Indian Nations Are Not International: Neither Are Those of Other Indigenous Peoples

By Nick Levinson

Some indigenous or aboriginal groups in the United States, mainly Indian tribes, have treaties with the U.S. and assert nationhood through which treaties were possible. These peoples (for convenience here I’ll call all of them tribes) have no rights and obligations under international law except through the U.S. government.

Much the same may be true for indigenes in other nations, such as Canada, Australia, and New Zealand. While domestic law and treaties may differ widely, the norms of international law are likely similar or identical (there might be variations between the Australian and U.S. neighborhoods because the norms let the more powerful nations have a say about smaller neighbors). Indigenes in nations that allow only lesser degrees of autonomy, such as the right to preserve traditional language and dress, have even less legal protection for their group identities.

I found several lists of nations of the world. Searching them, I did not see any entity that appeared to me to be an indigenous people listed as a nation on any of the lists.

— The United Nations has 193 nations as members and recognizes two additional entities as “states”, the word normally used to mean ‘nations’, as observers. Each one is in the General Assembly and perhaps also, permanently or temporarily, in the Security Council. A second U.N. list is similar.

— Within the United Nations, additional nations may participate in some of the specialized agencies. I have seen a list of nations that are members or observers of or participants in such agencies but are not in the General Assembly, but I did not find the list this time.

— The U.S. Department of State has a list of nations and areas and a list titled Websites of U.S. Embassies, Consulates, and Diplomatic Missions.

— The International Olympic Committee counts 206 entities including nations (a few clearly are not nations for reasons other than indigenousness, such as one with respect to refugees).

— The International Organization for Standardization (ISO) has a list of 249 country codes.

— Wikipedia, which does not consider itself to be a reliable source but encourages its editors to cite reliable sources in support of statements made in its articles, has a list of many nations. Ideally, I would like a list that is a compilation of all the nations that are each recognized by at least one nation that is itself recognized as a nation in an authoritative list, but I do not know of such a list, unless the Wikipedia list serves that purpose. Ideally, I would also like a list of all entities asserting nationhood due to internal qualifications even though no nation recognizes any such entity; perhaps the Wikipedia list serves that purpose, but the difficulty of defining and judging those internal qualifications may make compiling such a list impossible.

It does not appear that any tribe claims direct recognition from any international nation other than the U.S. or that any tribe directly recognizes any international nation other than the U.S. The position of the National Congress of American Indians appears consistent with this.

These tribes are subnational nations and not international nations.

Above U.S. law, including the U.S. Constitution, are the norms of international law. Some treaty law, at least if self-executing, is also above U.S. law, but treaty law is not considered here, because the norms are higher than treaty law. The norms bind every international nation and every stateless person who is not under the jurisdiction of an international nation (there are few, if any, such persons). The norms bind international nations even if the international nations never agreed to them and even if no domestic law of any international nation ever contradicted the norms. The instant an international nation is created, the norms are already there, waiting for it. Rights from the norms may be exercised. The norms must be obeyed.

But the norms do not apply directly to subnational nations. The norms are likely silent about the concept that subnational nations exist. The norms apply indirectly to everyone and thus to every human institution, but, except for stateless persons, that application is only through international nations. Thus, tribes, being subnational, are not directly subject to the application of the norms.

The norms, as to international nations, are enforceable through soft means (such as persuasion and treaty with indirect effect), breach of sovereignty, and war and, therefore, they are law. While some come with discretion about whether to enforce, some are subject to a mandate to enforce. War and other breaches of sovereignty are forbidden unless authorized by proper ground and scale; but, given proper ground, a war may be authorized. With mandatory enforcement, an international nation may be required to go to war. Each international nation may make its own decisions, as long as they’re lawful. Norms often permit various decisions on the same question. Thus, the norms may allow international nations to make decisions that contradict those of other international nations or, more easily, that differ from those of other international nations.

Were the tribes to seek internationalization of their nationhood, they would have to be ready to enforce the norms that require enforcement. I’m not clear which norms legally must be enforced; some that are said to be don’t seem to me to have that quality, given the history of the practice of nations; for example, a norm against genocide seems to be only selectively enforced, thus antigenocidalism requiring enforcement would seem to be only an aspiration.

It would not be enough that tribal members would join the military service of an international nation, such as the U.S., because that international nation might not be fulfilling that duty under the norms, and then the tribe would be joining in that failure.

