Washington International Law Journal


John D. Smelcer


Over the past three decades, indigenous peoples have effected a remarkable redefinition of their status and rights under international law, giving rise to an emerging distinct customary international law of indigenous peoples’ rights. Though that process is ongoing, the next critical step is enforcing these congealing rights “at home” in the domestic courts of indigenous peoples’ surrounding nations. Australia and the United States provide the most difficult and most revealing contexts in which to explore the possibilities and limitations of this necessary next step. The direct enforcement of the emerging customary international law of indigenous peoples’ rights is not yet possible in either context, and may never be. However, the strategic use of this new customary international law as strongly persuasive authority within Australian and U.S. federal courts in domestic causes of action is a promising approach. This is because Australian and U.S. courts have generally become more open to internationally based arguments, and because international law has a special place in Australian and U.S. federal indigenous peoples’ jurisprudence. This Comment argues that because this jurisprudence was itself founded upon principles of international law, newly emergent principles of international indigenous peoples’ rights law should be received into Australian and U.S. domestic courts as strongly persuasive authority: they may not provide a cause of action but they can provide a rule of decision. This process of giving interpretive force to international indigenous rights law within domestic federal law might be termed “soft” enforcement of international law. Perhaps the arena in which these principles can most clearly be seen and implemented is in the protection of indigenous “cultural sovereignty.” This Comment continues by highlighting the promising movements on this front in both Australian and U.S. federal courts and how indigenous peoples might utilize principles of “soft” enforcement to best secure and advance their “cultural sovereignty” rights. These general recommendations are tested and applied in the final section by revisiting the High Court of Australia’s recent Kartinyeri v. The Commonwealth decision and the U.S. Supreme Court’s decision in Lyng v. Northwest Indian Cemetery Protective Ass’n.

First Page