherent sovereignty of tribes,110 held
that treaties are not rights devised to tribes, but rather a
reservation by the Indians of rights already possessed and not
granted away by them,111 warded off state incursion into
Indian reservations by holding that they were beyond the
taxing arm112 and laws of states,113 decreed that even federal
laws could not be applied to Indians without congressional
permission,114 and recognized the taxing power of tribes over
102. See United States v. Dion, 476 U.S. 734 (1986); Lone Wolf v.
Hitchcock, 187 U.S. 553 (1903).
103. See Lone Wolf v. Hitchcock, 187 U.S. 553.
104. See Sioux Tribe v. United States, 316 U.S. 317 (1942).
105. 25 U.S.C. 396 (2000).
106. See Escondido Mut. Water Co. v. La Jolla Band of Mission Indians,
466 U.S. 765 (1984).
107. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978).
108. Id.
109. See, e.g., United States v. Lara, 541 U.S. 193 (2004); Duro v. Reina,
495 U.S. 676 (1990); Montana v. United States, 450 U.S. 544 (1981); Oliphant
v. Suquamish Tribe, 435 U.S. 191 (1978); Wheeler v. United States, 435 U.S.
313 (1978).
110. See Worcester v. Georgia, 31 U.S. 515 (1932).
112. See, e.g., White Mountain Apache Tribe v. Bracker, 448 U.S. 136
(1980) (holding that a state cannot impose taxes even on nonIndians for use
of Bureau of Indian Affairs Roads to transport lumber under a contract with
tribes); see also Elk v. Wilkins, 112 U.S. 94, 99 (1884) (Indians and their
property, exempt from taxation by treaty or statute of the United States, could
not be taxed by any state.).
113. Williams v. Lee, 358 U.S. 217 (1959).
114. Getches, supra note 7, at 1573.
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activities of nonIndians within their reservations reasoning

that the power to tax is an essential attribute of Indian
sovereignty because it is a necessary instrument of self
government and territorial
management.115
At its
unsympathetic state, it would take back with its right hand
what it gave with the left.116 For example, while the Court laid
down the doctrine that a general Act of Congress does not
apply to Indians or their lands,117 it virtually had a
diametrically opposed holding in Case of the Cherokee
Tobacco,118 when it extended federal taxation law to an activity
within a reservation despite the absence of a law providing it.
Years later in Tuscarora,119 the Court was categorical that
federal laws of general application extended to Indians and
their governments unless Congress provided otherwise. This
has perhaps moved Justice Souter, dissenting in US v. Lara,120
to say that the Supreme Court leaves a legacy of confusion for
our failure to stand by what we have previously said reveals
that our conceptualizations of sovereignty and dependent
sovereignty are largely rhetorical.121 Indeed, the Supreme
Court has been consistently treating tribal sovereignty as an
elastic band.
D. THE RETROGRESSION OF SOVEREIGNS: RESERVED
POWERS JUDICIALLY MUTATE INTO STATUTORY GRANTS
The period from the 1960s to the present is called the self
determination era122 in view of the surge of more federal
policies and laws that purport to promote Indian self
determination. This movement was most likely borne out of the
realization that past policies invisibilized the Indians whose
115. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 149 (1982).
116. See, e.g., Sioux Tribe v. United States, 316 U.S. 317 (1942); United
States v. Sandoval, 231 U.S. 28 (1913); Lone Wolf v. Hitchcock, 187 U.S. 553
(1903).
117. Fed. Power Commn v. Tuscarora Indian Nation, 362 U.S. 99, 115
(1960).
118. Cherokee Tobacco, 78 U.S. 616 (1870).
119. Fed. Power Commn v. Tuscarora Indian Nation, 362 U.S. 99 (1960).
120. See United States v. Lara, 541 U.S. 193 (2004) (the Court laid down
the doctrine that double jeopardy did not attach when an individual is tried by
the federal and tribal courts for the same acts constituting offenses under
federal and tribal laws reversing previous holdings).
121. Lara, 541 U.S. at 226 (Souter, J., dissenting).
122. See GETCHES ET AL., supra note 9, at xv (claiming that the Indian
legal history is often divided into eras, which underscore the governments
Indian policy of the time.).
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destinies were being decided in ivory towers without their

participation. Laws have been passed under the banner of self
determination to ensure Indian participation in crafting and
implementing policies that affect them. Yet, it is during this
era that [t]he Supreme Court has become more hostile to
[Indian] interests in its resolution of issues of tribal self
determination, highlighting the dearth of secure footholds in
judicial doctrine for Native American law.123 The courts have
been shrinking the powers of the tribes as they have been
expanding federal powers over them. In fact, the Court
revolutionarily reshaped tribal sovereignty. Whereas it used to
be an exercise of retained powers not divested by congress,124 it
became an exercise of those powers that Congress granted. As
they are presently contoured, Indian tribes bear little or no
semblance to the domestic dependent nations of the 19th
century.
While the U.S. Supreme Court facially acknowledges the
concept of inherent tribal sovereignty, the Courts decisions
have actually created a contradictory body of jurisprudence
that often undermines tribal sovereignty. In Oliphant v
Suquamish Tribe,125 the Court did not expressly acknowledge
tribal sovereignty. But it made a bizarre assertion that the
effort by Indian tribal courts to exercise criminal jurisdiction
over nonIndians . . . is a relatively new phenomenon. Why
should jurisdiction over acts that happen within a territory of a
sovereignhowever domestic and dependentbe a new
phenomenon? It is in fact older than the United States
assertion of sovereignty over the Indians themselves. As
pointed out by Justice Marshall in his terse dissent, the power
to preserve order on the reservation . . . is a sine qua non of the
sovereignty that the Suquamish originally possessed. . . . In the
absence
of
affirmative
withdrawal
by
treaty
or
statute, . . . Indian tribes enjoy as a necessary aspect of their
retained sovereignty the right to try and punish all persons
who commit offenses against tribal law within the
reservation.126 The same attitude impelled the Court to ground
its decision on the discovery doctrine which while acceptable
under the law of nations in the early 19th century, was hurled
123. Note, Intergovernmental Compacts in Native American Law: Models
for Expanded Usage, 112 HARV. L. REV. 922, 922 (1999).
124. See United States v. Winans, 198 U.S. 371 (1905).
125. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195 (1978).
126. Id. at 212.
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into the trash bin by civilized countries in the 20th century: 127
Indian tribes hold and occupy [the reservations] with the
assent of the United States, and under their authority.128 The
decision stated that Indian tribal courts do not have inherent
criminal jurisdiction to try and to punish nonIndians, and
may not assume such jurisdiction unless specifically authorized
to do so by Congress.
But in US v. Wheeler,129 the Court with seeming language
facility restated the 19th century doctrine that tribes possessed
inherent powers of a limited sovereignty which has never been
extinguished.130 The Court said that [t]ribes possess all of the
powers of governance of sovereign nations except those
withdrawn by treaty or by congress, qualifying however that
tribal sovereignty exists only at the sufferance of Congress and
is subject to complete defeasance.131
More recent Supreme Court decisions have made romantic
references to inherent tribal sovereignty. But the net effect of
such decisions is to decimate tribal powers. For example,
Montana acknowledged that tribal courts possess inherent
sovereignty. But it is actually the grandmother of recent
Supreme Court decisions cumulatively shrinking tribal civil
jurisdiction and Indian lands. It held that tribal courts do not
have jurisdiction to regulate activities of nonIndians in Indian
country. The evolution of the Montana rule reflecting a
gradual conservative trend in the Court from 1981 to 2008,
occurred in a series of decisions in which the Court, while never
127. For example, in Mabo v. Queensland, the Australian High Court said:
The fiction by which the rights and interests of indigenous inhabitants in
land were treated as nonexistent was justified by a policy which has no place
in the contemporary law of this country. Mabo v. Queensland (No. 2) (1992)
175 CLR 1 (Austl.). The International Court of Justice, in its Advisory Opinion
on Western Sahara, said that a determination that Western Sahara was a
'terra nullius' at the time of colonization by Spain would be possible only if it
were established that at that time the territory belonged to no one in the sense
that it was then open to acquisition through the legal process of occupation.
Western Sahara, Advisory Op., I.C.J. Reports 1975, at 39 (16 Oct. 1975). In
Carino v. Insular Govt, the U.S. Supreme Court rejected the Regalian
Doctrine, the equivalent of discovery, which Spain invoked to justify the
dispossession of the Philippine natives. The Court called the doctrine feudal,
an almost forgotten law of Spain. Carino v. Insular Govt, 212 U.S. 449
(1909).
128. Oliphant v. Suquamish Indian Tribe, 435 U.S. at 209.
129. United States v. Wheeler, 316 U.S. 313, 322 (1942) (quoting FELIX
COHEN, HANDBOOK OF FEDERAL INDIAN LAW 122 (1945)).
130. Id.
131. Id. at 321.
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abandoning its 1981 decision, qualified, amended, and

