A Human Rights–Based Environmental Remedy for the Legacy of the Allotment Era in Indian Country

Vol. 29 No. 1

Mr. Suagee is of counsel with Hobbs, Straus, Dean & Walker LLP in Washington, DC, and an editorial board member of Natural Resources & Environment.

In the American constitutional democracy, Indian tribes have long been recognized as having governmental authority over their members and their territory as a matter of federal law. With respect to persons who are not tribal members, however, there is a body of case law holding that such persons are often not subject to tribal authority, especially if their conduct occurs on land that is not held in federal Indian trust or restricted status. Some of the cases in that body of law arose in matters involving disputes between a tribe and a state over which sovereign had the power to regulate certain conduct. See generally Cohen’s Handbook of Federal Indian Law Ch. §§ 6.01, 6.03 (2012).

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One of the most consequential cases of the last several decades involving tribal civil regulatory authority over non-Indians is Montana v. United States, in which the US Supreme Court announced a “general proposition” that “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” 450 U.S. 544, 565 (1981). This general proposition contradicted several prior decisions, and so the Court also articulated two exceptions, one for the activities of nonmembers who enter into “consensual relationships with the tribe or its members” and one for the “conduct of non-Indians on fee lands” that “has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe.” Id. at 565–66. The Court’s ruling in Montana relied on the concept of implicit divestiture, which it had applied three years earlier in Oliphant v. Suquamish Indian Tribe and in which it held that inherent tribal sovereignty does not include misdemeanor criminal jurisdiction over non-Indians even though there was neither treaty nor statutory language divesting tribes of such authority. 435 U.S. 191 (1978).

In Montana, the Crow Tribe had sought to regulate hunting and fishing by non-Indians on lands within the Crow Reservation owned in fee by non-Indians. Before ruling against the Tribe, the Montana Court acknowledged that, as part of the establishment of the Crow Reservation in the Fort Laramie Treaty of 1868, 15 Stat. 649, the United States had promised that “no non-Indians except agents of the Government ‘shall ever be permitted to pass over, settle upon, or reside in’ the reservation.” 450 U.S. at 548. The fact that there are non-Indian landowners within the Crow Reservation, despite treaty language to the contrary, is part of the legacy of the “allotment” era of federal Indian policy. The allotment era, which came into force as the era of warfare between the United States and tribal nations was coming to a close, lasted from about 1871 until about 1928. See generally Cohen’s Handbook §§ 1.04, 16.03[2][b]; Judith V. Royster, The Legacy of Allotment, 27 Ariz. St. L.J. 1 (1995). This era takes its name from the General Allotment Act of 1887, 24 Stat. 388; conflicts between the rights of tribal governments and those of non-Indian landowners within reservation boundaries are, in large part, a legacy of the allotment era.

How much precedential weight should a case involving hunting and fishing have in the subject matter of environmental regulation? Several of the federal environmental regulatory statutes have been amended to authorize the United States Environmental Protection Agency (EPA) to treat tribes like states. See Cohen’s Handbook §§ 10.03. I have argued that, in enacting those amendments, Congress has recognized that environmental protection is a subject matter in which tribes still possess their original inherent sovereignty, and so the theory of implicit divestiture should not come into play; rather, disputes between tribes and states should be resolved through the Indian law variant of federal preemption analysis. See Dean B. Suagee, The Supreme Court’s “Whack-a-Mole” Game Theory in Federal Indian Law, a Theory That Has No Place in the Realm of Environmental Law, 7 Great Plains Nat. Res. J. 90 (2002). But Montana and its progeny still invite litigation. Opponents of tribal sovereignty can be expected to challenge any tribal regulatory program that includes conduct of non-Indians on fee land, arguing that it does not fit within one of the exceptions to the Montana general proposition and, as such, cannot be sustained as within the scope of inherent tribal sovereignty. The risk of such litigation is an impediment to effective tribal environmental regulatory programs.

