Student Research Topics

Law of Indigenous Peoples Paper Topic: Esther Jamison

Murdered and Missing Indigenous Women: A Roadmap for Advocacy Before the Inter-American Commission on Human Rights

The disproportionate level of sexual and physical violence experienced by indigenous women has garnered significant national and international attention in the past decade. Lethal violence against women is so common among indigenous communities in the United States and beyond that the phenomenon has acquired its own name: Missing and Murdered Indigenous Women (MMIW).[1] Although the problem has received significant tribal, state, federal and international scrutiny in the past few years, it has not before been addressed by an international human rights tribunal where the United States is the respondent state. 

While acknowledging efforts to remedy the problem of MMIW at tribal, local, state, and federal levels, my paper argues that a petition before the Inter-American Commission on Human Rights (IACHR) would enable a broader discussion of the root causes of the problem: principally, the erosion of tribal sovereignty and the removal of jurisdiction over major crimes from the tribes. Such a petition would assert both individual and collective rights: it would assert an individual’s right to an effective remedy—in particular an effective tribal remedy—and her right to be free from discrimination; additionally, it would assert the collective right of indigenous peoples to self-determination and self-government as a means to achieve that goal. 

Inter alia, my paper surveys the legal basis of an international human rights claim, examining international human rights instruments such as the American Declaration on the Rights and Duties of Man, the American Convention on Human Rights, the Universal Declaration on the Rights of Indigenous Peoples, and the International Covenant on Civil and Political Rights. It also examines relevant case-law in the American human rights system, which although not binding precedent in the international context, is highly persuasive. In particular, it examines the precedential value of: Mary and Carrie Dann v. United States for the right to sovereignty and self-determination of indigenous peoples; Jessica Gonzales (Lenehan) v. United States for the right to a remedy and the affirmation of positive duties on the part of the state to protect women from gender-based violence; and Gonzales et al. (“Cotton Field Case”) v. Mexico for the right to an effective criminal investigation and the right to be free from discriminatory treatment at the hands of investigatory authorities. 

A decision by the IACHR could address longstanding and entrenched sovereignty issues and suggest remedies such as the return of wholesale criminal jurisdiction to the tribes, along with the funding to make it workable. Failing that, my paper argues for the creation of positive duties on the part of the federal government to provide effective remedies for indigenous women, including the duty to protect them from human rights violations by non-state, private actors. 

[1] For the purposes of this paper, MMIW is used as a short-hand term that indicates the heightened levels of sexual and physical violence against indigenous women, whether or not that violence was fatal. 

By Tribal Law Journal Blog

The Tribal Law Journal was established in fall 1998 for the purpose of promoting indigenous self-determination by facilitating discussion of the internal law of the world’s indigenous nations. The internal law of indigenous nations encompasses traditional law, western law adopted by indigenous nations, and a blend of western and indigenous law. Underscoring this purpose is the recognition that traditional law is a source of law.

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