fundamentally reinterpreted it to severely limit tribal
jurisdiction.132 Along with Oliphant, it veered away from the
recognition of tribes as unique aggregations possessing
attributes of sovereignty over both their members and their
territory.133 By holding that tribes could not regulate non
Indian activities within Indian reservation and proclaiming
that tribal sovereignty is limited to exercise of powers over
Indians, the Court treated tribal jurisdiction as personal rather
than territorial. This has led some scholars to pejoratively
describe tribes as private clubs134 and glorified fraternal
organizations135 despite judicial claim that they are a good
deal more than private, voluntary organizations.136
Cornell, who equates selfgovernment with self
determination, is critical of the policy directions on Indians
that the United States has taken under the banner of self
determination:
The federal idea was to treat self
government as selfadministration, turning
tribal governments into adjuncts of the federal
administrative apparatus. In the years since,
most federal involvement in Indian affairs has
been more concerned with addressing social
problems than with building Indigenous
capacities for genuine selfrule. This trend has
been supported by recent U.S. court decisions
that have severely curtailed tribal jurisdiction
and undermined Indigenous rights of self
government.
In sum, central governments have tended to
respond to Indigenous peoples in the same ways
they have responded to immigrant and other
minority populations: with egalitarian and
assimilative policies that attempt to address
Indigenous
disadvantage
and
facilitate
132. Brian L. Pierson, Determining Tribal Jurisdiction over NonTribe
Members,
81
WIS.
LAWYER,
Nov.
2008,
available
at
http://www.wisbar.org/AM/Template.cfm?Section=Search&TEMPLATE=/CM/
ContentDisplay.cfm&CONTENTID=75595.
133. United States v. Mazurie, 419 U.S. 544, 557 (1975).
134. Kalt & Singer, supra note 20, at 18.
135. Robert N. Clinton, There is No Federal Supremacy Clause for Indian
Tribes, 34 ARIZ. S T. L.J. 113, 21423 (2002).
136. United States v. Mazurie, 419 U.S. at 556.
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integration into encompassing societies.137

This affirms the allegation of the accused in Wheeler who
contested federal jurisdiction over him after he was convicted
by the tribal court for an act necessarily included in the graver
federal offense. Invoking the allencompassing plenary power
of Congress over tribes, he concluded that tribes were just
arms of the federal government that owe their existence and
vitality solely to the political department of the federal
government.138 This view has since been echoed by scholars
who claim that tribes are more adjuncts of the federal
government dispensing powers with congressional authority or
sufferance, rather than exercising inherent powers as self
determining peoples. Alfred observes that the administrative
units within tribes are colonial impositions patterned after
nonindigenous arrangements.139
E. SELFDETERMINATION AND SELFGOVERNMENT: A ROSE
THAT DOES NOT SMELL LIKE A ROSE IS NOT A ROSE
In several federal policy statements, selfdetermination is
invoked as the premise. But it has always meant self
government. As Cook says, congressional emphasis seems to
be most often on tribal selfgovernance even if legislations
adopt the word selfdetermination in their policy statements.
Clarifying the entitlements of selfgovernment, Congress
provides that powers of selfgovernment means and includes
all governmental powers possessed by an Indian tribe,
executive, legislative, and judicial, and all offices, bodies, and
tribunals by and through which they are executed, including
courts of Indian offenses; and means the inherent power of
Indian tribes, hereby recognized and affirmed, to exercise
criminal jurisdiction over all Indians.140 Courts acknowledge
that congressional policy now seeks greater tribal autonomy
within the framework of a governmenttogovernment
relationship with federal agencies.141 Jurisprudence which
137. STEPHEN CORNELL, INDIGENOUS PEOPLES, POVERTY AND SELF
DETERMINATION IN AUSTRALIA, NEW ZEALAND, CANADA AND THE UNITED
STATES, JOINT OCCASIONAL PAPERS ON NATIVE AFFAIRS NO . 200602, at 10
(2006).
138. United States v. Wheeler, 316 U.S. 313, 319 (1942).
139. See generally TAIAIAKE ALFRED, PEACE, POWER, AND RIGHTEOUSNESS:
AN INDIGENOUS MANIFESTO (1999).
140. 25 U.S.C. 1301(2) (2006).
141. United States. v. Lara, 541 U.S. 193, 202 (2004).
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profusely uses tribal sovereignty limits it to self

government142 regarded as one of the foundational aspects of
tribal existence. Cornell cautions that it must be made clear
that selfgovernment merely connotes governmental power
over a limited class of persons, i.e., tribal members, whereas
true sovereignty includes governmental power over territory
and all persons within that territory.143 Their right of internal
selfgovernment includes the right to prescribe laws applicable
to tribe members and to enforce those laws by criminal
sanctions.144 Federal courts regard the exercise of tribal
jurisdiction as acts of selfgovernment.145
IV. SELFDETERMINATION AND SELFGOVERNMENT:
SIMILAR YET DIFFERENT
A. THE DIFFERENCE BETWEEN GIFT AND RIGHT
Legal scholarship and jurisprudence on Indians surface
two competing theories of tribal sovereignty. First, it is
inherent and preconstitutional or older than the government
of the United States. Therefore, tribal sovereignty is an
exercise of rights and powers retained or reserved and not
surrendered to the United States as established in Winans.146
The theory is interpreted by some scholars, thus: Tribes do not
exercise rights because Congress granted them rights. Tribes
exercise rights based on their original and indigenous
sovereignty.147 The second theory holds that tribal sovereignty
is an exercise of those powers that Congress suffers tribes to
exercise as held in Wheeler. The source of tribal powers is
142. See White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980);
United States v. Wheeler, 435 U.S. 313 (1978); McClanahan v. Ariz. Tax
Commn, 411 U.S. 164 (1973); Worcester v. Georgia, 31 U.S. 515 (1832); see
also Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (regarding the
exercise of tribal jurisdiction as an exercise of selfgovernment).
143. Bradley B. Furber, Two Propositions: The WheelerHoward Act As a
Reconciliation of the Indian Law Civil War, 14 PUGET SOUND L. REV. 211, 218
(1991).
144. United States v. Antelope, 430 U.S. 641 (1977).
145. See Wheeler v. United States, 811 F.2d 549 (10th Cir. 1987); Santa
Clara Pueblo v. Martinez, 436 U.S. 49 (1978); White v. Pueblo of San Juan,
728 F.2d 1307 (10th Cir. 1984); cf. Dry Creek Lodge, Inc. v. Arapahoe &
Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980) (plaintiff permitted to pursue
action in district court when no tribal forum was available). The policy we
adopt here is consistent with these cases.
146. United States v. Winans, 198 U.S. 371 (1905).
147. DAVID E. WILKINS & K. TSIANINA LOMAWAIMA, UNEVEN GROUND:
AMERICAN INDIAN SOVEREIGNTY AND FEDERAL LAW 125 (2002).
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essentially congressional authorization and these powers may

be restricted or altered by Congress exercising its plenary
power over Indian affairs. The tension between these two
theories spells the difference between selfdetermination and
selfgovernment. A gift is neither a claim nor an entitlement
that may be demanded by the grantee. A right on the other
hand is the correlative of duty or obligation.148 A right grounds
an affirmative claim against the dutybearer which is
enforceable under the law. As Feinberg put it,
Rights are not mere gifts or favors, motivated by
love or pity, for which gratitude is the sole
fitting response. A right is. . . something that
can be demanded or insisted upon without
embarrassment or shame. When that to which
one has a right is not forthcoming, the
appropriate reaction is indignation; when it is
duly given there is no reason for gratitude, since
it is simply ones own or ones due that one
received.149
A right is therefore enforceable against the bearer of the
obligation to respect it. In respect to duty or obligation, Kant
has this to say:
Duty is the necessity of acting from respect for
the law. . . . It is only what is connected with my
will as a principle, by no means as an effect
what does not subserve my inclination, but
overpowers it, or at least in case of choice
excludes it from its calculationin other words,
simply the law of itself, which can be an object of
respect, and hence a command. Now an action
done from duty must wholly exclude the
influence of inclination, and with it every object
of the will, so that nothing remains which can
determine the will except objectively the law,
and subjectively pure respect for this practical
law, and consequently the maxim that I should
follow this law even to the thwarting of all my
inclinations.150
148. See Marcus Singer, The Basis of Rights and Duties, 23 PHIL. STUD. 48
(1972).
149. JOEL FEINBERG, SOCIAL PHILOSOPHY 59 (1973).
150. IMMANUEL KANT, FUNDAMENTAL PRINCIPLES OF THE METAPHYSIC OF
MORALS 18 (2007).
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According to Thornberry, selfgovernment or autonomy is

