The Lakota Tribe’s Lawsuit Over the Sweat Lodge Deaths Cites to Wrong DRIP

Following the sweat lodge deaths of three people who attended an Angel Valley self-help seminar, the Lakota tribe has filed suit [PDF] in the Arizona federal district court against the seminar leader, James Arthur Ray, and the Angel Valley Retreat Center, as well as the United States and the state of Arizona. (Hat tip: Religion Clause).

The Lakota Nation alleges that Ray and the Retreat Center have (1) Violated Article 1 of the Fort Laramie Treaty of 1868 by violating the peace between the United States and the Lakota Nation, (2) Desecrated the Onikig’a (sweat lodge ceremony) by causing the three deaths, (3) Violated the UN Declaration on the Rights of Indigenous Peoples Arts. 29 & 36, and (4) that Ray and the Angel Valley Retreat Center committed fraud by impersonating and Indian and should be held accountable for the deaths to the survivors.

They also demand that those who requested the sweat lodge be dismantled be charged with destruction of evidence, and request that the judge refer Ray for prosecution.

I think it’s fairly clear that the lawsuit, which in essence is a criticism of cultural appropriation and the commodifiction of Indian Heritage, is intended as a means of obtaining publicity rather than a serious legal claim. There are huge issues with the suit’s standing (such as requesting relief for the deceased individuals’ descendants), its causes of action, and the requested relief, which would prevent the Ogala Lakota Delegation of the Black Hills Sioux from going further with their claims. Sam Longblackcat’s press statement, released in regards to the lawsuit, suggests as much. After noting that, unlike James Arthur Ray, Lakota Indians “don’t go into a Roman-Catholic church, put on the Pope’s hat and take the Pope’s staff and call ourselves Pope,” Longblackcat states:

We expect this lawsuit to strengthen our stand as first nation people. Manifest destiny, divide and conquer, these are tactics to assimilate and annihilate the first nations – no matter on which continent. It happened in Vietnam, it is happening today in Iraq. We want the world to know that the first nations exist, and that we are not going to let anybody take from us ever again.

As for the lawsuit, it first bases its claims upon a violation of the Fort Laramie Treaty of 1868, 15 Stat. 635. The Fort Laramie Treaty was in face the basis of a case heard once before by the Supreme Court, in United States v. Sioux Nation of Indians, 448 U.S. 371 (1980). Article 1 of the treaty, which the suit claims Ray violated, states:

If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent, and forwarded to the Commissioner of Indian Affairs at Washington city, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.

As the Lakota tribe is in North and South Dakota, not Arizona, clearly there’s no claim based upon territorial jurisdiction, and no Indian persons were involved at the sweat lodge ceremony where the deaths occurred. So if there is wrong upon Indian person or property here, it’d appear to be based upon intellectual property. Having zero experience with Indian law, I have no idea if there’s any precedent for something like this, but I’m certainly not aware of any U.S. statutes that protect against cultural appropriation.

More interesting are the Lakota’s claims that are brought under the Declaration on the Rights of Indigenous Peoples (the unfortunately acronymed “DRIP”). The DRIP was a UN General Assembly resolution was adopted in 2007. However, the United States, along with Canada, Australia, and New Zealand, objected to its passing. The DRIP is therefore, for multiple reasons, not a “treaty” that can be incorporated into U.S. law via the Supremacy Clause, and it’s also not the sort of international law that can be Paquete Habana‘d in through the judiciary.

Even if that weren’t the case, the Lakota Nation’s complaint would be an inadequate pleading, as it does not quote DRIP as it was finally adopted, but rather quotes the 1994 draft articles. I think this was an honest mistake on the plaintiff’s part, not intentional, as the adopted DRIP is actually more favorable to their case. The Draft Articles that the complaint quotes merely provide that, “Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property.”

In contrast, the DRIP, as it was adopted, states that,

“States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.” DRIP Art. 11.

It also provides that indigenous people “have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.” DRIP Art. 31. So not only does DRIP provide for an aspirational cultural property rights regime for indigenous people, but also attempts to place an obligatory duty on states to “provide effective redress mechanisms” for violations of these rights. Unlike aspirational If the DRIP were a “real” treaty, Longblackcat might’ve had a legitimate claim to bring forward, particularly alleging that the U.S. does not provide a way of Indian tribes to protect their intellectual and cultural heritage from being used by scam artists like James Arthur Ray.