Human Rights And Discrimination Issues

INTRODUCTION:

Before Europeans set their foots on USA in 1900, there were 400 independent nations present in America and there were about one million native Indians lived there by then. As the result of war and disease, the population of native Indians dwindled to three hundred thousand. Since 1900, the native Indian population has increased to 1.5 millions.

All most all states have been inhibited by the native Indians and there are about 300 Indian reservations covering 52.4 millions acres of land in 27 states. Majority of Indians reside west of the Mississippi River and 25% live in the Northeast and North Carolina has the fifth-largest native Indian population of any state. Native Indians suffer from a high rate of unemployment and fall below the national average income, lack of quality housing and formal education.

Though there were some developments in the way of living of native Indians in recent years but there are many problems connected with the reservation of life, cultural differences and persistent radical discrimination.

One of the major problem the Native Americans face today is the confusing and complex style of laws particularly federals laws that govern their lives. Though some federal laws are aimed to benefit native Indians but as a whole they were placed under a precarious situation.  It is hilarious to note that there never has been a uniform and consistent federal policy towards native Indians. Thus the federal policy towards tribal has shifted in the decades thereby declining to regard tribe as sovereign equals, to relocating tribes and to assimilate or exterminate them and presently to encouraging them.

When European settlements started to increase in number, fights started over the control of land. After the Revolutionary war, the USA government considered Indian tribes as having the same status as foreign nations and utmost effort was taken to get their allegiance. The Northwest Ordinance of 1787 declared that “utmost good faith shall always be observed towards Indians; their land and property shall never be taken from them without their consent.”

In 1790, Congress made a number of legislations thereby safeguarding the interest of native Indians and those who wished to trade with native Indians should obtain a federal license, prescribing punishment for committing certain crimes against native Indians and prohibiting the non-Indians from obtaining Indian land without the consent of federal government.

In 1793, Congress prohibited non-Indians from settling on Indian lands, made restrictions for federal employees from trading with Indians and exempted Indians from complying with state trade regulations.

When Jackson became the president in 1828, the policy was changed against the interest of the native Indians. He was well known for his military campaigns against Indians. Jackson pursued the policy of driving the Indian population from eastern region to the West and it became the vital federal Indian policy of the 19^th century.

In 1830, Congress enacted the Indian Removal Act which empowered the President to negotiate with the eastern tribes for their relocation to the west of the Mississippi River. During the mid-nineteenth century, Congress passed a number of laws which augmented federal control over Indians and to promote the Indian ‘assimilation into white society.”

In 1887, Congress passed the General Allotment Act alias Dawes Act which broke up tribal governments, abolish Indian reservations and compel Indians to assimilate into white society. Of the 140 million acres of land which tribes collectively owned in 1887, only 50 million acres remained in 1934 when the allotment systems were eliminated. It was observed that the General Allotment Act was very detrimental to the Indians, dismantling their reservations, their culture and their interests.

As the criticism of the American government policies towards native Indians started to surge, shift in the native Indian policy was formulated by President Franklin D.Roosevelt. In 1933, Roosevelt appointed John Collier as commissioner of Indian Affairs and he declared in 1934 that no more interference with the Indian religious life or expression will henceforth accepted and cultural history of Indian should be preserved.

Thus in 1934 , Congress passed the Indian Reorganization Act ( IRA) alias the Wheeler-Howard Act  which aimed at the rehabilitation of the Indian economic life and to offer them an opportunity to foster the initiatives mutilated by a century of oppression and paternalism.  By the above Act, the Indian tribes were encouraged to adopt their constitutions to become federally chartered corporations, and to assert their inherent powers of local self-government.

Between 1935 and 1953, there was an increase in Indian landholdings by over two million acres and more federal funds were spent on health facilities, reservations, roads, irrigation works, homes and community schools. In 1953, there was again a sea change of native Indian policy by the Federal government and introduced new policy called ‘termination’ which virtually put a full stop to all Indian welfare activities.

The Federal government passed an act called P.L 280 which delegated the powers to state governments which gained control over Indian resources and peoples. In 1968, President Johnson declared that first Americans to remain Indians and restored rights to freedom of choice and self-discrimination. Thus in 1968, Congress forbidden states from acquiring any authority over Indian reservations without the consent of the affected tribe.

In 1975, the Indian Self-Determination and Education Assistance Act of 1975 was passed which permitted Indian tribes to administer the federal government’s Indian programs on their reservation and many tribes have used this chance to escape from the unwanted federal domination. The Indian Tribal Government Tax Status Act of 1982 extends to Indian tribe’s many of the tax benefits enjoyed by the states such as capability to issue tax exempt bonds to finance government programs.

The Indian Mineral Development Act 1982 offers tribes the convenience to enter into joint venture agreements with mineral developers in order to maximize the tribe’s financial return from their mineral resources.   Further the Indian Gaming Regulatory Act of 1988 permits Indian tribes to engage in gaming such as bingo, to source revenues and promote economic development.

During the last forty years alone, Congress has made sweeping changes in its policies towards Indians at least by three times. Of late, the Indian tribes have asserted their treaty and statutory rights and raising their voices against certain non-Indian groups which vehemently fighting for the enactment of federal laws abolishing Indian and tribal rights.

In 1983, President Regan reaffirmed the federal government’s policy of promoting tribal self-determination.

