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Consideration of Reports Submitted by State Parties Under Article
40 of the Covenant, Initial report of State parties due in 1993, Addendum,
United States of America, U.N. Doc. CCPR/C/81/Add.4 (1994)
UNITED NATIONS
Distr. GENERAL
CCPR/C/81/Add.4
24 August 1994
Original: ENGLISH
CONSIDERATION OF REPORTS SUBMITTED BY STATE PARTIES UNDER ARTICLE
40 OF THE COVENANT, INITIAL REPORT OF STATE PARTIES DUE IN 1993, ADDENDUM,
UNITED STATES OF AMERICA
[24 August 1994]
CONTENTS
Introduction
IMPLEMENTATION OF SPECIFIC PROVISIONS OF THE COVENANT
Article 1 - Self determination
Article 2 - Equal protection of rights in the Covenant
Article 3 - Equal rights of men and women
Article 4 - States of emergency
Article 5 - Non-derogable nature of fundamental rights
Article 6 - Right to life
Article 7 - Freedom from torture or cruel, inhuman or degrading
treatment or punishment
Article 8 - Prohibition of slavery
Article 9 - Liberty and security of person
Article 10 - Treatment of persons deprived of their liberty
Article 11 - Freedom from imprisonment for breach of contractual
obligation
Article 12 - Freedom of movement
Article 13 - Expulsion of aliens
Article 14 - Right to fair trial
Article 15 - Prohibition of ex post facto laws
Article 16 - Recognition as a person under the law
Article 17 - Freedom from arbitrary interference with privacy,
family, home
Article 18 - Freedom of thought, conscience and religion
Article 19 - Freedom of opinion and expression
Article 20 - Prohibition of propaganda relating to war or
racial, national or religious hatred
Article 21 - Freedom of assembly
Article 22 - Freedom of association
Article 23 - Protection of the family
Article 24 - Protection of children
Article 25 - Access to the political system
Article 26 - Equality before the law
Article 27 - The rights of minorities to culture, religion
and language
Annexes
I. Abbreviations
II. Glossary
III. Ratification of the Covenant by the U.S. Senate
Introduction
1. The U.S. Constitution is the central instrument of American government
and the supreme law of the land. For over 200 years it has guided the evolution
of governmental institutions and has provided the basis for political stability,
individual freedom, economic growth and social progress. It contains specific
guarantees of the most important rights and freedoms necessary to a democratic
society. These rights are principally found in the Bill of Rights, which
consists of the first 10 amendments to the Constitution, adopted in
1791, only 2 years after the Constitution itself was approved. They include,
among others, freedom of religion, speech, press, and assembly, the right
to trial by jury, and a prohibition on unreasonable searches and seizures.
Other significant protections have been added by subsequent amendments.
Many of these rights parallel those addressed in the International Covenant
on Civil and Political Rights. While originally formulated as limitations
on the authority of the federal government, these protections have to a
great extent been interpreted over time to apply against all forms of government
action, including the governments and officials of the 50 constituent states
and subordinate governmental entities. The Constitution thus provides binding
and effective standards of human rights protection against actions of all
levels of government throughout the nation.
2. The Constitution was designed to protect the people against the abuse
of authority by distributing the power of the federal government among three separate
but co-equal branches (the executive, the legislative and the judicial).
Each branch was given specific responsibilities and prerogatives as well
as a certain ability to limit or counter the authority of the other two
branches. This system of "checks and balances" serves as a guarantee
against potential excesses by any one branch.
3. Moreover, the federal government established by the Constitution is a
government of limited authority and responsibility. Those powers not delegated
to the federal government were specifically reserved to the states and the
people. The resulting division of authority, which characterizes the federal
system in the United States means that state and local governments exercise
significant responsibilities in many areas, including matters such as education,
public health, business organization, work conditions, marriage and divorce,
the care of children and exercise of the ordinary police power. The prerogatives
of the states in this regard are so well established that even two neighbouring
states frequently have widely varying laws and practices on the same subjects.
Some areas covered by the Covenant fall into this category.
4. For this reason, and because article 50 expressly extends the provisions
of the Covenant to all parts of federal states, the United States included
in its instrument of ratification an understanding to the effect that the
U.S. will carry out its obligations thereunder in a manner consistent with
the federal nature of its form of government. More precisely, the understanding
states:
"That the United States understands that this Covenant
shall be implemented by the Federal Government to the extent that it exercises
legislative and judicial jurisdiction over the matters covered therein and
otherwise by the state and local governments; to the extent that state and
local governments exercise jurisdiction over such matters, the Federal Government
shall take measures appropriate to the Federal system to the end that the
competent authorities of the state or local governments may take appropriate
measures for the fulfilment of the Covenant."
This provision is not a reservation and does not modify or limit the international
obligations of the United States under the Covenant. Rather, it addresses
the essentially domestic issue of how the Covenant will be implemented within
the U.S. federal system. It serves to emphasize domestically that there
was no intent to alter the constitutional balance of authority between the
federal government on the one hand and the state and local governments on
the other, or to use the provisions of the Covenant to federalize matters
now within the competence of the states. It also serves to notify other
States Parties that the United States will implement its obligations under
the Covenant by appropriate legislative, executive and judicial means, federal
or state, and that the federal government will remove any federal inhibition
to the abilities of the constituent states to meet their obligations in
this regard.
5. Although there is a growing body of federal criminal law and procedure,
criminal law is still largely a matter of state competence, and the precise
rules, procedures and punishments vary from state to state. In all states,
however, as well as at the federal level, criminal law and procedure must
meet the minimum standards provided by the U.S. Constitution, and those
standards apply to all individuals regardless of nationality or citizenship.
6. State constitutions and laws also limit the actions of state and local
governmental units and officials in order to secure individual rights. State
and local officials must always meet the basic federal constitutional standards.
In addition, they must comply with the applicable state and local law, which
in many instances provides even greater protection to the individual. Because
of the large number of such provisions, this report emphasizes the common
federal standards with occasional reference to some state and local provisions.
7. The rights protected by the Covenant are, for the most part, guaranteed
by the U.S. Constitution and federal statutes. The U.S. Constitution applies
to the actions of officials at all levels of government. Some federal laws
control only the actions of federal officials and agencies; others apply
generally to federal, state and local officials. The differences will be
noted where relevant to the discussion of specific articles.
8. In ratifying the Covenant, the United States declared "[T]he provisions
of Articles 1 through 27 are not self-executing". This declaration
did not limit the international obligations of the United States under the
Covenant. Rather, it means that, as a matter of domestic law, the Covenant
does not, by itself, create private rights directly enforceable in U.S.
courts. As indicated throughout this report, however, the fundamental rights
and freedoms protected by the Covenant are already guaranteed as a matter
of U.S. law, either by virtue of constitutional protections or enacted statutes,
and can be effectively asserted and enforced by individuals in the judicial
system on those bases. For this reason it was not considered necessary to
adopt special implementing legislation to give effect to the Covenant's
provisions in domestic law. In some cases, it was considered necessary to
take a substantive reservation to specific provisions of the Covenant, or
to clarify the interpretation given to a provision through adoption of an
understanding. These reservations and understandings are discussed in the
following text under the articles to which they refer.
IMPLEMENTATION OF SPECIFIC PROVISIONS OF THE COVENANT
Article 1 - Self-determination
9. The basic principle of self-determination is at the core of American
political life, as the nation was born in a struggle against the colonial
regime of the British during the eighteenth century. The right to self-determination,
set forth in article 1 of the Covenant, is reflected in Article IV, Section
4 of the U.S. Constitution, which obliges the federal government to guarantee
to every State a "Republican Form of Government". Implicitly,
this article ensures that every state will be governed by popularly elected
officials. Similarly, Articles I and II of the Constitution, as amended
by the Twelfth, Seventeenth, Twentieth, Twenty-second, and Twenty-third
Amendments to the Constitution, and the second clause of the Fourteenth
Amendment, describe in detail the manner by which the national government
is to be elected. The right to vote in federal, state, and local elections
is also implicit, for it is the "essence of a democratic society".
Reynolds v. Sims, 377 U.S. 533, 555 (1964). The states are permitted to
set the qualifications for voting, but the states are limited by the Fifteenth,
Nineteenth, Twenty-fourth, and Twenty-sixth Amendments from restricting
the franchise on the basis of race, colour, previous condition of servitude,
sex, failure to pay a poll tax, or for being under any age except 18 years.
Hence, the people of the United States are free in law and in practice to
determine their "political status" within the structure of the
Constitution, and to change the Constitution itself through amendment. There
have been 27 such amendments since the founding of the Republic, beginning
with the Bill of Rights (Amendments I-X) in 1791.
10. The right to pursue economic and cultural development is not mentioned,
in such terms, in the U.S. Constitution, yet it is among the most fundamental
principles that define American society. The essential civil and political
rights guaranteed by the Constitution and the Covenant, and a free market
economy, provide the basis for free and liberal pursuit of economic or cultural
development, with virtually no restraint save for those necessary to protect
public safety and welfare.
11. Property rights are specifically protected by the Fifth and Fourteenth
Amendments, which guarantee that neither the states nor the federal government
may deprive one of property without due process or take property for public
use without fair compensation. The Constitution does not, however, protect
persons or corporations from reasonable economic regulation by both the
states and the federal government. Cultural life, on the other hand, is
generally protected by the First Amendment guarantees of freedom of speech
and association which are very broadly construed, as discussed below in
connection with Articles 18, 19, 21 and 22.
The Insular Areas
12. The United States includes a number of Insular Areas, each of which
is unique and constitutes an integral part of the U.S. political family.
Persons born in these areas are U.S. citizens (U.S. nationals in the case
of American Samoa). Local residents, including U.S. citizens born elsewhere
who have moved to these areas, elect their own local governments and make
and are ruled by their own local laws. They are free to move to other parts
of the United States and enjoy the protections for individual liberty
that the Bill of Rights guarantees to all Americans. Guam, the Virgin Islands,
American Samoa and Puerto Rico each are represented in the U.S. House of
Representatives by an elected delegate. Other than the right to vote on
the final passage of a bill or resolution, the delegate from each Insular
Area enjoys the same privileges and exercises the same powers as a member
of Congress from one of the states.
13. The United States considers Guam, the U.S. Virgin Islands, and American Samoa
as still "non-self-governing" for purposes of Article 73 of
the Charter of the United Nations. Although these areas are in fact self-governing
at the local level, as described below, they have not yet completed the
process of achieving self-determination. By contrast, the States of Alaska
and Hawaii, as well as the Commonwealth of Puerto Rico, all of which used
to be "non-self-governing" for purposes of Article 73, have completed
acts of self-determination through which they have resolved the terms of
their respective relationships with the rest of the United States. Similarly,
the Commonwealth of the Northern Mariana Islands, the Federated States of
Micronesia and the Republic of the Marshall Islands, all of which were once
part of the Trust Territory of the Pacific Islands, have completed the process
of self-determination.
14. The Commonwealth of Puerto Rico. The largest and most populous
of the U.S. Insular Areas, Puerto Rico was acquired by the United States
in 1899 after the Spanish-American War. Between 1900 and 1950, Congress
provided for the governance of Puerto Rico through Organic Acts. In 1950,
Congress enacted legislation which authorized Puerto Rico to organize its
own government and adopt a constitution. Puerto Rico did so, and its constitution
became effective on 25 July 1952, at which time Puerto Rico achieved the
status of a Commonwealth of the United States. Since then, the question
of Puerto Rico's relationship to the United States has continued to be a
matter of public debate and discussion. Most recently, the people of Puerto
Rico expressed their views in a public referendum in November 1993; continuation
of the current commonwealth arrangement received the greatest support, although
nearly as many votes were cast in favour of statehood. By contrast, a small
minority of some 5 per cent chose independence.
15. Guam. Guam was acquired by the United States in 1899 after the
Spanish-American War and, with the exception of the period of occupation
during the Second World War, was administered by the Navy until 1950. In
1950, Congress enacted the Guam Organic Act, providing for the civil government
of Guam. 48 U.S.C. sections 1421-1425. It includes a Bill of Rights that
parallels the guarantees of individual liberty in the Constitution and it
grants U.S. citizenship to the people of Guam. Since 1968, the executive
branch of Guam's Government, consisting of the Governor and the Lieutenant
Governor, have been popularly elected. Legislative authority is exercised
by a unicameral legislature of 21 members elected every two years.
Judicial power is vested in local Guamanian courts and in the U.S.
District Court for Guam.
