Author: Kirsten Carlson

Indian Country Today – Law Expert: State of federal Indian law contributes to epidemic of violence

Kirsten Matoy Carlson

Originally printed at http://www.indiancountrytoday.com/home/content/41971652.html

WASHINGTON – The American Constitution Society for Law and Policy, a progressive legal organization, has distributed an issue brief entitled, “Addressing the Epidemic of Domestic Violence in Indian Country by Restoring Tribal Sovereignty.”

The brief’s author, Matthew L.M. Fletcher, argues that domestic violence and physical assaults experienced by American Indian women on reservations are related to unjust Supreme Court decisions and to lacking federal laws.

Indian victim advocates said the information is especially important for policy makers, both at the federal level and in Indian country, to review. Research indicates that American Indian women experience physical assaults at a rate 50 percent higher than the next most victimized demographic, African-American males.

Fletcher, director of the Indigenous Law and Policy Center at Michigan State University, notes the Supreme Court has held that tribal governments do not have jurisdiction over domestic violence misdemeanors committed by non-Indians in Indian country.

The situation causes a major dilemma, especially for Indian women, since approximately one-quarter of all cases of family violence against Indians involve a non-Indian perpetrator. It’s a rate of interracial violence five times that involving other races.

“The law simply has to change,” said Kirsten Matoy Carlson, staff attorney for the Indian Law Resource Center based in Helena, Mont. “Tribes are in the best position to investigate and prosecute these crimes, yet the law prevents them from doing so.”

“Tribes must be able to prosecute and sentence violent perpetrators to protect Native women from the alarming rates of domestic violence and sexual assault. As it is, perpetrators of violence against Native women often face no consequences for their crimes. Studies report that violent offenders are likely to commit further violence when they are not held responsible for their crimes, and that domestic violence escalates over time. Sexual and domestic abusers know they can get away with committing heinous violent crimes against Native women and they regularly exploit this by targeting Native women.”

Fletcher, an enrolled member of the Grand Traverse Band of Ottawa and Chippewa Indians, closely monitors Supreme Court and other legal decisions involving Indian issues. He writes in the brief that among the traditional powers retained by Indian tribes under tribal sovereignty is the power to establish tribal courts and to prosecute criminal offenders for acts committed within Indian country.

He notes that traditionally, tribal sovereignty is inherent and undiminished unless the tribe has voluntarily divested itself of some aspect of its sovereignty, or if Congress has affirmatively acted to divest the tribes of a part of their sovereignty.

However, the Supreme Court changed these rules when it held in 1978 that Indian tribes may be divested of their sovereignty by a decree from the high court. This means that tribal governments do not actually have jurisdiction over domestic violence misdemeanors committed by non-Indians in Indian country.

“The Supreme Court has created – and Congress has not done enough to solve – a terrible irony,” Fletcher writes. “The law enforcement jurisdiction closest to the crime and with the greatest capacity and motivation for responding quickly, efficiently and fairly, has been stripped of the authority to react, leaving Indian women to suffer, and crimes of domestic violence to remain unresolved and unprosecuted.”

Fletcher says the scenario leaves Indian women who are the victims of domestic violence and physical assault by non-Indians in a quandary when federal and state authorities do not prosecute these crimes, which they often are not able to do because of a lack of resources and other factors.

Carlson says this “stripping of tribal criminal jurisdiction and refusal to ensure the prosecution of these crimes has grave consequences for the safety of Indian women.” This legal framework, she says, places Native women at increased risk for further victimization, and leaves them unprotected and without any legal recourse.

“There is no justice for Native women, and there won’t be until the law changes,” warned Carlson.

The brief proposes that Congress fix the situation by enacting legislation that recognizes tribal court jurisdiction over domestic violence and related misdemeanors committed by non-Indians in Indian country.

According to legal experts, Congress has not taken such action due to opposition from the Department of Justice and from various state governments that generally oppose tribal government activities.

Under Fletcher’s plan, tribal prosecutions for such crimes would proceed as do other tribal prosecutions.

The legal expert also proposes that Congress would condition the recognition of tribal sovereignty on a requirement that Indian tribes provide adequate constitutional and criminal safeguards. Tribes would have the ability to “opt-in” to the system.

