Congressional Apology to Native Americans Is Just Cheap Talk

FOR IMMEDIATE RELEASE
October 8, 2009

Apology Op-Ed
Robert T. Coulter
Executive Director, Indian Law Resource Center
www.indianlaw.org



‘No Thanks’ to Congressional Apology

This week the U.S. Senate passed a resolution apologizing to Native Americans for the wrongs done by citizens of this country. Robert T. Coulter, Executive Director of the Indian Law Resource Center, says what happened is a failure on the part of Congress to really acknowledge what it has done in the past.

The Senate has just passed a resolution that apologizes to American Indians and other Native Americans for the wrongs done by citizens of this country. But a genuine apology means you won’t do it again, and this resolution does nothing at all to stop or correct the on-going wrongs that the federal government inflicts on Indian and Alaska Native nations. Unfortunately our government still takes Indian land without paying for it, still refuses to account for the Indian money it holds, still violates its treaties with Indian nations without making amends, and still maintains a body of policy and law that is so discriminatory and racist that it should have been discarded generations ago.

To make a real apology, Congress needs to stop doing the things that it is apologizing to Indian nations and other Native peoples for. Americans generally do not know that the federal government continues to treat tribes and Alaska Native nations this way, and the evidence is that the public does not support or condone this mistreatment.

It is astonishing to most Americans that the federal government is still taking Indian land and resources – without due process of law and without fair market compensation, sometimes with no compensation at all. Of course, the Constitution says that Congress may not take anyone’s property except with due process of law and with fair market compensation. But these rules are not applied to most land and resources owned by Indian tribes, and the government takes the land and resources at will. Obviously, this is wrong. Today, the government is trying to drive Western Shoshone Indians off their homelands in Nevada without a semblance of due process and with a payment of about 15 cents per acre. This is gold mining land, but that doesn’t make it alright to take it from its Indian owners. There are other present day cases. A few years ago, Congress confiscated part of the reservation that was shared by the Yurok Nation in California and turned it over to another tribe. Congress gloated at the time that it could do this without paying compensation because of Congress’ so-called “Plenary Power” over Indians and their property.

A few years ago, Congress passed a law that orders a fund of money belonging to nine Western Shoshone tribes to be taken from the tribes and handed out by the Interior Department to some but not all individual tribal members. The bill was passed over the objections of most of the tribes.

The Interior Department still will not fully account for Indian funds that it holds. This national shame is reported regularly in the press. The Department is defying the law, as it has done for generations. The United States still insists that Indian tribes and in some respects Indian individuals, are in a state of permanent, involuntary trusteeship, with the federal government as trustee. No one else in the US is subject to such unaccountable “trusteeship.”

Congress today insists it can put Indian nations and tribes out of existence at any time. Indian nations and tribes still have no real right to exist in US law. The threat of termination is very real. Some small Native tribes in Alaska have recently heard this threat from congressional sources.

Congress also insists that it may freely violate treaties made with Indian nations. Sadly this is not a thing of the past. It does this today – regularly. Treaties are contracts, and the government cannot freely violate its contracts with others, but it does so – often – in the case of Indian treaties.

The Inter-American Commission on Human Rights of the Organization of American States, an international legal body that is officially recognized and supported by the United States, recently concluded that US policies regarding Indian lands are discriminatory and constitute a violation of human rights. But the Bush Administration defied the Commission and the present Administration is still refusing to change the discriminatory laws it applies to Indian tribes.

This on-going pattern of lawless and arbitrary congressional power over Indians has resulted in a negative, risky, unpredictable business climate on Indian reservations that inhibits needed economic development.

To be clear, many of the things Congress is considering apologizing for are still being done to Indian and Alaska Native tribes and to Native Hawaiians as well. Sadly, the United States, especially the US Congress, has never given up its insistence on treating Indian and Alaska Native nations with injustice and discrimination. This is not only wrong but very bad public policy and wholly out of keeping with American values.

Congress should conduct hearings and adopt a resolution promising never again to take Indian or tribal property without due process of law and fair market compensation. The resolution should promise that Congress will never again terminate any Native American tribe or its government and never again violate or abrogate a treaty with an Indian nation without making full compensation and correcting all resulting harm to the Indian nation. Congress must examine and change all federal laws, regulations, and courtmade law that deprive Indian nations and tribes of constitutional rights. Congress must pass legislation to assure that the government accounts fully for the Indian money and property it holds.