essentially a gift by the states . . . though it can be entrenched
[and] it does not flow freely from the sources of international
law as an obligation on States.151 Selfdetermination, on the
other hand, is a human right.152 The primary human rights
instruments that protect selfdetermination are therefore
enforceable against Statesparties. Since selfdetermination is
also a peremptory norm and therefore customary international
law, it is enforceable against States that did not ratify it. It is
independent of the outsiders recognition, and proceeds not
from a positive grant of power from a government but from the
people who make up the self.153
Essentially, Indian tribal sovereignty in its present contour
is a gift from the federal government. Based on the Indian
experience, there might be truth in what Sophocles said: The
gifts of enemies are no gifts and bring no good. 154 The
paternalistic undercurrent in every federal policy on Indians,
while it may be impelled by liberality which presumably
underpins every gift or grant, actually prevents tribes from
charting their own destiny and continue to facilitate full
assimilation. Oliphant, decided out of concerns that Indian
tribal justice may miscarry justice to the prejudice of a non
Indian, redrew the map showing the source of tribal powers. It
held that tribes were shrived of their preconstitutional
inherent jurisdiction the moment they surrendered to the
sovereignty of the United States.155 However, such jurisdiction
may be reinstated by the delegation of federal powers through
congressional plenary power. The judicial logic that inspired
Oliphant, which is now the controlling doctrine in criminal
jurisdiction, can only proceed from the belief that Indian
151. Patrick Thornberry, SelfDetermination and Indigenous Peoples:
Objections and Responses, in OPERATIONALIZING THE RIGHTS OF INDIGENOUS
PEOPLES TO SELFDETERMINATION 55, 5557 (Pekka Aikio et al. eds., 2000).
152. Hurst Hannum, The Right of SelfDetermination in the TwentyFirst
Century, 55 WASH. & LEE L. REV. 773, 773 (1998).
153. See Term Limits v. Thornton, 514 U.S. 779 (1995). In this case, the
Supreme Court said that sovereignty is vested in the people. Sovereignty
and selfdetermination while not the same, they are related. Self
determination is a necessary attribute of sovereign people.
154. A. J. A. WALDOCK, SOPHOCLES THE DRAMATIST 69 (1951).
155. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 209 (1978)
(Upon incorporation into the territory of the United States, the Indian tribes
thereby come under the territorial sovereignty of the United States and their
exercise of separate power is constrained so as not to conflict with the
interests of this overriding sovereignty.).
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sovereignty is a federal grant, not the exercise of inherent

powers.
The doctrine now is that tribal power thereby exists only
at the sufferance of Congress and is subject to complete
defeasance.156 Winans,157 which treated tribal sovereignty as
the exercise of preconstitutional powers reserved by the tribes,
has been virtually abandoned. As essentially held in Oliphant
and Montana, tribes could not exercise jurisdiction over non
Indians in their territories, not because Congress stripped them
of such powers, but because Congress never granted them in
the first place. There is then a question of how Congress treats
tribal powers over other Indians. The Supreme Court provides
the answer in Wheeler: [U]ntil Congress acts, the tribes retain
their existing sovereign powers.158 In essence, when tribal
powers are limited to internal affairs between Indians, it is
only the consequence of federal toleration and, therefore, a gift
from the United States. As Carlos Ruiz Zafon aptly said,
[p]resents are made for the pleasure of who gives them, not
the merits of who receives them.159 The Court in Lara claims
that plenary power allows Congress to treat sovereignty as a
clay that can be shaped, reshaped, fragmented, or made
whole.160 It is Congress prerogative to give and to curtail tribal
powers.161
156. United States v. Mazurie, 419 U.S. 544 (1975); United States v.
Wheeler, 316 U.S. 313 (1942).
157. United States v. Winans, 198 U.S. 371 (1905).
158. United States v. Wheeler, 435 U.S. at 323 (1978).
159. CARLOS RUIZ ZAFN, THE SHADOW OF THE WIND (Lucia Graves trans.,
2001).
160. In United States v. Lara, the Court said, The political branches,
drawing upon analogous constitutional authority, have made adjustments to
the autonomous status of other such dependent entitiessometimes making
far more radical adjustments than those at issue here. . . . Congress, with this
Courts approval, has interpreted the Constitutions plenary grants of power
as authorizing it to enact legislation that both restricts and, in turn, relaxes
those restrictions on tribal sovereign authority. From the Nations beginning
Congress need for such legislative power would have seemed obvious. After
all, the Governments Indian policies, applicable to numerous tribes with
diverse cultures, affecting billions of acres of land, of necessity would fluctuate
dramatically as the needs of the Nation and those of the tribes changed over
time. United States v. Lara, 541 U.S. at 20203.
161. The Court in Lara further said, Congress has in fact authorized at
different times very different Indian policies (some with beneficial results but
many with tragic consequences). Congressional policy, for example, initially
favored Indian removal, then assimilation and the breakup of tribal lands,
then protection of the tribal land base (interrupted by a movement toward
greater state involvement and termination of recognized tribes); and it now
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What are the obligations of the federal government? Since

Indian selfgovernance is a gift from Congress, it does not
generate obligations, except those that Congress assumes
voluntarily. Plenary authority can override a treaty or
agreement with the tribes.162 In fact, Congress possesses a
plenary authority on all matters affecting Indians, including
their form of government,163 and it can limit, modify or
eliminate the powers of local selfgovernment that the tribes
otherwise possess.164 The very foundation of the tribes exercise
of powers is their constitutions, which they could only adopt
with the permission of United States provided to them under
the Indian Reorganization Act. Because selfrule was premised
as a grant under Congress authority, Congress gave itself the
power to impose federal oversight over the tribes. A boilerplate
constitution was virtually imposed,165 and although rejected by
some tribes, most tribal governments are patterned after it.166
As the Court said, the United States from the beginning
permitted, then protected, the tribes in their continued internal
government.167 All this was, and still is, possible because self
government is a gift, not an inherent right.
B. SELFDETERMINATION IN INTERNATIONAL LAW
Gudmundur Alfredsson rightly claims that international
human rights instruments do not expressly provide for a right
seeks greater tribal autonomy within the framework of a governmentto
government relationship with federal agencies. . . . Such major policy changes
inevitably involve major changes in the metes and bounds of tribal
sovereignty. The 1871 statute, for example, changed the status of an Indian
tribe from a powe[r] . , , ,capable of making treaties to a power with whom
the United States may [not] contract by treaty. United States v. Lara, 541
U.S. at 20203.
162. See United States v. Dion, 476 U.S. 734, 738 (1986) (citing Fong Yue
Ting v. United States, 149 U.S. 698, 720 (1893)) (It is long settled that the
provisions of an act of Congress, passed in the exercise of its constitutional
authority, . . . if clear and explicit, must be upheld by the courts, even in
contravention of express stipulations in an earlier treaty with a foreign power.
This Court applied that rule to congressional abrogation of Indian treaties.).
163. See Winton v. Amos, 255 U.S. 373, 391 (1921) (It is thoroughly
established that Congress has plenary authority over the Indians and all their
tribal relations, and full power to legislate concerning their tribal property.).
164. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978) (Congress
has plenary authority to limit, modify or eliminate the powers of local self
government which the tribes otherwise possess.).
165. MATTHEW FLETCHER, AMERICAN INDIAN TRIBAL LAW 146 (2011).
166. Id. at 146.
167. Wheeler v. U.S. Dept. of Interior, 811 F.2d 548,551 (10th Cir. 1987).
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to autonomy,168 that has firmly anchored in international and