Fletcher believes Congress has the constitutional authority to “untie the hands of Indian tribes” and permit them to once more enforce criminal laws against non-Indians in Indian country and stop the epidemic of violence against Indian women.

“Each day, an Indian woman is victimized by a person who likely will never be prosecuted,” he concludes in the brief. “It is time to act.”

Mankiller: Obama’s opportunity: Add America’s name to declaration

Kirsten Matoy Carlson

From Indian Country Today

Originally printed at http://www.indiancountrytoday.com/opinion/41586817.html

President Obama has an opportunity to send the world a message about American justice.

All the countries of the Americas must now exert the political will to finalize and adopt the American Declaration.

He can add America’s name to the Declaration on the Rights of Indigenous Peoples before the Organization of American States. This is a historic effort by all countries in the Americas to recognize and declare that human rights belong to indigenous peoples, both as individuals and as communities, nations, or tribes. Negotiations over the draft American Declaration in the Organization of American States have reached a critical point. All the countries of the Americas must now exert the political will to finalize and adopt the American Declaration. Last year, the United States refused to actively negotiate. This must change, and each of us can help make that happen.

The adoption of a strong American Declaration would be a tremendous step toward ending the appalling treaty and human rights violations that are so often inflicted on our Indian and Alaska Native tribes and communities. The declaration states the commitment by these countries to the rights of Indian peoples – our right to exist as distinct cultures, our right to govern our own affairs, our right to own and use our lands, and our right to be free from discrimination.

We live in an era of self-determination, yet Congress still claims the power to do what it wants – confiscate our native lands in violation of the Constitution, strip our jurisdiction, exploit our natural resources and refuse to honor its treaty obligations. Many of our nations and communities face a daunting set of social and economic challenges, as well as violation of treaty and human rights on a daily basis. Our northern tribes and Native Alaska villages see their very existence threatened as climate change undermines their subsistence lifestyles.

Indian and Alaska Native nations have always had to fight to make sure the United States government respects and protects our rights as tribal governments and as Indian peoples. This declaration is an important step in protecting those rights. The United States did not vote for the United Nations Declaration on the Rights of Indigenous Peoples even though it publicly agreed with most of its provisions. We have a new opportunity to make sure the United States commits to protecting our rights by joining in adopting of a strong American Declaration.

United States leadership is key to gaining the respect for treaty and human rights that is lacking in the Americas. Strong leadership from the United States would signal a change in its foreign policy on human rights, reinvigorate the OAS negotiations, and lead to the adoption of a strong American Declaration. The new administration provides an excellent opportunity for us to encourage such leadership from the U.S.

As Indian nations and as communities and individuals, this is the time to vigorously encourage the United States to support a strong American Declaration that respects and declares our rights. And while we are at it, let’s also see to it that the U.S. declares its support for the UN Declaration on the Rights of Indigenous Peoples.

Wilma Mankiller is the former principal chief of the Cherokee Nation.

Indian Law Resource Center/NCAI to Host Lunch on Human Rights Violations Against South American Indians

Kirsten Matoy Carlson

More than 1,244 indigenous people have been assassinated in Colombia in the past five years.  This persecution is not unique to Colombia.  It is part of an alarming trend of human rights violations against indigenous peoples in South America.  Indigenous rights to life, land, equality, natural resources, self-determination, and religious freedom are under attack.  A strong American Declaration on the Rights of Indigenous Peoples will help prevent human rights violations in the Americas.

The Indian Law Resource Center and NCAI will host a brown bag lunch highlighting these human rights abuses:

March 19, 2009, 1:00-2:30pm

NCAI Conference Room

1301 Connecticut Ave., NW

Washington, D.C. 20036

For more information, see the Center’s website, http://www.indianlaw.org/node/391.

OAS Holds Special Session on Draft American Declaration on the Rights of Indigenous Peoples

Kirsten Matoy Carlson

Today, the Organization of American States (OAS) convened a special meeting on the draft American Declaration on the Rights of Indigenous Peoples.  The special meeting is to evaluate and strengthen the negotiation of the draft American Declaration on the Rights of Indigenous Peoples.  Negotiations have slowed over the past year as some states have questioned the need for a region specific American Declaration on the Rights of Indigenous Peoples.

