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Tribes as International Legal Actors and the International Community’s Failed Legal Obligations

By Hannah Tompkins

            International law is an area that intersects and overlaps with every arena of domestic law. International law is an important lens for human rights and a way that we can look at the rights of indigenous peoples and advocate for stronger protections for tribes. International law is a way for global actors to interact together and solve problems that affect people all over the globe.[1] These various actors use “international law to structure their interactions, advance particular legal positions, justify their own actions, and acknowledge specific legal rights and obligations.”[2]

There are many legal instruments used in international law, but treaties are one of the most common. Treaties are agreements that states voluntarily agree to enter into with other states. Treaties are powerful instruments and when ratified, they become law for those ratifying countries. Some treaties are considered global and multilateral while some are regional and multilateral, and others are bilateral typically between two countries.[3] Customary international law is also an important legal instrument and sets out many expectations and general practices that states follow. Customary law is typically seen as a legal obligation, not simply guidelines that states follow.[4] Customary law often affects the content of treaties and they work together to form a body of law. The role of custom in international law is one large reason why we can look at protections for indigenous rights in the international context. This is because “indigenous juridical customs, laws, and institutions are recognized in the main international instruments on Indigenous Peoples’ rights, which helps cement the notion that these are fundamental human rights of Indigenous Peoples.”[5] This helps to give legitimacy and see how indigenous systems are legitimized in other countries.[6]

            States are not the only legal actors involved in international law and who have international legal obligations. There are many non-state actors such as non-governmental organizations (NGOs), corporations, regional organizations, religious organizations, the states of the United States, and even tribes.[7] Non-state actors play an incredibly important role in the international sphere and influence treaties and other legal instruments. Non-state actors also play a large role in creating soft law. This is an important reason that tribes should be involved because they can help create soft law relating to indigenous peoples and human rights generally. They are also the subjects of many of these treaties and laws.

            Treaties are the most concrete legal instrument used in international law. As we know, treaties are also incredibly important to domestic law in the United States. The Supremacy Clause in the United States Constitution tells us that “all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land.”[8] Domestic treaties were the main instrument used by the federal government to negotiate with tribes. These treaties are what set out the federal government’s trust responsibility to tribes in conjunction with many Supreme Court cases determining the ward status of tribes to the government. While this “ward status” is an outdated term[9] it does impose legal obligations on the federal government to take care of tribes. The United States has made it clear in both the domestic and international arenas that treaty obligations are incredibly important to America and yet they break their treaty obligations with tribes on a daily basis.

            On this note, the United States and the international community break their treaty obligations to tribes in the international arena as well. Some of the relevant treaties to my discussion here are the International Covenant on Civil & Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the Universal Declaration on Human Rights (UDHR.) Article 1 of the ICCPR states that “all peoples have a right of self-determination.”[10] Article 18 states that “everyone shall have the right to freedom of thought, conscience, and religion.”[11] The United States consistently ignores the tribal communities’ religious and cultural practices. For example, the United States banned a practice known as the Sun Dance which is a Native ritual that involved some dangerous practices like piercing.[12] Article 27 also reiterates the right of minority communities to enjoy their own culture, religion, and language.[13] The United States has a clear history of denying or taking away these rights for tribes especially in regards to language.[14] The United States has attempted programs to encourage the revitalization of language for tribes, but they could do more in promoting the revitalization of native cultures.[15] The ICESCR has similar language, especially in Article 11. Article 11 states that they “recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.[16] “The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.” This provision is one that the United States fails greatly at in regard to tribes. Many tribal members and reservations live with the standard of care that third world countries do. Many do not have access to water, adequate health care, sufficient resources, and so on. Finally, the UDHR “sets out, for the first time, fundamental human rights to be universally protected” and “paved the way for, the adoption of more than seventy human rights treaties, applied today on a permanent basis at global and regional levels.”[17] The UDHR also sets out rights relating to race, religion, and an adequate standard of living. The UDHR further emphasizes that everyone has the right to freely participate in the cultural life of the community.[18] These are just some of the provisions of a few treaties that the United States has signed or ratified and yet they continue to deprive tribes of many of the rights contained therein.