16. The U.S. Virgin Islands. The U.S. States Virgin Islands
were purchased from Denmark in 1916. They are governed in accordance with
an Organic Act that Congress enacted in 1936 and revised in 1954. Both the
Organic Act and the revised Organic Act included a Bill of Rights paralleling
U.S. constitutional protections for individual rights. The people of the
Virgin Islands have been U.S. citizens since 1927. Since 1968, the Governor
and the Lieutenant Governor have been popularly elected. Legislative power
is vested in a unicameral legislature composed of 15 senators elected
every 2 years. Judicial power is vested in a local court system and in the
U.S. District Court for the Virgin Islands.
17. American Samoa. The United States acquired American Samoa through
Deeds of Cession executed by its Chiefs in 1900 and 1904 and ratified by
Congress in 1929. Unlike the situation with Guam and the Virgin Islands,
Congress has not enacted an Organic Act for American Samoa. Instead, it
provided for the delegation of executive authority to the Secretary of the
Interior. In 1967, the Secretary approved the constitution of American Samoa,
which provides for the functioning of its local government. A subsequent
federal statute, 48 U.S.C. section 1662a, prohibits any amendments
or modification to the constitution without the consent of Congress. The
constitution of American Samoa includes a Bill of Rights that substantially
parallels the Bill of Rights in the U.S. Constitution.
18. Residents of American Samoa are U.S. nationals. A "national of
the United States" is (1) a citizen of the United States or (2)
"a person, who though not a citizen of the United States owes permanent
allegiance to the United States". Immigration and Naturalization Act,
section 101 (a)(22), 8 U.S.C. section 1101 (a)(22). Only
the inhabitants of American Samoa and Swains Island are non-citizen nationals.
A U.S. national is not an alien. "The term 'alien' means any person
not a citizen or national of the United States." INA section 101 (a)(3),
8 U.S.C. section 1101 (a)(3). A non-citizen national who becomes a
resident of any state and is otherwise eligible may become a citizen. INA
section 325, 8 U.S.C. section 1436.
19. The Governor and Lieutenant Governor of American Samoa have been popularly
elected since 1978. Legislative powers of the American Samoa are vested
in a bicameral body known as the Fono. The judiciary consists of a system
of local courts and of the High Court of American Samoa. The Chief Justice
and Associate Justice of the High Court are appointed by the Secretary of
the Interior. There is no federal court with general jurisdiction over American
Samoa. American Samoa has tended to oppose the establishment of a federal
court due to concern that it could have a negative impact on certain aspects
of traditional Samoan culture, known as Fa'a Samoa, such as communal land
ownership patterns.
20. The Commonwealth of the Northern Mariana Islands. At one time
a component of the Trust Territory of the Pacific Islands, the Commonwealth
of the Northern Mariana Islands (CNMI) elected to become part of the United States
political family through a Covenant enacted in 1976. In accordance with
the Covenant, the CNMI adopted a constitution which became effective in
1978. The Covenant and the constitution incorporate the protections of the
U.S. Bill of Rights and guarantee U.S. citizenship for residents of
the CNMI.
21. Under its constitution, the CNMI is governed by a popularly elected
Governor, Lieutenant Governor, and bicameral legislature. Judicial power
is vested in the CNMI's local court system and in the U.S. District Court
for the Northern Mariana Islands. The CNMI is represented in Washington,
D.C. by a popularly elected Resident Representative to the United States.
The Resident Representative serves a four-year term but is not a member
of Congress.
22. The Trust Territory of the Pacific Islands. In 1947, following
the Second World War, the United States entered into a Trusteeship Agreement
with the United Nations Security Council under which the United States was
designated trustee of more than 2,100 islands in the Western Pacific formerly
subject to the Japanese mandate. Over time, the Trust Territory of the Pacific
Islands (TTPI) was divided into four geographically distinct areas: the
Northern Mariana Islands, the Marshall Islands, the Federated States of
Micronesia, and Palau.
23. As discussed above, the Northern Mariana Islands chose in 1976 to become
a Commonwealth of the United States. The Marshall Islands and the Federated
States of Micronesia each chose to become independent, sovereign nations
in a relationship of free association with the United States. In December
1990, they became States Members of the United Nations. Thus, the sole remaining
entity of the Trust Territory is the Republic of Palau.
24. Palau is still subject to the United Nations Trusteeship Agreement,
and accordingly, it continues to be governed under the authority of the
Secretary of the Interior of the United States. Under the constitution of
Palau and pursuant to the Secretary's Order No. 3142 of 15 October 1990,
the Secretary has delegated executive, legislative, and judicial authority
to the local government of Palau. The United States recognized the constitution
and government of Palau in 1980. The government consists of a popularly
elected President and Vice President, a bicameral legislature known as the
OEK, and a local judicial system. A body known as the Council of Chiefs
advises the President on matters concerning traditional law and custom.
Palau is composed of 16 states, each of which has its own local government
and constitution.
25. In 1986, the government of Palau and the Government of the United States
signed a Compact of Free Association, which was enacted into law by the
U.S. Congress in the same year. The Compact was ratified by the people of
Palau in a plebiscite in November 1993, which should soon lead to the termination
of the Trusteeship and independence for Palau.
Native Americans
26. Introduction. The United States is home to a wide variety of
indigenous people or groups who, despite their ethnic, cultural and linguistic
diversity, are generally referred to as Native Americans. Many are organized
as tribes, some of which have obtained official recognition by the federal
government while others have not. For purposes of this report, the term
also includes special status groups such as Alaska Natives and native Hawaiians.
The term "Alaska Natives" includes Inuits (sometimes referred
to as Eskimos), Indians, and Aleuts. Native Hawaiians are not a federally
recognized Indian tribe or group. The lifestyles of Native Americans vary
widely, from those in which traditional culture is still largely practised
(over 100,000 Native Americans still speak their native languages) to those
who have been largely or completely assimilated into urban modernity.
27. In the 1990 census, 1.9 million individuals, or less than 1 per cent
of the population, identified themselves as Native Americans. The largest
tribes or ethnic groups among these self-identified Native Americans were
the Cherokee, Navajo, native Hawaiians, Chippewa and Sioux. The states with
the largest Native American populations include Oklahoma, California, Arizona,
Hawaii and New Mexico. The highest proportion of Native Americans to the
rest of the population occurs in Alaska (15.6 per cent). Approximately
half of the total Native American population lives on or near a reservation.
The largest land-holding tribes are the Navajo (whose land is located in
Arizona, New Mexico and Utah and covers an area larger than 9 of the
50 states), Tohono O'odham, Pine Ridge, Cheyenne River, and San Carlos.
In total, Native American tribes and individuals own between 50 and 60 million
acres of land. In addition, Alaskan natives own another 44 million acres
of land as a result of the Alaska Native Claims Settlement Act.
28. Of all Native American tribes, 542 are federally recognized, including
223 Alaska villages and regional tribes. The term "tribe" here
refers to the political and institutional mechanisms of tribal authorities
which exercise jurisdiction over reservation or other tribal lands. The
members of a tribe, as individuals, are U.S. citizens with the same rights
as other U.S. citizens and may live where they choose. Within the area of
tribal jurisdiction, however, the tribe itself generally is the governing
authority and not a state or other local government. Tribes enjoy considerable
autonomy even with respect to the federal government. Federally recognized
tribes are eligible to participate in specified programmes funded and administered
by the Bureau of Indian Affairs (BIA) in the Department of the Interior.
Since 1978, 150 groups have notified the BIA of the intention to seek
federal recognition. As of mid-1994, 73 groups had submitted letters of
intent to petition; 26 petitions were incomplete; 9 petitions were
under active consideration; 5 were ready for active consideration;
7 required legislation; and 30 had been resolved (9 acknowledged as tribes;
13 denied; 5 legislatively determined; and 3 otherwise addressed).
29. The Alaska Native Claims Settlement Act identified 44 million Alaskan
acres as Native controlled and owned, and extinguished Natives' claims to
most of the rest of Alaska. Native Hawaiians have sought ownership and control
over land and acknowledgement of Native American status for some time but
without success.
30. Under U.S. law, Native American tribes are distinct, independent political
communities, which retain all aspects of their sovereignty not withdrawn
by treaty or statute or by implication as a result of their status. See
United States v. Wheeler, 435 U.S. 313 (1978); Washington v. Confederated
Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980). Perhaps
the most fundamental principle of the law governing the relationship between
the United States and Native American tribes is the principle that the powers
vested in Native American tribes are inherent powers of a limited sovereignty
which has never been extinguished. They are not, in general, delegated powers
granted by acts of Congress.
31. Although Native American tribes are currently accorded a substantial
measure of autonomy and self-governance, there are still many areas of difficulty
and controversy in their relationships with federal and state governments.
Despite some improvements, Native Americans are far more likely to live
in poverty and suffer high rates of disease, suicide and homicide than the
majority of U.S. citizens. According to the 1990 census, 31 per cent
of Native Americans lived below the poverty level. In 1991 the unemployment
rate for Native Americans was 45 per cent. Native Americans experience
disproportionately high rates of mortality from tuberculosis, alcoholism,
accidents, diabetes, homicide, suicide, pneumonia and influenza.
32. Historical background. Some scholars have estimated the Native
American population of the United States to have been as high as 10 million
persons at the time of initial European contact. The basis of indigenous
social and political organization was tribal. Tribes ranged from small semi-nomadic
bands to large, highly organized and sophisticated communities. Tribes were
self-governing entities with clearly understood socio-political rankings
or hierarchies. They had systems of social and political control to perform
or regulate subsistence and economic activity (including trading with other
tribes), distribute wealth, recognize land boundaries, conduct war and regulate
domestic and other aspects of intragroup relations.
33. The organizers of government of the United States recognized the self-governance
of Indian groups. The Constitution vests in the federal government the exclusive
authority to regulate commerce with Native American tribes. Art. 1, section 8,
cl. 3. The First Congress acted promptly to exercise this authority, enacting
the Indian Trade and Intercourse Act of 1790, 1 Stat. 137. Further,
President Washington and the First Congress reached agreement that the treaty-making
power of the federal government extended to treaties with Native American
tribes, establishing the precedent that Native American treaties - like
those with foreign nations - needed Senate approval before they
could take effect.
34. As the largely European immigrant population of the United States increased
and moved westward, there was increasing tension and violence between settlers
and Native Americans. Opting to resolve the situation by accommodating the
settlers, the federal government between 1815 and 1845 sought to remove
eastern tribes from their tribal homelands. However, with the continued
westward push of immigrant settlement, further removal became impossible.
In the 1850s, the federal government adopted a new policy of assignment
of tribes to permanent reservations. Reservations were intended to be for
the exclusive use of Native Americans, providing a fixed and permanent home
under the superintendence of a tribal agent. Comm'r of Indian Affairs Annual
Rept., S. Exec. Doc. No. 1, 33d Cong., 2d Sess. 225 (1854). Confinement
to reservations was often strenuously opposed by tribes, leading to a series
of military conflicts that extended through the 1870s.
35. By 1880, there were serious doubts about the reservation policy. Economically
and socially, most reservations were not successful. There was widespread
destitution in tribal country and significant corruption in the administration
of the federal Native American service. Political reformers came to favour
allotment of land to individual Indians as a response to these problems
and as the vehicle to assimilate Indians into mainstream society. Economic
interests in the western states supported allotment because it promised
to open additional land to settlement.
36. In 1887, the General Allotment Act authorized the Secretary of the Interior
to allot tracts of reservation land to individual Native Americans - 80
acres (approximately 32.3 hectares) to an individual and 160 acres
(64.7 hectares) to a family. The allotted land was to be held in trust by
the United States for a period of 25 years; thereafter a fee patent was
to be issued. Consistent with the philosophy underlying the allotment policy,
legislative and administrative policies accompanying allotment strongly
discouraged tribal self-government and traditional cultural and religious
practices.
37. The General Allotment Act and subsequent allotment legislation resulted
in a significant diminution of Native American land holdings. Of 40 million
acres allotted to individuals, some 27 million acres were lost by sale or
foreclosure between 1887 and 1934. An additional 60 million acres were sold
to non-Native American homesteaders or corporations as "surplus"
or were ceded outright. In total, Native American land holdings declined
from 138 million acres in 1887 to 48 million acres in 1934.
38. In 1934, the policies of assimilation and allotment were rejected with the
enactment by Congress of the Indian Reorganization Act (IRA). See 25 U.S.C.
sections 461-479. The overriding purpose of the Act was to establish
"machinery whereby Indian tribes would be able to assume greater self-government,
both politically and economically". Morton v. Mancari, 417 U.S.