Regardless of whether, as a matter of federal Indian law, inherent tribal sovereignty for environmental protection in Indian country includes authority to regulate the conduct of non-Indians, such tribal authority can also be seen in the framework of international human rights law as a collective tribal right. The tribal right to protect the environment is recognized in the United Nations Declaration on the Rights of Indigenous Peoples (U.N. Declaration), which the United Nations General Assembly adopted in September 2007. U.N. Doc. A/61/L.67 (Sept. 7, 2007). In an earlier article, I suggested that the federal statutory framework of environmental regulation in the United States, in which some of the main statutes provide that tribes can become authorized for treatment like states, is generally consistent with the tribal right to protect the environment. See Dean B. Suagee, The Tribal Right to Protect the Environment, 27:2 Nat. Res. & Envt. 52 (Fall 2012). In that article, I also suggested looking at environmental protection in Indian country through a human rights lens. This article explains in more detail how the policies of the allotment era, if held to the standards in the U.N. Declaration, violate the rights of tribes. Because these violations have ongoing effects, this article calls for federal legislation to provide a remedy, by affirming that, in the context of environmental protection, tribal sovereignty includes authority to regulate all persons within reservation boundaries. I also suggest we look to human rights law to protect the rights of nonmembers who are subject to tribal regulatory programs. Rights are not absolute, as the rights of some often come into conflict with the rights of others, and so the tribal right to protect the environment may be limited by the rights of the people who are subject to a tribe’s jurisdiction.

Many of the articles in the U.N. Declaration acknowledge that the cultural identities of indigenous peoples are rooted in their traditional territories and their physical survival depends upon conservation of the productive capacities of those territories. Article 25 recognizes that indigenous peoples have a “distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas” and proclaims that they have “the right to maintain and strengthen” this relationship “and to uphold their responsibilities to future generations in this regard.” Article 3 proclaims that indigenous peoples have the right to self-determination, and Article 4 states that, in exercising their right to self-determination, indigenous peoples have “the right to autonomy or self-government in matters relating to their internal and local affairs.”

From an indigenous perspective, the “self” of the right to self-determination can be conceptualized as not just the people but also the territory, the web of life, the flora and fauna, and the natural resources upon which life depends. An Indian tribe, in exercising its right to protect the environment, may understand the “self” in this way: the reservation is the place where the tribe’s way of life exists, and its way of life includes much more than the people.

In present-day America, within many Indian reservations there are substantial numbers of non-Indians living, working, or doing business, and many of those people may not share the tribe’s cultural values as applied to environmental protection. Of course, tribes are not monolithic, and within any given tribe there may be a number of tribal members who would choose to manage or develop resources in ways that other tribal members would not regard as in keeping with traditional cultural values. Moreover, cultural traditions are not static; they do change over time. But tribal members are, in any sense, part of the “self” of self-government.

What about non-Indians and nonmember Indians (Indians who are enrolled in tribes other than where they live)? If a tribal government asserts authority over such persons, do such persons have rights that a tribal government should be bound to honor? Does the international law of human rights help to answer such questions? Before considering such questions, I suggest we give some thought to how so much land within reservations passed out of Indian possession.

Most Americans probably have some awareness that, before colonial times, the territory of what is now the contiguous forty-eight states was inhabited by tribal nations, that some tribal nations have retained possession of portions of their aboriginal homelands as reservations, and that others were forced to move to reservations away from their homelands. Some of the dispossession resulted from warfare and some from negotiations in which the United States usually had the stronger bargaining position. During the era of reservations and removals, although tribal nations lost possession of much of their lands, the United States did carry on the practice of entering into treaties with tribal nations, promising to protect their continued possession of their reserved lands and recognizing the right of tribal self-government. See Cohen’s Handbook § 1.03. The notion that the federal government holds legal title to Indian lands in trust for beneficial use by the tribes also dates from the treaty-making era. As an aspect of this trusteeship, the federal government frequently represents the interests of tribes in their disputes with states.