A recent Senate commission report endorses the continued strengthening of tribal governments.

The long-term objective of Federal-Indian policy should be the development of tribal government into fully operational government exercising the same powers and shouldering the same responsibilities as other local governments. This objective should be pursued in a flexible manner which will repeat and accommodate the unique cultural and social attributes of the individual Indian tribes.

ROAD MAP:

 Both Saratina and Malevina are members of the Organization of American States and the United Nations. Since Saratina and Malevina are the states of the United States and people living there being the Native Indians, this essay has highlighted the problem and solution with in the constitutional framework of the USA.

Further, this essay has also taken into consideration the International laws such as the UN Committee for the elimination of all forms of racial discrimination and try to find solution available in the International forum for the problems given in this case study. It is to be noted that both states have ratified the 1965 International Convention on the Elimination of All Forms of Racial Discrimination and hence they are eligible for referring their case to the international forum if no viable solution is available from the USA Federal government

or USA Supreme Court.

CLIENT STORY.

The Situation

The Amorgosa people are an indigenous people living within and across the borders of two countries, Saratina and Malevina. The Amorgosa have lived on these lands since time immemorial. The Amorgosa are subsistence-based people, using traditional hunting, gathering and agricultural processes to sustain themselves and their families.

They engage in some trading of goods with indigenous neighbors to the West who reside in what is now known as the country of Lidia. The Amorgosa continue to practice their cultural and spiritual practices. In one area of their territory, known as the Wayward Valley, the Amorgosa people conduct ceremonies and prayers on a regular basis. The Amorgosa say that the Wayward Valley is the area from which many of their creation stories stem and is home to spiritual life according to their prayer people.

Wayward Valley lies within the borders of Saratina.The Amorgosa are the only indigenous people still remaining in Saratina. They make up 2% of the Saratinian population. In Malevina, there are approximately 120 other indigenous peoples living throughout the country. The Arnorgosa people in Malevina make up approximately 10% of the total population and 50% of the indigenous population. Both Saratina and Malevina are members of the Organization of American States and the United Nations. Both states have ratified the 1965 International Convention on the Elimination of all forms of Racial Discrimination.

The Amorgosa have lived in relative peace with both the Saratina and Malevina governments since their founding in 1832 and 1920, respectively. Malevina signed and ratified a Treaty of Recognition with the Amorgosa leadership in 1932. Malevina declared the Amorgosa and other indigenous peoples in its territories citizens of Malevina in 1939. Saratina declared them citizens in 1948.

In early 2002, despite the Treaty of Recognition, oil companies began conducting drilling and other exploration in the Malevinian side of the border. The Amorgosa people who lived near the oil exploration areas were forcibly relocated by the Malevinian government to isolated portions of Amorgosa lands. These communities have no outside economic income and have little to no communication with the Amorgosa communities to the North in Saratina. There has been much internal dispute in the communities as local protests against the oil companies has prompted government and company officials to detain certain Amorgosa individuals and offer cash payments to leaders who advocate for oil development under Malevinian government control.

Some Amorgosa communities found a pro bono attorney and filed a lawsuit in the federal court to stop the oil drilling which was taking place illegally on their land. The courts rejected the Amorgosa’s claims and held that the Amorgosa ancestral title was not recognized under Malevinian law. The court also held that the Treaty of Recognition could not be enforced in Malevinian courts because the government had not waived sovereign immunity (or granted the court jurisdiction) when they signed the Treaty. Recently, several outside environmental organizations have established a campaign against further oil drilling in the region due to active earthquake activity in the region.

Meanwhile, in Saratina, the Saratina government showed relatively no interest in the Amorgosa area until 2004 when outside fishing and hunting enthusiasts pushed the government to open sportsmen retreats in the territory. Without informing the Amorgosa people, the Saratina government permitted several outdoor tourism companies to begin advertising the area as the “big game” capital of the country.

The Amorgosa communities in Saratina vigorously protested the hunting and fishing of outsiders in their territory without direct approval of Amorgosa leadership. Leaders from the communities who had been specially trained in understanding the Saratina language were sent on a diplomatic mission to the capitol of Saratina where they informed by Saratinian officials that the lands they were living on had been classified as a national wildlife park by a Saratinian law in 1965.

The Amorgosa delegation disputed this designation and informed that Saratinian officials that Saratina did not have the authority to simply declare Amorgosa land had now become Saratinian national land. The Saratinian officials informed the delegation that there was nothing that could be done now because the 20 year statute of limitations had run and the Amorgosa had lost their opportunity to file a legal action challenging the designation.

The Amorgosa delegation returned to their homeland where they informed their people of what they had been told by the Saratinian officials. The next day, several Amorgosa grandmothers went to Wayward Valley to conduct prayer ceremonies. When the grandmothers arrived in Wayward Valley they met a group of Saratinian hunters who had just killed an Oxelet, a rare mountain cat that comes to the valley during its mating season.

According to Amorgosa-traditional laws, no one can-hunt the Oxelet during this season. Saratinian laws do not have the same protection. The grandmothers pretended interest in the hunters and led them back to their local community where the Saratinian leadership placed the hunters under arrest and detained them according to Amorgosa traditional law.

The hunters escaped and reported to the Saratinian authorities and the media that they had been attacked by armed Amorgosa’s. The Saratinian government issued statements condemning the Amorgosa people and issued orders to remove all Amorgosa’s who were living on “Saratinian national lands” without a Saratinian permit.