Nor could the tribe act independently of the international nation of which it is part, because the international nation has the right and sometimes the duty to restrict what persons within it or from it do or omit to do. The lawful act of someone in one international nation could be treason when committed within another international nation. Therefore, the tribe, even as a subnational nation, could be forbidden by one international nation to do what it could do as itself an international nation; and could be required by one international nation to do what it would not do as itself an international nation. These contradictions are so substantial that a subnational nation could not double as an international nation. It must choose, or else live without either prospect. A tribe can take its time to decide and can change its mind at any time; but the international nation of which it is part does not have to wait for the tribe’s decision.

Tribal, or subnational, nationhood can be, under some circumstances, unilaterally extinguished without advance notice by the U.S. government. Federal policy supported extinguishment for a while, but probably doesn’t now. U.S. domestic law may offer protection against extinguishment, or may restrict it if, for example, it would entail a deprivation of property by the Federal or a State government such that due process is required. However, suppose a tribe, with or without being a subnational nation, wages war (perhaps, because the tribe is small, a small war) against Canada. By the norms, regardless of whether the tribal war was approved by the U.S. government or not, Canada, by the norms, would have the right of self-defense, including by offense against non-tribal targets in the U.S. But the U.S., by the norms, is required to prevent there being ground for war against the U.S. Therefore, the U.S. may prevent the tribal war from the U.S. against Canada, including, if useful, by stripping the tribe of subnational nationhood and arresting (or otherwise neutralizing) every member of the tribe, wherever found. Because that authority is in the norms and the norms are superior to U.S. domestic law, including the Constitution, any contrary provision in the Constitution or under it is void to the extent necessary for the norms to be effectual as law.

Suppose the U.S. were to extinguish and another international nation were to object; suppose several international nations were to object. Even without an objector recognizing a particular subnational nation as an international nation, the objection would amount to interference with the internal affairs of a nation, an international nation, specifically the U.S., and the U.S. would object to that, because interference with the internal affairs of a nation is unlawful by the norms, that being the point of sovereignty, which may not be breached without adequate justification. Thus, the objection to extinguishment would fade into silence and the extinguishment would be made permanent.

An international nation, perhaps objecting to extinguishment as a policy, might want to recognize a subnational nation as an international nation, thus internationalizing it. The subnational nation would have territory that is part of the U.S., and that conflicts with the criterion for international nationhood that it have its own territory, thus not share territory. That internationalization would be interference with the internal affairs of the U.S. That possibly would be an act of war and unlawful by the norms. It is virtually certain that extinguishment would go forward, perhaps faster.

If the objectors were most of the international nations of the world, that could be a game-changer. But that quantity is extremely unlikely, absent a change in the norms so as to favor internationalization of indigenous or peoples without their own exclusive respective territories. That amendment is highly unlikely anytime soon, because of the complications it would cause, such as from dual sovereignty within an international nation. The criterion of exclusive nationality would raise a similar problem, especially if it is impossible for a single-nationality person to renounce their nationality without a new international nationality coming because the intended new nation is not yet international.

Whether extinguishment is a good idea is a political question. The relationship between the tribes and the U.S. is essentially a political bond. Legal statuses under U.S. domestic law and specifically under the law of any such tribe (tribal law being part of U.S. domestic law) are inferior to the legal status under the norms. No domestic or tribal law can lawfully contradict the norms; if they purport to, the norms are law and therefore the contradictory inferior provisions are not law.

If one tribe is in two or more international nations, as far as the norms are concerned the international nations are separate and each tribal member is under the jurisdiction of whichever international nation that member is physically in or is a national of. If a tribal territory is in multiple international nations, even if the tribal territory straddles multiple international nations, whether a tribal member within the tribal territory travels into one of the international nations is at the discretion of that international nation unless the member is a national thereof, in which case entry cannot be refused but subsequent exit can be denied. Tribal law may be intended by the tribe to apply to all of its members wherever located and to its entire tribal territory; but, absent tribal international nationhood, that uniformity is not law in each international nation except by coincidence. The tribal law would be part of the domestic law of each international nation and subject to amendment within each international nation as that international nation decides, often regardless of what any other international nation might decide. Applicability of tribal law to the tribe’s individual members would be subject to each international nation’s law and to international treaties and the norms.

The term nation is confusing in this context. A tribe that is a nation is that only within U.S. domestic law. It does not qualify for >United Nations membership. It cannot act like a nation in international relations. The tribes are not ready to become international nations. Whether they would like to be is a question for each of them. It is not easy. The U.S. won’t make it easy. A pursuit of internationalization would come at a cost. Thus, it must be each tribe’s decision.