535, 542 (1974). The IRA took a community-based approach to preservation
of a tribal land base and reorganization of tribal governments. The Act
stopped allotment and contained provisions to stabilize tribal land holdings
and for the acquisition in trust of additional trust lands for Native American
reservations. It provided that tribes could organize for their common welfare,
adopt constitutions and by-laws, and form tribal corporations, with the
power to own, hold, manage, and operate property and businesses.
39. However, in the late 1940s, federal policy shifted again, with congressional
and executive reports proposing renewed policies of assimilation. In 1953,
House Concurrent Resolution 108 declared as congressional policy the termination
of federal control and supervision over Native American tribes and the freeing
of tribes and their members "from all disabilities and limitations
specially applicable to Indians". The Indian Reorganization Act was
not repealed, but individual acts were passed to implement the new policy
for individual tribes or groups of tribes. Specific arrangements varied
from tribe to tribe, but these acts typically required tribal approval before
the sale or encumbrance of tribal land. For most purposes, the federal trust
relationship was ended for terminated tribes, and tribes and their individual
members were made subject to state jurisdiction. Eligibility for special
federal services for tribes and tribal members was ended.
40. The impact of termination on these tribes was devastating. Tribes often
went from prosperity to poverty. Many terminated tribes saw their land sold.
The termination act stripped tribes of their exemption from taxation, and
tribal leaders were forced to begin to sell ancestral tribal land to pay
the taxes. By the 1960s, many tribes faced the loss of their land, tribal
identity, and culture.
41. By 1970, however, national policy had shifted once again, this time
toward a goal of tribal self-determination. The new policy was first articulated
in a 1970 message to Congress by President Nixon. The message called for
rejection of the extremes of both termination and excessive tribal dependence
on the federal government. The message said that the "time has come
to break decisively with the past and to create the conditions for a new
era in which the Indian future is determined by Indian acts and Indian decisions"
and proposed a new policy of self-determination "to strengthen the
Indian's sense of autonomy without threatening his sense of community".
H.Doc. 91-363, 91st Cong., 2d Sess. 1-3 (1970). This new policy found expression
in the Indian Self-Determination Act, discussed below.
42. Current policy. Current policy continues and builds upon this
policy of tribal "self-determination" as expressed by President
Clinton on 29 April 1994, in a meeting with tribal leaders.
The President signed two memoranda: one instructing all government
agencies to cooperate wherever possible in meeting the need for eagle feathers
in the traditional practices of Native Americans, and the other directing
federal agencies to ensure that they interact with tribes on a government-to-government
basis.
43. In terms of legal status, Native American tribes are recognized as "unique
aggregations possessing attributes of sovereignty over both their members
and their territory". United States v. Mazurie, 419 U.S. 544, 557 (1974).
"The sovereignty that Indian tribes retain is of a unique and limited
character ... . In sum, Indian tribes still possess those aspects of sovereignty
not withdrawn by treaty or statute, or by implication as a necessary result
of their dependent status (i.e., by virtue of their being within and part
of the United States)." United States v. Wheeler, 435 U.S. 313, 323
(1977).
44. In recent decisions, the U.S. Supreme Court has recognized the inherent
right of tribes to tax non-Native Americans doing business within their
territories, Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982), and
the immunity of Native Americans and their property from state taxation,
McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 (1973), and Bryan v.
Itasca County, 426 U.S. 373 (1976). The Supreme Court has also upheld the
right of tribal courts to make the initial determinations as to the scope
of their own jurisdiction. National Farmers Union Insurance Companies v.
Crow Tribe of Indians, 471 U.S. 845 (1985).
45. The Supreme Court has recognized that, as a general rule, states lack
authority to exercise their civil, regulatory laws on Native American territory.
California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). A tribe's
authority to regulate land use within the boundaries of its territories
has been found to vary depending on the character of the territory. Brendale
v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408
(1989); South Dakota v. Bourland, 113 S.Ct. 2309 (1993). As a guiding principle
for these decisions, the Supreme Court has stated that the "exercise
of tribal power beyond what is necessary to protect tribal self-government
or to control internal relations is inconsistent with the dependent status
of the tribes, and so cannot survive without express congressional delegation".
Montana v. United States, 450 U.S. 544, 564 (1981).
46. The Supreme Court has held that tribal courts are the proper forum for
the adjudication of civil disputes involving Native Americans and non-Native
Americans arising on a reservation. Fisher v. District Court, 424 U.S. 382
(1976). "Tribal authority over the activities of non-Indians on reservation
lands is an important part of tribal sovereignty", and, as a result,
"[c]ivil jurisdiction over such activities presumptively lies in the
tribal courts, unless affirmatively limited by a specific treaty provision
or federal statute". Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9,
18 (1987).
47. In the area of criminal jurisdiction, Congress during the 1950s gave
several of the states authority to exercise concurrent jurisdiction on Indian
reservations. 18 U.S.C. section 1162; 28 U.S.C. section 1360.
In 1968 Congress limited the tribal exercise of criminal jurisdiction to
misdemeanours. 25 U.S.C. section 1302(7). The Supreme Court subsequently
concluded that tribes do not have criminal jurisdiction over non-Indians.
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). It also concluded
that tribes do not have criminal jurisdiction over non-member Indians. Duro
v. Reina, 495 U.S. 676 (1990). In 1990, however, Congress effectively
reversed the Duro decision, recognizing the unique nature of the Indian
communities. See Act of 5 November 1990, 104 Stat. 1893; Act of
9 October 1991, 105 Stat 616; Act of 28 October 1991,
105 Stat. 646.
48. Indian Self-Determination Act. In the 1970 message on Indian
policy mentioned above, then-President Nixon called for legislation to allow
tribes to take over control and operation of federally funded and administered
Indian programmes from the Department of the Interior and what is now the
Department of Health and Human Services. In 1975, Congress enacted the Indian
Self-Determination and Education Assistance Act (ISDEA), 25 U.S.C. sections 450,
et seq. The Act declares it to be the policy of the United States
to assure "maximum Indian participation in the direction of educational
as well as other federal services to Indian communities so as to render
such services more responsive to the needs and desires of those communities".
25 U.S.C. section 450a(a).
49. The ISDA directs the Secretaries of the Interior and Health and Human
Services to enter into contracts or grants with Indian tribes and organizations
to plan, conduct, or administer programmes that the Secretaries are authorized
to administer for the benefit of Indians. Contracts designated as mature
contracts may be for an indefinite term, and reporting requirements are
minimal. The Act specifically provides that it neither affects the sovereign
immunity of Indian tribes nor requires the termination of any existing trust
responsibility of the United States with respect to Indian people. In 1991,
the Bureau of Indian Affairs within the Department of the Interior (BIA)
distributed $481,228,608 to 414 Indian tribal contractors under the provisions
of the ISDA.
50. Self-Governance Demonstration Project. In 1988 amendments to
the ISDA, Congress established a Self-Governance Research and Demonstration
Project involving 20 Indian tribes. Title III, Pub. L. No. 100-472, 102
Stat. 2296 (1988). The purpose of the Self-Governance Project is to allow
tribes greater flexibility in administering their own programmes and services
with minimal federal governmental involvement. The participant tribes sign
a self-governance compact with the government and are allowed to redesign
BIA programmes and redistribute funding according to tribal priorities.
The tribes in the demonstration programme operate BIA programmes with only
limited requirements to adhere to federal regulations and record-keeping
requirements. In December 1991, Congress increased to 30 the number of tribes
eligible to participate in the Self-Governance Project and extended the
demonstration period from 1993 to 1996. Pub. L. No. 102-184, 105 Stat. 1278
(1991). Congress is currently considering legislation to make the project
permanent.
51. Recognition of tribes. After the abandonment of the termination
policy in the 1960s and 1970s, the federal relationship with many of the
"terminated" tribes was restored, beginning with the Menominee
Tribe in 1973. Menominee Restoration Act, 25 U.S.C. section 903-903f. During
the same period, there was a growing awareness of, and interest among, other
groups of Indian descendants not formally recognized as tribes by the federal
government in asserting their tribal status, tribal treaty rights, or tribal
land claims. Many groups of these Indian descendants sought recognition
from the federal government.
52. In 1978, the Department of the Interior established a programme within
the Bureau of Indian Affairs to standardize the recognition process and
provide substantive criteria for determining whether a group of Indian descendants
existed as an Indian tribe. Previously, such determinations had been made
on an ad hoc basis. The programme included an effort to identify all groups
interested in petitioning to establish their tribal status. The effort ultimately
identified 150 groups of Indian descendants with an interest in establishing
tribal status.
53. The acknowledgement process requires documentation of specific criteria
including that the group has been viewed as Indian since historical times,
lives in community, and exercises political authority over its members.
Thus far, the status of 30 groups has been resolved either by the Department
of the Interior or through special legislation.
54. Indian natural resources. Indian tribes retain considerable control
over natural resources and wealth, with some added protection by the federal
government through the establishment of a trust. The federal trust responsibility
to the Indian tribes has its roots in the assertion by the federal government
that it has the power to control the sale of Indian land to non-Indians.
The policy was first asserted by Great Britain in the Royal Proclamation
of 1763, which stated that only the Crown could take lands from the Indians.
The policy continued after independence in the Indian Trade and Intercourse
Act, passed by the First Congress in 1790 and is now codified in 25
U.S.C. section 177. The courts have held that along with the power to control
the disposition of the land comes the responsibility to manage the land
for the benefit of the Indian owners and with the same care and skill that
a person of ordinary prudence would exercise in dealing with his or her
own property. United States v. Mason, 412 U.S. 391, 398 (1973).
55. The United States also has a more general trust relationship with the
Indian people, United States v. Mitchell, 463 U.S. 206, 225 (1983) (Mitchell II),
and that relationship creates an overriding duty to deal fairly with all
Indians. Morton v. Ruiz, 415 U.S. 199, 236 (1974). The trust obligation
is a strict fiduciary standard that applies to all departments of the government
that deal with Indians, not just the departments specifically charged with
responsibility for Indian affairs. If Indians believe the government is
not acting in accordance with its trust responsibilities, they may seek
injunctive relief from the courts to compel the government to perform its
duties or, if damage has already occurred, they may obtain damages through
a breach of trust action. Mitchell II, 463 U.S. at 226-28.
56. Land. According to a 1990 Bureau of Indian Affairs report, tribes
and individual Native Americans own between 50 and 60 million acres of trust
or restricted land. This represents 2.34 per cent of the total
land base in the United States. Federal law specifically prohibits the alienation
of tribal trust lands absent the consent of the federal government. 25 U.S.C.
section 177. It is the intent of the statutory restraint on alienation
of Native American lands to insulate such lands from the full impact of
market forces, preserving the land base for the furtherance of Native American
values. Inherent in this federal policy is the view that preservation of
a substantial land base is essential to the existence of tribal society
and culture.
57. Prior to the 1930s, federal policies had the effect of diminishing the
Native American land base. As indicated above, between 1887 and 1934 Native
American land holdings declined from 138 million acres to 48 million acres.
However, the 1934 Indian Reorganization Act contained provisions to stabilize
the Indian land base. More recently, the Congress enacted the Indian Land
Consolidation Act of 1983 to assist tribes in addressing the allotment policy.
25 U.S.C. sections 2201-11. The Act authorizes tribes to establish
land consolidation areas where tribes are assisted in acquiring and exchanging
land in order to consolidate their holdings. The Act also provided that
especially small fractionated interests in allotted land owned by individuals
do not pass to the owners' heirs, but return to the tribe upon the death
of those individuals. This latter provision of the Act was found to violate
the constitutional rights of Native American landowners in Hodel v. Irving,
481 U.S. 704 (1987). The Act has been amended to address this decision,
but constitutional challenges to the amended Act are currently pending in
the courts.
58. Enforcement of land rights against third parties. Federal law
has attempted to protect tribal possessory rights against intrusion by third
parties by restraining and punishing various types of trespass. Ordinary
trespass remedies are available to Native American tribes to prevent trespasses
upon their land and to recover damages for injuries arising out of such
trespasses. Accordingly, actions may be maintained for ejectment, for injunctions
against intrusions and to recover damages for trespass on, or injury to,
tribal lands. See Oneida County v. Oneida Indian Nation, 470 U.S. 226 (1985).