In my experience, most Americans do not have much awareness regarding the damage inflicted on Indian tribes during the era of federal Indian policy that came after the warfare ended, the allotment era. Designed to turn Indians into farmers and break up the tribal land base, the General Allotment Act authorized the executive branch to confiscate communal landholdings and allot parcels of land to individual Indians, selling off so-called “surplus” lands to non-Indians. See 24 Stat. 388. Over 90 million acres of land passed out of Indian hands during the allotment era, leaving many reservations with checkerboard patterns of landholding and creating persistent problems for tribal government jurisdiction. See Cohen’s Handbook §§ 1.04, 16.03[b][2]. Allotment was not applied to every reservation; some, generally those that did not appear to have much potential for agriculture, escaped. Many tribes resisted allotment, but in one of the low points in American jurisprudence, the Supreme Court found a way to hold that it was not an unconstitutional taking for the federal government to convert tribally held land to individual allotments and make the “surplus” available for settlement by non-Indians. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

In Montana, the Court referred to the purpose of the allotment policy as “the ultimate destruction of tribal government” and acknowledged that Congress had long since repudiated that policy, but nevertheless said, “what is relevant in this case is the effect of the land alienation occasioned by that policy on Indian treaty rights tied to use and occupation of reservation land.” 450 U.S. 544, 559–60, n.9. Reasoning that non-Indians who acquired reservation land through the workings of allotment legislation would not have expected to be subject to tribal regulatory jurisdiction, the Court found that the expectations of the non-Indians trumped those of the Crow tribal leaders who had signed the 1868 Fort Laramie Treaty.

Looking through a Human Rights Lens

If we look at the historic wrongs of allotment through the lens of international human rights law, is the United States obligated to fashion a remedy for tribal nations? The U.N. Declaration is not in itself a binding international legal instrument. See U.N. Special Rapporteur S. James Anaya, Report to the Human Rights Council, A/HRC/9/9 at para. 41 (Aug. 11, 2008) (Anaya Report). The U.N. Declaration, however, is more than merely an “aspirational” document. Article 43 of the U.N. Declaration proclaims: “The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.” To the extent that the U.N. Declaration embodies established principles of customary international law, it articulates binding international legal norms as they apply to indigenous peoples. See Anaya Report at para. 36–41. Similarly, the U.N. Declaration can also be seen to embody principles of positive international law that are enshrined in multilateral treaties, articulating the application of such norms in the context of indigenous peoples.

Among the articles in the U.N. Declaration that articulate established norms of international law, Articles 3 and 4 explicitly address the right of indigenous peoples to self-determination. Self-determination is “a principle of the highest order within the contemporary international system,” which is “[a]ffirmed in the United Nations Charter and other major international legal instruments” and “is widely acknowledged to be a principle of customary international law and even jus cogens, a preemptory norm.” S. James Anaya, International Law and Indigenous Peoples 97 (2004). As described by Professor Anaya, “self-determination entails a universe of human rights precepts extending from core values and applying in favor of human beings in relation to the institutions of government under which they live. In essence, self-determination comprises a standard of governmental legitimacy within the modern human rights frame.” Id. at 104.

As explained by Professor Anaya, in its substantive content, self-determination includes a “constitutive” aspect—in that the institutions of government should be substantially created through processes that are guided by the will of the people, or peoples, governed—and an “ongoing” aspect—in that, as a matter independent of the process through which they were created, the institutions of government must allow for people to live in freedom on an ongoing basis. Id. at 104–105. When the institutions of government do not measure up to these substantive aspects, international law provides for remedies, although “remedies to redress historical violations of self-determination do not necessarily entail a reversion to the status quo ante”; rather, such remedies should “be developed in accordance with the present-day aspirations of the aggrieved groups, whose character may be substantially altered with the passage of time.” Id. at 107.

As conceptualized by Professor Anaya, the principle of self-determination provides a foundation for more particularized human rights norms, including nondiscrimination and cultural integrity. Id. at 129–41. The norm of nondiscrimination, articulated in Article 2 of the U.N. Declaration (and mentioned in Articles 17 and 21), is enshrined in the United Nations Charter. U.N. Charter, art. 1, para. 3. The norm of nondiscrimination is also enshrined in Article 26 of the International Covenant on Civil and Political Rights (ICCPR). Opened for signature Dec. 16, 1966, 999 U.N.T.S. 171. The entirety of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is concerned with the norm of nondiscrimination. Opened for signature Jan. 4, 1969, 660 U.N.T.S. 195. The right to be free from discrimination, however, does not mean that a country’s laws cannot treat an indigenous people differently from the general population; indeed, some of the rights of indigenous peoples require a measure of differential treatment.

