UN Indian land claims hatched on campus

Walter Olson Senior Fellow, Cato Institute
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The story made headlines abroad last week, but for some reason not so big a splash in the U.S. itself. “US should return stolen land to Indian tribes, says United Nations,” blared Britain’s Guardian. As the BBC explained:

A UN special rapporteur has called for the US to restore tribal lands, including the Black Hills of South Dakota, site of Mount Rushmore.

James Anaya announced the recommendation at the end of a 12-day tour, during which he met tribal leaders and government officials.

Mr. Anaya, the U.N. rapporteur, was sent on his mission by none other than the U.N. Human Rights Council, notorious, as Doug Bandow has written, for being “dominated by human rights abusers and their enablers.” (Fidel Castro has a seat, as did Libyan dictator Moammar Qaddafi until his overthrow.) What you wouldn’t have realized from most of the news reports — an exception was Claudia Rosett’s — is that Anaya is not just parachuting in from some U.N. redoubt in Geneva or the Hague. He’s an American law professor based at the University of Arizona and active in particular in the school’s Indigenous People’s Law and Policy Program, which he drew on to support his U.N. probe (he’s due to report to the Council itself this fall).

There’s a wider story here, which I told at some length in Chapters 10 and 11 of my book “Schools for Misrule” last year. In the 1970s, with inspiration from the law schools and backing from the Ford Foundation and other liberal funders, some advocates began a sustained effort to resuscitate old Indian land claims (often in the process casting a cloud on the title of European-descended occupants who have farmed or ranched the land for one or even two centuries). After years of havoc and uncertainty of rights, the U.S. courts in the past decade came down against the tribal claims, ruling that they are grounded neither in the Constitution nor in applicable statutory law. As it became clear that the land-claim litigation would fail in U.S. courts, advocates launched a new strategy of involving the U.N. system and other international organizations on the grounds that to deny the tribes the right to reoccupy old lands would be to violate their international human rights. Very helpful in this process has been the advance of a document called the U.N. Declaration on the Rights of Indigenous Persons (UNDRIP), which the U.S. long opposed and then, in an Obama turnabout last year, decided to support.

The law school at the University of Arizona has played a surprisingly prominent role through this process. It’s home to Ford and MacArthur Foundation honoree Robert A. Williams, Jr., whose 2005 book “Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of America” argued for pursuing an international-law path to tribal land and sovereignty claims. The Arizona law school represented the Western Shoshone tribe in a complaint to the U.N. over a denied land claim, which led to a 2006 ruling by the U.N.’s Committee for the Elimination of Racial Discrimination (CERD) that the U.S. was in the wrong and should negotiate concessions to the tribe. It was hailed as the first victory for Indian complainants against the U.S. before the U.N. Now the plaintiff’s counsel of a few years back re-surfaces as the official instrument of a U.N. body, a revolving-door arrangement that is actually quite typical of the international human rights establishment, where a rather small band of crusading law professors, “civil society” activists and Guardian readers around the world seem to take turns investigating each other’s, or as the case may be their own, countries for putative human rights violations.

Per the Guardian, Anaya got a rather chilly reception on Capitol Hill: while he was allowed to brief a Senate panel on Indian affairs, “no members of Congress would meet him” individually. On the other hand, “Anaya said he had received ‘exemplary cooperation’ from the Obama administration.” Why is that somehow less than reassuring?

Walter Olson is senior fellow at the Cato Institute. His books include Schools for Misrule (Encounter, 2011).