regional human rights instruments.169 Autonomy or self
government, therefore, cannot be enforced against States,
either in the domestic or international legal systems. On the
other hand, selfdetermination is guaranteed under
international law.
It is now settled that selfdetermination is a principle of
customary international law and a jus cogens or peremptory
norm.170 The International Court of Justice pronounced this in
the East Timor Case171 calling the right an erga omnes
obligation of States. The Court reprised this doctrine in its
Advisory Opinion on the Construction of a Wall in the Occupied
Palestinian Territory172 to the UN General Assembly in 2004.
Being jus cogens and a peremptory norm, selfdetermination is
a nonderogable right of the highest order173 and does not have
to be expressed in the positive laws of States; it is already
considered incorporated and enforceable as a claim in states
domestic legal systems. Independent of its expression in
positive law or international doctrine,174 selfdetermination
has an existence in the moral order.175 The recognition of this
right is implicit in every States constitution and is thus:
[A] powerful expression of the underlying
168. Gudmundur Alfredsson, Autonomy and Human Rights, in
CONSTITUTIONAL AND ECONOMIC SPACE OF THE SMALL NORDIC JURISDICTIONS
34, 34 (Lise Lyck ed., 1997).
169. Id. at 40.
170. See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 515
(4th ed. 1990).
171. Case Concerning East Timor (Port. v. Austl.), 1995 I.C.J. 90, 102
(June 30).
172. Advisory Opinion of the International Court of Justice on the Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, including in and around East Jerusalem, G.A. Res. ES10/15, 10th
emergency special sess., U.N. Doc. A/RES/ES10/15 (Aug. 2, 2004).
173. Maivan Clech Lam, Indigenous Peoples Right to SelfDetermination
and Territoriality, in HUMAN RIGHTS IN THE WORLD COMMUNITY: ISSUES AND
ACTION 148, 155 (Richard Pierre Claude & Burns H. Weston eds., 2006).
174. See, e.g., ICCPR, supra note 55; see also ICESCR, supra note 55;
United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res.
61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007), 46 I.L.M. 1013 (2007)
[hereinafter UNDRIP].
175. Charles Beitz, Human Rights and the Law of Peoples, in THE ETHICS
OF ASSISTANCE MORALITY AND THE DISTANT NEEDY 196 (Deen K. Chatterjee
ed., 2004) (take note however that Beitz himself considers this an orthodox
view of human rights which he rejects as he believes in a practical conception
of human rights).
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tensions and contradictions of international

legal theory: it perfectly reflects the cyclical
oscillation between positivism and natural law,
between an emphasis on consent, that is
voluntarism, and an emphasis on binding
objective legal principles, between a statist and
communitarian vision of world order.176
In the United States, it is settled that customary international
law is regarded as federal common law177 and is therefore part
of the supreme law of the land. Indians may therefore sue in
the courts to enforce their selfdetermination rights. However,
such suits are limited to their rights within domestic law. On
the other hand, they may sue to enforce all rights which are
entitlements of selfdetermination, whether or not positive law
expressly provides them. Independent of its being customary
law, selfdetermination is explicitly recognized under
international law. Both the International Covenant on Civil
and Political Rights (ICCPR) and the International Covenant
on Economic, Social and Cultural Rights (ICESCR), two
covenants which form part of the International Bill of Rights,
identically provide: All peoples have the right of self
determination. By virtue of that right they freely determine
their political status and freely pursue their economic, social
and cultural development.178 The same provision is in the
Declaration on the Rights of Indigenous Peoples (UNDRIP) 179
which the United States recently adopted,180 reversing its
dissent registered when the landmark instrument on
indigenous rights was presented to the UN General Assembly
in 2007.181
176. ANTONIO CASSESE, SELFDETERMINATION OF PEOPLES: A LEGAL
REAPPRAISAL (New York: Cambridge University Press, 1995).
177. See Filartiga v. PenaIrala, 630 F.2d 876, 885 (2nd Cir. 1980); see also
Estate of Ferdinand E. Marcos v. Marcos, 978 F.2d 493, 502 (9th Cir. 1992);
see also Louis Henkin, International Law as Law in the United States, 82
MICH. L. REV. 1555, 156062 (1984).
178. See ICCPR, supra note 55, art. 1; see also ICESCR, supra note 55, art.
1.
179. See UNDRIP, supra note 174, art. 3 (Indigenous peoples have the
right to selfdetermination. By virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural
development.).
180. International Forum on Globalization, US Announces its Support of
the UN Declaration on the Rights of Indigenous Peoples (UNDRIP),
http://ifg.org/programs/indig/USUNDRIP.html (last visited January 28, 2013).
181. See Press Release, UN General Assembly, General Assembly Adopts
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While the United States has not ratified the ICESCR, it

has ratified the ICCPR which came into force on 8 September
1992,182 making the treaty part of the supreme law of the
land.183 It is worth noting that the United States ratification
was subject to the declaration that the ICCPR is not self
executing, implying that that an enabling legislation is a sine
qua non for the direct enforcement of the treaty in U.S. courts.
It is, however, correctly observed that this attempt to
undermine the efficacy of the ICCPR is void, since it
diametrically opposes the ICCPRs object and purpose to
promote human rights.184 Debates as to whether the United
States declaration is binding is an academic exercise. Treaty
reservations and declarations are, as a rule, valid, but they do
not operate against nonderogable rights and jus cogens or
peremptory norms.185
Declaration on Rights of Indigenous Peoples; Major Step Forward Towards

Human Rights For All, Says President, U.N. Doc. GA/10612 (Sep. 13, 2007),
available
at
http://www.un.org/News/Press/docs/2007/ga10612.doc.htm
(stating that the UNDRIP was adopted by an overwhelming affirmative vote
of 143. Four (4) Australia, Canada, New Zealand and United States voted
against it while 11 abstained: Azerbaijan, Bangladesh, Bhutan, Burundi,
Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa, and Ukraine.
The following were absent: Chad, Cte dIvoire, Equatorial Guinea, Eritrea,
Ethiopia, Fiji, Gambia, Grenada, GuineaBissau, Israel, Kiribati, Kyrgyzstan,
Marshall Islands, Mauritania, Montenegro, Morocco, Nauru, Palau, Papua
New Guinea, Romania, Rwanda, Saint Kitts and Nevis, Sao Tome and
Principe, Seychelles, Solomon Islands, Somalia, Tajikistan, Togo, Tonga,
Turkmenistan, Tuvalu, Uganda, Uzbekistan, and Vanuatu).
182. See generally UNITED NATIONS, MULTILATERAL TREATIES DEPOSITED
WITH THE SECRETARY GENERAL: STATUS AS AT 1 APRIL 2009, at U.N. Doc.
ST/LEG/SER.E/26, U.N. Sales No. E.09.V.3 (2009), available at
http://treaties.un.org/doc/source/publications/MTDSG/2009/English-II.pdf
[hereinafter MULTILATERAL TREATIES].
183. See U.S. Const. art. VI, 2 (This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the United States, shall
be the supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.). In various cases, the Supreme Court upheld treaties as
part of the law of the land. See, e.g., Ware v. Hylton, 3 U.S. 199 (1796); see also
United States v. Rauscher, 119 U.S. 407 (1886); Sale v. Haitian Ctrs. Council,
509 U.S. 155 (1993).
184. See MULTILATERAL TREATIES, supra note 182 (stating that this was
the position taken by the 11 states: Belgium, Denmark, Finland, France,
Germany, Italy, the Netherlands, Norway, Portugal, Spain, and Sweden).
185. CASSESSE, supra note 176, at 140.
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C. SELFDETERMINATION AS DEMOCRACY: THROWING THE