59. Possessory suits or damage actions involving tribal possessory rights
may be commenced either by the tribe itself or by the federal government
acting on behalf of the tribe. Basically these claims allege that (i) the
affected tribe has a superior property interest in the subject land (i.e.
aboriginal or recognized title), (ii) the Non-intercourse Act provides that
no transfer of tribal lands is valid unless approved by the federal
government, (iii) subsequent to the Act certain tribal lands were conveyed
to third parties without specific governmental approval, (iv) these conveyances
are in violation of the Act and thus, invalid, and (v) the affected tribe
is now entitled, despite the passage of time, to return of the land and/or
to damages for trespasses committed by those who wrongfully occupied the
land. Oneida County, supra.
60. In instances where the federal government has been requested but has
been unwilling to take action on behalf of the tribe, the courts have been
willing to order the commencement of a possessory action on the theory that
the federal trusteeship over Native American lands created by the statutory
restraints on alienation imposes an affirmative obligation to protect Indian
possessory rights. In tribal possessory actions commenced directly by the
tribe, the tribe may assert any and all positions, claims, and defences
that would have been available had the suit been commenced by the federal
government. Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528
F.2d 370 (1st Cir. 1975).
61. Indian land rights claims against the United States. The great
bulk of aboriginal Native American land in what is now the United States
passed out of indigenous ownership before 1890 by cession pursuant to treaty
or taking by the federal government. The right of Native Americans to obtain
compensation for or recovery of this land differs from their rights against
third parties.
62. Aboriginal Indian interest in land derives from the fact that the various
tribes occupied and exercised sovereignty over lands at the time of occupation
by white people. This interest does not depend upon formal recognition of
the aboriginal title, and gives the tribes the right to occupy and possess
the land. Aboriginal title gives a tribe the right to possess land as against
third parties until and unless Congress specifically extinguishes the right.
63. Congress may recognize or extinguish aboriginal rights. Once aboriginal
rights are recognized by Congress, then the tribe has title that cannot
be extinguished without a clear and specific action by Congress in a treaty,
statute or executive order, and compensation for the extinguishment of the
right. Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974); United States
ex rel. Hualapai Indians v. Santa Fe Pacific Railroad, 314 U.S. 339 (1941).
However, by law, Congress is not obligated to pay compensation to the tribes
when it extinguishes aboriginal Indian rights that have not been recognized
by Congress. See Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823).
64. Despite this legal doctrine, compensation has in fact been paid by the
United States for many Indian land cessions at the time they were made,
although the compensation often has been less than adequate. In this century,
additional provision has been made for cases in which no or inadequate compensation
was paid. In the first half of the twentieth century, special jurisdictional
statutes gave some tribes the right to sue in the Court of Claims for compensation
for land taking. In 1946, Congress adopted the Indian Claims Commission
Act, 25 U.S.C. sections 70, et seq., which provided for a quasi-judicial
body, the Indian Claims Commission (ICC), to open up unresolved Indian claims
against the United States, a large portion of which involved claims for
taken lands. The Act authorized claims "arising from the taking by
the United States, whether as a result of a Treaty of cession or otherwise,
of lands owned or occupied by the claimant without the payment for such
lands of compensation agreed to by the claimant", as well as claims
"not recognized by any existing rule of law or equity" based on
general principles of fair and honourable dealings. 25 U.S.C. section 70a.
65. The ICC provided a forum for suits against the United States Government
that would otherwise have been barred by time and sovereign immunity, and
in some respects provided Indians with special benefits that would not ordinarily
have been available under regular court rules and procedures. Recovery of
compensation did not depend on proof of recognized title; compensation was
available even if a tribe's property interest was aboriginal only. Further,
compensation was available if a tribe's interest in land was found to have
been taken for less than adequate compensation. However, the wording of
the Act and its legislative history made clear that only financial compensation
was contemplated by Congress; the ICC had no authority to restore land rights
that had been extinguished. Osage Nation v. United States, 1 Indian Claims
Commission 54 (1948), reversed on other grounds, 119 Ct.Cl. 592, cert. denied,
342 U.S. 896 (1951).
66. Water. Generally, Indian water rights are based on the federal
or Indian reserved rights legal doctrine first enunciated by the U.S. Supreme
Court in Winters v. United States, 207 U.S. 564 (1908). Winters held that
the establishment of an Indian reservation includes an implicit reservation
of water necessary to provide a permanent home for Indians. The holding
followed the recognized rule that treaties are not grants of rights to Indians,
but grants of rights from them and a reservation of those rights not granted.
United States v. Winans, 198 U.S. 371, 381 (1905). In Winters, the Supreme
Court recognized that in establishing reservations, not only did the United States
reserve water for Indians, but the Indians themselves also reserved their
aboriginal right to "command of the lands and water". 207 U.S. at
576.
67. Indian reserved water rights differ from water rights held by non-Indians
under state law in a number of key respects. For example, Indian water rights
are not based on the amount of water a tribe has historically put to use
or "appropriated". Rather, the quantity of water that a tribe
is entitled to is an amount sufficient to carry out the purpose of making
the reservation a permanent home base for Indian people. Included within
this measure is water for domestic, commercial, industrial, recreational,
hunting and fishing, and agricultural purposes. The water right is broad
enough "to satisfy the future as well as the present needs of the Indian[s]".
Arizona v. California, 373 U.S. 546, 600 (1963). Another unique aspect
of an Indian reserved water right is that it is not forfeited through non-use,
so that a tribe's water rights are protected from usurpation by its non-Indian
neighbours during those periods of time when the tribe is unable, because
of economic or other constraints, to use its water.
68. Hunting and fishing rights. Through international treaties and
domestic legislation, Congress and the executive branch have sought to ensure
conservation of wildlife yet recognize the essential rights of Indians to
hunt and fish to maintain their culture. In the contiguous 48 states where
Indian tribes had reserved hunting and fishing rights in treaties, litigation
in federal court provided the primary means of protecting Indian hunting
and fishing rights. In the early 1970s, the United States initiated litigation
against the states of Washington, Oregon, and Michigan to define and protect
from state regulation the treaty fishing rights of many tribes. The cases
have recognized legitimate conservation needs but, at the same time, by
protecting the tribes' right to regulate the fishery free of state controls,
the litigation has done a great deal to preserve and enhance fundamental
tribal rights.
69. In addition to U.S. Government participation in hunting and fishing
rights litigation on behalf of the tribes, the BIA has provided tribes with
funding to support the tribes' own litigation and funding to develop their
own fish and game management capabilities and resources. Congress has enacted
legislation to make the income derived from treaty fishing tax exempt thereby
providing some measure of economic protection to preserve the cultural activity
of treaty fishing.
70. In Alaska, although aboriginal hunting and fishing rights were extinguished,
certain statutory provisions exempt Alaska Natives from many wildlife management
statutes and mandate a subsistence priority for rural Alaskans.
71. Minerals. Decisions of the U.S. Supreme Court in the 1930s established
that the minerals in, on, or under Indian-owned land were constituent elements
of the land and thus owned by the Indians who own the land. United States
v. Shoshone Tribe, 304 U.S. 111, 116 (1938); British-American Oil Prod.
Co. v. Board of Equalization, 299 U.S. 159, 164-65 (1936). Minerals currently
being produced are primarily oil, gas, and coal. Other minerals known to
exist on Indian lands include shale, gilsonite, uranium, gypsum, helium,
copper, iron, zinc, lead, phosphate, asbestos, and bentonite. Mineral resources
in, on, or under lands owned by any individual Indian or Alaska Native or
any Indian tribe, the title to which is held in trust by the United States
or subject to a restraint on alienation imposed by the United States, are
subject to development and disposition under statutes and regulations of
the United States. These statutes and regulations provide that while
the individual Indian or Indian tribe is the lessor, the Secretary of the
Interior must approve the lease or other minerals agreement before it is
effective. Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 372 (1968); Quantum
Exploration, Inc. v. Clark, 780 F.2d 1457, 1459 (9th Cir. 1986). The regulations
are detailed and cover items such as durational requirements, rental and
royalty rates, acreage restrictions, environmental requirements, and operating
requirements. See 25 C.F.R. Part 211 (Leasing of Tribal Lands for Mining);
25 C.F.R. Part 212 (Leasing of Allotted Lands for Mining). Under this comprehensive
system of statutes and regulations applicable to Indian mineral resources,
the United States has a fiduciary obligation toward Indians with respect
to management of Indian mineral resources. Pawnee v. United States, 830
F.2d 187, 190 (Fed. Cir. 1987), cert. denied, 486 U.S. 1032 (1987); Assiniboine
and Sioux Tribes v. Board of Oil and Gas Conservation, 792 F.2d 782, 794
(9th Cir. 1986).
72. Indian mineral resources can be developed under two different statutory
schemes. The first is a leasing system where the individual Indian or Indian
tribe may lease its mineral resource to a developer. 25 U.S.C. sections 396-396g.
The second statutory scheme was established in 1982 with the enactment of
the Indian Mineral Development Act, codified at 25 U.S.C. sections 2101-08.
The purpose of that Act was to allow Indian tribes to enter into various
kinds of agreements for the development of their mineral resources. Tribes
wishing to have greater responsibility, oversight, and flexibility in the
control and development of their own mineral resources can negotiate innovative,
flexible business arrangements under the Act. The tribes are not limited
to the leases and the restrictions on leasing that are present under the
1938 leasing statute.
73. Under either statutory scheme, Indian lands are not treated as federal
public lands for purposes of mineral regulation. The principal goal of the
Department of the Interior in Indian mineral resource management is not
to further federal energy policies, but rather to assist Indian landowners
in deriving maximum economic benefit from their resources consistent with
sound conservation, environmental, and cultural practices.
74. Timber. Indian tribes have full equitable ownership in timber
located on tribal reservation lands. United States v. Algoma Lumber Co.,
305 U.S. 415, 420 (1939). The question of tribal ownership of timber resources
was unresolved until the 1938 decision of the U.S. Supreme Court in United
States v. Shoshone Tribe, 304 U.S. 111, 116 (1938), which held that timber
was a constituent element of the land and owned by the tribe unless the
treaty with the tribe specified otherwise.
75. Individual Indians and Indian tribes generally may not sell the timber
on their land without the approval of the Secretary of the Interior. The
U.S. Congress authorized the sale of standing timber in 1910. 25 U.S.C.
sections 406, 407. Under these statutes, timber may be sold in accordance
with regulations promulgated by the Secretary of the Interior found at 25 C.F.R.
Part 163. The regulations state that the objectives with respect to management
of Indian forest lands are to preserve commercial forest lands in a perpetually
productive state, develop a sales programme supported by written tribal
objectives and a long-range multiple use plan, develop resources for jobs
and income, regulate water runoff and soil erosion, and preserve wildlife,
recreational, cultural, aesthetic, and traditional values. 25 C.F.R.
section 163.3. In Mitchell v. United States, 463 U.S. 206 (1983), these
statutes and regulations were held to create a fiduciary relationship between
the government and Indian timber owners.
76. In 1990, the U.S. Congress declared that the United States has a trust
responsibility toward Indian forest lands when it passed the National Indian
Forest Resources Management Act. 25 U.S.C. section 3101-20. The Act
reaffirmed the existing Native American forest land management objectives
and established some new programme directions. The purposes of the Act are
to allow both the Department of the Interior and the Native Americans to
participate in the management of Indian forest lands in a manner consistent
with the Secretary's trust responsibility and with the objectives of the
Indian owners; to provide educational and training opportunities to increase
the number of Indians working in forestry programmes on Indian lands; and
to authorize the necessary appropriations to carry out the protection, conservation,
utilization, management, and enhancement of Indian forest lands objectives
of the Act.
Article 2 - Equal protection of rights in the Covenant
77. As a general principle, all individuals within the United States are
afforded the enjoyment of the rights enumerated in the International Covenant
on Civil and Political Rights as a matter of law without regard to race,
colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status. Judicial interpretation
of the guarantees in the U.S. Constitution has led to the development of
an extensive body of decisional law covering a broad spectrum of governmental
activity according to a number of well-accepted canons. The right of individuals
to challenge governmental actions in court, and the power of the judiciary
to invalidate those actions that fail to meet the constitutional standards,
provides an effective method for ensuring equal protection of the law in
practice. In addition, a number of significant anti-discrimination statutes
provide additional protection for the civil and political rights of persons
within the United States. While the remainder of this section of the report
addresses domestic law regarding the principle of equal protection, the
United States is none the less committed to the international principle
of equal protection and is actively moving toward ratification of the International
Convention on the Elimination of All Forms of Racial Discrimination and
the Convention on the Elimination of All Forms of Discrimination Against
Women.