HIGHLIGHTING THE NEED:

SCENARIO: 1

In one area of their territory, known as the Wayward Valley, the Amorgosa people conduct ceremonies and prayers on a regular basis. The Amorgosa say that the Wayward Valley is the area from which many of their creation stories stem and is home to spiritual life according to their prayer people.

Both Saratina and Malevina are members of the Organization of American States and the United Nations. Both states have ratified the 1965 International Convention on the Elimination of All Forms of Racial Discrimination.

SOLUTION FOR THE SCENARIO: 1

Under this scenario, I have opened up the discussion on Amorgosa people right to conduct religious ceremonies in Wayward Valley followed by discussion rights available under the Establishment Clause of the American Constitution and then brought in the remedies available under International forum to Amorgosa’s for living in Saratinian and Sattinian governments rights to evict them out from saratinian to this scenario and finally cited some cases and summarized the advice.

INDIAN CIVIL RIGHTS:

A civil right is fundamental right which offers a standard of equality or justice that is intended to protect a person against government abuses. Native Indians are the citizens of the United States and of the states in which they live. Indians have the same civil rights as other citizen of federal and state governments. The vital civil rights are enshrined in the first ten amendments to the Constitution: the Bill of rights. These rights include freedom of speech, freedom of religion and freedom of the press. Chapter 14 of the USA Constitution deals with the civil rights of tribal governments by extending special consideration to their religion, culture or race.

The first amendment of the USA constitution has the establishment Clause which guarantees the separation of church and state and free exercise Clause and it read as follows: Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.  The Federal and State government should neither promote nor inhibit religion and they must remain neutral in religious matters. The Establishment Clause stipulates that no agency of the government will meddle in religious or engage in a religious activity. The free excise Clause guarantees individual freedom of worship, the right to believe in or to oppose, any particular religion or form of worship.

The Statement of Saratininan officials declaring that Amorgasans lost their right as 20 years statute of limitations had run can not be hold valid as per the provision of Title 25, United States Code, Section 71 which states that no obligation of any treaty shall be invalidated or impaired   as section 71 does not affect any existing Indian treaty. Hence there is no law of limitation applicable to any treaty as only federal law can amend or even repeal an Indian treaty and Sardinian state can not unilaterally declare that Amargosan’s had lost their opportunity to file a legal action challenging the designation.

Free Exercise Clause has been interpreted by the courts and held as forbidding the government to take any action that harms the religion unless the action could be justified by a ‘ compelling state interest’.  For instance, Courts held that Indians who used peyote as a religious sacrament were exempt from state drug laws, Indian prisoners who wore long hair for religious reasons were exempt from prison regulations mandating short hair and Indians could hunt out-of-season if they needed freshly killed meat for a religious ceremony.  In each case illustrated above, the state’s interest in prohibiting these practices was not sufficiently compelling to override the Indian’s religions interest.

However, the Supreme Court drastically narrowed the scope of the free Exercise Clause in recent decisions. The Supreme Court held in Bowen v.Roy (1986) that an Indian who, for religious reasons, refuses to obtain a social security number , can be denied social security benefits under a law that mandates all applicants to obtain such a number as a condition of eligibility. However, Indians are free to believe that certain land is sacred. However, the Supreme Court held in Lynd v. Northwest Indian Cemetery Protective Association (1988), Federal government can use its land in any reasonable manner, even if this use ‘could have devastating effects on traditional religious practices.

In this case, Supreme Court permitted the federal government to build a road through sacred Indian lands despite the fact that an alternative route was readily available. In Employment Division v.Smith (1990), the Supreme Court held that employees fired for using peyote during an off-duty religious ceremony can be denied state unemployment compensation benefits. The Court applied rule that ‘generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice ‘need only be reasonable to be valid.

The Free Exercise Clause does not protect one from government acts that are neutral and otherwise reasonable but which have an incidental harmful effect on our religious practices. Thus the government may not punish our beliefs but it can prevent us from practicing the same. Courts have allowed the federal government to construct dams that flooded sacred Indian lands , prevent an Indian group from holding a religious ceremony on federal land ,construct a road through an Indian burial site located on federal property and permit a ski area to be built on federal land sacred to an Indian tribe.

In Lone v. Estate of Shabazz, Supreme Court held that prison regulations are valid if they are reasonably related to legitimate prison interests, even when the regulations destroy a religious practice. This decision sets such a low standard that prison officials can now get away with banning almost any religious practice. Some Courts have upheld prison regulation banning long hair based on the rather ridiculous claim by prison officials that weapons can be concealed there. Hence, these recent Supreme Court decisions threaten all religions equally. Therefore the minorities are justifiably concerned about these recent Supreme Court decisions.

In 1978, Congress passed a joint resolution namely ‘the American Indian Religious Freedom Act (AIRFA) and sadly this Act does not contain any penalty provision. In Lynd v. Northwest Indian Cemetery Protective Association (1988), it was commented by the Supreme Court that AIRFA “has no teeth in it “.