The drafting of a strong American Declaration is important because it gives Indian nations the opportunity to establish legal standards that address issues specific to the Americas and to improve upon the rights in the UN Declaration on the Rights of Indigenous Peoples.  Further, the Inter-American System has a well-developed complaints mechanism in the Inter-American Court on Human Rights that can be used by tribes to implement a strong American Declaration (the Western Shoshone successfully used the Inter-American Commission against the United States in United States v. Dann).

Indian tribes can participate directly in the negotiation of the draft American Declaration.  Representatives of the Haudenosaunee, Navajo Nation, and the National Congress of American Indians have regularly attended the negotiating meetings.  Chief Karl Hill of the Cayuga Nation made the opening statement on behalf of the Indigenous Caucus.

For more information on the Special Meeting, see here: http://www.indianlaw.org/node/367

To read Chief Karl Hill’s opening statement, see here: http://www.indianlaw.org/

UN Declaration on the Rights of Indigenous Peoples – One Year Later

Kirsten Matoy Carlson

A year ago today, the United Nations General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples.  Indigenous leaders, human rights advocates, and others celebrated the most significant development in international human rights law in decades.  Too many it was the end of 30 years of hard work.

But the UN’s adoption of the Declaration signaled a beginning rather than an ending.  For the first time, the international community recognized the rights of indigenous peoples as peoples under international human rights law.  It rejected the fiction that indigenous peoples were eventually going to disappear, and acknowledged indigenous nations as permanent governments.  Indigenous peoples finally had a right to exist, to self-determination, to land, to culture, and more.

A year later, there is much work still to be done.  It is not enough for these rights to be recognized under international law.  States need to implement these rights and incorporate them into their domestic legal frameworks.  Some states have made progress in this direction.  And every day, the principles in the Declaration are re-enforced by state actions, and they are quickly emerging as binding customary international law.

But these principles have yet to be universally accepted.  A year ago, the United States and Canada — two major international players with significant indigenous populations — voted against the adoption of the Declaration.  And today, they still have not accepted it.

As we continue the fight for the rights of Indian and Alaska Native nations, we can and should use the UN Declaration on the Rights of Indigenous Peoples.  Only our continued use of the Declaration will lead to the full implementation of the rights within it.  And such use will remind the United States and Canada that the rest of the world acknowledges our rights as indigenous peoples.

For more information on the UN Declaration, see the Indian Law Resource Center’s website: http://www.indianlaw.org/node/269

See the text of the UN Declaration here: http://www.indianlaw.org/sites/indianlaw.org/files/UN%20Declaration%20on%20the%20Rights%20of%20Indigenous%20Peoples.pdf

Palin on Tribes

Kirsten Matoy Carlson18 Comments

From Lloyd Miller & Heather Kendall Miller

Sarah Palin’s Record on Alaska Native and Tribal Issues

1. Palin has attacked Alaska Native Subsistence Fishing

Perhaps no issue is of greater importance to Alaska Native peoples as the right to hunt and fish according to ancient customary and traditional practices, and to carry on the subsistence way of life for future generations.

Governor Sarah Palin has consistently opposed those rights.

Once in office, Governor Palin decided to continue litigation that seeks to overturn every subsistence fishing determination the federal government has ever made in Alaska. (State of Alaska v. Norton, 3:05-cv-0158-HRH (D. Ak).) In pressing this case, Palin decided against using the Attorney General (which usually handles State litigation) and instead continued contracting with Senator Ted Stevens’ brother-in-law’s law firm (Birch, Horton, Bittner & Cherot).

The goal of Palin’s law suit is to invalidate all the subsistence fishing regulations the federal government has issued to date to protect Native fishing, and to force the courts instead to take over the role of setting subsistence regulations. Palin’s law suit seeks to diminish subsistence fishing rights in order to expand sport and commercial fishing.

In May 2007, the federal court rejected the State’s main challenge, holding that Congress in 1980 had expressly granted the U.S. Interior and Agriculture Departments the authority to regulate and protect Native and rural subsistence fishing activities in Alaska. (Decision entered May 15, 2007 (Dkt. No. 110).)