Without such commitments from Congress, an apology will be just another offense against Native Americans. Until the government changes its ways, things cannot be expected to improve much in Indian country. This is a good time to make the changes.
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Source: Indian Law Resource Center

Native Rights News is making this material available in accordance with the Fair Use Doctrine codified at Title 17 U.S.C. Section 107: This article is distributed without charge or profit to those who have expressed a prior interest in receiving the included information. Distribution of this material is for research and educational purposes that will promote social and economic justice and benefit society.
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Participate in OAS Working Group and Indigenous Caucus to Ensure a Strong American Declaration on the Rights of Indigenous Peoples

OAS Negotiations on the Draft American Declaration on the Rights of Indigenous Peoples

Background: Indigenous Rights within the OAS

The Organization of American States was formed in 1948, at about the same time as the United Nations, and is made up of the 35 countries of the Americas. In recent decades, indigenous peoples have urged the member countries (or "states") of the OAS to recognize the human rights of indigenous peoples as distinct peoples. In the 1980s, indigenous communities in Latin America that were threatened by war and genocide brought their human rights claims to the Inter-American Commission on Human Rights, a special branch of the OAS.

In 1989, the OAS leadership directed the Inter-American Commission to draft a document about the human rights of indigenous peoples. This document became the proposed American Declaration on the Rights of Indigenous Peoples. If all the member states of the OAS agree, it will be adopted by the General Assembly of the OAS, and incorporated into the body of developing international standards within the Inter-American legal system. The adoption of the declaration would not only represent an important recognition of indigenous rights in the Americas, but could also serve as the foundation for establishing a more binding legal instrument, such as a convention or treaty on Indigenous rights.

Negotiation of the Draft American Declaration

The current draft American Declaration on the Rights of Indigenous Peoples deals with economic, cultural, and political rights. The declaration affirms the right to self determination, education, health, self government, cultural heritage, and the right to lands, territories and natural resources, among others. A copy of the most recent draft American Declaration on the Rights of Indigenous Peoples can be found on the OAS website: http://scm.oas.org/doc_public/ENGLISH/HIST_08/CP20518E07.DOC.

In 1999, the OAS established a Working Group to review and make changes to the Declaration. The Working Group is open to all member states of the OAS, although some countries participate more than others. The Working Group meets several times a year to discuss the declaration and to try to reach agreement about its text.

From the very beginning, indigenous representatives insisted that these Working Group meetings be open to them, as well. Many OAS member states strongly opposed this kind of openness. By demanding that they have a say in discussions about their rights, however, indigenous peoples became the first non-state group to participate in high-level OAS meetings like those of the Working Group. Over just a few years, indigenous peoples established their right to take part in these activities.

Currently, indigenous and NGO representatives continue to attend the negotiation sessions of the Working Group to debate the articles and ensure that the Declaration accurately reflects the interests of indigenous peoples. Nevertheless, general awareness of the Declaration and its implications remain relatively low, and increasing indigenous participation remains as important as ever. There is also a need to increase the involvement of indigenous governments as they are representative entities with unique status and influence.

The Working Group negotiation sessions are usually convened at OAS headquarters in Washington D.C., but are sometimes hosted by other OAS countries. There have been nearly a dozen meetings on the OAS Declaration since 1999, including nine Negotiation Sessions, the most recent of which was held April 23nd-27th 2007 in La Paz, Bolivia. Each negotiation session consists of a week of discussions regarding the form and content of the articles of the declaration, with the objective of reaching consensus between State delegations and indigenous representatives. These sessions are not only important for resolving differences regarding the text of the declaration, but also in advancing international thought and collaboration surrounding these fundamental rights.

Getting Involved

Continued participation of indigenous representatives in the proposed American Declaration process is fundamental to developing adequate international standards regarding the rights of indigenous peoples. Indigenous representatives are welcome to participate in all Working Group meetings on the proposed American Declaration on the Rights of Indigenous Peoples without having to previously register with OAS, and can find information regarding the upcoming sessions on the OAS website: http://www.oas.org/consejo/cajp/working%20groups.asp#indigenous.