U.S Indian health service accused Arizona of having a “long-standing history’ of denying equal health care to Native Americans.  It is unfair to label Indians as being ‘special citizens’ as they are most impoverished and disadvantaged group in American society. Various studies show that discrimination against Indians exists on many levels. The U.S Commission on Civil rights concluded after an investigation in South Dakota, that Indians as a group receive longer criminal sentences from state judges than whites who commit the same crime. There are instances in some off-reservation hospitals refuse to treat Indians even in emergencies.

As the freedom of religions sanctioned under Bill of rights under the American Constitution has been taken away by these Supreme Court verdicts, the natives should lobby for the passage of new laws to protect their religious practices as the Supreme Court has recognised that legislature can create an exemption to protect a religious practice. Thus the minority government should strive for legislative protection for their religious practices.

THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION:

This is a customary international law which requires all member states to respect for and observance of human rights and fundamental freedoms for all, without distinction as to race. It is legally binding in nature and equipped with built-in-measures of implementation. The declaration is considered as articulating the fundamental rights or belief and freedom from discrimination based on religion or belief contained in he major human rights instruments.

Thus all persons are entitled with certain fundamental human rights regardless of the economical or political system of the country in which they reside. This is guaranteed under Article 1, paragraph 3 of the Charter of the United Nations. The International Convention on the Elimination of All forms of Racial Discrimination was adopted by assembly in 1965.  The implementation of these basic human rights treaties is monitored by committees or treaty monitoring bodies.

A UN committee on the Convention on the Elimination of Racial Discrimination held in March 2006 viewed that the US government has violated the Native American land rights and the international anti-racism convention. The committee was of the view that Western Shoshone subjects were being refuted their traditional right to land. Thus the committed ordered the US to take following actions immediately as stated under;

• Protect and respect the human rights of the Western Shoshone Peoples.
• Corroborate with the peoples of Western Shoshone to find an acceptable solution which guarantees their rights.
• Confine from the efforts to privatize the Western Shoshone hereditary lands by attempting to transfer the same to energy and mining industries.
• Desist from imposing livestock impoundments, grazing fees, restrictions on hunting, fishing and religious gathering and to rescind the notices already issued on the subject.

Thus the US government action is trying to refuse the tribal rights like spiritual prayers for traditional food or medicine on Shoshone land. Leaders of the Shoshone feel that the UN decision acknowledges the US government’s violations of Shoshone political, civil, cultural and economic rights.

60 million acres of Western Shoshone land stretching across Nevada, Utah, Idaho, and California were acknowledged by the US under the 1863 Treaty of Ruby Valley and was questioned by the US Supreme Court in 1979.The land was claimed as federal territory and was labeled as ‘government trusteeship”.

The decision by the United Nations human rights committee is being considered as a set back to the U.S. encroaching policy towards  tribal’s hereditary land rights particularly right to own,control,develop and use their communal lands , resources and territories.

United States v. Sioux Nation 448 U.S 371 (1980): This is another famous case which redressed the grievances of the native Indians. The Sioux owned the northern plains throughout 19^th Century. Great Sioux Reservations was established by the 1868 Fort Laramie Treaty. Thus the Black Sacred hills and its adjoining areas were set apart for the undisturbed and absolute occupation and use of Sioux.

Due to discovery of gold in Black hills in 1870, U.S Army invaded the reservation but it was defeated by the Sioux at the Little Big Horn in 1876. Outraged by this, Congress enacted legislation thereby opened the Black hills to white occupation and abrogated the provisions of the Fort Laramie Treaty. Sioux filed number of suits against illegal seizure of Lakota Treaty lands including a failed Court of Claims attempts in 1942.

In response to this, Congress created ‘Indian Claims Commission ‘in 1946 to adjudicate longstanding Indian land disputes. ICC finally ruled that 1877 law was unconstitutional and termed it as ‘illegal ‘seizure and awarded 17.1 million dollars as compensation. Aggrieved by this, U.S government appealed and the Supreme Court finally upheld the ICC ruling. However, Sioux leaders refused the settlement and demanded the return of the Black Hills claiming it as sacred sites and no monetary amount could form compensation.

The Statues involved: Constitution of USA, International Human rights that codify minority rights include the “International Covenant on Civil and Political Rights (Article 27), Religious and Linguistic Minorities, the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, the Framework Convention for the protection of National minorities and European Charter for Regional or Minority Languages and the OSCE Copenhagen Document of 1990, Indian Tribal Justice Act.

SCENARIO 2:

Without informing the Amorgosa people, the Saratina government permitted several outdoor tourism companies to begin advertising the area as the “big game”  capital of the country.

Where they informed by Saratinian officials that the lands they were living on had been classified as a national wildlife park by a Saratinian law in 1965. . The Saratinian officials informed the delegation that there was nothing that could be done now because the 20 year statute of limitations had run and the Amorgosa’s had lost their opportunity to file a legal action challenging the designation.

SOLUTION FOR THE SCENARIO 2:

Under this scenario, I have opened up the discussion on Amorgosa people right to allot licenses for developing games followed by discussion rights available under the Indian Tribal  treaty and then brought in the remedies available under International forum to Amorgosa’s for living in Saratinian and finally cited some cases and summarized the advice.

Many tribes have found it profitable to develop a game and fish industry and sell licenses to non Indians. Thus tribes strictly regulate the time, place and manner of hunting and fishing and they enforce these rules through tribal courts.

