New Scholarship in Race and Ethnicity -- The Human Rights Hierarchy and the Rights of Indigenous Peoples
Angela R. Riley, Associate Professor of Law, Southwestern Law School, speaker; commentators Sonia Katyal, Associate Professor of Law, Fordham University; Kevin Noble Maillard, Assistant Professor of Law, Syracuse University College of Law.
In 1941 Julia Martinez, a member of the Santa Clara Pueblo Nation, married a member of the Navajo Indian Nation. Martinez later discovered that their children were not considered members of the Pueblo Nation, as only children whose father is Pueblo can become members. When Martinez and her daughter sued, Justice Thurgood Marshall wrote for the U.S. Supreme Court that the Nation, as a sovereign entity, had the right to set its membership criteria (Santa Clara v. Martinez, 1978). Martinez' claim was therefore denied.
That, however, left unresolved the question of what should be done when the cultural rights of indigenous people and the human rights now recognized as universal come into conflict. Angela Riley addressed that conflict in the twenty-first program of the Division of United States Studies' series on New Scholarship in Race and Ethnicity.
The Constitution, including the Bill of Rights, does not apply to Indian tribes. Congress extended some rights protections to individual members of tribes in the 1968 Indian Civil Rights Act, but left in place tribal practices such as the establishment of religion and civil trials without a jury. The question raised by Riley was therefore where and how self-governing indigenous groups fit into a democratic polity, which presumably includes the protection of individual rights. How, she asked, can conflicts between individual rights and group rights be resolved, when the assertion of individual rights threatens the continuation of a culture? The question has implications beyond the borders of the United States. Indigenous communities around the world have long fought for collective cultural rights to be recognized in international and national law, and achieved some success with the U.N. General Assembly's 2007 adoption of the Declaration of the Rights of Indigenous Peoples (the United States was one of only four countries to vote against adoption). The recognition of group rights, however, does not settle the matter, for the Declaration promotes the protection of individual rights as well – which, Prof. Riley observed, is politically and philosophically inconsistent.
Prof. Riley acknowledged that she does not have a good solution to the dilemma. She suggested that it might lie in the adoption by indigenous groups of the standard of "good native governance" which, in keeping with a democratic ethos, would require tribal governments to maintain a good relationship with their people. If tribes satisfy their obligations to their own people, she argued, the conflicts between individual rights and tribal culture will be far less frequent and far less sharp.
Prof. Riley, Sonia Katyal commented, has established herself as a compelling voice in addressing the complex relationship among tribes, national law and international law. Her work allows outsiders to look at cases such as Santa Clara from a tribal perspective. Riley argues for an approach that gives weight to self-determination for indigenous peoples, rather than favoring their assimilation into the norms of the larger societies that encompass them. Katyal added that there might be a shared responsibility among tribes, national institutions and local institutions to further cultural survival. Congress has in effect acknowledged that there is by, for example, passing the Native American Graves Protection and Repatriation Act (1990), which established a process by which human remains and sacred objects might be returned to tribes by federally funded museums.
Kevin Maillard added that what appears to outsiders as tribal gender or racial discrimination, such as the Oklahoma Seminole nation's denial of membership status to African Americans ("Freedmen") with a long tribal history, can be an assertion of sovereignty. He acknowledged that when efforts are made to balance group rights with individual rights within Indian nations, individuals sometimes lose. The answer to this tension is not to rely on American constitutional law, however, as it may threaten the sovereignty of Indian nations, but to turn to a more nuanced approach based on international law.
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