LAMB IN WITH THE WOLVES?
The value of democratic rights per se to indigenous peoples
is limited,186 because the essence of the democratic process is
the will of the majority. Democracy, according to Benjamin
Franklin, is two wolves and a lamb deciding what to have for
lunch.187 Indigenous peoples that are a political, if not
numerical, minority governed in a majoritarian fashion may
lack political representation due to the lack of inherent
capacity for institutional controls against the will of the
majority.188 Democracy in its simplest definition, offers little
protection against the abuse of human rights in the absence of
safeguards for minorities. The U.S. Constitution does not
provide guarantees against federal and state abuse of Indian
sovereignty.189 In fact, indigenous participation in the
democratic process serves to validate those decisions which
isolate them, and legitimize the [reproduction of] the very
configurations of colonial power that indigenous peoples
demands for recognition have historically sought to
transcend.190 Opponents of majoritarianism call it tyranny of
the majority191 because a decision of the majority is democratic
even if incompatible with justice,192 which can ultimately lead
to the collapse of the rule of law.193
186. See JRMIE GILBERT, INDIGENOUS PEOPLES LAND RIGHTS UNDER
INTERNATIONAL LAW: FROM VICTIMS TO ACTORS 22021 (2006).
187. BLACK, supra note 65, at 75.
188. See Roberto Gargarella, A Majoritarian Reading of the Rule of Law, in
DEMOCRACY AND THE RULE OF LAW 147, 147 (Jose Maria Maravall & Adam
Przewroski eds., 2003).
189. See POMMERSHEIM, supra note 69, at 4 (Despite the fact that the
Constitution explicitly recognizes tribal sovereignty in the Indian Commerce
Clause and implicitly in the treatymaking power, there has been almost no
indepth constitutional exegesis that elucidates how these provisions either
protect tribal sovereignty or set boundaries for federal authority in Indian
affairs. Instead, these constitutional provisions have proved mostly illusory
and ineffective in protecting tribal sovereignty and constraining federal power
in Indian affairs.).
190. See generally Glen Coulthard, Subjects of Empire: Indigenous Peoples
and the Politics of Recognition in Canada, 6 CONTEMP. POL. THEORY 437
(2007).
191. See generally Kerry Burch, How Toquevilles Theory of Tyranny of the
Majority Can Benefit Social Justice Pedagogies, 37 Philosophical Studies in
Education 45, available at http://www.ovpes.org/2006/Burch.pdf.
192. See generally RONALD DWORKIN, IS DEMOCRACY POSSIBLE HERE?:
PRINCIPALS FOR A NEW POLITICAL DEBATE (2006).
193. Gargarella, supra note 188, at 148.
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Despite changes in the federal governments policy on

Indian selfdetermination during the last forty years, at its
core it has been consistently predicated on two principles: (1)
providing greater control to tribal citizens and their
governments in planning, designing, implementing, and
controlling the public affairs of their respective tribes; and (2)
maintaining the trust relationship between the federal
government and American Indian tribes.194 It is widely
acknowledged that President Nixons declaration in 1970 before
Congress that the Federal government [should] begin to
recognize and build upon the capacities and insights of the
Indian people195 provided the impetus for the passage of the
Indian SelfDetermination Act. The Act considers assuring
maximum Indian participation in the direction of educational
as well as other Federal services to Indian communities as a
discharge of the United States obligation to respond to the
strong expression of the Indian people for self
determination.196
While rhetorically, the SelfDetermination Act may give
tribes a greater role in their affairs, the law does not say that
they ultimately decide. It equates meaningful self
determination with effective and meaningful participation by
the Indian people in the planning, conduct and administration
of Indian services.197 Under the Act, Indians are given seats at
194. Stephen Cornell & Joseph P. Kalt, American Indian Self
Determination The Political Economy of a Successful Policy 17 (Harvard
Kennedy Sch., Working Paper No. 1, 2010) (citing THE HARVARD PROJECT ON
AMERICAN INDIAN ECONOMIC DEVELOPMENT, THE STATE OF NATIVE NATIONS:
CONDITIONS UNDER U.S. POLICIES OF SELFDETERMINATION, 1588 (2008)).
195. JACK UTTER, AMERICAN INDIANS: ANSWERS TO TODAYS QUESTIONS
278 (2d ed. 2001).
196. 25 U.S.C. 450a(a) (The Congress hereby recognizes the obligation of
the United States to respond to the strong expression of the Indian people for
selfdetermination by assuring maximum Indian participation in the direction
of educational as well as other Federal services to Indian communities so as to
render such services more responsive to the needs and desires of those
communities.).
197. See id. 450a(b) (The Congress declares its commitment to the
maintenance of the Federal Government's unique and continuing relationship
with, and responsibility to, individual Indian tribes and to the Indian people
as a whole through the establishment of a meaningful Indian self
determination policy which will permit an orderly transition from the Federal
domination of programs for, and services to, Indians to effective and
meaningful participation by the Indian people in the planning, conduct, and
administration of those programs and services. In accordance with this policy,
the United States is committed to supporting and assisting Indian tribes in
the development of strong and stable tribal governments, capable of
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[Vol 22
the discussion table, along with federal bureaucrats and

legislators, when it is their affairs on the agenda.
The spirit of this law is embedded in executive actions on
Indian matters. For example, in 2000, the federal government
issued an Executive Order which affirms federal recognition of
the right of Indian tribes to self government and support for
tribal sovereignty and selfdetermination.198 It lays down
principles for executive policies and legislative proposals that
elaborate on consulting tribes for inputs in the development of
regulatory policies that have tribal implications. But the
picture is stark: the self in selfdetermination is but a mere
consultant that ultimately does not make the decision on
matters that affect itself. Since the setting is democracy, it is
still the majority that decides.
Historically, the exercise of Indian selfdetermination has
been severely crippled by the powerful jaws of federal
bureaucracies199 which were acting in the interest of the
majority. The participation of the tribes in the democratic
processes to address their concerns stamps moral validity on
eventual federal decisions. After all, the tribes were consulted.
A statement of the Philippine Supreme Court, in which it
overruled the constitutional challenge of indigenous peoples
against a mining law that indigenous people feared would
dispossess them of their ancestral domains, is indicative of how
majoritarian sentiments can overshadow indigenous interests:
We must never forget that it is not only our less
privileged brethren in tribal and cultural
communities who deserve the attention of this
Court; rather, all parties concernedincluding
the State itself, the contractor (whether Filipino
or foreign), and the vast majority of our
citizensequally deserve the protection of the
law and of this Court. To stress, the benefits to
be derived by the State from mining activities
must ultimately serve the great majority of our
fellow citizens. They have as much right and
interest in the proper and wellordered
development and utilization of the countrys
administering quality programs and developing the economies of their
respective communities.).
198. Exec. Order No. 13,175, 65 FR 67249 (2000).
199. See generally Cook, supra note 8.
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61
mineral resources as the petitioners.200

The same line of reasoning is used by the United States in
United States v. Navajo Nation.201 In that case, the Navajo
Nation sought to enforce a claim of $600M against the federal
government for alleged losses when the Secretary of Interior as
the highestranking government official charged by statute
with overseeing Indian Affairs breached his fiduciary duty to
Indian tribes by approving a royalty share of the Nation from a
coal mining operation way lower than what was recommended
by other federal agencies. The Court observed that its decision
has the potential to impact not only the parties, but also
energy customers in California, schoolchildren in Utah, and
tribal law specialists nationwide along with the energy
industry which wants cheap coal. The Court also mentioned
that energy companies argue that there is a substantial
benefit to millions of energy consumers throughout California
in having the reasonably priced coal that comes as a result of
the current lease arrangement. The tribes lost the case.
One scholar states that the function of self
determination is to protect the collective human and
democratic rights of minorities and unrepresented peoples 202
something pure democracy cannot accomplish.203 This scholar
doubts that selfdetermination can be satisfied by the
majoritarian model, even in the presence of minority rights. 204
Selfdetermination is the right to equal participation in
decisionmaking, normatively based on the concept of
democracy.205 But democracy is not a sufficient, fair response to
demands for selfdetermination. Indigenous peoples, as
minorities, can never be equal participants in decisionmaking
as historically they occupy positions of subservience.
In fact, in some cases, minorities and indigenous peoples
have had better, or less bad, conditions under systems regarded
by the international community as totalitarian. The Stalinist
regime prohibited racial bigotry and suppressed ethnic and
200. See La BugalB'Laan Tribal Association v Ramos, G.R. No. 127882
(S.C., Jan. 27, 2004) (Phil.).
201. See United States v. Navajo Nation, 537 U.S. 488 (2003).
202. Gerry J. Simpson, The Diffusion of Sovereignty: SelfDetermination in
the PostColonial Age, 32 STAN. J. INTL L. 255, 258 (1996).
203. Id. at 280.
204. Id. at 279.
205. See generally DAVID HELD, DEMOCRACY AND THE GLOBAL ORDER
(1995).
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[Vol 22
racial resentment, 206 rescuing the Roma from the fringes of