Congress have approved the tribe’s power by making it a federal crime to hunt or fish on tribal land without the tribe’s permission and moreover, courts have allowed Indian tribes to safeguard their wildlife by halting both on-reservation and off reservation activities that threaten tribal resources. Further 1988 Indian Gaming Regulatory Act which opened up the door for tribes to establish games like casinos’ to augment their income. The National Indian Gaming Association which represents more than 180 tribes is the nodal agency which is actively engaged to safeguard the gaming interest of tribal’s in the USA.[1]

In Montana v.United States (1981) , the Supreme Court made significant exception to this rule and observed that Tribes have limited powers , the Court held , to regulate non-Indian hunting and fishing on non Indian owned land within the reservation . Court held that the Tribes can impose its own laws only when the activity threatens or directly affects the tribe’s political integrity, economic security or health and welfare. Thus, for instance, if non-Indian fishing imperils subsistence food for tribal members, the tribe can regulate this activity and if interests are not affected, state law rather than tribal law governs non-Indian hunting and fishing on non-Indian land.

Congress has not approved to the application of state game laws on Indian reservations and even Public Law 83-280 which extended state jurisdiction over crimes committed on the reservation, expressly withheld state jurisdiction over Indian fishing and hunting.

States have frequently attempted to intervene with tribal self-government on their freedom of hunting and fishing and such interference always violates Indian treaties which guaranteed that the tribe would remain free of state control. The only narrow exemption was held by Supreme Court in Puyallup Tribe v. Department of Game (1968) was that a state can regulate reservation Indian shipping in the interest of conservation to ensure that enough fish escape to propagate the species.

In New Mexico v. Mescalero Apache Tribe (1983), Supreme Court held unanimously that states may not exercise even concurrent jurisdiction with the tribe’s game laws and non-Indians who wished to hunt on tribal lands need not purchase a state’s hunting license. Thus the State can regulate Indians when this is essential for conservation purpose. Congress has made it a federal crime to hunt or fish on an Indian reservation except in compliance with tribal law.

Tribes have every reason to assert their treaty rights and they have acquired these rights by ceding large acres of land in exchange of these rights.

It is to be noted that a federal right is superior to a state right when there is a conflict between them.

TREATIES WITH TRIBALS OR MINORITIES:

A treaty is a contract between sovereign nations. Thus the President is being authorised by the Constitution with the consent of two-thirds of the Senate, to enter into a treaty on behalf of the United States. Thus in the eye of the Constitution treaties are ‘Supreme law of the Land. As such they are superior to state laws and state constitutions and are equal to laws passed by Congress. A treaty can be entered for any subject but it may not deprive a citizen any right guaranteed by the U.S Constitution.  Till 1871, relations with the tribes were conducted with the treaties and each tribe has at least one treaty the United States.

The Supreme Court has held that an Indian treaty is ‘not a grant of rights to the Indians, but a grant of rights from them. The purpose of the treaty is to remove the rights they had but not to sanction any new one. Thus any rights not expressly taken away by a treaty or federal statue is reserved to the tribe. This fundamental principle of Indian law is known as the ‘reserved rights ‘doctrine.

Before the war 1812 , the United States and Indian tribes negotiated treaties as relative equals and the United States acquired land and peace from the Indians in exchange of goods and services provided by the federal government. After t the war of 1812, which ended the threat of British intervention in U.S internal affairs, friendship with the Indians became less importance.

The USA then wanted Indian land, which it began to take by force and thus Indian after the War of 1812 rarely, were voluntary. In 1814, the Creeks were forced to surrender twenty-three million acres of land to the federal government. In 1835 , by signing the Treaty of New Echota ,where then president Andrew Jackson forced the Cherokees to give up all land owned by Cherokees in the east of Mississippi River in exchange for land in the Oklahoma Territory.

One by one, the government defeated the Indian tribes, compelled them to sign treaties and put them on reservations. These reservations were often hundreds of miles from their original homelands.

Title 25, United States Code, Section 71 declared that Indian tribes were not sovereign nations with whom the United States could make treaties. By the passage of section 71, Tribes were no longer regarded sovereign nations by the federal government.

As such that Congress is no longer had to negotiate with Indians or obtain their consent in Indian matters. Suppose if the US wants to take land from the Indians, all it had to do is to pass a law to that effect. Though section 71 offers protection to the existing Indian treaty but in contrary, most treaties have been abrogated, breached or broken by congress later. In 1903, the Supreme Court held in Lone Wolf v.Hitchcock, the Indian treaties have same dignity as federal statues and thus a federal statue can amend or repeal a prior law. In a recent case, the Supreme Court upheld the power of congress to abrogate the treaty and take the land.

In one another recent case, Supreme Court awarded the Sioux more than $ 100 million in compensation for the loss of the Black Hills. In a protest suit filed by Sioux against the Congress, the Supreme Court refused to intervene with the Congress’s power to take the tribe’s land.

Treaties signed by the tribes recognize their right to fish but to fail to express how much quantum they may catch, where they may fish or whether and how much the state may regulate Indian fishing. The Supreme Court has liberally interpreted the fishing rights liberally in favour of Indians. As such, the treaties must be so interpreted today, with any uncertainties resolved in the Indian’s favor.

Unfortunately, the Supreme Court diluted the “Clear showing “standard and in 1973, the Court ruled that a federal law could abrogate an Indian treaty if the “surrounding circumstances and legislative history” indicated that intent. In US v. Dion, the Court reached a similar conclusion.

