Abstract

Excerpted From: Trent Wallace, Mau Forest Evictions in Kenya: How an International Tribunal's Affirmation of Indigenous Rights Differs from Federal Indian Law in the United States, 34 Indiana International & Comparative Law Review 309 (2024) (271 notes) (Full Document)

Since European settlers arrived in what is now the United States of America, AmericanIndians have endured centuries of oppression at their hands. Colonialism in the United States often resulted in “invasion of [the Indian's] country, appropriation of their land and natural resources, destruction of indigenous habitats and ways of life, and sometimes genocide and ethnocide.” The legacy of the oppression persists in modern times. As a result from centuries of oppression, AmericanIndians today, inter alia, disproportionately live in poverty, have a lower life expectancy, suffer from environmental pollution, and are overrepresented in the United States criminal justice system. Federal Indian Law, the area of U.S. law that relates to Indians and Tribes, has played a significant role in connecting the oppressions of the past and to the present.

Unfortunately, oppression of Indigenous peoples is not limited to the United States. Indigenous peoples around the world have endured similar struggles of “widespread impoverishment, dislocation, and loss of culture and religion.” However, in the last several decades, the international community has taken actions in a commitment to strengthen Indigenous rights, culminating in part in the emergence of the era self-determination. The shift is evidenced by heightened protection of Indigenous rights in international law, most notably, the United Nations' adoption of the Declaration on the Rights of Indigenous Peoples (“UNDRIP”) in 2007.

AmericanIndian advocate Walter Echo-Hawk contends that Federal Indian Law must undergo a reformation to better conform with international standards; “[L]egal scholars should arm the NativeAmerican movement in the twenty-first century by identifying the shortfalls between [F]ederal Indian [L]aw and the UNDRIP.” To fully understand the scope and text of the UNDRIP, and other international law, it is imperative to understand how the text is to be interpreted. In 2017, an international tribunal--The African Court on Human and Peoples' Rights (“African Court”)--interpreted the UNDRIP and relevant international law pertaining to Indigenous rights. In 2017, the African Court decided the case of African Commission on Human and Peoples' Rights v. Kenya, in which the rights of the Indigenous Ogiek Tribe were found to have been violated by the Kenyan government (“Ogiek Case”). In the Ogiek Case, the African Court considered human rights violations committed by the Kenyan government in forcibly removing the Indigenous Ogiek Tribe from their ancestral homelands. The African Court utilized the UNDRIP and other international law to rule on allegations of discrimination and alleged violations of Tribal recognition, religious rights, property rights, cultural rights, and economic rights. The purpose of this Note is to compare Federal Indian Law with the Ogiek Case regarding Tribal recognition, religious rights, and property rights. More importantly, this Note includes the international law relied upon by the African Court to provide a concrete example of how the consideration of international law by the African Court produces the differing legal standards.

The Note is arranged as follows. First, the Note summarizes important background information to understand Indigenous law at an international and domestic level. Second, the Note explains the background of the Ogiek Case and analyzes the African Court's rulings. Third, the Note summarizes relevant Federal Indian Law concerning Tribal recognition, religious rights, and property rights. Fourth, the Note draws distinctions between the Ogiek Case and Federal Indian Law, theorizing how the differing standards of law would produce different results in the Ogiek Case and landmark Federal Indian Law cases. Finally, the Note provides recommendations that would better situate Federal Indian Law with international law standards for Indigenous rights.

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As evidenced by this Note, Federal Indian Law falls short of international law standards for Tribal recognition, religious rights, and property rights. As a result, AmericanIndians continue to lack adequate legal protection for these rights. However, the United States can reform Federal Indian Law to better align with the standards of the African Court and international law. This Note recommends the United States do the following: engage with the Organization of American States, consider international law in domestic law interpretation regarding Indians, eliminate the plenary power doctrine in Tribal recognition, reform RFRA to impose a greater obligation upon the government than the “substantial burden” test, and eliminate Indian Title through conveyance of collective legal title to Indian Tribes. As Walter Echo-Hawk succinctly explains, “there is simply no place for injustice in a land that professes higher ideals; and that specter should not be allowed to stalk any of our citizens.”

Best Student Note--Trent Wallace, J.D. Candidate, 2024, Indiana University McKinney School of Law.