Exploring Right to Reparation of Indigenous Peoples: A Comparative Study between Land Claims in USA and International Perspectives

International Journal of Research and Innovation in Social Science (IJRISS) | Volume IV, Issue VIII, August 2020 | ISSN 2454–6186

Exploring Right to Reparation of Indigenous Peoples: A Comparative Study between Land Claims in USA and International Perspectives

Rakiba Nabi

University of Chittagong, Bangladesh

Abstract: The centuries-long Native American’s history of forced dispossession, relocation, land-grabbing poses significant challenges to their property rights even at present. Beginning from the 15th century to the present, the journey of land-theft and forced dispossession of native Americans continued and colonial governments legalized the loss of land via the doctrine of discovery, conquest, terra nullius, and congressional plenary power. The Native American communities still encounter the infringements of their most basic land rights with which native people have extraordinary, unique relationship. Tribal peoples’ close ties with land such as the Standing Rock Sioux Tribe determines their ways of life, reflects their culture, values, spirituality and physical existence. Dispossession is destructive not only to their physical structures, but also it damages their mental stability, belief, religious sentiment and after all their physical as well as spiritual world.

I. INTRODUCTION

The main purpose of this paper is to compare the identified approaches of international forums particularly Inter-American Court of Human Rights (IACHR) and the United States judiciary and commission (Indian Claims Commission and Court of Federal Claims) in case of land-dispossession. The objectives of this paper are to (1) assess the universal standards for the right to reparation of indigenous communities when their land is taken by state or federal government against their will, (2) analyze the essential factors that lie beneath land-grabbing, and (3) examine aspects how government treats native peoples in response to past wrong doings to assess the right to reparation.

This article argues that the methods and criteria applied in measuring reparations for Native American’s land rights and natural resources violation are very much limited as compared with approaches of Inter-American Court of Human Rights (IACHR). In particular, the jurisprudence of determining appropriate remedies as evidenced in the records of this regional court (IACHR) is comprehensive and corresponding with past injustices and harms experienced by indigenous communities. The purpose of this research paper is to identify the international standards for the determination of indigenous peoples’ right to reparation and assess the United States perspectives. The first part of the paper will focus on the universal standards of assessing right to reparations applicable in broadly human rights violations and specifically land grabbing including natural resources. The second part of the paper will deal with the prevailing international jurisprudence in this arena and approaches of IACHR that evolved over time. The third and final part will assess aspects of land claims and legal barriers associated with reparations in the United States and compare the circumstances with international standards for the determination of reparations in property rights.

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