            It is also important to discuss the United Nations Declaration on the Rights of Indigenous Peoples. It is not a treaty, but it is an important international document that outlines the fundamental rights of Indigenous Peoples. This resolution was discussed and debated for a long period of time, only furthering its legitimacy.[19] A majority of the UN member states voted in favor of it and as a result, “it represents the highest degree of acknowledgement at the global level of the rights of Indigenous Peoples in areas such as lands, natural resources, language, cultural preservation, traditional knowledge, and spiritual practices.”[20] Article 3 affirms the right to self-determination which puts it in conformity with the ICCPR and ICESCR as they affirm this right for all.[21] Article 34 affirms the right to maintain and strengthen their distinct political, legal, economic, social, and cultural institutions and practices.[22] This relates back to Article 27 of the ICCPR. Having this resolution be specific for Native peoples but contain similar language to the treaties mentioned above creates a notion of the importance of Indigenous rights and Indigenous self-determination.

            One possible solution is to bring tribes into the making of international soft law. This already happens with NGOs, community groups, and other international organizations.[23] By giving tribes a larger voice on the international arena, it will be harder for the United States to ignore their obligations. If the United States will not hold themselves accountable to their treaty obligations, both domestically and internationally, then the international community needs to step up and put pressure on the United States to fulfill their obligations to tribes. The United States continues to tout their trust relationship to tribes yet consistently ignores the responsibilities that come with this relationship. There are clear obligations being ignored by the United States contained in both domestic and international treaties. Looking at international treaty obligations is simply another way we can advocate for the federal government to step up and fulfill their obligations to tribes.


[1] Jeffrey L. Dunoff et al., International Law: Norms, Actors, Process A Problem Oriented Approach 3 (Wolters Kluwer 5th ed, 2020) [hereinafter Dunoff].

[2] Id. at 12.

[3] Id.

[4] Id. at 63.

[5] Marianne O. Nielsen & Karen Jarratt-Snider, Traditional, National, and International Law and Indigenous Communities 147 (2020).

[6] Id.

[7] Id. at 169.

[8] U.S. Const., art. VI, § 2.

[9] The “ward to guardian” term is used to justify laws against tribes while simultaneously is being ignored even though the United States has a trust obligation based on it.

[10] International Covenant on Civil and Political Rights art. 1, cl. 1, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].

[11] ICCPR, art. 18, cl 1.

[12] Native Partnerships, Living Conditions, Native American Aid (last visited May 5, 2022), http://www.nativepartnership.org/site/PageServer?pagename=naa_livingcondition.

[13] ICCPR, art. 27, cl 1.

[14] Michelle Nijhuis, Tribal Talk, Smithsonian Magazine (Nov. 1, 2003) https://www.smithsonianmag.com/history/tribal-talk-93636590/.

[15] New Mexico Delegation, Legislation to Reauthorize Native American Language Programs Becomes Law, United States Senate Committee on Indian Affairs (Dec. 21, 2019),

https://www.indian.senate.gov/news/press-release/legislation-reauthorize-native-american-language-programs-becomes-law-0 .

[16] International Covenant on Economic, Social, and Cultural Rights art. 11, cl. 1, Dec. 16, 1966. [hereinafter ICESCR].

[17] Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) [hereinafter UDHR].

[18] UDHR, art. 27, cl 1.

[19] Nielsen & Jarratt-Snider Supra note 5, at 149.

[20] Id.

[21] G.A. Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples (Sept. 13, 2007).

[22] Id.

[23] Dunoff supra note 1, at 151.