For example, the Army Corps of Engineers has the general authority to build dams for flood control but it cannot build a dam on land reserved by treaty to an Indian tribe without express consent of congress.

Sartinian government can not claim immunity on the ground that 20 year statute of limitations had run and the Amorgosa had lost their opportunity to file a legal action since the treaty is supreme law of the land and does not have limitation period.

A state cannot repeal or amend Indian treaty rights even if the treaty was made before the state entered the Union. If state or federal authorities violate rights under the treaty, a lawsuit can be filed in federal court to stop their activity.

The Statues involved: Constitution of USA, International Human rights that codify minority rights include the “International Covenant on Civil and Political Rights (Article 27), Religious and Linguistic Minorities, the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, the Framework Convention for the protection of National minorities and European Charter for Regional or Minority Languages and the OSCE Copenhagen Document of 1990, Indian Tribal Justice Act.,1988 Indian Gaming Regulatory Act.

SCENARIO: 3

According to Amorgosa-traditional laws, no one can-hunt the Oxelet during this season. Saratinian laws do not have the same protection. The grandmothers pretended interest in the hunters and led them back to their local community where the Saratinian leadership placed the hunters under arrest and detained them according to Amorgosa traditional law.

The hunters escaped and reported to the Saratinian authorities and the media that they had been attacked by armed Amorgosa’s. The Saratinian government issued statements condemning the Amorgosa people and issued orders to remove all Amorgosa’s who were living on “Saratinian national lands” without a Saratinian permit.

SOLUTION FOR THE SCENARIO: 3

Under this scenario, I have opened up the discussion on Amorgosa people right to punish the offenses committed by the non-tribal’s in their land which affected their traditional customs followed by discussion rights available under the  tribal methods of dispute resolution which contrasted significantly with the federal judicial system of the American Constitution and then brought in the remedies available to  Amargosa people for the auction of  Sartinian government to evict them out from sartinian to this scenario and finally cited some cases and summarized the advice.

FISHING, HUNTING AND GATHERING RIGHTS:

Fishing , hunting and gathering have more relevance to Indians and many tribes were nomadic and pursued migration of elk,deer,bison and anatropous. Fish formed a major share of the Indian diet, was used for commercial purposes and indeed was traded in substantial volume.

The right to hunt and fish was expressly guaranteed to many tribes in their treaties with the United States. Statues and treaties that guaranteed to many tribes in their treaties with the United States. Courts have held that if a treaty creates a reservation ‘for Indian purposes’ thereby recognizes the tribe’s right to fish and hunt on it. Like wise if a treaty provides land to a tribe ‘for a home, to be held as Indian lands are held. Likewise, when an Indian reservation is created on an island and the island’s primary food source is fish, the tribe is presumed to retain its fishing rights.

Congress has the power to extinguish Indian hunting and fishing rights but a court will not recognize an extinguishment of these rights unless Congress has clearly articulated its aim to eliminate them. Extinguishment cannot be inferred and any ambiguous language in a treaty or statue will be interpreted in favor of the Indians.

In Menominee Tribe v. United States (1968), Supreme Court held that the Menominee tribe retained its fishing and hunting rights even though Congress had terminated its reservation.  As the termination statute was silent on hunting and fishing rights, Court held that these rights were not changed by the termination and the Menominee’s could continue to hunt and fish within the terminated area.

The Supreme Court held that Indian hunting and fishing rights are ‘ property’ protected by the Fifty Amendment and if any diminishment or destruction of this property is a ‘ taking’ within the meaning of the Fifth Amendment and entitles the tribe to compensation. These rights, however, must first have been formally recognized by the federal government in some statute, treaty or agreement and government need not compensate a tribe for the loss of property interests if not federally recognised.

As per Chapter 5, section A, Congress is authorised by the U.S Constitution to have access to wildlife that is denied to non-Indians. If any state law is interfering with a tribe’s treaty rights, both the tribe and its member’s can file suit.

For instance, Indian tribes in the Northwest, whose fishing rights are protected by a treaty with the United States can continue to use certain nets even though the U.S and Canada subsequently entered into a treaty that prohibited the use of this gear.

Thus a tribe that once hunted bison (with a bow and arrow) is entitled to hunt deer (with a rifle) in exercising its treaty rights. Moreover, when a state creates a hatchery fish program to replace natural fish taken by non-Indians or depleted due to non-Indian industry and these hatchery fish are to be regarded no differently than natural fish with respect to the tribe’s treaty rights.

Further under section 1813 of the Energy Policy Act of 2005, Energy Rights of way is another right available for tribes and they have to give consent to the energy industry for using their land and can negotiate for adequate compensation with such energy industries.[2]

For instance, if state game officials arrest someone for hunting or fishing out of season that person is not guilty of the charges if he or she was exercising a treaty right.

There are two constitutional limitations on the power of congress that are particularly important to Indians and tribes and they are Due process Clause and the Just Compensation Clause. The Due process clause prohibits congress from enforcing any law that is unreasonable, arbitrary or individually discriminatory. Thus the Congress can not discriminate against Indians on account of race and that its laws must be fair and reasonable.