78. Equal protection. Most of the substantive rights enumerated in
the Covenant have exact or nearly exact analogues in the U.S. Constitution,
as is discussed more fully in those portions of this report dealing with
each of the 26 articles. In addition, and of particular relevance to article
2, the Constitution guarantees "equal protection" to all. This
principle derives from the Fourteenth Amendment's guarantee that no state
may "deny to any person within its jurisdiction the equal protection
of the laws", and the Fifth Amendment's guarantee that "no person
shall be deprived of life, liberty, or property, without due process of
law", which has been read to incorporate an "equal protection"
component. Bolling v. Sharpe, 347 U.S. 497 (1954). These constitutional
provisions limit the power of government with respect to all persons subject
to U.S. jurisdiction. As interpreted and applied by the U.S. Supreme Court,
the doctrine of equal protection applies not only with respect to the rights
protected by the Covenant, but also to the provision of government services
and benefits such as education, employment and housing.
79. The substantive guarantees of the Constitution are often implemented
without reference to equal protection. For example, the Supreme Court recently
held that a local government could not constitutionally prohibit animal
sacrifices that are part of a religious ritual, although the government
could pass neutral laws to protect animals from torture, or to protect public
health. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S.Ct.
2217 (1993). While the group that practises the sacrifices may be identifiable
racially and ethnically, the case was decided squarely under the First Amendment
protection of religious freedom. The Court did not discuss the issues in
terms of ethnic non-discrimination and equal protection.
80. Classifications. Under the doctrine of equal protection, it has
long been recognized that the government must treat persons who are "similarly
situated" on an equal basis, but can treat persons in different situations
or classes in different ways with respect to a permissible state purpose.
The general rule is that legislative classifications are presumed valid
if they bear some reasonable relation to a legitimate governmental purpose.
McGowan v. Maryland, 366 U.S. 420, 425-36 (1961). The most obvious example
is economic regulation. Both state and federal governments are able to apply
different rules to different types of economic activities, and the courts
will review such regulation under a very deferential standard. See, e.g. Williamson
v. Lee Optical Co., 348 U.S. 483 (1955). Similarly, the way in which a state
government chooses to allocate its financial resources among categories
of needy people will be reviewed under a very deferential standard. Dandridge
v. Williams, 397 U.S. 471 (1970).
81. Suspect classifications. On the other hand, certain distinctions
or classifications have been recognized as inherently invidious and therefore
have been subjected to more exacting scrutiny and judged against more stringent
requirements. For example, classification on the basis of racial distinctions
is automatically "suspect" and must be justified as necessary
to a compelling governmental purpose. Korematsu v. United States, 323
U.S. 214 (1944); Brown v. Board of Education, 347 U.S. 483 (1954); McLaughlin
v. Florida, 379 U.S. 184 (1961); Loving v. Virginia, 388 U.S. 1 (1967).
Laws which purposely discriminate against racial minorities, whether in
the fields of housing, voting, employment, education or other areas, have
rarely been upheld under this higher standard. When intentional discrimination
on the basis of race or national origin can be inferred from a legislative
scheme or discerned in legislative history, it is as forbidden as overt
use of a racial classification. Village of Arlington Heights v. Metropolitan
Housing Dev. Corp., 429 U.S. 252 (1977); Takahashi v. Fish and Game Comm'n,
334 U.S. 410 (1948). Unlawful intentional discrimination has sometimes been
inferred simply from the impact of a law. For example, in Yick Wo v. Hopkins,
118 U.S. 356 (1886), the Supreme Court found impermissible discrimination
where all of some 200 Chinese applicants were denied permits to operate
laundries while virtually all non-Chinese applicants were granted permits
under the same statute.
82. In addition to distinctions based on race, colour and national origin,
distinctions based on gender, illegitimacy and alienage have all been accorded
special status under the Equal Protection clauses, though legislative classifications
of the last three types are typically less difficult to justify than classifications
by race, colour, or national origin. For example, in Craig v. Boren, 429
U.S. 190 (1976), the Court stated that classifications by gender must "substantially
further important government objectives", and struck down a state statute
setting a higher drinking age for men than women. In Levy v. Louisiana,
391 U.S. 68 (1968), the Court held that a state statute that did not permit
illegitimate children to sue for wrongful death was "invidiously"
discriminatory because there was no link between the children's illegitimacy
and the alleged wrong to their mother. And in Graham v. Richardson,
403 U.S. 365 (1971), the Court struck down state statutes denying welfare
benefits to resident aliens and to aliens who had not resided in the state
for 15 years.
83. By contrast, the courts have not read the Constitution's Equal Protection
clauses to require compelling justifications for classifications based on
property or economic status, San Antonio School District v. Rodriguez, 411 U.S.
1 (1973); age, Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976);
or disability, Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985).
Thus, distinctions based on such characteristics will be assessed against
less stringent standards but may still be found to violate the equal protection
doctrine when not rationally related to a legitimate governmental purpose.
Disability and age discrimination have also been addressed by statute, as
discussed below.
84. Fundamental interest. Where a so-called "fundamental interest"
is at stake, the Supreme Court has subjected legislative classifications
to "strict scrutiny" despite the absence of a suspect classification.
This explains why, in the cases involving the right to vote (including fair
apportionment) and the due process cases (right to counsel, etc.), the Court
has found invidious discrimination even though the basis for that discrimination
is not race, national origin, sex, or any other suspect class. What makes
a right "fundamental" is not always clear. The fundamental rights
are not necessarily those found in other provisions of the Constitution;
indeed, those other rights can be protected without reference to equal protection.
More likely, the rights are the ones not found in the Constitution except
by inference, such as the right to procreation. See Skinner v. Oklahoma,
316 U.S. 535 (1942) (sterilization of persons convicted of grand larceny
but not embezzlers).
85. Corrective or affirmative action. In recent years, the question
has frequently arisen whether legislation may classify by race for purposes
of compensating for past racial discrimination. The general rule that has
evolved is that because race is a "suspect classification", in
this context as in all others, it will be subject to "strict scrutiny"
by the courts. City of Richmond v. Croson, 488 U.S. 469 (1989). However,
where an employer or other entity has engaged in racial discrimination in
the past, it will generally be permitted (and may sometimes be required)
to accord narrowly tailored racial preferences for a limited period of time,
to correct the effects of its past conduct. See Wygant v. Jackson Bd. of
Educ., 476 U.S. 267 (1986). Greater latitude for racially based remedies
has been permitted when Congress has acted under the enabling clause of
the Fourteenth Amendment than when states or political subdivisions
have given a racial preference. See, e.g. Fullilove v. Klutznick,
448 U.S. 448 (1980) (upholding congressionally mandated set-aside of percentage
of federal grant to be spent through minority contractors).
86. Specific issues. Although, as noted above, issues of discrimination
involving rights protected by the Covenant are often addressed through suits
to vindicate a constitutional right other than equal protection, equal protection
has sometimes been invoked directly in connection with certain guarantees
specified in the Covenant, such as the following:
(a) Poverty and due process. The Fifth and Fourteenth Amendments
assure "due process of law" as well as "equal protection
of the law". Obviously, economic status can affect the right to a fair
trial and a reasonably effective appeal. In this area, courts have weighed
the essentiality of certain elements of the justice system and, on occasion,
found it a denial of equal protection for the state to fail to pay for the
necessary assistance - e.g., to provide counsel, Douglas v. California,
372 U.S. 353 (1963); Gideon v. Wainwright, 372 U.S. 335 (1963); and transcripts
Griffin v. Illinois, 351 U.S. 12 (1956). Similarly, the Supreme Court has
held that a person's probation cannot be revoked merely because he is unable
to pay restitution, Bearden v. Georgia, 461 U.S. 660 (1983). All states
and the federal government have mechanisms for providing legal counsel to
indigent defendants in the criminal process;
(b) Race and due process. Even in the nineteenth century it was clear that
racial discrimination in jury selection affected the due process rights
of African Americans, Strauder v. West Virginia, 100 U.S. 303 (1879). Reading
the Equal Protection clauses in conjunction with the constitutional guarantee
of Due Process, the Supreme Court has repeatedly held that it is a violation
to discriminate in preparation of jury lists on the basis of race or national
origin, Neal v. Delaware, 103 U.S. 370 (1880); Hernandez v. Texas, 347 U.S.
475 (1954). That prohibition has been extended to the exercise of peremptory
challenges in petit jury selection, Batson v. Kentucky, 476 U.S. 79 (1986),
and, most recently, to peremptory challenges on the basis of sex, J.E.B.
v. Alabama Ex Rel. T.B., 62 U.S.L.W. 4219 (April 19, 1994). While that prohibition
has not been extended to encompass other statuses (e.g. low-income),
a separate line of cases has interpreted the Sixth Amendment right to a
fair trial and a jury of one's peers to encompass a right to be tried by
a jury drawn from a venire from which no "identifiable group"
has been systematically excluded. Williams v. Florida, 399 U.S. 78 (1970);
Duncan v. Louisiana, 391 U.S. 145 (1968). Moreover, the Court has recognized
that the potential jurors also have a cognizable right not to be discriminated
against. Carter v. Jury Comm'n of Greene County, 39 U.S. 320 (1970); Georgia
v. McCollum, 112 S.Ct. 2348 (1992);
(c) Race and the death penalty. Legal attacks on the death penalty have
generally been based on the Eighth Amendment's prohibition of cruel and
unusual punishment. In recent years, however, there have been efforts to
demonstrate that in operation, the death penalty is unequally applied on
the basis of race. Numerous defendants have attempted, so far without success,
to show that the discretionary elements in the process of sentencing a defendant
to death have had the effect of discrimination by race of defendant or race
of victim. See McCleskey v. Kemp, 481 U.S. 279 (1987) (where petitioner
could not demonstrate that he personally had been discriminated against,
statistics suggesting systemic inequities could not be used to overturn
death sentence). This issue is also the subject of considerable public debate
and political consideration and is currently under study in the U.S. Congress;
(d) Race and the right to form families. The Supreme Court has relied upon
the Equal Protection Clause to invalidate state bans on intermarriage, Loving
v. Virginia, 388 U.S. 1 (1967), and to prevent courts dealing in child custody
from implementing societal prejudices, Palmore v. Sidoti, 466 U.S. 429 (1984).
87. State action. Operating alone, the constitutional Equal Protection
clauses protect one only against discriminatory treatment by a government
entity, or by persons acting "under colour of law". Thus, the
doctrine does not reach purely private conduct in which there is no governmental
involvement. Whether or not in any particular situation there is sufficient
"state action" to bring a discriminatory practice under the constitutional
Equal Protection clauses represents a complicated jurisprudence in its own
right. See, e.g. Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972).
88. Federal statutes. Congress has supplemented the constitutional
guarantees of equal protection to encompass certain private actions by exercising
its powers under the "commerce clause" and under the "enabling"
clauses of the Thirteenth, Fourteenth, and Fifteenth Amendments. After the
Civil War, Congress implemented the Thirteenth Amendment by passing laws
prohibiting private racial discrimination in property and contractual relationships.
42 U.S.C. sections 1981 and 1982. Most of the federal civil rights laws
were passed in and after 1964 on the basis of the commerce clause as well
as the post-Civil War amendments. These statutes prohibit discrimination
in areas beyond those covered by the Covenant, including privately owned
public accommodations, private and federal, state or local governmental
employment, federally assisted programmes, and private and public housing.
Where the statutes cover ground already protected by the Constitution, they
add remedies that did not exist before. Moreover, these statutes prohibit
discrimination on the basis of statuses other than, and in addition to,
the ones protected under the Equal Protection clauses of the Constitution.
Thus, in addition to race, colour, national origin, and sex (in most instances),
these statutes include religion (but not in federally assisted programmes),
age, familial status (housing only) and disability.
89. Virtually every federal agency is involved in promoting or enforcing
equal protection guarantees. Although the federal civil rights statutes
and implementing regulations are too numerous to provide an exhaustive list,
some of the principal statutes are described below. Because these statutes
were passed at different times to address different problems, no two cover
precisely the same ground. For example, Title II of the Civil Rights Act
of 1964, prohibiting discrimination in places of public accommodation and
amusement (hotels, restaurants, cinemas) does not mention "sex"
as a protected category. Title II, moreover, does not protect against discrimination
by race in ordinary retail stores. On the other hand, the Americans with
Disabilities Act, passed in 1990, requires that retail stores as well as
places of public amusement be accessible to persons with disabilities. Some
of the gaps in coverage are filled in by state and local constitutions,
laws, and ordinances.
