Protecting the Sacred

Vol. 33 No. 2

By

Courtney Ann Coyle, attorney for the Quechan Indian Nation, is in private practice in La Jolla, California, focusing on environmental litigation and tribal, cultural, and natural resource landscape protection. To read the NAFTA submissions in this matter, including those of the tribe, visit the U.S. Department of State Web site at www.state.gov/s/l/c10986.htm.

My associates' and my representation of the Quechan Indian Nation has taken us from learning about the great mysteries of the California desert to walking the halls of Congress - and many interesting places in between.

We collaborated with other tribal governments, environmental and labor groups, and federal entities to deny Glamis Gold Ltd.'s plan to commence operation of an open pit hardrock mine, the first time the federal government has denied such a permit in American history. When the Bush administration rescinded the denial so Glamis's Imperial mine could be reconsidered, it enabled us to create and pass precedent-setting mining reclamation, sacred place consultation, and confidentiality laws for California. When the Department of the Interior lawyer who recommended the mine rescission was nominated for the Ninth Circuit Federal Court of Appeals, the mine dispute catapulted the Quechan to the forefront of the successful filibuster of his nomination.

And now the tribe is poised at the front of indigenous participation in disputes under the North American Free Trade Agreement (NAFTA). In 2003, Glamis filed a claim against the United States pursuant to NAFTA Chapter 11, asserting that the California mining measures indirectly and discriminatorily expropriated the proposed mine's value. The tribe filed a submission underscoring the nature of the sacred places and the domestic and international frameworks supporting indigenous cultural resource protection. Its brief was the first of its kind accepted in an international economic law dispute.

Cultural rights are widely recognized as human rights. Yet, the extent to which human rights law may be considered by investment tribunals remains mostly the subject of academic debate. This dispute may well bring such issues to center stage.

Some academics argue that human rights obligations could be used to mitigate the level of damages owed. We believe human rights norms are relevant in interpreting the substantive provisions of an investment treaty and establishing the reasonableness of the challenged measures. Moreover, such obligations, legitimate objectives of public interest, can be used to further justify the challenged measures to completely defeat a claim. Otherwise, investment principles would be allowed to trump human rights principles by default.

Two things have been a constant. First, the work is never boring: the technical, legal, policy, and moral aspects are varied, and the issues are cutting edge. Second, it continues to be an honor and privilege to represent the Quechan on these issues. It is a sacred trust, and we feel blessed to participate in part of that journey.

As published in Human Rights, Spring 2006, Vol. 33, No. 2, p.1.

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