The Just compensation Clause forbids federal government from taking private property without proper compensation and for instance, if Congress deprives a tribe of land or vested rights, the government must compensate the tribe for its loss. The Courts have compelled compensation for the loss of hunting or fishing rights, the taking of land belonging to an Indian or a tribe and the loss of tax immunity. Though the doctrine of trust responsibility obligates the federal government to remain loyal to Indians and tribes, to act their best interests and to fulfill promises made to them in treaties. But the recent Court verdict ion stated that it is being an unenforceable moral obligation.

Only limitation is that the tribes cannot take so much wildlife that it endangers continuation ( propagation) of the species in violation of state or federal conservation laws and also it can not take nay wildlife that Congress has specifically prohibited it from taking.

The Statues involved: Constitution of USA, International Human rights that codify minority rights include the “International Covenant on Civil and Political Rights (Article 27), Religious and Linguistic Minorities, the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, the Framework Convention for the protection of National minorities and European Charter for Regional or Minority Languages and the OSCE Copenhagen Document of 1990. Indian Tribal Justice Act, Energy Policy Act of 2005.

 SCENARIO 4:

Some Amorgosa communities found a pro bono attorney and filed a lawsuit in the federal court to stop the oil drilling which was taking place illegally on their land. The courts rejected the Amorgosa’s claims and held that the Amorgosa’s ancestral title was not recognized under Malevinian law. The court also held that the Treaty of Recognition could not be enforced in Malevinian courts because the government had not waived sovereign immunity (or granted the court jurisdiction) when they signed the Treaty.

SOLUTION TO SCENARIO 4:

Under this scenario, I have opened up the discussion on Amorgosa people right to approach court to stop the oil drilling which was taking place illegally on their land followed by discussion rights available under the American Constitution and then brought in the remedies available under International forum to Amorgosa’s to prevent such commercialization of their sacred land and finally cited some cases and summarized the advice.

Statutues Involved:  American Constitution, Indian Tribal Justice Act, International Human rights that codify minority rights include the “International Covenant on Civil and Political Rights (Article 27), Religious and Linguistic Minorities, the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, the Framework Convention for the protection of National minorities and European Charter for Regional or Minority Languages and the OSCE Copenhagen Document of 1990.

It is to be noted that the Amorgosa have lived in relative peace with both the Saratina and Malevina governments since their founding in 1832 and 1920, respectively. Malevina signed and ratified a Treaty of Recognition with the Amorgosa leadership in 1932. Malevina declared the Amorgosa and other indigenous peoples in its territories citizens of Malevina in 1939.

Saratina declared them citizens in 1948. In early 2002, despite the Treaty of Recognition, oil companies began conducting drilling and other exploration in the Malevinian side of the border. The Amorgosa people who lived near the oil exploration areas were forcibly relocated by the Malevinian government to isolated portions of Amorgosa lands. These communities have no outside economic income and have little to no communication with the Amorgosa communities to the North in Saratina.

Tribes have every reason to assert their treaty rights and they have acquired these rights by ceding large acres of land in exchange of these rights. It is to be noted that a federal right is superior to a state right when there is a conflict between them. The court is erred by holding that the Treaty of Recognition could not be enforced in Malevinian courts because the government had not waived sovereign immunity (or granted the court jurisdiction) when they signed the Treaty as in the eye of the Constitution treaties are ‘Supreme law of the Land. As such they are superior to state laws and state constitutions and are equal to laws passed by Congress.

A treaty can be entered for any subject but it may not deprive a citizen any right guaranteed by the U.S Constitution.  In 1903, the Supreme Court held in Lone Wolf v.Hitchcock, the Indian treaties have same dignity as federal statues and thus a federal statue can amend or repeal a prior law. A state cannot repeal or amend Indian treaty rights even if the treaty was made before the state entered the Union. If state or federal authorities violate rights under the treaty, a lawsuit can be filed in federal court to stop their activity. If any state law is interfering with a tribe’s treaty rights, both the tribe and its member’s can file suit.

COMMUNICATION WITH THE CLIENT

I will advise Amorgosa leadership in Saratina as follows:

Though some federal laws are aimed to benefit native Indians but as a whole they were placed under a precarious situation.  It is hilarious to note that there never has been a uniform and consistent federal policy towards native Indians. The Northwest Ordinance of 1787 declared that “utmost good faith shall always be observed towards Indians; their land and property shall never be taken from them without their consent.”

In 1953, the Federal government passed an act called P.L 280 which delegated the powers to state governments which gained control over Indian resources and peoples. Again in 1968, Congress had forbidden states from acquiring any authority over Indian reservations without the consent of the affected tribe. In 1975, the Indian Self-Determination and Education Assistance Act of 1975 was passed which permitted Indian tribes to administer the federal government’s Indian programs on their reservation and many tribes have used this chance to escape from the unwanted federal domination. During the last forty years alone, Congress has made sweeping changes in its policies towards Indians at least by three times.

As the freedom of religions sanctioned under Bill of rights under the American Constitution has been taken away by these Supreme Court verdicts, the natives should lobby for the passage of new laws to protect their religious practices as the Supreme Court has recognised that legislature can create an exemption to protect a religious practice. Thus the minority government should strive for legislative protection for their religious practices.