Like the right to be free from discrimination, the right to cultural integrity is protected by a number of international instruments. Article 27 of the ICCPR proclaims that persons belonging to ethnic, religious, or linguistic minorities “shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” Article XIII of the American Declaration of the Rights and Duties of Man contains similar language. Adopted 1948, see Inter-Am. Comm’n H.R., Basic documents Pertaining to Human Rights in the Inter-American System 3, OEA/Ser.L/V/I.4 Rev. 8 (2001). The Convention on the Prevention and Punishment of the Crime of Genocide makes it a crime under international law to commit certain acts with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. Entered into force Jan. 12, 1951, 78 U.N.T.S. 277.

While sometimes stated as an individual right (e.g., ICCPR Article 27), in the context of indigenous peoples, the right of an individual to participate in cultural traditions would be meaningless if there is no group in which to carry on those traditions. In essence then, the norm of cultural integrity means that each human culture has a right to exist, although it does not mean that cultural traditions justify violating the rights of individuals.

Numerous articles of the U.N. Declaration protect indigenous peoples’ right to cultural integrity. Article 8(1) articulates the right most directly, stating that “[i]ndigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.” Article 8(2) further provides that “States shall provide effective mechanisms for prevention of, and redress for” enumerated actions that violate the right to culture, including “[a]ny action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities,” “[a]ny action which as the aim or effect of dispossessing them of their lands, territories or resources,” and “[a]ny form of forced assimilation or integration.” Article 8 explicitly recognizes the connection between indigenous rights to traditional lands, territories, and resources and indigenous peoples’ ability to maintain their cultures. Other articles that can be seen to address cultural integrity include Article 11 (“right to practise and revitalize their cultural traditions and customs”); Article 12 (“right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies”); and Article 14 (“right to establish and control their educational systems,” including “their cultural methods of teaching and learning”).

Allotment, if implemented today, would be contrary to the provisions of the U.N. Declaration discussed above, as well as several others. The basic objective of allotment was forced assimilation. As President Theodore Roosevelt put it, the General Allotment Act was “a mighty pulverizing engine to break up the tribal mass.” First Annual Message to Congress, 15 Messages & Papers of the Presidents 6672 (1901). Forced assimilation violates Article 8 and the other Articles of the U.N. Declaration addressing cultural integrity. In Montana, the Supreme Court described the policy of allotment as promoting “the ultimate destruction of tribal government.” 450 U.S. 544, 559–60, n.9. Destruction of tribal government violates the norm of self-determination, including Article 3 (“self-determination,” including the right to “determine their political status”); Article 4 (“autonomy or self-government”); and Article 5 (the “right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions”). Allotment is also contrary to Article 26, which calls on countries to recognize and protect indigenous peoples’ “land tenure systems.” Allotment was typically imposed without participation by tribes and without “free, prior and informed consent,” contrary to U.N. Declaration Articles 18 and 19 and sometimes involved forcible removal from their lands contrary to Article 10.

In international law, an action by a country is subject to the norms that were in effect when the action was taken, a principle called intertemporality. See generally Ian Brownlie, Principles of Public International Law 126–28 (5th ed. 1998); Island of Palmas Case (U.S. v. Neth.), 2 R. Int’l Arb. Awards 821. 845 (Perm. Ct. Arb. 1928). None of the human rights norms discussed above were in force when allotment was implemented. Allotment, however, is more than a merely historical injustice. Tribal nations continue to live with the detrimental legacy of the allotment era. The judicially imposed limits on the scope of inherent tribal sovereignty are an impediment to the exercise of the “on-going” aspect of the right to self-determination. The effects of allotment policy can thus be said to constitute a “continuing violation” in international law. See Moiwana Village v. Suriname, Inter-Am. Ct. H.R., (ser. C) No. 124, ¶¶ 39–43 (June 15, 2005) (finding competence to rule on indigenous displacement that occurred prior to Suriname accepting the Court’s jurisdiction because of the continuing inability to return to ancestral lands).

The U.N. Declaration expressly provides for remedies for certain kinds of historic wrongs. As noted earlier, Article 8(2) requires countries to provide redress for violations of the right to cultural integrity, including dispossession of land and forced assimilation. In addition, Article 28(1) proclaims a “right to redress, by means that can include restitution or . . . just, fair and equitable compensation for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated . . . without their free, prior and informed consent.”