90. Title VI of the Civil Rights Act of 1964, 42 U.S.C. sections 2000d et seq.,
prohibits discrimination on the basis of race, colour, or national origin
in programmes or activities receiving federal financial assistance. Title
IX of the Education Amendments of 1972, 20 U.S.C. sections 1681 et seq.,
and implementing regulations at 34 C.F.R. Part 106, prohibits discrimination
on the basis of sex in federally funded education programmes or activities.
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. section 794, prohibits
discrimination on the basis of disability in programmes or activities receiving
federal financial assistance. The Age Discrimination Act of 1975, 42 U.S.C.
sections 6101-7, prohibits discrimination on the basis of age in programmes
or activities receiving federal financial assistance.
91. Title VII of the Civil Rights Act of 1964, 42 U.S.C. sections 2000e
et seq., prohibits public and private employers (with certain exceptions
including the federal government and small private businesses) from
discriminating on the basis of race, colour, religion, sex or national origin
in their employment practices. The Age Discrimination in Employment Act
of 1967, 29 U.S.C. sections 621 et seq., similarly bars discrimination
in employment on the basis of age.
92. Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. section 793,
requires employers with federal contracts or subcontracts of more than $10,000
to take affirmative action to employ and advance in employment qualified
individuals with disabilities. Executive Order 11246, as amended, prohibits
most federal contractors and subcontractors and federally assisted contractors
and subcontractors from discriminating in employment decisions on the basis
of race, colour, sex, religion or national origin. The Vietnam-Era Veterans'
Readjustment Assistance Act of 1974, 38 U.S.C. section 4212, requires that
employers with federal contracts or subcontracts of $10,000 or more provide
equal opportunity and affirmative action for Vietnam-era veterans and certain
disabled veterans of all wars. The Americans with Disabilities Act of 1990
(ADA), 42 U.S.C. sections 12101 et seq., bars discrimination in employment
practices by employers (with exceptions similar to those under Title VII,
supra) against qualified individuals with disabilities. The ADA also requires
that steps be taken to make "public entities" such as public transit,
and "public accommodations", which includes many private commercial
establishments, accessible to disabled individuals.
93. The Fair Housing Act, 42 U.S.C. section 3601 et seq., and implementing
regulations at 24 C.F.R. Parts 100-125, prohibits discrimination based on
race, colour, religion, sex, national origin, handicap and familial status
in activities relating to the sale, rental, financing and advertising of
housing and in the provision of services and facilities in connection with
housing. The Act applies both to public and private housing and defines
"familial status" to include one or more persons under the age
of 18 being domiciled with a parent or other person having legal custody
of such individual or individuals.
94. Additionally, many federal agencies administer programmes designed to
enhance opportunities for women, minorities, and other groups. For example,
the U.S. Department of Education administers grant programmes designed to
encourage and assist the participation of minorities and women in elementary,
secondary and higher education programmes. These include bilingual education
programmes, magnet schools, desegregation assistance centres, women's educational
equity programmes, financial aid for students who are minorities or women,
and grants to strengthen historically African-American colleges and universities.
The U.S. Department of Labor monitors and enforces compliance with the non-discrimination
provisions applicable to federal contractors and apprenticeship programmes,
including affirmative action programmes for women and minorities, and promotes
the placement of Native Americans with federal contractors.
95. Aliens. Under U.S. immigration law, an alien is "any person
not a citizen or national of the United States". See 8 U.S.C. section
1101(a)(3). Aliens living in the United States, even though not U.S. citizens,
generally enjoy the constitutional and Covenant rights and protections of
citizens, including the right to life; freedom from torture or cruel, inhuman
or degrading treatment or punishment; prohibition of slavery; the right
to liberty and security of person; the right to humane treatment for persons
deprived of their liberty; freedom from imprisonment for breach of contractual
obligation; freedom of movement; the right to fair trial; prohibition of
ex post facto laws; recognition as a person under the law; freedom
from arbitrary interference with privacy, family and home in the United
States; freedom of thought, conscience and religion; freedom of opinion
and expression; freedom of assembly; and freedom of association. "Aliens,
even aliens whose presence in this country is unlawful, have long been recognized
as 'persons' guaranteed due process of law by the Fifth and Fourteenth Amendments",
Plyer v. Doe, 457 U.S. 202, 210 (1982); see also Kwong Hai Chew v.
Colding, 344 U.S. 590, 596 (1953) (resident aliens are persons within the
protection of the Fifth Amendment and may not be deprived of life, liberty
or property without due process); Wong Wing v. United States, 163 U.S. 228,
238 (1896) (aliens accused of a crime are entitled to Fifth and Sixth Amendment
rights).
96. Aliens enjoy equal protection rights as well, but distinctions between
illegal aliens and others do not require as strong justifications as distinctions
between citizens and aliens lawfully in the United States. Distinctions
between resident aliens and citizens require more justification, but not
the compelling state interests required for distinctions based on race.
The longer an alien has been in the United States and the more legitimate
the alien's immigration status, the more equivalent the alien's equal protection
rights are to those of a U.S. citizen. Consistent with article 25 of
the Covenant, aliens are generally precluded from voting or holding federal
elective office. A number of federal statutes, some of which are discussed
above, prohibit national origin discrimination in various contexts.
97. State Constitutions. Roughly 27 states currently have "equal
protection clauses" in their constitutions. Unlike the Fourteenth Amendment
to the United States Constitution, the state equal protection guarantees
often incorporate other rights by reference. For example, the Connecticut
clause (constitution, art. I, sect. 20) provides: "No person
shall be denied the equal protection of the law nor be subjected to segregation
or discrimination in the exercise or enjoyment of his or her civil or political
rights because of religion, race, colour, ancestry, national origin, or
sex". Whether the "civil or political rights" are restricted,
under this kind of clause, to rights enumerated elsewhere in the state constitution,
depends upon the state judiciary's interpretation. As a practical matter,
the Fourteenth Amendment provides a minimum below which no state can go
in according equal protection. The states can extend but not contract what
the federal Constitution demands.
98. Remedies. U.S. law provides extensive remedies and avenues for
seeking compensation and redress for alleged discrimination and denial of
constitutional and related statutory rights, including:
(a) A person claiming to have been denied a constitutional or,
in some instances, a statutory right, may bring a civil action in federal
court under 42 U.S.C. section 1983, which states:
"Every person who, under colour of any statute, ordinance,
regulation, custom, or usage of any State or Territory or the District of
Columbia subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress..."
Only "state actions" or actions "under colour of state law"
are subject to section 1983. These include actions by federal, state
and local officials. Some officials, however, are subject to absolute or
qualified immunity. Judges, for example, enjoy absolute immunity. Bradley
v. Fisher, 80 U.S. 335 (1872). Other officials enjoy qualified immunity,
which is designed to protect the discretion of officials in the exercise
of their official functions. Qualified immunity will not be afforded, however,
if the officials violated clearly established statutory or constitutional
rights of which a reasonable person would have known. Harlow v. Fitzgerald,
457 U.S. 800 (1982). While prosecutors enjoy absolute immunity from suit
for their involvement in the judicial phase of the criminal process, they
are afforded only qualified immunity for law enforcement functions. Burns
v. Reed, 500 U.S. 478 (1991). The Fourteenth Amendment's Due Process and
Equal Protection clauses, as well as other constitutional rights, are enforced
under section 1983 in hundreds of federal suits every year. The most
common relief under section 1983 is damages, subject only to rules about
official immunity. Injunctive relief is also available and widely used as
relief under this provision. All states have judicial procedures by which
official action may be challenged, though the procedure may go by various
names (such as "petition for review");
(b) Federal officials may be sued directly under provisions of the Constitution,
subject only to doctrines of immunity. See Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971); Davis v. Passman, 442 U.S. 228 (1979);
(c) Conspiracies to deny civil rights, apart from being subject to criminal
prosecution, may be attacked civilly under 42 U.S.C. section 1985. However,
where the right is one enumerated in the Constitution as being secured only
from "state action", there must be official actors in the conspiracy,
or it cannot be reached under that statute. Brotherhood of Carpenters and
Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825 (1983);
(d) Section 2 of the Voting Rights Act of 1965, as amended, may be enforced
by a private suit to vindicate denials of Fifteenth Amendment rights, i.e.
intentional denials or limitations on the right to vote or to exercise an
effective vote. (See the discussion under art. 25.);
(e) Where Congress has so provided, the federal government, through the
Attorney General, may bring civil actions to enjoin acts or patterns of
conduct that violate some constitutional rights. Thus, as indicated below,
the Attorney General can sue under the Civil Rights of Institutionalized
Persons Act to vindicate the rights of persons involuntarily committed to
prisons, jails, hospitals, and institutions for the mentally retarded. Similarly,
section 2 of the Voting Rights Act of 1965, as amended, authorizes the Attorney
General to bring suit to vindicate the right to vote without discrimination
based on race;
(f) A person whose alleged injury resembles one actionable at common law
(such as the deprivation of life addressed by art. 6) may sue the United States
for damages under the Federal Tort Claims Act (FTCA), 28 U.S.C. section 1346(b),
2671 et seq., or sue the states under analogous state statutes. The FTCA
waives the sovereign immunity of the United States with respect to certain
torts. "Discretionary" acts, and many "intentional"
torts are not included, but the Act does waive the sovereign immunity of
the United States with respect to claims arising out of assault, battery,
false imprisonment, false arrest, abuse of process, or malicious prosecution
based on the acts or omissions of "investigative or law enforcement
officers" of the U.S. Government. The Act defines "investigative
or law enforcement officer" as an officer of the United States who
is empowered by law to execute searches, to seize evidence, or to make arrests
for violations of federal law; this definition may include Department of
Defense personnel being used in a law enforcement capacity;
(g) Any person prosecuted under a statute or in conjunction with a governmental
scheme (such as jury selection) which he or she believes to be unconstitutional
may challenge that statute as part of the defence. This may be done in the
context of federal or state prosecutions. Even in civil actions, the defendant
may pose a constitutional challenge to the statute that forms the basis
of the suit. Any court, from the lowest to the United States Supreme Court,
may consider such a claim of unconstitutionality, though normally it must
be raised at the earliest opportunity to be considered at all. The United
States Supreme Court has the discretion to review nearly all cases coming
from the lower federal courts or from the states' highest courts;
(h) Detention pursuant to a statute believed to be unconstitutional or as
a result of a procedure that allegedly violated a constitutional right may
be challenged by a writ of habeas corpus in state and/or federal court.
To a limited degree, post-conviction relief is also available by state and
federal writs of habeas corpus or, in the case of federal convictions, by
a motion for relief from a sentence (see 28 U.S.C. section 2241-55). All
states have similar remedies as part of their criminal procedure;
(i) The federal government may prosecute criminally the violations of some
civil rights. Section 241 of Title 18, U.S. Code, prohibits conspiracies
to interfere with rights secured to all inhabitants of the United States
by the Constitution, by federal laws, and by federal court decisions interpreting
both of them. Section 242 of Title 18 prohibits any act "under colour
of law" that interferes with a protected right. Abuse of police power,
denying rights guaranteed by the Bill of Rights but most often denials of
due process, can be reached under these statutes, subject to doctrines of
immunity. The government may also bring criminal prosecutions for use of
force or threat of force to violate a person's rights under the 1964 Civil
Rights Act. 18 U.S.C. section 245;
(j) In addition to the remedies discussed above, federal, state and local
officials, as well as private persons, who violate the rights of others
may be subject to prosecution under a host of generic federal and state
criminal statutes (see, for example, the discussion under art. 6). U.S. Department
of Defense personnel may also be subject to criminal prosecution under the
Uniform Code of Military Justice (10 U.S.C. section 801-946) of the
U.S. Code.
99. Publicity and education. People in the United States are very
aware of their rights. As discussed in Part I, the text of the Covenant,
as well as its legislative history in the United States and numerous commentaries,
are available to any interested person through libraries, congressional
and other publications and computer databases. Throughout the United States,
students at all levels receive extensive instruction in fundamental civil
and political rights. The federal government has sent copies of the Covenant
to the attorneys general of each state and constituent unit in the United
States, with the request that they be further distributed to all relevant
officials, and U.S. government officials have participated in a number of
public presentations highlighting the significance of U.S. ratification.
This report will be widely distributed by the U.S. Government, bar associations,
and human rights organizations.
100. U.S. understandings. Despite the strength and breadth of the
equal protection guarantees afforded all individuals under the Constitution
and the various federal and state statutory schemes, the prohibitions against
non-discrimination in U.S. law are not open-ended. Discrimination is prohibited
only for specific statuses, and there are exceptions which allow for distinctions.