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Commentary

They Became Terrorists Overnight: The Chilean Government’s Use of Anti-Terrorism Laws Against Mapuche Activists

By: Val Day-Sánchez

“There are no guarantees of due process in these trials manipulated by the state…We are persecuted by state police, and the state appoints both the prosecutors and the public defence lawyers, who operate within a system and comply with a political model that favours vested economic interests in this country.”[1] 

The Mapuche Nation is the largest Indigenous community in the Americas, residing in Argentina and Chile.[2] Unfortunately, even with its high population there is not strength in numbers.[3] The Chilean and Argentine governments view the Mapuche as invaders.[4] Historically, however, the wars inflicted on the Mapuche was that of colonialism. The narrative created by the Chilean government has been the inverse.[5]

The Mapuche people, a primarily agricultural society, were forced onto reservations in 1866.[6] The Chileans revoked the Quillin Treaty, which had declared the Mapuche autonomous from the country.[7] This revocation of sovereignty enabled the Chilean government to take the Mapuche’s ancestral land and, using their discretion, the government would provide the Mapuche with land use but not ownership.[8]  Land removal continued into the 1920’s and 1930s.[9] 

In the early 1970s, the Chilean government passed the “Indigenous Law” which recognized the Mapuche as a distinct culture.[10] This law also enabled the restoration of Mapuche ancestral lands.[11] All of this “progress” was overturned by the infamous dictator, General Augusto Pinochet. The Chilean government was then legally allowed to take land from the Mapuche and exploit it for monetary gain.[12] The taking of land to develop forestry plantations began in 1973 and was heavily encouraged by way of subsidies until 2013, under Decree Law 701.[13] This resulted in 11 million hectares being taken from the Mapuche.[14]

Pinochet called for the “division of the reserves and liquidation of Indian communities,” and thus the Anti-Terrorism Law or Law 18.314 was adopted. [15] The combination of taking land from the Mapuche Nation and exploiting it has led to protests from the Mapuche, who the government then combats with the Anti-Terrorism law.[16] This has been going on for decades. Imprisoned Mapuche led hunger strikes challenging the harsh prison sentences, police brutality, entire generations lost to incarceration and being viewed as inhuman— has caught the attention of the United Nations. Mapuche children have applied for asylum, believing they will die at the hands of law enforcement. When your country deems you a terrorist and refuses to recognize you, one is pressed to know where someone can feel safe.[17]

The oppression of the Mapuche Tribal members is further reflected in the suppression of their language, the devastation of their land, and in their absence from the Chilean Constitution.[18]  The Chilean State has labeled Mapuche Activists as terrorists while they see themselves as political prisoners.[19] Due to its cruelty towards Tribal members and their children, both the United Nations and UNICEF have told the Chilean government to halt the use of the Anti-Terrorism law.[20]

The law, which was developed during a dictator’s regime, includes secret investigations, anonymous witnesses, indefinite pretrial detention, harsher penalties and stark sentences.[21] It also creates a lack of trust in the justice system, as such practices are directly averse to principles like innocent until proven guilty. Both the police and prosecutors are looked at as untrustworthy and even criminal by their handling of cases involving Mapuche activists.[22]

“There has been no recognition of our people’s political, social and legal structures; our traditional authorities have not been respected, and our territorial rights have not been recognized.”[23]

The brutality of the Anti-Terrorism law challenges due process as Mapuche people charged under this law often remain in custody for up to two years while their case is investigated.[24] The prosecution is allowed to withhold evidence from the accused for up to six months and to add to the injustice, the defendant can be convicted solely on the testimony of a secret witness.[25]

“Despite the controversy embedded in this framework, there is an ongoing national debate unfolding today over whether this already-violent undemocratic process is ‘tough enough’ to fight Mapuche so-called “terrorism.” [26]

General Augusto Pinochet once stated “[t]here are no Mapuches left, because we are all Chilean.”[27] This sentiment has been challenged in recent years as Chile shifted from a Catholic state to a nonreligious government. Its lack of laws protecting other marginalized communities has sparked protests, which perhaps means there is hope for inclusion of Indigenous protections.[28] In 2021 Chile will be re-writing its constitution.[29] This will be the first time since Pinochet was in office.[30] Elisa Loncon, the first Mapuche woman selected by delegates to help draft the new Constitution, will be part of this effort.[31] One can hope this will lead to the Mapuche being recognized as a distinct culture within the Constitution and then receiving the benefits of that recognition.