A UN committee on the Convention on the Elimination of Racial Discrimination held in March 2006 viewed that the US government has violated the Native American land rights and the resolutions of the international anti-racism convention. The committee was of the view that Western Shoshone subjects were being refuted their traditional right to land

The decision by the United Nations human rights committee is being considered as a set back to the U.S encroaching policy towards  tribal’s hereditary land rights particularly right to own,control,develop and use their communal lands , resources and territories. States have frequently attempted to intervene with tribal self-government on their freedom of hunting and fishing and such interference always violates Indian treaties which guaranteed that the tribe would remain free of state control

In New Mexico v. Mescalero Apache Tribe (1983), Supreme Court held unanimously that states may not exercise even concurrent jurisdiction with the tribe’s game laws and non-Indians who wished to hunt on tribal lands need not purchase a state’s hunting license. Thus the State can regulate Indians when this is essential for conservation purpose. Congress has made it a federal crime to hunt or fish on an Indian reservation except in compliance with tribal law. Tribes have every reason to assert their treaty rights and they have acquired these rights by ceding large acres of land in exchange of these rights. It is to be noted that a federal right is superior to a state right when there is a conflict between them.

President of U.S.A is being authorised by the Constitution with the consent of two-thirds of the Senate, to enter into a treaty on behalf of the United States. Thus in the eye of the Constitution treaties are ‘Supreme law of the Land. As such they are superior to state laws and state constitutions and are equal to laws passed by Congress. A treaty can be entered for any subject but it may not deprive a citizen any right guaranteed by the U.S Constitution.

In 1903, the Supreme Court held in Lone Wolf v.Hitchcock, the Indian treaties have same dignity as federal statues and thus a federal statue can amend or repeal a prior law.

A state cannot repeal or amend Indian treaty rights even if the treaty was made before the state entered the Union. If state or federal authorities violate rights under the treaty, a lawsuit can be filed in federal court to stop their activity.

Courts have held that if a treaty creates a reservation ‘for Indian purposes’ thereby recognizes the tribe’s right to fish and hunt on it. Like wise if a treaty provides land to a tribe ‘for a home, to be held as Indian lands are held. Likewise, when an Indian reservation is created on an island and the island’s primary food source is fish, the tribe is presumed to retain its fishing rights.

Congress has the power to extinguish Indian hunting and fishing rights but a court will not recognize an extinguishment of these rights unless Congress has clearly articulated its aim to eliminate them. Extinguishment cannot be inferred and any ambiguous language in a treaty or statue will be interpreted in favor of the Indians.

In Menominee Tribe v. United States (1968), Supreme Court held that the Menominee tribe retained its fishing and hunting rights even though Congress had terminated its reservation. If any state law is interfering with a tribe’s treaty rights, both the tribe and its member’s can file suit.

Removal of all Amorgosa’s who were living on “Saratinian national lands” without a Saratinian permit is not legally valid as Saratina declared them citizens in 1948

In another land mark case “United States v. Sioux Nation 448 U.S 371 (1980)”  where in rights of the native Indians have been established by the Court without any ambiguity.

Thus I will advise Amorgosa leadership in Saratina to represent to United Nations human rights committee about encroaching  Saratina policy towards  tribal’s hereditary land rights particularly right to own,control,develop and use their communal lands , resources and territories .

CONCLUSION

In view of the detailed discussion of the issue, the Amorgosa leadership has a strong case and can approach the United Nations human rights commission for redressal of their grievance if the same is not addressed by the US Federal or state governments or Supreme Court of the U.S.A.

BIBILIOGRAPHY:

Pevar, S. L. (1992). The Rights of Indians and Tribes: The Basic ACLU Guide to Indian and Tribal Rights (2nd ed.). Carbondale, IL: Southern Illinois University Press.

Rotaeche, C. J. (1998). Racial Discrimination and the European Convention on Human Rights. Journal of Ethnic and Migration Studies, 24(1), 177+.

Weissbrodt, D. (2004). International Human Rights Law Perspective on Grutter and Gratz. Constitutional Commentary, 21(1), 275+.

Weston, M. A. (1996). Native Americans in the News: Images of Indians in the Twentieth Century Press. Westport, CT: Greenwood Press.

Wilson, R. A. & Mitchell, J. P. (Eds.). (2003). Human Rights in Global Perspective:  Anthropological Studies of Rights, Claims and Entitlements. New York: Routledge.

Berting, J., Baehr, P. R., Burgers, J. H., Flinterman, C., De Klerk, B., Kroes, R., et al. (Eds.). (1990). Human Rights in a Pluralist World: Individuals and Collectivities. Westport, CT: Meckler.

Bloom, I., Martin, J. P., & Proudfoot, W. L. (Eds.). (1996). Religious Diversity and Human Rights. New York: Columbia University Press.

Driver, H. E., & Massey, W. C. (1957). Comparative Studies of North American Indians. Philadelphia: American Philosophical Society

Drucker, P. (1958). The Native Brotherhoods: Modern Intertribal Organizations on the Northwest Coast. Washington, DC: U.S. Govt. Print. Off.

Dutton, B. P. (1983). American Indians of the Southwest (Revised ed.). Albuquerque: University of New Mexico Press

Parman, D. L. (1994). Indians and the American West in the Twentieth Century. Bloomington, IN: Indiana University Press.

[1]  Anna Radelat, “House rejects attempt to curb Indian gaming “USATODAY”, September, 2006.

[2] Jerry Reynolds, “Energy rights of way report approaches ‘final draft “Indian Country today, January, 19, 2007.