By Jared Miller
Since President Barack Obama announced the United States’ endorsement of the United Nations Declaration on the Rights of Indigenous Peoples (Declaration) in 2010, some legal scholars and tribal lawyers have slowly begun weaving the Declaration into articles, books, and legal briefs.
That’s not good enough, according to Walter Echo-Hawk, an attorney, author, activist, law professor, and tribal judge.
Echo-Hawk argues that the United States’ endorsement of the Declaration is the legal spark that could help kindle a “human rights era” of federal Indian policy—but only if lawyers take the lead.
In a September 10, 2015, article in Earth Island Journal, Echo-Hawk, who is Pawnee, argues that the current form of Indian law is a “strangely amoral body of law that stands in stark contrast to the profound commitment to remedial justice found elsewhere in American legal culture.”
The Declaration represents a “pathway forward” to more just and moral Indian law decisions, Echo-Hawk writes.
The Declaration “addresses the full range of self determination, property, civil, political, economic, cultural, religious land and environmental rights of Indigenous people,” according to Echo-Hawk. It also “formulates ‘minimum standards’ for protecting the survival, dignity and well-being of Indigenous peoples.”
Echo-Hawk asserts that the task now for Indian law practitioners is finding ways to incorporate the Declaration into domestic law and policy through “strategic law development.” This can happen on a case-by-case, issue-by-issue basis, Echo-Hawk argues, or on scale similar to the generation-long effort to overturn Plessy in the landmark Brown decision.
By way of encouragement, Echo-Hawk noted that Canadian courts have been fairly receptive to arguments based on Declaration:
Since it was adopted, the Declaration has been relied upon by First Nation litigation in cases involving: the duty to consult with First Nations before enacting environmental laws that affect their interests; trust fund litigation; agency decision-making; treaty fishing rights; the duty to consult before enacting laws; tax immunity litigation; and education litigation.
It is too early to gauge whether the Declaration will catch fire in U.S. courts. But it seems fairly clear that a new human rights era in federal Indian policy will only happen if tribal attorneys raise human rights arguments, either in single cases or systematically, and judges become willing to recognize the Declaration as the persuasive authority that it is.
“From where the sun now stands, let us turn our eyes toward the Human Rights Era in federal Indian law,” Echo-Hawk wrote.
Jared Miller’s practice focuses on tribal court litigation and representing businesses and tribal governments in public affairs. Jared is licensed in more than a dozen tribal jurisdictions, where he litigates civil matters. He can be reached at (206) 919-5044 and firstname.lastname@example.org.