For example, even under the generally protective Age Discrimination Act
of 1975, 42 U.S.C. section 6101-07, age may be taken into account in certain
circumstances. In addition, U.S. law permits additional distinctions, such
as between citizens and non-citizens and between different categories of
non-citizens, especially in the context of the immigration laws. Noting
that the Human Rights Committee itself has acknowledged, in General Comment
18, that not all differentiation of treatment constitutes discrimination,
the United States felt it appropriate to state clearly, through an understanding
included in its instrument of ratification:
"That the Constitution and laws of the United States guarantee
all persons equal protection of the law and provide extensive protections
against discrimination. The United States understands distinctions based
upon race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or any other status - as those
terms are used in Article 2, paragraph 1 and Article 26 - to be permitted
when such distinctions are, at minimum, rationally related to a legitimate
governmental objective."
In addition, the United States stated its understanding that the prohibition
in paragraph 1 of article 4 upon discrimination in time of emergency based
"solely" on status of race, colour, sex, language, religion or
social origin does not prohibit distinctions that may have a disproportionate
effect upon persons of a particular status.
Article 3 - Equal rights of men and women
101. Constitutional protections. The rights enumerated in the Covenant
and provided by U.S. law are guaranteed equally to men and women in the
United States. With the adoption in 1920 of the Nineteenth Amendment,
which guaranteed women the right to vote, the principal constitutional impediment
to the equality of men and women was eliminated. Over the past 30 years,
women in the United States have made significant strides at gaining social
and economic equality with men, although further progress needs to be made.
102. As discussed under article 2, the U.S. Constitution explicitly guarantees
men and women equality before the law through the Equal Protection and Due
Process clauses of the Fourteenth and Fifth Amendments. As interpreted by
the U.S. Supreme Court, these provisions prohibit both the federal government
and the states from arbitrarily or irrationally discriminating on the basis
of gender. For example, the Supreme Court has declared unconstitutional
a state law giving preference to males over females in the appointment of
administrators for the estates of individuals who have died intestate. Reed v. Reed,
404 U.S. 71 (1971). The Court found that the preference constituted the
"very kind of arbitrary choice forbidden in the Equal Protection Clause".
Id. at 76.
103. The legal standard by which the U.S. Supreme Court has judged gender
distinctions has evolved over time. One year after the Reed decision, the
court ruled that denying benefits for the husbands of women in the military,
while providing them to the wives of similarly situated men in the military,
violated the Fifth Amendment. Frontiero v. Richardson, 411 U.S. 677 (1973).
The following year, however, the Court upheld a sex-based distinction in
a law that provided a benefit - a property tax exemption - for widows but
not for similarly situated widowers. Kahn v. Shevin, 416 U.S. 351 (1974).
The Court found that the distinction was permissible because it was "reasonably
designed to further the state policy of cushioning the financial impact
of spousal loss upon the sex for which that loss imposes a disproportionately
heavy burden". Id. at 355.
104. In Craig v. Boren, 429 U.S. 190 (1976), the Court articulated the standard
which has governed the field of gender distinctions ever since: "To
withstand constitutional challenge ... classifications by gender must serve
important governmental objectives and must be substantially related to achievement
of those objectives". 429 U.S. at 197. See also, Taylor v. Louisiana,
419 U.S. 522 (1975); Califano v. Goldfarb, 430 U.S. 199 (1977).
105. It is virtually certain that the Supreme Court would strike down any
significant distinction between men and women in the enjoyment of the civil
and political rights secured by the Covenant, either under the substantive
right involved or as a matter of equal protection.
106. Equal Rights Amendment (ERA). An amendment to the U.S. Constitution
to introduce a separate Equal Protection clause specifically addressing
gender equality was first proposed in 1923 and thereafter in subsequent
Congresses. In 1972, the Equal Rights Amendment (ERA) passed the U.S. Congress.
However, in the succeeding 10 years, an insufficient number of states ratified
the measure, and it accordingly expired in 1982. None the less, to date
16 states have adopted the ERA as part of their state constitutions. Most
of the state ERA's provide simply that "[e]quality of rights under
the law shall not be denied or abridged by the state on account of sex".
See, e.g. Colorado, article II, section 29; Hawaii, article I, section
3; Illinois, article I, section 18; Maryland, DR 46; New Mexico, article
II, section 18. Other states have added the ERA provision to their broader
constitutional equal protection clauses. For example, the Alaska Constitution
provides that "[n]o person is to be denied the enjoyment of any civil
or political right because of race, colour, creed, sex, or national origin".
Alaska article I, section 3. See also, Connecticut, article I, section
20 and Massachusetts, article LVI.
107. Federal statutes and programmes. Many federal civil rights statutes
and programmes including those discussed under article 2 address discrimination
on the basis of sex.
108. Justice Department review. Beginning in 1976, the U.S. Department
of Justice conducted a review of federal statutes and regulations and of
the policies, practices and procedures of federal agencies in order to identify
provisions that discriminated on the basis of gender. See Final Report of
the Attorney General to the President and Domestic Policy Council Pursuant
to E.O. 12336 (April 1986). Most of the statutory provisions identified
were not substantively discriminatory, and the majority of the others had
little practical impact. For example, 14 U.S.C. sections 371-73 provided
that only "male citizens" could be designated as aviation cadets
in the U.S. Coast Guard. Although the statute was technically in effect,
the aviation cadet programme to which it applied was no longer operated.
The few statutes that did have significant sex-based distinctions were subject
to challenge on constitutional grounds as discussed above. See, e.g. Califano
v. Goldfarb, 430 U.S. 199 (1977).
109. Family law. Family law, discussed in detail with respect to
articles 23 and 24, is an area which currently invites substantial
debate over gender equality. In that field, women have historically been
discriminated against in terms of the inequity which has persisted in the
marital relationship and in divorce and custody settlements. Women still
bear the majority of responsibility for child-rearing both within and outside
of the marriage setting, and often are unable to enforce child-support orders
or alimony awards, resulting in poverty or extreme hardship. However, the
1970s ushered in a movement of sweeping reforms, resulting in far more equitable
marital property, alimony, and child custody laws. These reforms are further
discussed under articles 23 and 24.
Article 4 - States of emergency
110. Unlike many countries, the United States does not have a constitutional
or legal regime either for declaring "states of emergency" or
otherwise for imposing emergency rule by the executive branch. The U.S.
military does not exercise criminal jurisdiction over civilian persons within
the United States.
111. Federal level. The U.S. Constitution and implementing federal
statutes do authorize the President in limited and clearly defined circumstances
to use federal troops to control domestic violence, suppress insurrections
and enforce federal law. These laws do not, however, authorize the executive
branch to suspend or interfere with the normal operations of the other branches
of the national government (the Congress and the judiciary) or to permit
derogations from fundamental rights. Indeed, with only one limited exception
(the right of habeas corpus, which Congress may temporarily suspend when
public safety so requires), constitutional rights remain in effect at all
times.
112. Article IV, section 4 of the Constitution imposes on the federal government
the obligation to protect a state "on Application of the [State] Legislature,
or of the [State] Executive (when the Legislature cannot be convened) against
domestic Violence". Article I, section 8 authorizes the Congress "[t]o
provide for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasion". This is the basis for intervention
by federal troops or marshals in civil disorders occurring within the states.
113. The Constitution also provides, in article II, section 3, that the
President "shall take Care that the Laws be faithfully executed".
This provision has been interpreted to grant the President authority to
enforce federal laws through extraordinary means if the President determines
that unlawful obstructions or rebellion make it impracticable to enforce
the laws of the United States by the ordinary course of judicial proceedings.
114. Chapter 15 of Title 10, U.S. Code, defines the scope of the constitutional
grants of emergency powers. Pursuant to the President's authority under
article IV, section 4 of the Constitution, section 331 of Title 10 provides
authority to the President to dispatch troops on request of the state's
governor or legislature. The sending of troops is not, however, automatically
triggered by the request of a state pursuant to this section. The President
must use his own judgement as to whether the situation warrants the use
of armed forces. Traditionally, three conditions have existed before troops
have been sent: (i) the actual existence of domestic violence, (ii) a statement
that the violence is beyond the control of the state authorities, and (iii)
a proper request from the state governor or legislature.
115. Sections 332 and 333 of Title 10 provide authority for the President
to dispatch troops without state request in order to enforce federal law,
prevent obstruction of the execution of federal law, carry out federal court
orders or protect civil rights. These provisions overlap to some extent,
but both are aimed at violence or insurrection obstructing or interfering
with the enforcement of federal laws within a state. Section 332 is aimed
generally at resistance to the carrying out of federal laws; section 333
is concerned with the forcible interference with the civil rights of individuals
and with violence aimed at preventing the enforcement of court orders. These
provisions were invoked by the President to enforce racial desegregation
orders in certain states during the 1950s and 1960s.
116. Section 334 of Title 10 requires that, in all cases in which the President
deems it necessary to use armed forces pursuant to his authority under Title
10, the President must issue a proclamation ordering the insurgents to disperse.
Such proclamations are followed by an executive order directing the appropriate
use of the armed forces to suppress the violence. They are also subject
to Congressional oversight.
117. In addition to the President's Title 10 authority, there are further
statutory grants of emergency powers to the President. The National Emergencies
Act, 50 U.S.C. sections 1601 et seq., confers upon the President the authority
to declare national emergencies and establishes procedures to be followed
by the President in exercising emergency power. 50 U.S.C. sections 1601
et seq. Most importantly, the Act requires the President to report to Congress
on actions taken and funds expended pursuant to a declaration of national
emergency. The Act further allows Congress to terminate such states of emergency
by enacting into law a joint resolution. This Act has typically been used
in conjunction with the International Emergency Economic Powers Act (IEEPA,
described in the next paragraph) to impose economic sanctions against other
nations, rather than to deal with domestic or national security emergencies.
118. IEEPA, 50 U.S.C. sections 1701 et seq., allows the President, upon
determination that an unusual and extraordinary threat exists, to issue
executive orders investigating, regulating or prohibiting certain international
transactions. In addition, the President may issue executive orders investigating,
regulating, and otherwise affecting a wide variety of transactions in which
foreign interests are implicated. In practice, the use of IEEPA has been
primarily limited to the implementation of economic sanctions (often mandated
by the United Nations) on the territory of the United States. IEEPA also
imposes congressional reporting requirements upon the President. The Congress
may terminate an IEEPA emergency power granted to the President by passing
a joint resolution pursuant to certain provisions of the National Emergencies
Act.
119. Most of the President's other congressionally mandated emergency powers,
particularly in the case of natural disasters, are delegated to the Federal
Emergency Management Agency (FEMA). These powers include, among others,
his authority under the Disaster Relief and Emergency Assistance Act, 42
U.S.C. sections 5121 et seq.; the Fire Prevention and Control Act, 15 U.S.C.
sections 2201 et seq.; the Flood Disaster Protection Act, 50 U.S.C.
sections 4001 et seq.; the Federal Civil Defense Act, 50 U.S.C. sections
2251 et seq.; and the Earthquake Hazards Reduction Act, 42 U.S.C. sections 7701
et seq. FEMA acts as the focal point for all planning, preparedness,
mitigation, response and recovery actions for such catastrophic domestic
emergencies. FEMA has no authority to suspend or infringe constitutional
rights in the exercise of its duties. The Agency's purpose is to coordinate
emergency activities at the national, state, and local levels, fund emergency
programmes and provide technical guidance and training.
120. The Posse Comitatus Act, 18 U.S.C. section 1385, forbids the President
to use the armed forces to "execute" the laws except where authorized
by the Constitution or by another act of Congress. 18 U.S.C. section 1385.
Under the Act, prohibited actions include interdiction of vehicles, vessels,
and aircraft; searches and seizures; arrests and "stop and frisk"
actions; surveillance or pursuit of individuals; investigation; and interrogation.
Thus, in a disaster relief situation, absent any other legislation, federal
troops must avoid a direct law enforcement role. They may, however, render
humanitarian assistance, including the provision of emergency medical care
to civilians and the destruction of explosives found in civilian communities.
121. State and local levels. At the state and local levels,
a wide variety of emergency authorities permit the state executive branches
(state governors, city mayors, county executives) to take emergency actions.
These authorities are based on the general police power that is reserved
to the states under the U.S. Constitution. In an emergency situation, a
state may take reasonable actions necessary to preserve public health, safety
and welfare, even if those actions incidentally infringe on otherwise protected
rights. For example, states may impose curfews in situations of civil unrest
or to prevent sabotage and espionage in times of war, establish quarantines
during an epidemic, restrict water usage during a severe drought, and even
regulate interest rates during times of economic emergency. These various
state-imposed regimes may not, however, limit constitutional rights or infringe
on the non-derogable rights specified in article 4 of the Covenant.
