Gabe Galanda: Enforcing indigenous rights in the US law system

"This summer I was honored to speak before the United Nations Office of the High Commissioner for Human Rights regarding American Indian Treaty and consultation rights. During my first visit to the U.N. Palais des Nations, I was affected most by hearing fellow American Indians express to the U.N. their deeply held belief that the doors of United States federal courts are closed to us.

With tremendous respect to the indigenous human rights warriors who have advocated for change long before I ever arrived in Geneva, I disagree. Federal courts can dispense justice to Indian people and in doing so, can enforce international indigenous rights like those recognized in the United Nations Declaration on the Rights of Indigenous Peoples (“U.N. Declaration”).

Of course, as any Indian lawyer will tell you, the deck is stacked in federal court. In Lone Wolf v. Hitchcock (1903), for instance, the U.S. Supreme Court declared that the “plenary power” of Congress gave it authority to unilaterally abrogate federal treaty promises to Indian peoples. Thirty years ago in Oliphant v. Suquamish Indian Tribe (1978), the Court held that tribes had somehow been “implicitly divested” of inherent criminal jurisdiction to punish non-Indians who commit wrongs on Indian lands, as this power was inconsistent with tribes’ status as “domestic dependent nations.” This is the kind of “law” we face, still."

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Gabe Galanda: Enforcing International Indigenous Rights in America (Indian Country Today 10/1)

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