society and facilitating their integration into the production
process, thereby elevating their standard of living.207 When the
Soviet Union crumbled and a democratic order took control, the
centuriesold racism returned and jeopardized Roma
integration.208 Democracy therefore does not ensure the
integration of minorities.
To Hannum and Lillich, selfgovernance and autonomy
refer to a measure of actual as well as formal independence
enjoyed by the autonomous entity in its political decision
making process.209 The existence of autonomous entities may
as well as a measure of actual as well as formal independence
enjoyed by the autonomous entity in its political decision
making process.210 But for Anaya, selfgovernment is only
political, 211 and does not by itself translate into control over
nonpolitical aspects of a peoples existence.
In this era of globalization, democratic entitlements alone
will do little to change the situation for indigenous peoples.
Mazower supports this assertion by observing that the collapse
of liberal democracy in the mid20th Century Europe was
caused by a focus on process, rather than results. In his words,
it assume[d] mistakenly that a deep rooted social crisis could
be solved by offering the people constitutional liberties. 212
Although these liberties accorded people the space to
participate in political discourse and processes, they failed to
resolve the prevailing social issues.213 Selfdetermination with
206. Ian Hancock, The Consequences of AntiGypsy Racism in Europe (Sep.
23,
1994),
available
at
http://www.radoc.net/radoc.php?doc=art_f_bias_consequencesofracism&lang=e
n&articles=true.
207. Id.
208. See Will Guy, Romani Identity and PostCommunist Policy, in
BETWEEN PAST AND FUTURE: THE ROMA OF CENTRAL AND EASTERN EUROPE 3,
513 (Will Guy ed., 2001).
209. Hurst Hannum and Richard B. Lillich, The Concept of Autonomy in
International Law, 74 AM. J. INTL L. 858, 860 (1980).
210. Donna Lee Van Cott, Explaining Ethnic Autonomy Regimes in Latin
America, STUDIES IN COMPARATIVE INTERNATIONAL DEVELOPMENT, Vol. 35,
Issue 4, at 30 (Winter 2001).
211. S. James Anaya, The Native Hawaiian People and International
Human Rights Law: Toward a Remedy for Past and Continuing Wrongs, 28
GA. L. REV. 309, 354 (199394) [hereinafter Anaya, The Native Hawaiian
People].
212. MARK MOWZER, DARK CONTINENT 11 (1998).
213. See id. (stating that the political liberties granted by Russian liberals
to peasants in 1918 was not enough to solve the social crisis caused by war
Cheryl Daytec
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63
a strictly political focus that is not resultoriented will fare no

better.
D. SELFDETERMINATION REQUIRES LAND CONTROL
The inadequacy of the federal response to Native American
claims of selfdetermination is due largely to the tribes lack of
land control. The SelfDetermination Act and prevailing Indian
policies promote Indian representation within the policy
process, providing them an opportunity to identify their
problems and propose viable solutions. Yet tribes continue to
decry the suppression of their selfdetermination claims.
Selfgovernment or autonomy, meaning that parts of the
States territory are authorized to govern themselves in certain
matters by enacting laws and statutes, but without constituting
a State of their own,214 may satisfy scholars who view self
determination as only the expression of political power.215 As
an adjunct of selfdetermination, autonomy is indeed a political
right, the right of a people organized in an established
territory to determine its collective political destiny,216 or the
right to participate in deciding the structure of the state, the
type of government and the persons to be entrusted with
political power in a state.217 However, it is just one of the
aspects of selfdetermination. It does not, by itself, allow self
control over other aspects of a peoples existence.218 While
institutions of government are necessary components of self
determination, sovereignty over natural resources and
territories [should proceed] their appearance.219 The Royal
Commission of Aboriginal Peoples of Canada recognized this
basic fact, declaring that without a greater share of land and
resources, institutions of aboriginal selfgovernment will
and landlessness).
214. HansJoachim Heintze, On the Legal Understanding of Autonomy, in
AUTONOMY: APPLICATIONS AND IMPLICATIONS 7, 7 (Markku Suksi ed., 1998).
215. JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW
(2d ed. 2006).
216. Thomas M. Franck, The Emerging Right to Democratic Governance, 86
AM. J. INTL L. 46, 52 (1992).
217. Idowu, supra note 53, at 5051.
218. Anaya, The Native Hawaiian People, supra note 211, at 355 (stating
that cultural integrity is part of the selfgovernment norm).
219. Aoife Duffy, Indigenous Peoples Land Rights: Developing a Sui
Generis Approach to Ownership and Restitution, 15 INTL J. ON MINORITY &
GROUP RTS. 505, 509 (2008).
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[Vol 22
fail.220
Reporting on Greenlands home rule agreement with
Denmark, Miguel Alfonso Martinez, UN SpecialRapporteur on
treaties, agreements and other constructive arrangements
between States and indigenous populations, concluded that
Greenlands autonomy regime [did] not amount to the
exercise of the right to selfdetermination by the population of
Greenland.221 He agreed that autonomy regimes have brought
[or may bring] certain advantages to indigenous peoples 222 but
will not end a States aspirations to exert the fullest authority
possible, including integrating and assimilating its peoples.
Selfdetermination
rather
than
selfgovernment
guarantees land control. International law stresses that the
right to selfdetermination requires, inter alia, that all peoples
must be able to freely dispose of their natural wealth and
resources and that they may not be deprived of their own
means of subsistence.223 Scheinin argues that self
determination contains is impressed with two dimensions:
[A]ll peoples right to freely determine their political status
(political dimension) and to pursue their economic, social and
cultural development (resource dimension).224 Anaya similarly
220. U.N. Human Rights Comm., Concluding Observations of the Human
Rights Committee: Canada, 8, CCPR/C/79/Add.105 (April 7, 1999).
221. U.N. SubCommission on Prevention of Discrimination and Protection
of Minorities, Study on Treaties, Agreements and Other Constructive
Arrangements Between States and Indigenous Populations, 132, U.N. Doc
E/CN.4/Sub. 2/1999/20 (June 22, 1999).
222. Id. 134.
223. Tove Sovndahl Pedersen, Expert Seminar on Treaties, Agreements and
Other Constructive Arrangements Between States and Indigenous Peoples:
Background Paper, 1.15, HR/GENEVA/TSIP/SEM/2003/BP.5 (December 15
17 2003). See also Andy McSmith, The Big Question: Is Greenland Ready for
Independence, and What Would It Mean For Its People?, THE INDEPENDENT,
Nov.
27,
2008,
available
at
http://www.independent.co.uk/news/world/europe/the-big-question-isgreenland-ready-for-independence-and-what-would-it-mean-for-its-people1036735.html (explaining that Denmark recognizes Greenlands control over
its resources); see also U.N. Human Rights Comm., Concluding Observations
of the Human Rights Committee: Canada, 8, CCPR/C/79/Add.105 (April 7,
1999). See also U.N. Human Rights Comm., General Comment 12, Article 1,
5, U.N. Doc. HRI/GEN/1/Rev.1 at 12 (1994), (stating that Art. 1 of the ICCPR
affirms a particular aspect of the economic content of the right of self
determination, namely the right of peoples, for their own ends, freely to
dispose of their natural wealth and resources without prejudice to any
obligations arising out of international economic cooperation, based upon the
principle of mutual benefit, and international law).
224. Martin Scheinin, Indigenous Peoples Land Rights Under the
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argues that international norms on indigenous peoples that

elaborate upon the requirements of selfdetermination,
generally fall within the following categories: cultural integrity,
lands and resources, social welfare and development, and self
government.225
Hannum
considers
formal
secession
antiquated, instead claiming that selfdetermination in its
current form is grounded on two justifications: first, protecting
the individual and group identity, and second, facilitating
effective participation in government.226 The first is reflected
in human rights norms. The second requires the identification
of relevant elements of democratic selfgovernment to
guarantee effective participation of people in the affairs of the
State. The human rights norms are guaranteed by land control,
which enables control over indigenous economic and cultural
destinies within an existing State polity.227 In Maya Indigenous
Communities Toledo District v. Belize, the InterAmerican
Court of Human Rights ruled that Belize violated the land
rights of the Maya peoples by granting oil and logging
concessions to corporate actors. It pronounced that the
effective protection of ancestral territories implies not only the
protection of an economic unit but the protection of the human
rights of a collective that bases its economic, social, and
cultural development upon their relationship with the land. 228
Lea argues that protection of ancestral land is necessary to
maintain the cultural context of choice and at the same time
to allow sufficient territory and resources necessary for the
effective exercise of income rights.229
Even in cases where indigenous peoples have been granted
selfmanagement, viable land bases are required for success.
Speaking of the indigenous peoples of Hawaii, Anaya wrote
Without an effective land base, surviving Native Hawaiian
customsintertwined with land use and stewardship patterns
International Covenant on Civil and Political Rights, 9, GALDU RESOURCE