122. Judicial review. The federal courts have the power to review
the exercise of emergency powers by the federal or state authorities, and
have exercised considerable judicial scrutiny in this area. Judicial review
has included examination of both substantive authority and procedural issues.
As a general rule, cases in which the exercise of emergency power has resulted
in the restriction of individual rights have been subjected to careful judicial
review. See, e.g. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1886) (voiding
a presidential order suspending habeas corpus); Youngstown Sheet & Tube
v. Sawyer, 343 U.S. 579 (1952) (invalidating the seizure of steel mills
pursuant to Presidential order during the Korean War); Dames & Moore
v. Regan, 453 U.S. 654 (1981) (judicial review of constitutionality
of President's orders regarding disposition of blocked Iranian assets under
IEEPA).
123. Emergency powers in practice. Two recent examples of the use
of federal emergency powers include the 1992 Los Angeles riots and the aftermath
of Hurricane Andrew in 1992. In response to the riots and after receiving
a request from the Governor of California, the President, pursuant to the
authority vested in him by the Constitution and laws of the United States,
including 10 U.S.C., chapter 15, issued a proclamation ordering all persons
engaged in acts of violence to cease and desist. Immediately following the
proclamation, the President issued an executive order directing federal
law enforcement officers and the armed forces, including elements of the
National Guard, to suppress the violence.
124. Throughout the emergency, the Department of Justice remained the lead
federal agency, coordinating the response of all other federal agencies
involved, including the Department of Defense (DOD). Although military forces
had the authority to engage in direct law enforcement activities, for the
most part they did not do so. Because the worst rioting had ended prior
to the arrival of federal troops and because military commanders preferred
not to involve soldiers in searches, arrests, pursuits, and other direct
law enforcement activities, the military's principal role was to increase
the security of the area, thereby deterring further rioting. Civilian agencies
continued to perform the majority of law enforcement activities.
125. In response to the devastation of Hurricane Andrew in August 1992,
the President declared a major disaster under the Stafford Disaster Relief
Act (42 U.S.C. sections 5121-5203) for certain counties in southern
Florida. When it became apparent that significant federal assistance would
be needed in the disaster area and following a request from the Governor
of Florida, the President authorized DOD to deploy a significant force to
the disaster area to provide humanitarian relief.
126. Pursuant to the Stafford Act and the Federal Response Plan, the Federal
Emergency Management Agency (FEMA) was the lead federal agency and had the
authority to coordinate the activities of all federal agencies, including
DOD. FEMA tasked DOD to provide assistance requested by state officials,
and the joint task force had no authority to engage in relief activities
other than as directed by FEMA. Unlike the Los Angeles deployment, the federal
troops in Florida were not authorized to engage in law enforcement activities.
127. U.S. understanding. In keeping with its general understanding
of the requirements of equal protection, as discussed in connection with
article 2, the United States submitted the following understanding
with respect to paragraph 1 of article 4 of the Covenant:
"The United States further understands the prohibition
in paragraph 1 of Article 4 upon discrimination, in time of public
emergency, based 'solely' on the status of race, colour, sex, language,
religion or social origin not to bar distinctions that may have a disproportionate
effect upon persons of a particular status."
In other words, distinctions having a "disproportionate effect"
upon persons of a particular status, but not in fact based on that status
at all, are not necessarily prohibited. Thus, for example, a curfew could
be imposed as appropriate in view of safety requirements even if, due to
patterns of residence, this affected certain groups more than others.
Article 5 - Non-derogable nature of fundamental
rights
128. The United States was founded on basic principles of human rights
from which it cannot deviate. In particular, the rights guaranteed in the
U.S. Constitution, which substantially reflect the principles embodied
in the Covenant, are the supreme law of the land. These guarantees represent
a foundation that can never be broken. Congress and the states may protect
rights to a greater extent, but never to a lesser extent than the Constitution
provides. In some instances, that foundation already provides greater protection
than the Covenant. Therefore, the United States could never restrict
fundamental human rights on the pretext that the Covenant does not recognize
such rights or recognizes them to a lesser extent.
129. Furthermore, as the Covenant has been declared non-self-executing for
purposes of U.S. laws, it could never be invoked in any judicial context
to limit existing rights. More specifically, with respect to actions taken
by the executive branch and the Congress, the United States declared
in ratifying the Covenant:
"It is the view of the United States that States Party
to the Covenant should wherever possible refrain from imposing any restrictions
or limitations on the exercise of the rights recognized and protected by
the Covenant, even when such restrictions and limitations are permissible
under the terms of the Covenant. For the United States, Article 5,
paragraph 2, which provides that fundamental human rights existing
in any State Party may not be diminished on the pretext that the Covenant
recognizes them to a lesser extent, has particular relevance to Article 19,
paragraph 3, which would permit certain restrictions on the freedom
of expression. The United States declares that it will continue to
adhere to the requirements and constraints of its Constitution in respect
to all such restrictions and limitations."
130. The United States conditioned its ratification on this declaration
to emphasize that it will continue to adhere to the constraints of its Constitution
in respect to all restrictions and limitations of civil and political rights.
Furthermore, the United States also made this declaration to indicate
as clearly as possible its belief that as a general rule States Party should
resort to such restrictions only under the most unusual and compelling circumstances.
Article 6 - Right to life
131. Right to life, freedom from arbitrary deprivation. This right
is protected by the federal and state constitutions and law. The Fifth Amendment
to the U.S. Constitution provides that "no person shall ... be deprived
of life, liberty, or property, without due process of law". The Fourteenth
Amendment provides that "no State shall ... deprive any person of life,
liberty, or property, without due process of law". These provisions
incorporate the constitutional recognition of every human's inherent right
to life and the doctrine that this right shall be protected by law. The
Fifth and Fourteenth Amendments also make unconstitutional the state-engineered
disappearance of individuals.
132. The value of human life is further protected by the criminal codes
of the U.S. Government, the 50 states, the several U.S. territories,
and other constituent jurisdictions which all criminalize the arbitrary
and unjustified deprivation of life. Each jurisdiction has statutes that
penalize murder and impose the most severe criminal penalties for homicide
that is accompanied by specific aggravating factors.
133. The federal statutes protecting life and penalizing the deprivation
of life with sentences of either capital punishment or life imprisonment
include the following:
First degree murder (18 U.S.C. section 1111);
Killing a witness (18 U.S.C. section 1512(a));
Assassination of the President, President-elect, Vice-President, or one
of a limited group of other persons under the statute (18 U.S.C. section 1751);
Murder by any person engaged in a continuing criminal drug enterprise or
the murder of a law enforcement official during the commission of a drug
felony (21 U.S.C. section 848(e));
Wilful destruction of an aircraft or motor vehicle with the intent to endanger
the safety of any person on board, which has resulted in the death of any
person (18 U.S.C. section 34);
Wilfully derailing, disabling, exploding, or causing a train wreck, that
results in death (18 U.S.C. section 1992);
Offences involving the transportation of explosive material with the knowledge
that it will be used to kill, injure or intimidate (18 U.S.C. section 844(d));
Destruction of U.S. Government property by fire or through the use of explosives
that results in death (18 U.S.C. section 844(f));
The mailing of injurious articles with intent to kill or injure and that
results in death (18 U.S.C. section 1716);
Genocide (18 U.S.C. section 1091(b)), which includes killing, seriously
wounding, or inflicting other specified types of destruction upon members
of a national, ethnic, racial, or religious group with the specific intent
to destroy that group completely or in substantial part;
Terrorism (18 U.S.C. section 2331), which consists of killing a U.S. national
outside the United States, or while outside the United States,
attempting to kill or engaging in a conspiracy to kill a U.S. national;
the statute requires a written certification by a high-ranking official
of the Department of Justice "that, in the judgment of the certifying
official, such offence was intended to coerce, intimidate, or retaliate
against a government or a civilian population" (18 U.S.C. section 2332(d));
Conspiracy to cause the death of another (18 U.S.C. section 1117);
Killing or attempting to kill an "internationally protected person"
(18 U.S.C. section 1116), including but not limited to heads of state
and foreign ministers and accompanying members of their families if in a
country other than their own; and representatives, officers, agents, and
employees of the United States or a foreign government, or international
organization, entitled under international law to protection. The alleged
offender must be present within the United States. His or her nationality
is irrelevant;
Treason, under a statute that provides that "[w]hoever, owing allegiance
to the United States, levies war against them or adheres to their enemies,
giving them aid and comfort within the United States or elsewhere"
(18 U.S.C. section 2381);
Espionage (18 U.S.C. section 794); and
Air piracy where death results (49 U.S.C. section 1472(i), (n)).
The Uniform Code of Military Justice also proscribes capital punishment
for certain offences. 10 U.S.C. sections 801 et seq.
134. The U.S. Code also proscribes attempted murder, which is punishable
by a term of 20 years' imprisonment (18 U.S.C. section 1113), and manslaughter,
defined as the unlawful killing of a human being without malice (18 U.S.C.
section 1112). Voluntary manslaughter is a killing that occurs during a
sudden quarrel or in the heat of passion; involuntary manslaughter occurs
during the commission of an unlawful act not amounting to a felony, a lawful
act in an unlawful manner, or a lawful act that, without due caution and
circumspection, might produce death.
135. Other crimes, such as arson and kidnapping, carry severe penalties
that are augmented when they jeopardize human life and even more severe
penalties when a death results. For example, arson carries a federal penalty
of five years' imprisonment, but an arson that places a life in jeopardy
is punishable by 20 years' imprisonment. See 18 U.S.C. section 81. Similarly,
the penalties for assaults are increased from 3 years' to 10 years' imprisonment
when the assault is committed by the use of a deadly or dangerous weapon.
The punishment for certain serious drug offences also is enhanced when the
offender uses a firearm. 18 U.S.C. section 924(c)(1).
136. Every state also criminalizes deliberate acts that result in death
or serious threat to life. However, offences may vary in detail from state
to state. State criminal laws concerning murder, manslaughter, and conspiracy
are essentially similar to the federal law; the most severe punishments
are allocated to the acts committed with the most particular intent to cause
death. At present, the statutes of 37 states provide the death penalty for
murder and, in a few of these states, for other offences, almost all for
offences resulting in death.
137. The issue of race and the death penalty is discussed under article 2;
death-row conditions are discussed under article 7.
138. Official use of force. The protection of the right to life is
also implicated in statutes regulating the official use of force. Prison
guards, sheriffs, police, and other state officials who abuse their power
through excessive use of force may be punished under 18 U.S.C. sections
241 and 242, discussed under article 2. Where law enforcement officials
are involved in using excessive force, individually or in a conspiracy,
victims are protected with respect to the rights secured by the Fourth,
Eighth, and Fourteenth Amendments to the United States Constitution.
Which amendment is involved depends upon the status of the victim as an
arrestee (Fourth Amendment), a pretrial detainee (Fourteenth Amendment),
or a convicted prisoner (Eighth Amendment). Graham v. Connor, 490 U.S.
386 (1989).
139. Death penalty. The sanction of capital punishment continues
to be the subject of strongly held and publicly debated views in the United States.
The majority of citizens through their freely elected officials have chosen
to retain the death penalty for the most serious crimes, a policy which
appears to represent the majority sentiment of the country. In addition,
federal law provides for capital punishment for certain very serious federal
crimes. Capital punishment is only carried out under laws in effect at the
time of the offence and after exhaustive appeals. The U.S. Supreme Court
has held that the Eighth Amendment to the U.S. Constitution (which proscribes
cruel and unusual punishment) does not prohibit capital punishment. Gregg
v. Georgia, 428 U.S. 153 (1976) (plurality opinion). However, the death
penalty is available for only the most egregious crimes and, because of
its severity, warrants unique treatment that other criminal sentences do
not require.
140. First, it cannot be imposed even for serious crimes - such as rape,
kidnapping, or robbery - unless they result in the death of the victim.
Coker v. Georgia, 433 U.S. 584 (1977); Enmund v. Florida, 458 U.S.
782, 797 (1982); Eberheart v. Georgia, 433 U.S. 917 (1977); Hooks v. Georgia,
433 U.S. 917 (1977). Moreover, it is not enough for imposition of capital
punishment that the crime resulted in death; the crime must also have attendant
aggravating circumstances. In other words, restrictions