Lorie Graham (Suffolk University Law School) has posted Reparations, Self-Determination and the Seventh Generation on SSRN. Here is the abstract:
This paper links indigenous peoples' claims of self-determination to the right of reparations under international law. This analysis unfolds within the context of U.S. domestic legislation designed to address the large scale removal of indigenous children from their families and communities. We are just over one generation removed from the passage of the Indian Child Welfare Act of 1978 (ICWA). According to indigenous teachings on law and family, we have six more generations to consider before we can fully comprehend the impact of this landmark legislation. Yet, despite its many successes, the ICWA has its detractors. Some of the more highly charged criticisms center on claims of race matching or violations of individual freedoms. This paper suggests a different view of the law, one that seeks to analyze the ICWA within existing and emerging international human rights precepts. By focusing on the international right to reparation in the form of indigenous self-determination, the paper offers a sound legal basis for the continuation of this and similar federal legislation designed to remedy serious human rights violations against Native peoples and their children. The first two parts of the paper present the factual foundation for indigenous claims to reparations and discusses the major human rights violations that give rise to these claims. The remaining parts of the paper analyzes international reparation principles and then seeks to link those principles to various aspects of the ICWA, while at the same time identifying some of the deficiencies in the law. Both the approaching 30th anniversary of the ICWA and the current debate before the U.N. General Assembly regarding the Draft Declaration on Indigenous Peoples Rights make this a timely discussion.