Notwithstanding this ruling, Palin continues to argue in the litigation that the federal subsistence protections are too broad, and should be narrowed to exclude vast areas from subsistence fishing, in favor of sport and commercial fishing. Palin opposes subsistence protections in marine waters, on many of the lands that Natives selected under their 1971 land claims settlement with the state and federal governments, and in many of the rivers where Alaska Natives customarily fish. (Alaska Complaint at 15-18.) Palin also opposes subsistence fishing protections on Alaska Native federal allotments that were deeded to individuals purposely to foster Native subsistence activities. All these issues are now pending before the federal district court.

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GOP Platform

Kirsten Matoy Carlson

GOP platform includes Native-specific language and goals

From Indian Country Today
Posted: September 05, 2008
by: Rob Capriccioso

WASHINGTON – Delegates and leaders of the Republican National Convention have approved a national party platform for the next four years that includes several Indian-focused provisions.

Under a section in the 67-page document titled, ”Supporting Native American Communities,” the platform states that the ”federal government has a special responsibility to the people in Indian country and a unique trust relationship with them, which has been insufficiently honored.

”The social and economic problems that plague Indian country have grown worse over the last several decades, and we must reverse that trend. Ineffective government programs deprive Indians of the services they need, and longterm failures threaten to undermine tribal sovereignty itself.”

The platform, which amounts to a GOP roadmap of principles and goals for the next four years, says that Republicans believe that economic self-sufficiency is the ultimate answer to the challenges in Indian country and that tribal communities, not Washington bureaucracies, are better situated to craft local solutions.

”Federal – and state – regulations that thwart job creation must be reconsidered so that tribal governments acting on Native Americans’ behalf are not disadvantaged.”

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Biden Promises More Justice on Reservations

Kirsten Matoy Carlson1 Comment

Biden promises more justice on reservations
By JODI RAVE of the Missoulian

KALISPELL – On Sunday, Democratic vice-presidential nominee Sen. Joe
Biden said an Obama-Biden administration would increase federal
prosecutions in Indian Country and strengthen tribal court
jurisdiction over crimes occurring within reservation borders,
regardless of the race of the criminal.

“There will be a much, much, much heightened sensitivity to
legitimate causes within reservations that, quite frankly, we’ve just
been taking advantage,” said Biden, author of the 1994 Crime Bill.
Tribal justice systems “should have greater say. I tried to get that
in the original crime bill when I wrote it. I find it absolutely
fascinating that we have this dual jurisdiction.”

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CERD Concluding Observations Address Discrimination Against Native Americans

Kirsten Matoy Carlson

The Committee for the Elimination of Racial Discrimination (CERD) included several recommendations focused on discrimination against Native Americans in its concluding observations on the latest periodic report submitted by the United States. It expressed particular concerns about persistent sexual violence against Native American women, the failure of the U.S. to consult with indigenous peoples before taking actions on lands of cultural and religious significance to them, and the lack of follow up on its earlier recommendations on the situation of Western Shoshone indigenous peoples and their lands. Its recommendations included:

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Apology Means You Won’t Do It Again

Kirsten Matoy Carlson

From SEATTLE POST-INTELLIGENCER:

ROBERT T. COULTER
GUEST COLUMNIST

Congress is considering an apology to Indians and other native people for the wrongs done by this country — forced relocations, takings of lands, violating treaties, destruction of sacred sites and outlawing native religions and languages, to name a few. But a real apology means you won’t do it again, and there is the problem. Congress needs to stop doing the things for which it is apologizing.

Congress insists it may freely violate treaties made with Indian nations, and, sad to say, it does this regularly without making amends. Indeed, Congress maintains a range of laws and practices that are so discriminatory and racist that they should have been discarded generations ago.

The federal government still takes Indian land without paying for it. The Constitution says Congress may not take anyone’s property for a public purpose, 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.

The Interior Department still does not account for billions in Indian funds that it holds. The United States still insists that Indian tribes are in a state of permanent, involuntary trusteeship, with the federal government as trustee. No one else in the United States is subject to such unaccountable “trusteeship.”

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