[1] UNPO: Mapuche: Introduce new Legal System, https://www.unpo.org/content/view/10708/127/ (last visited Sep 13, 2021).

[2] Mapuche, Minority Rights Group (2015), https://minorityrights.org/minorities/mapuche-2/ (last visited Sep 13, 2021).

[3] Id.

[4] Id.

[5] Id.

[6] Mapuche | History, Culture, & Facts, Encyclopedia Britannica, https://www.britannica.com/topic/Mapuche (last visited Oct 18, 2021).

[7] The Quillin Treaty was between Spain and the Mapuche Nation. Zia Akhtar, Mapuche Land Claims: Environmental Protest, Legal Discrimination and Customary Rights, 20 Int J Minor Group Rights 551–576 (2013).

[8] Id.

[9] Minority Rights Group (2015), supra note 2.

[10] Patricia Rodriguez & David Carruthers, Testing Democracy’s Promise: Indigenous Mobilization and the Chilean State, Revista Europea de Estudios Latinoamericanos y del Caribe / European Review of Latin American and Caribbean Studies 3–21 (2008).

[11] Id.

[12] Mapuche Lavkenche Women’s Resistance to the Chilean Forestry Model | WRM in English, https://wrm.org.uy/articles-from-the-wrm-bulletin/section1/mapuche-lavkenche-womens-resistance-to-the-chilean-forestry-model/ (last visited Sep 27, 2021) [hereinafter Mapuche Women’s Resistance].

[13] Id.

[14] Id.

[15] Chile is still using Pinochet’s Anti-Terrorist Law against the Mapuche | Intercontinental Cry, https://intercontinentalcry.org/chiles-still-using-pinochets-anti-terrorist-law-mapuche/ (last visited Oct 18, 2021).

[16] Ever since the Chilean government split the ancestral lands between two families, who developed forestry plantations, the government has worked in a noxious relationship with these companies. It is this relationship which enables the logging company to enter Mapuche ancestral lands. The logging company strategically decimated the forest to plant invasive species like pine and eucalyptus trees, these trees being a lucrative export. This history of colonization and the formation of government subsidized plantations came to a head in 1997. Three truckloads of wood from the forestry company were burned while on the occupied land, and the intensification of the reclamation of the occupied lands led to the increase of police presence and the enforcement of the Anti-Terrorism Laws.Mapuche Women’s Resistance,supra note 12.

[17] Id.

[18] Chile is the only Latin American country that does not recognize Indigenous people in its constitution. Chile – IWGIA – International Work Group for Indigenous Affairs, https://www.iwgia.org/en/chile.html (last visited Sep 27, 2021).

[19] UNPO, supra note 1.

[20] OHCHR | UN experts urge Chile not to use anti-terrorism law against Mapuche indigenous peoples, , https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22209&LangID=E (last visited Oct 18, 2021).

[21] Undue Process: Terrorism Trials, Military Courts and the Mapuche in Southern Chile, (2004), https://www.hrw.org/report/2004/10/27/undue-process/terrorism-trials-military-courts-and-mapuche-southern-chile (last visited Oct 18, 2021).

[22] Intercontinental Cry, supra note 15.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] IWGIA, supra note 18.

[28] Mapuche woman to lead body drafting Chile’s new constitution, https://www.aljazeera.com/news/2021/7/4/indigenous-mapuche-woman-to-lead-body-drafting-chile-new-constitution (last visited Oct 2, 2021).

[29] Id.

[30] Id.

[31] Id.