Indigenous representatives can also participate in the meetings convened by the Indigenous Caucus, which is an ad-hoc gathering of indigenous participants that usually convene two or three days prior to the official Working Group meetings in order to consult with each other and, where possible, develop common strategies and proposals for the negotiation sessions. These meetings are loosely organized and completely open to indigenous representatives.

A special fund administered by the OAS is available to facilitate indigenous participation in the Working Group. Indigenous representatives may seek economic support from this "Specific Fund" for travel and per diem expenses related to their participation in the meetings. The criteria for receiving this support are available at http://www.oas.org/consejo/resolutions/res873.asp. Indigenous representatives who wish to apply should contact Luis Toro or Johanna Salah, OAS Office of International Law at (202) 458 6377 or by fax, (202) 458 3292, or e-mail at ltoro@oas.org and/or jsalah@oas.org.

[Editor's Note: For information regarding human rights violations committed against Indigenous Peoples by large corporations and their client governments in the western hemisphere, see our article posted on April 9, 2009 titled Call to Action: Demand OAS Support a Strong American Declaration on the Rights of Indigenous Peoples. And while you're there, do your part by signing a letter calling for a strong draft of the American Declaration of the Rights of Indigenous Peoples. The work has been done for you, with a well-written form letter addressed to the representatives of all the member nations of the OAS. All you have to do is add your own personal comments, if any, and send the letter. You can also send the demand letter without going to the previous article by clicking http://citizenspeak.org/node/1512.

Our thanks to the staff at the Indian Law Resource Center for making this information available to us so that we can make it available to you. They have been working to protect and advance the cause of indigenous rights for more than 30 years. Visit their website and sign up for their free email newsletter. And while you're at it, show your support by making a tax-deductible contribution to the cause. -- Perry Chesnut, Editor, NRN]
__________________________________________________________ ©2009 Indian Law Resource Center. All rights reserved.

Native Rights News is making this material available with the express permission of the Indian Law Resource Center . This article is distributed without charge or profit to those who have expressed a prior interest in receiving the included information. Distribution of this material is for research and educational purposes that will promote social and economic justice and benefit society.
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Native Rights News (NRN) is published by the Alliance for Indigenous Rights, a nonprofit corporation owned and operated by Temple Beit Shem Tov as part of its Peace and Justice Ministry..

Recent Legal Victories Uphold Indigenous Land Rights

Recent legal victories affirm rights of indigenous peoples to ownership and control of their ancestral lands - pressure on holdout nations mounts

by Perry H. Chesnut, Editor NRN

Published January 14, 2009


On January 8, 2009, we published the UN press release in which the special rapporteur for indigenous rights praised the Nicaraguan government for demarcating and granting legal title to ancestral lands belonging to the Awas Tingni Community, an indigenous people who occupy an area on the Atlantic Coast of the country.

This victory of a small indigenous community came after more than a decade of struggle and is important for indigenous people not only in the Americas, but around the world because, as stated by the press release, "This was the first case in which an international tribunal with legally binding authority found a Government in violation of the collective land rights of an indigenous group, setting an important precedent in international law."

Although the United States and Canada are members and purport to be staunch supporters of the Organization of American States (OAS), both have failed to ratify the organization's American Convention on Human Rights. Such ratification not only adopts the articles of the convention that define the duties and obligations of nation-states to indigenous peoples, but also serves as a legally binding acceptance of the jurisdiction of the Inter-American Court on Human Rights.

Despite their much-trumpted claims of being champions of human rights, the U.S. and Canada have a long history of rejecting international declarations of the rights of indigenous peoples. As everyone who follows these issues knows, out of the entire UN General Assembly, only the U.S., Canada, Australia and New Zealand voted against the UN DRIP that was enacted on September 13, 2007. And as we reported recently in OAS Moves Forward on DRIP Tailored to Needs of Indigenous Peoples in Western Hemisphere - U.S. Expresses "Reservations", the "U.S. government has submitted statements to the [OAS] working group outlining its general reservations about the outcome of each negotiation session" in the drafting of an OAS American Declaration on the Rights of Indigenous Peoples.