CENTRE
FOR
THE
RIGHTS
OF
INDIGENOUS
PEOPLES,
http://www.galdu.org/govat/doc/foredragavmartinscheinin.pdf.
225. Anaya, The Native Hawaiian People, supra note 211, at 342.
226. Hannum, Specter of Secession, supra note 62, at 14.
227. Keal, supra note 56, at 147.
228. Maya Indigenous Communities Toledo District v. Belize, Case 12.053,
InterAm. Commn H.R., Report No. 40/04, OEA/Ser.L/V/II.122, doc. 5 rev. 1
120 (2004).
229. DAVID LEA, PROPERTY RIGHTS, INDIGENOUS PEOPLE AND THE
DEVELOPING WORLD 29 (2008).
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[Vol 22
are suppressed.230 To indigenous peoples, land rights have to

be viewed as an expression of tribal unity and perpetuation. 231
For the marginalized, land rights are synonymous with
economic power.232 They are the bargaining leverage of the
marginalized against the exercise of State powers. In addition,
property rights have a social, rather than merely economic,
function.233 This can be seen clearly when looking at the
example of traditional power relationships between men and
women. A lack of property rights prevents women from
achieving empowerment.234 Power inequalities between men
and women are attributable to the disparity in land rights235
especially in agricultural societies. Thus to empower women,
their right to control assets or productive resources must be
recognized.236 As held by the African Commission of Human
and Peoples Rights, without control of their lands, indigenous
peoples cannot effectively participate in the political process.
Land ownership ensures that [they] can engage with the state
and third parties as active stakeholders rather than as passive
beneficiaries.237 Thus States opposition to international
recognition of indigenous peoples right to selfdetermination is
due more to fear of losing control over indigenous lands and
natural resources than fear of losing some of their overall
political power.238
230. Anaya, The Native Hawaiian People, supra note 211, at 318.
231. Jrmie Gilbert, The Treatment of Territory of Indigenous Peoples in
International Law, in TITLE TO TERRITORY IN INTERNATIONAL LAW 199, 201 (J.
Castellino & S. Allen eds., 2003).
232. Karen O. Mason & Helene M. Carlsson, The Development Impact of
Gender Equality in Land Rights, in HUMAN RIGHTS AND DEVELOPMENT 114,
116 (Philip Alston & Mary Robinson eds., 2005).
233. Kerry Rittich, The Properties of Gender Equality, in HUMAN RIGHTS
AND DEVELOPMENT 87, 98 (Philip Alston & Mary Robinson eds., 2005).
234. Id. at 87.
235. Id.
236. Id. at 88.
237. Centre for Minority Rights Development and Minority Rights Group v.
Kenya, African Commission on Human and Peoples Rights, 276/03, 204,
available
at
http://www.achpr.org/files/sessions/46th/comunications/276.03/achpr46_276_0
3_eng.pdf.
238. Ichoku Precious Ifeoma, What are the Measures Available for the
Protection of Indigenous Rights to Land and Natural Resources?, at 6,
available at http://www.dundee.ac.uk/cepmlp/car/html/CAR9_ARTICLE11.pdf
(last visited May 1, 2013); see also Press Release, General Assembly, General
Assembly Adopts Declaration on Rights of Indigenous Peoples; Major Step
Forward Towards Human Rights For All, Says President, GA/10612 (Sept. 13,
2007) (stating that Canada and Australia voted against the UNDRIP because
Cheryl Daytec
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Native American history validates the view that land

controlor the absence of itaffects the exercise of self
government. Tribes have been granted selfgovernment and
democratic rights under Congress plenary powers, but these
powers obliterated their preconstitutional sovereignty over
their lands and resources. Forced removal, whether by military
force or legislation239 and judicial pronouncement,240 and the
privatization of tribal lands under the 19th century allotment
policy241 have severely eroded tribal selfdetermination.
This history has made tribal claims to selfdetermination
difficult within the federal legal system. Tribes cannot lease
their lands without the Secretary of Interiors imprimatur.242
Over tribal objections, the federal government issued a
hydroelectric power plant license to operate within a
reservation, since it is clear that all aspects of Indian
sovereignty are subject to defeasance by Congress. 243 Their
of concerns over land and resource rights).
239. See
Indian
Removal
Act,
LIBRARY
OF
CONGRESS,
http://www.loc.gov/rr/program/bib/ourdocs/Indian.html (explaining that the
1830 Indian Removal Act authorized the federal government to forcibly
relocate tribes living within existing state borders to lands west of the
Mississippi).
240. See Johnson v. MIntosh, 21 U.S. 543, 56970 (1823) (holding that
North American Indians have no proprietary interest in the land on which
they historically lived and that the title to that land had passed to the United
States by right of discovery and conquest); Lone Wolf v. Hitchcock, 187 U.S.
553, 56465 (1903) (holding that, as Native American tribes are in a relation
of dependency on the U.S. government, Congress has the right to unilaterally
alter reservation borders despite treaty agreements to the contrary); Solem v.
Bartlett, 465 U.S. 463, 470 (1984) (holding that there must be a clear
Congressional intent shown before an opening of reservation land to non
Indian settlement can be determined a diminishment of the reservation).
241. See, e.g., Carl Hakansson, Allotment at Pine Ridge Reservation: Its
Consequences and Alternative Remedies, 73 N.D. L. REV. 231, 232 (1997)
(criticizing the 1887 General Allotment Act, better known as the Dawes Act,
as the most disastrous piece of land legislation in the United States
concerning Indians, as its division of reservation lands into individual plots
ravaged the Indian land base, destroyed existing tribal governments, and
devastated Indian culture while opening large areas of Indian land to non
Indian settlement); Susan Campbell, On Modest Proposals to Further Reduce
the Aboriginal Landbase by Privatizing the Reserve Land, 27 CANADIAN J. OF
NATIVE
STUDIES
219,
(2007),
available
at
http://www2.brandonu.ca/library/CJNS/27.2/01Campbell.pdf
(a
detailed
discussion of the dispossession suffered by Native Americans under the Dawes
Act).
242. 25 U.S.C.A. 396 (1955).
243. Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, 466
U.S. 765, 787 n.30 (1984).
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lands may be taken by the federal government without their

consent, even in violation of agreements or treaties, 244 or
condemned in the exercise of eminent domain.245 In fact,
[b]etween 1936 and 1974, some 595,157 acres were restored to
tribal ownership, but more than three times that many acres of
existing tribal lands, a total of 1,811,010, were condemned for
other purposes.246 Treaties on which Native Americans base
their land claims may be unilaterally abrogated by Congress.247
Tribes have no vested rights when their occupation of land is
unrecognized by the federal government.248 Oliphant and
Montana hold that tribes do not exercise territorial sovereignty
such that nonIndian activities within Indian country may not,
as a general rule, be regulated by the police power of tribal
governments. Finally, whatever remaining powers tribes
possess is subordinate to the cardinal plenary power of
Congress.
These developments in federal Indian law and
jurisprudence pose real danger to tribes whose lands
constitute less than 2% of their original area but host
[a]pproximately onethird of all western U.S. lowsulfur coal,
20 percent of known U.S. reserves of oil and natural gas, and
over onehalf of all U.S. uranium deposits.249 It is alleged that
[t]he U.S. has been increasing efforts through its federal
agencies and with energy legislation and through its corporate
energy partners to push more mineral and resourceextraction
development within tribal lands.250 With tribal sovereignty
limited to selfgovernment, and with selfgovernment limited
to what powers the federal government chooses to grant them,
tribes do not have meaningful control over their lands. Such
244. See Lone Wolf v. Hitchcock, 187 U.S. at 56465; Sioux Tribe of Indians
v. United States, 316 U.S. 317 (1942).
245. Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99
(1960) (holding that Tuscarora land could be seized and converted into a
storage reservoir for a dam); United States v. Sioux Nation of Indians, 448
U.S. 371 (1980) (holding that Sioux tribe was entitled to $17.1 million in
interest from the seizure of the Black Hills in 1877).
246. Judith Royster, The Legacy of Allotment, ARIZ. ST. L.J. 1, 17 n.90
(1995).
247. United States v. Dion, 476 U.S. 734 (1986) (holding that the Bald
Eagle Protection Act passed by Congress was specifically intended to abrogate
the treaty right of the Yankton Sioux Tribe to hunt bald or golden eagles).
248. TeeHitTon Indians v. United States, 348 U.S. 272, 285 (1955).
249. ENCYCLOPEDIA OF RELIGION AND NATURE 1, 840 (Bron R. Taylor ed.,
2005).
250. Id. at 839.
Cheryl Daytec
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69
control would arm them with the requirement that tribes give
their free and prior informed consent before the federal
government can act on their land. That would be a
manifestation of selfdetermination.
V. PARTING WORDS
Although the founding fathers entrenched tribal
sovereignty in the Constitution, these constitutional provisions
have proved mostly illusory and ineffective in protecting tribal
sovereignty and constraining federal power in Indian
affairs.251 The consequence has been a series of Supreme Court
cases that engaged in doublespeak on the issue of tribal
sovereignty. Tribal sovereignty, initially viewed as inherent,
was made subject to the power of the federal government.
Eventually, congressional plenary authority became the rule.
The United States occasionally uses the word self
determination in reference to tribal sovereignty. A cursory
evaluation of the powers of tribal governments permitted by
the federal government shows that the rhetoric of self
determination as used in US laws and jurisprudence mean
selfgovernment and autonomy, if measured against
international law and normative standards. Although U.S.
Supreme Court jurisprudence has numerous references to
tribal sovereignty that predate colonization, federal recognition
of sovereignty and selfdetermination is limited to support for
indigenous selfgovernment.
The case of the Indian tribes classically illustrates the
fundamental differences between selfdetermination and self
government. Selfdetermination is protected by the ICCPR.
Since the United States qualified its ratification of the covenant
with the declaration that the ICCPR is not selfexecuting
within the domestic law, the Court does not reference the
ICCPR in its decisions. Instead, the Court recognizes that
[federal] regulation is . . . rooted in the unique status of
Indians as a separate people with their own political
institutions.252 Tribal powers are regarded as grants from the
federal government exercising legislative plenary power over
the tribes. Hence, the federal government has been
cumulatively diminishing tribal powers mostly by judicial fiat.
Since selfgovernment is a democratic entitlement, the
252. United States v. Antelope, 430 U.S. 641, 647 (1977).
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tribes have the right to participate in crafting policies that

