October 2012, Volume 98, Issue 6|
Closing the Accountability Gap for Indian and Alaska Native Tribes
98 Va. L. Rev. 1373 (2012)
The recognition of the right of Indian tribes to self-determination in federal and international law generates strong protections for tribal autonomy, allowing tribes to exercise extensive governmental powers. But federal and international law also combine to create an accountability gap for tribal human rights violations—that is, a space in which victims lack access to a remedy and tribes are able to act with impunity. Just as U.S. states and municipalities can use their governmental powers to both protect and violate human rights, so too can tribes. But when a tribe fails to provide a remedy for its violation, a victim may be unable to access a remedy under federal law due to federal deference to tribal sovereignty. A victim has no recourse directly against the tribe under international law, and tribal self-determination limits the ability of a victim to bring a complaint against the U.S under international law.
This Note proposes filling the accountability gap by recognizing that the right of Indian tribes to self-determination under international law contains a duty to respect, protect, and fulfill human rights. Rather than looking to the United States to provide recourse, which would infringe on tribal self-determination, this proposal recognizes that when a tribe violates a human right, the tribe is breaching international law and owes the victim a remedy. This Note argues that recognition of such a duty would benefit tribes by legitimizing tribal self-determination and governance and closes by discussing how the duty would be implemented in practice.
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