It seems obvious that the U.S. and Canada are unlikely to ratify any human rights treaty that would allow aggrieved Indian tribes and nations to bring cases against them in any international tribunal - for the very reason that such tribunals are not captive instruments of the powerful global corporations that control U.S. and Canadian policy. For the present, U.S. and Canadian indigenous groups must resort to their own national courts and legislatures, which are riddled with obvious conflicts of interest and hardly unbiased.

Having said this, however, I should note that of the OAS' thirty-five member nations, twenty-four have ratified the Convention on Human Rights and twenty-two have officially accepted the jurisdiction of the Inter-American Court on Human Rights. For these nations, the decision is a legally binding precedent that upholds the right of indigenous peoples to ownership and control of their ancestral homelands. As James Anaya, who was present at the land titling ceremony said, "In addition, it provides a model for other Governments to comply with their international legal obligations to recognize and protect the rights of indigenous peoples to their traditional lands and resources in practice."

This landmark decision upholding Indigenous land rights is the first to come from an international tribunal. But there have been similar decisions won by indigenous groups in the supreme courts of their own countries (Mayan Indians in Belize in October 2007, and Indians in Brazil in December 2008). One suspects that a tidal wave of international public opinion recognizing the important role that indigenous peoples play in the protection of the planet and its ecosystems, as well as the growing global demand for basic human rights is now beginning to drive court decisions. If so, it will not be long before countries that refuse to sign and live up to human rights and indigenous rights treaties will be seen as pariah states that intend to continue their past practices of genocide, colonialism and exploitation of their native populations. Eventually, the citizens of hold-out countries such as the U.S., Canada, Australia and New Zealand will demand that their governments sign and ratify the various human rights treaties and live up to their responsibilities as members of the greater global community.

One final point I would like to make regarding the Awas Tingni Community v. Nicaragua case. The Awas Tingni Community would not have made it to the Inter-American Court on Human Rights had they not received the ongoing legal assistance of the Indian Law Resource Center with offices in Helena, Montana and Washington, D.C. Mr. James Anaya, Professor at the University of Iowa College of Law and member of the Indian Law Resource Center; Ms. Maria Luisa Acosta, associate attorney in Nicaragua; and Mr. Todd Crider of the firm Simpson, Thacher & Bartlett all assisted the Awas Tingni in bringing their case before the OAS Inter-American Commission on Human Rights and served as "Legal Advisors to the Commission" in its pursuit of the case in the international court.

For more information about this landmark case in international law upholding the land rights of indigenous peoples, you can find links to copies of the complaint and the court's decision, as well as an archive of articles that have been written about the case on this page at the Indian Law Resource Center.
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© Copyright Alliance for Indigenous Rights 2009

Native Rights News hereby grants permission for this article or portions of it to be copied and republished on condition that the author and Native Rights News is given attribution. In addition, if the article or a portion of it is published over the Internet, a link to this page must be included.

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Posted By Perry Chesnut, Editor to Native Rights News at 1/14/2009 09:41:00 AM

Written Submissions to UN Human Rights Council Blast Canada

Canada's rights record blasted during UN review

Submissions to Geneva council include issues such as treatment of indigenous peoples, immigration


Linda Diebel
NATIONAL AFFAIRS WRITER

Canada could soon find itself "named and shamed" as a country that violates human rights in a United Nations review.

Close to 50 submissions blasting Canada – on everything from the state of indigenous peoples to problems with immigration policy – have been filed with the Geneva-based United Nations Human Rights Council as part of a new review process for UN nations.

"To be criticized doesn't mean Canada has joined the worst of the worst (abusing nations)," said Alex Neve, secretary-general of Amnesty International Canada, of Canada's review that begins Feb. 3. "But as a general rule, Canadians are proud this is a country that believes in human rights and do want our governments (federal, provincial and territorial) to do the right thing."

The Amnesty submission highlights several concerns. In a section on indigenous rights, it notes more children are in the care of the state now than during the century-plus period when they were forcibly removed from communities and sent to Indian residential schools.

"The Canadian record of upholding the rights of indigenous peoples is a real disgrace and a source of national shame," said Neve. "These are not political, economic or natural resource matters. These are issues of human rights."

He said Amnesty International expects Canada to be cited for falling short on human rights issues in a number of areas when the UN rights arm publishes its final report.