affect them. Cook observes that [i]f selfdetermination is a
triballyderived concept reflecting tribal goals, then it is only
logical that selfdetermination policy should reflect native
opinions and interests.253 However, since democracy is an
unequal playing field where the majority rules, indigenous
populations are forced to trust that the majority will decide in
their favor. This does not mean that participation in democratic
processes or autonomy has no value to the Indian tribes. The
1975 SelfDetermination Act opened the conference chambers
to tribes and assured them seats at the discussion table,
ensuring that their views would be heard. In fact tribal self
rule has proven to be the only policy that has shown concrete
success in breaking debilitating economic dependence on
federal spending programs and replenishing the social and
cultural fabric that can support vibrant and healthy
communities and families. 254 But selfgovernment falls short
of a promise or guarantee that tribal lands will not be further
diminished. If they are, the institutions of selfgovernment will
similarly erode.
Cornell and Kalt state that if central governments wish to
perpetuate Indigenous poverty, its attendant ills and
bitterness, and its high costs, the best way to do so is to
undermine tribal sovereignty and selfdetermination.255 The
best way to undermine selfdetermination is to undermine land
control. Selfdetermination necessarily entails control of land
and resources. But Indian tribes do not possess such control.
Their lands are held in trust for them by the federal
government. As trustee, the federal government can alienate or
lease their lands without their consent or over their objections.
They cannot prescribe laws that apply to activities of non
Indians on their lands, or to nonIndians in reservations.
The adoption by the United States of the UNDRIP is a
positive step toward redressing past injustices and achieving
reconciliation. The United States should sit down with the
tribes and ask them how meaningful Indian selfdetermination
may be realized within the framework of the existing bigger
sovereign. A Dakota historian observes that [c]olonial
dominance can be maintained only if the history of the
subjugated is denied and that of the colonizer elevated and
253. Cook, supra note 8.
254. Kalt & Singer, supra note 20, at 1.
255. CORNELL, supra note 137, at 28.
Cheryl Daytec
2013]
71
glorified.256 The continued reduction of tribal lands and

shrinkage of Indian sovereignty is such a glorification of
colonization.257 It should be revisited. As it has been a powerful
weapon to shrink tribal sovereignty, the plenary doctrine may
be an equally powerful weapon to finally give due recognition to
indigenous selfdetermination.
The United States must recognize and respect that control
over land is critical to indigenous selfdetermination. Whatever
political strength Indian tribes continue to possess is a
consequence of the fact that the Indian land base has not been
fully exterminated. There are remaining remnant parcels
which warfare, colonialism, and assimilationist programs
have not eroded, and these have unintentionally provided a
foundation for tribal continuity and survival.258 These remnant
parcels have to be protected to serve as the base for the exercise
of Indian selfdetermination Healing can be achieved by
changing the rhetoric of selfdetermination to actual
recognition. As Daes states:
It should be emphasized, once again, that it is
not realistic to fear indigenous peoples
exercising of the right to selfdetermination. It
is far more realistic to fear that the denial of
indigenous peoples right to selfdetermination
will leave the most marginalized and excluded of
all the worlds peoples without a legal, peaceful
weapon to press for genuine democracy in the
States in which they live.259
256. Angela
Cavender
Wilson,
Remember
This!,
in
DAKOTA
DECOLONIZATION AND THE ELI TAYLOR NARRATIVES 24 (2005).
257. See Wamsutta (Frank B.) James, Suppressed Speech on the 350th
Anniversary of the Pilgrims Landing at Plymouth Rock (September 10, 1970),
in VOICES OF A PEOPLES HISTORY OF THE UNITED STATES 461, 462 (Howard
Zinn & Anthony Arnove eds., 2004) (James was prevented from making this
speech, referencing the continuing degradation of Native American culture in
America, by Massachusetts officials. He and other Native American activists
protested at Plymouth Rock, declaring Thanksgiving Day to be a National
Day of Mourning for Native Americans.).
258. CORNELL, supra note 137, at 22.
259. Daes, supra note 68, at 24.

Fraternal Twins With Different Mothers: Explaining Differences Between Self - Determination and Self-Government Using The Indian Tribal Sovereignty Model As Context

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Fraternal Twins With Different Mothers: Explaining Differences Between Self - Determination and Self-Government Using The Indian Tribal Sovereignty Model As Context

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Cheryl Daytec

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

MJIL HUMPHREY SUPPLEMENT

dependent nations3 in a state of pupilage under the United

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

INDIAN TRIBAL SOVEREIGNTY

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

MJIL HUMPHREY SUPPLEMENT

participation in the direction of educational as well as other

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

INDIAN TRIBAL SOVEREIGNTY

This sentiment has been echoed in the Montana progeny

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

MJIL HUMPHREY SUPPLEMENT

Observations on Australia31 that the State party prefers self

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

INDIAN TRIBAL SOVEREIGNTY

shelter of indigenous peoples from the rule of the majority

35. United States v. Winans, 198 U.S. 371, 381 (1905).

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

MJIL HUMPHREY SUPPLEMENT

II. THE LEGAL UNDERPINNINGS OF INDIGENOUS SELF

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

INDIAN TRIBAL SOVEREIGNTY

was nonetheless a landmark treaty, being the first

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

MJIL HUMPHREY SUPPLEMENT

large dams and other infrastructure projects, logging and

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

INDIAN TRIBAL SOVEREIGNTY

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

MJIL HUMPHREY SUPPLEMENT

interpret this to mean that indigenous peoples were excluded

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

INDIAN TRIBAL SOVEREIGNTY

framework of existing States,61 removed from the colonial

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

MJIL HUMPHREY SUPPLEMENT

documents, and has crystallized into a rule of customary

III. THE LEGAL PARADIGM OF INDIAN TRIBAL

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

INDIAN TRIBAL SOVEREIGNTY

to those treaties, governed relations between the Federal

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

MJIL HUMPHREY SUPPLEMENT

B. THE INDEPENDENT, DISTINCT POLITICAL ENTITIES BUT

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

INDIAN TRIBAL SOVEREIGNTY

protections. A weak State, in order to provide for

88. Worcester v. Georgia, 31 U.S. at 520.

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

MJIL HUMPHREY SUPPLEMENT

C. THE BIRTH OF PLENARY POWERS: PREEXISTING

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

INDIAN TRIBAL SOVEREIGNTY

against another Indian. This led to the passage of the Major

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

MJIL HUMPHREY SUPPLEMENT

of Indian lands and tribal powers and assumption by federal

22 MINN. J. INTL L. HUMPHREY SUPP. 25 (2013)

INDIAN TRIBAL SOVEREIGNTY

activities of nonIndians within their reservations reasoning