An obligation by the United States to provide redress for allotment could also be grounded on case law in the Inter-American system. Summarizing principles from case law, the Inter-American Commission on Human Rights (Commission) has stated: “Indigenous or tribal peoples who lose total or partial possession of their territories preserve their property rights over such territories, and have a preferential right to recover them, even when they are in hands of third parties.” Inter-Am. Comm’n H.R., Indigenous and Tribal Peoples’ Rights Over Their Ancestral Lands and Natural Resources, para. 123 (2010) (footnotes omitted). The Commission stated, “[s]uch is the case, for example, of settlements or land grants made to individuals without regard to the indigenous peoples who have always lived there.” Id. at para. 118. This preferential right to restitution is based in part upon the Commission’s acknowledgement that “restitution of lands is an essential right for cultural survival and to maintain community integrity.” Id. Thus, the United States is obligated to remedy the continuing effects of allotment policy.

Tribal Regulatory Jurisdiction for Environmental Protection as a Partial Remedy

The legacy of allotment is complicated. Any truly effective remedy must be multifaceted. As revived by the Supreme Court in Montana and its progeny, allotment not only deprived tribes of their proprietary interests in much of their reservations, but also imposed limits on their ability to exercise dominion, to act as governments to control development so that it is in accord with tribal cultural values.

For a remedy to be effective, I think that it must prominently feature federal support for tribal civil regulatory authority within their reservations. This could include making it easier for tribes that purchase fee land within their reservation boundaries to have title to that land accepted by the United States to be held in trust status. This facet of a remedy might be accomplished through relatively minor changes in the regulations of the Bureau of Indian Affairs (BIA) for acquisition of land in trust. See 25 C.F.R. § 151.10. For example, there could be a presumption favoring such acquisitions, rather than a requirement for a tribe to justify its need and purpose. Having tribal land held in trust is important because, under Supreme Court case law, challenges to tribal regulatory authority are more readily parried when the regulated conduct occurs on trust land. In addition, Indian trust land cannot be taxed by states or their political subdivisions, though state taxes on business activities of non-Indians on trust lands are not categorically barred. See F. Michael Willis, The Power to Tax Economic Activity in Indian Country, 28:4 Nat. Res. & Envt. (Spring 2014).

A key aspect of a remedy could be to enact legislation clarifying that the inherent sovereignty of tribal governments includes the authority to regulate the conduct of all persons within reservation boundaries for the protection of the environment within the framework of federal environmental laws. Such legislation affirming tribal authority would remove the uncertainty that has been created by Montana and its progeny.

In crafting such legislation, Congress could draw on other examples in which it has clarified the scope of tribal sovereignty in the wake of Supreme Court decisions. Two such examples address issues relating to criminal jurisdiction. In one example, concerning tribal criminal jurisdiction over nonmember Indians, Congress passed a law overturning Duro v. Reina, 495 U.S. 676 (1990), which held that tribes had been implicitly divested of criminal jurisdiction over nonmember Indians. The so-called “Duro-fix” legislation explicitly “recognized and affirmed” that the “powers of self-government” include the “inherent power . . . to exercise criminal jurisdiction over all Indians.” 25 U.S.C. § 1301(2). The “Duro-fix” legislation was subsequently upheld in United States v. Lara, in which the Supreme Court ruled that Congress has the “constitutional power to lift the restrictions” on tribal criminal jurisdiction that had been imposed by earlier Court decisions. 541 U.S. 193, 200 (2004).

A second example is Title IX of the recent reauthorization of the Violence Against Women Act (VAWA), “Safety for Indian Women.” Pub. L. No. 113-4, title IX (2013). This law provides that tribes, through the exercise of inherent sovereignty, may choose to exercise “special domestic violence criminal jurisdiction” (SDVCJ) over certain defendants, including non-Indians, who are charged with certain acts of domestic violence or dating violence in Indian country. Pub. L. No. 113-4, § 904 (to be codified at 25 U.S.C. § 1304). Any tribe that chooses to exercise SDVCJ is required to provide defendants with certain rights, which are set out in amendments to the Indian Civil Rights Act (ICRA) enacted as part of the Tribal Law and Order Act (TLOA) of 2010. Pub. L. No. 111-211, § 234 (amending 25 U.S.C. § 1302). See Department of Justice, Pilot Project for Tribal Jurisdiction over Crimes of Domestic Violence, 78 Fed. Reg. 71,645 (Nov. 29, 2013). ICRA prohibits tribes from depriving any person of any right in a list that closely corresponds to the rights citizens have under the U.S. Constitution. See 25 U.S.C. § 1302; Cohen’s Handbook § 14.04. ICRA also limits the punishment that a tribal court can impose for any one criminal offense to one year imprisonment and a $5,000 fine. TLOA allows tribes to “opt-in” to a loosening of the limits on criminal penalties, provided that that any tribe that does opt-in must provide certain additional rights for criminal defendants, including the right of an indigent defendant to a licensed defense attorney at the expense of the tribal government. 25 U.S.C. § 1302(c).

