A Native American Mutual Defense Treaty Against Tar Sands Projects

by Duncan Hollis

Last week, a Ceremonial Grand Council was held on Ihanktonwan homelands (located within the boundaries of the U.S. State of South Dakota) which concluded and negotiated the “International Treaty to Protect the Sacred from Tar Sands Projects”.  I can’t find a specific list of participants, but news reports suggest signatories included representatives from an array of U.S native American Tribes and Canadian First Nations.  The treaty (see here for the text) is seven articles long, most of which involve establishing the authority of indigenous peoples’ over their remaining land, including the authority to oppose tar sands oil projects (tar sands are unconventional oil deposits in sand and sandstone that are saturated with a particular form of petroleum; oil is produced from these deposits either by strip mining or using wells that inject steam, solvents and/or hot air into the sand).  The treaty signatories oppose oil work on tar sands for manifold reasons, including their degradation of the “the soil, the waters, the air, sacred sites, and our ways of life”.  In Article VI, the signatories

[A]gree to mutually and collectively, as sovereign nations, call upon the Canadian and United States governments to respect our decision to reject tar sands projects that impact our sacred sites and homelands; to call upon the Canadian and United States governments to immediately halt and deny approval for pending tar sands projects because they threaten the soil, water, air, sacred sites, and our ways of life; and, confirm that any such approval would violate our ancestral laws, rights and responsibilities.

Article VII then goes on to establish a mutual defense commitment of sorts, wherein the signatories

[A]gree to the mutual, collective, and lawful enforcement of our responsibilities to protect our lands, waters, and air by all means necessary, and if called on to do so, we will exercise our peace and friendship by lawfully defending one another’s lands, waters, air, and sacred sites from the threat of tar sands projects, provided that each signatory Indigenous Nation reserves and does not cede their rights to act independently as the tribal governments see fit to protect their respective tribal interests, further provided that each signatory Indigenous Nation reserves its inherent sovereign right to take whatever governmental action and strategy that its governing body sees fit to best protect and advance tribal interests affected by the pipeline project consistent with the agreements made herein and subject to the laws and available resources of each respective nation.

I find this treaty enormously interesting from a constitutional and international law perspective.  Of course, the treaty implicates other issues as well — environmental degradation, indigenous peoples’ rights, Canadian law, etc., but I’m not enough of an expert to opine on such questions.  Whatever its merits, though, I wonder what legal authority U.S. Native American tribes had to consent to conclude this treaty, let alone consent to be bound by it in the future (which the treaty says will occur via ratification by the “governing bodies of the signatory nations”).

For starters, I wonder as a U.S. legal matter, what authority Native American tribes have to make treaties with foreign counterparts.  Certainly, there would be constitutional issues if this had been a U.S. state entering into a treaty with foreign powers for purposes of lobbying the U.S. government or entering into a “mutual defense” agreement.  The U.S. Constitution prohibits treaty-making by U.S. States and only allows compacts by States with foreign powers where Congress approves and perhaps cases where federal supremacy is not threatened. For my part, as I’ve written previously, I do think there are federal supremacy issues when sub-national entities enter into legal agreements to lobby or oppose federal activity, even if each entity could express opposition to that activity independently.

U.S. Native American tribes are, of course, not States, and they have a long history regulating relations via treaty.  Indeed, up until 1871, the United States regulated all matters vis-a-vis Native Americans through treaties.  Since the Indian Appropriations Act of 1871, however, Congress has asserted plenary authority to regulate Native American rights and duties via legislation.  What I don’t know — and where I’d love informed reader opinion — is whether federal law permits (or prohibits) Native Americans to continue treaty-making with actors outside the United States like the Canadian First Nation partners here?