While only member states can ask questions or make recommendations during the Feb. 3 hearing, written submissions are taken into consideration for the report.

Canada currently sits on the 47-member council, a slot filled by rotation.

In its submission, the Assembly of First Nations criticizes Ottawa for refusing to endorse the 2007 United Nations Declaration on the Rights of Indigenous Peoples, as well as other problems.

"Canada's position blatantly rejects and undermines the international and domestic rights processes," it says, noting the indigenous population of Canada is "drastically over-represented in incarceration rates, disabilities, poor health indices, suicide and poverty."

The brief cites last year's apology by Prime Minister Stephen Harper on behalf of Canadians for Indian residential schools, which were aimed at assimilation. Churches ran the schools for about 150 years, an issue addressed by a class-action settlement, the creation of the Indian Residential Schools Truth and Reconciliation Commission and the public apology.

But the submission suggests no progress has been made.

Grand Chief Ed John, from the First Nations Summit in B.C., said Canada has "a duty to uphold human rights at the highest level."

"The government is opposed to the declaration (on aboriginal rights) for purely ideological reasons," said John.

John criticized the federal government's labelling as consultations its meetings with non-governmental organizations – including with his group and others in B.C. last Friday – when the federal submission to the UN is dated Jan. 5.

"It was after the fact," said John.

The federal government lauds Canada's rights record in its lengthy brief, citing everything from the court system and universal health care to education.

Paul Joffe, an international human rights lawyer, said the power of the review comes with publicity or its "name and shame" aspect.

"What country wants to be put in a report as being against human rights?" asked Joffe. "This process is meant to encourage countries to improve their behaviour and uplift standards."

This new process means countries will be judged for the first time by their peers, rather than by UN agencies.

All 198 UN members are reviewed every four years.

"Canadians should be concerned because the government signs international agreements and doesn't abide by them," said John Lewis, human rights co-ordinator for the Toronto-based group, KAIROS.

"In particular, we've begun to fall down on economic, social and cultural rights. That is worrisome at any time, but particularly so during an economic downturn."

In its brief, KAIROS, an organization with ecumenical support, says a majority of migrant workers in Canada report they "continue to face unacceptable living and working conditions" and that "workplace safety standards are not properly monitored and enforced."

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© Copyright Toronto Star 1996-2009

Native Rights News is making this material from the Toronto Star available in accordance with the Fair Use Doctrine codified at Title 17 U.S.C. Section 107: This article is distributed without charge or profit to those who have expressed a prior interest in receiving the included information. Distribution of this material is for research and educational purposes that will promote social and economic justice and benefit society.

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Posted By Alliance for Indigenous Rights to Native Rights News at 1/14/2009 07:30:00 AM

OAS Moves Forward on DRIP Taylored to Needs of Indigenous Peoples

Draft American Declaration on the Rights of Indigenous Peoples moves forward

By Gale Courey Toensing

Story Published: January 9, 2009
Story Updated: January 9, 2009

WASHINGTON – An international human rights declaration geared specifically toward meeting the legal needs of the indigenous peoples of the Americas took a step forward last month when the Organization of American States' working group in charge of preparing the Draft American Declaration on the Rights of Indigenous Peoples held a special session in Washington.

Around 50 indigenous representatives from the Americas attended the special session Dec. 9-12 at OAS headquarters in the Simón Bolívar Room. The OAS is an international body comparable to the United Nations that consists of 35 nations in the Americas. It is the region's principal multilateral forum for strengthening democracy, promoting human rights, and dealing with shared problems such as poverty, terrorism, illegal drugs and corruption, and carries out mandates established by the hemisphere's leaders. Visit the group's Web site at http://oas.org/.

The working group is involved in final revisions of the text, working out issues related to the process of negotiation, and pinpointing the particular issues unique to the hemisphere's indigenous peoples that should be reflected in the declaration.

December's special session was not a negotiating session, but nevertheless presented challenges, said Leonardo Crippa, a Kolla member from Argentina, and staff attorney at the Indian Law Resource Center, which has been participating in the process of developing the American Declaration since its beginning in 1989. The center's Web site can be viewed at http://indianlaw.org/.