This pattern, in which Congress expressly recognizes tribal authority subject to a requirement that tribes ensure certain rights of the governed, could be applied in the realm of environmental protection and resources management. What rights should non-Indian landowners have in the context of tribal environmental regulatory programs? The rights that tribes would be required to provide could differ somewhat from the examples cited above. For example, the right to a court-appointed attorney may not be directly applicable in a civil regulatory context in which the sanctions that may be imposed do not include imprisonment.

For tribal programs that are carried out within the framework of the federal statutes, that is, regulatory programs that require approval by EPA before they take effect, the relevant federal regulations include requirements that address some of the concerns that non-Indians can be expected to raise. Such concerns include opportunities for public input into the development of standards, readily available access to laws and regulations that are in force, and access to tribal courts for judicial review of tribal agency actions that affect their property interests, including the right to be represented by legal counsel.

ICRA provides that, for persons who are held in custody, federal court review is available by writ of habeas corpus. 25 U.S.C. § 1303. The ICRA does not otherwise provide for federal court review of tribal court rulings, but there is a body of federal common law holding that, after exhaustion of tribal remedies, a nonmember of a tribe can seek review in federal court to determine whether an action taken by a tribal government was within the scope of its retained inherent sovereignty. See Cohen’s Handbook § 7.02[1][a]. In my view, statutory authorization for some measure of federal court review, such as review for compliance with procedural requirements and support in the record for factual findings, would be acceptable in exchange for congressional affirmation of inherent tribal sovereignty for environmental protection.

If we look at the interests of non-Indians through a human rights lens, we should take note of Article 46(2) of the U.N. Declaration, which provides:

In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject to only such limitations as are determined by law, and in accordance with international human rights obligations.

In light of this, I suggest we consider the implications of Article 25 of the ICCPR, which provides, in part: “Every citizen shall have the right and the opportunity . . . (a) To take part in the conduct of public affairs, directly or through freely chosen representatives” and “(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage . . . .” Of course, non-Indians are not citizens of Indian tribes, but I think that Article 25 of the ICCPR captures a fundamental concern of non-Indian landowners within reservation boundaries: they do not believe that their interests are represented in tribal government.

Conceptually, the notion that tribal authority over non-Indians would somehow amount to a violation of ICCPR Article 25 can be countered by the doctrine of the “plenary and exclusive authority” of Congress over Indian affairs. Lara, 541 U.S. at 200; see generally Cohen’s Handbook § 5.02. Thus, while non-Indians do not have the right to vote or run for office in tribal elections, they are represented in Congress, which can impose limits on tribal governments. The U.N. Declaration can be seen to erect some constraints on the power of Congress to impose limits on the powers of tribal governments. For example, reinstituting the “termination” era of federal Indian policy would clearly violate the U.N. Declaration. Congressional action to protect the rights of non-Indians and nonmember Indians, however, could be justified based on Article 46(2) of the U.N. Declaration, quoted above.

For better and for worse, Indian policy as carried out in the United States has been a model for much of the rest of the world. The United States could enhance its status as a leader in the international human rights arena by living up to the principles in the U.N. Declaration and specifically providing an environmental remedy for the legacy of allotment, a remedy that affirms the sovereign powers of tribes to protect their reservation environments, including civil regulatory authority over all persons and including lands that have passed out of trust status. Tribal governments can enhance their status as sovereigns in our federal system by working as partners in developing and implementing such a remedy, and by demonstrating their commitment to respect the human rights and fundamental freedoms of all persons, in accordance with international human rights law.


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