Beyond the U.S. law, there’s also a fairly interesting issue of how international law regards this sort of treaty-making.  As I’ve written previously, international law imposes two conditions on treaty-making by a sub-national actor:  (1) explicit treaty-making authority from the State of which it is a component part (whether ex-ante or ex-post); and (2) the consent of potential treaty-partners to the sub-national actors’ participation in the treaty itself.  Here, it seems we have a willing group of treaty partners, so the treaty seems OK on the second element (that is, assuming the Canadian First Nations are themselves authorized to make treaties under Canadian law).  Still, there are questions as to whether the United States has to authorize this treaty, whether it has done so (or will need to do so going forward), and why it would ever do so when the treaty’s objective would be to lobby and/or constrain federal government behavior.  Now, there is an argument that, as indigenous peoples, Native American tribes should not be subject to the standard rules for treaty-making by sub-national actors (indeed, Article 36(1) of the UN Declaration on Indigenous Rights makes just such a claim).  But, the United States was one of four nations to object to that Declaration (along with Canada, Australia and New Zealand), so I’m hard pressed to see it getting traction in this case, especially where the treaty involves an alliance of indigenous peoples to oppose federal licensing efforts (and with it perhaps some key aspects of U.S. energy policy).

As such, I think the ball is now firmly in the Obama Administration’s court.  I’m interested to see how it responds to this treaty (including, which Agency takes the lead in responding to it).  I suppose silence is a possible course of action.  But, if the federal government remains silent, I think that might lead to arguments of U.S. tacit approval for this treaty in particular, and even more broadly, a right of treaty making with foreign powers for U.S. Native American tribes.

[Update: Stephanie Farrior writes in with an important clarification.  Although the United States, Canada, New Zealand and Australia all initially opposed the the UN Declaration on the Rights of Indigenous Peoples, all four states have since formally expressed their support for the Declaration: Australia in 2009, and Canada, New Zealand and the United States in 2010]

http://opiniojuris.org/2013/02/03/a-native-american-mutual-defense-treaty-against-tar-sands-projects/

6 Responses

  1. 25 USC § 71: No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871, shall be hereby invalidated or impaired.

    The language seems quite ambiguous to me. Does it mean that the entities in question cannot be acknowledged as sovereign? Or only that they cannot be acknowledged as sovereign for the purposes of entering into treaties with the US?

  2. Response to Daniel, from an Indian lawyer’s perspective.
    The statute is ambiguous, just as you point out.  Doctrinally, because of historical practice and early common-law in the Supreme Court (and for good reasons I won’t get into at this time), statutes restricting the existing rights of Indian tribes are read very narrowly, and anything not expressly prohibited to the tribes would generally be preserved.
    However, one of the foundational principles established by the Supreme Court in the early 19th century was that the European colonization and establishment of the United States government terminated the tribes’ ability to enter into treaties with foreign powers.  One interpretation of this is that tribes would lack the power to enter into such a treaty, regardless of s. 71.
    The counter-counter argument is that this limitation on tribal international relations might apply with respect to “European powers,” i.e. any international body which recognizes the right of the United States to suppress the international political authority of the tribal goverments.  Tribes across the U.S., and their First Nations relatives, do not have to accept this authority and should be applauded for asserting their rights of self-government on an international stage.
    Whether the United States will acknowledge their authority to do so is really just a question of politics.  The U.S. will continue to do whatever it wants to do, but if the tribes are successful in drawing positive attention to their position, they could garner a political victory and change the policy.  Maybe its unlikely, but the effort is laudable.

  3. “with whom the United States” means the U.S. and, in any event, a new treaty would be last in time and prevail as supreme law of the United States over such legislation.  Additionally, the U.S. legislation acknowledges the fact that there are treaties between the U.S. and some Indian nations, tribes, and powers.  In fact, there are treaties that remain intact and have important effects vis a vis states within the United States, especially in view of the Supremacy Clause (Art. VI, cl. 2) and the Tenth Amendment (which obviates any alleged power or sovereignty of the states vis a vis treaties and any congressional implementing legislation — see, e.g., http://jurist.org/forum/2013/02/jordan-paust-bond-v-us.php
    Indian nations and tribes have had treaties with the U.S. and other coutnries over the years, demonstrating, of course, that international law has never been merely state-to-state — recall http://ssrn.com/abstract=1701992
    Indian nations in the U.S. retain sovereignty.  This new treaty will present interesting issues in the future, some of which are identified in my Va. J. article on Non-State Actors (site above) with respect to Indian nations and tribes.

  4. p.s. U.S. domestic legislation cannot obviate the status of an Indian nation, tribe, or peoples at the international level (domestic law is no excuse, and all of that, and the status at the international level rests on independent criteria).  See footnotes in my Va. J. article on Non-State Actors, etc. and Philip’s second para.

  5. my primary comment (with click-ons) prior to the p.s. above is “awaiting moderation”

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