"In negotiating sessions we usually negotiate the language that will be in the text of the American Declaration, but this time even though there were no negotiations there were some challenges, for instance, the identification of the particularities of the region that this American Declaration should reflect. That was challenging because we needed to reach some sort of agreement between the indigenous representatives and the state representatives," Crippa said.

There is consensus among the indigenous representatives, but one of the major challenges has been to get the U.S. government under the Bush administration to ratify any human rights treaty. The U.S., Canada, New Zealand, and Australia were the only four nations that voted against adoption of the U.N. Declaration on the Rights of Indigenous Peoples by the U.N. General Assembly on Sept. 13, 2007.

The U.S. government has submitted statements to the working group outlining its general reservations about the outcome of each negotiation session. It also submitted 10 principles of the rights of indigenous peoples that it believes were already achieved in the negotiation process.

"And by doing this the U.S. basically said, 'Well, since we are submitting our general reservations on this with the 10 principles, we're not going to be involved actively in the discussions,' and that's what they've been doing for almost one year."

Canada and Columbia fall in line with whatever the U.S. wants.

The U.S. still sends representatives to the sessions, but they are observers only and not actively involved. There is hope that will change with the Obama administration, he said.

The American Declaration will complement the U.N. Declaration on the Rights of Indigenous Peoples. Whereas the U.N. Declaration makes a universal and broad statement of rights, the American Declaration will address the particular needs of the indigenous peoples of the Americas.

Crippa said the special session in December was successful in defining the articles of the Draft American Declaration that are close to agreement and will become part of the negotiation sessions this year, and in identifying the regional particularities that should be reflected in the Draft American Declaration.

In Columbia, for example, there is an internal armed conflict that is imposing human rights violations on indigenous peoples there, Crippa said. Another regional particularity is the regularity with which states fail to comply with treaties they've signed with indigenous peoples. And there is the case of indigenous peoples in voluntary isolation in the Amazon and regional countries like Peru, Columbia and Ecuador.

The sensitive areas basically relate to property rights, land uses, natural resources, self government and self determination.

Indigenous peoples are threatened by destructive industrial projects on or near their territories – mining, oil drilling, construction and logging. This is an issue faced both by American Indian tribes and indigenous peoples in developing countries.

"And a big particularity is the existence of indigenous peoples with their own judicial system, with their own government, with their own legislative organizations which is something that is occurring here in the U.S.," Crippa said.

These issues often end up in U.S. courts with rulings against the tribes. The American Declaration on the Rights of Indigenous Peoples will provide the standards for the administration of justice and the OAS to provide the international venue to adjudicate these cases.

The Inter-American Commission on Human Rights is an autonomous organ of the OAS and is one of two bodies in the inter-American system for the promotion and protection of human rights. The commission has its headquarters in Washington, D.C. The other human rights body is the Inter-American Court of Human Rights, which is located in San José, Costa Rica.

"Both the Inter American Commission and the court will interpret the American Declaration because they will have jurisdiction to do that legal work whenever they have a case concerning human rights violations of indigenous peoples," Crippa said.

That means the American Declaration will, in fact, be more effective on the ground than the U.N. Declaration because it will be implemented through an already existing court system. At the U.N. level, there is no international human rights court.

"It's a big difference," he said.

He said the Inter-American Court and domestic courts in Mexico and central and South America have already used the standards of the Draft American Declaration in deciding indigenous cases, so a body of case law is being built that will set precedent for future legal actions.

Just as most international human rights laws started out as declarations, the Draft American Declaration on the Rights of Indigenous Peoples is the first step toward becoming an international convention or treaty.

The working group will hold meetings in Washington Jan. 26-30 and March 23-27. Once the indigenous and state representatives agree on the language of the declaration, the working group will submit the text to the OAS General Assembly for adoption by a vote of all the American member states.

"I think some time in 2010 it will be adopted."

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Native Rights News is making this material from Indian Country Today available in accordance with the Fair Use Doctrine codified at Title 17 U.S.C. Section 107: This article is distributed without charge or profit to those who have expressed a prior interest in receiving the included information. Distribution of this material is for research and educational purposes that will promote social and economic justice and benefit society.

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Posted By Alliance for Indigenous Rights to Native Rights News at 1/13/2009 08:42:00 AM