Pursuing Native American Rights in International Law Venues: A Jus Cogens Strategy after Lyng v. Northwest Indian Cemetery Protective Association

Authors

Christopher P. Cline

Abstract

The breathtaking advances in personal freedom for the people of Eastern Europe provide a sad counterpoint to the restrictions of such freedom sanctionedzn this country by the recent Supreme Court decision in Lyng v. Northwest Indian Cemetery Protective Association. In Lyng, the Court held that the building of a logging road through land held sacred to three native California tribes did not violate their first amendment right to practice their religion, even though the government- approved road would destroy their ability to worship. In response to Lyng, members of the tribes filed a complaint before the Organization of American States (OAS) alleging violations by the United States government of their fundamental rights under international law. This Note examines this action; it discusses the Lyng decision and the violations of international human rights that it engendered. It argues that these rights are properly considered jus cogens-peremptory norms of international law-=that no nation, regardless of its domestic law or constitution, may abrogate. The author proposes that American courts recognize and enforce these fundamental rights, and suggests that pursuit of international redress is an appropriate and necessary course of action when the courts refuse to do so.

Recommended Citation

Christopher P. Cline, Pursuing Native American Rights in International Law Venues: A Jus Cogens Strategy after Lyng v. Northwest Indian Cemetery Protective Association, 42 Hastings L.J. 591 (1991).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol42/iss2/4