international law

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.

New Book: James Youngblood Henderson’s “Indigenous Diplomacy and the Rights of Peoples”

Matthew L.M. Fletcher

James (Sa’kei’j) Youngblood Henderson has published “Indigenous Diplomacy and the Rights of Peoples: Achieving UN Recognition” with Purich Publishing Limited (2008). Here’s what it looks like. And here is the blurb:

Despite centuries of sustained attacks against their collective existence, Indigenous peoples represent over 5,000 languages and cultures in more than 70 nations on six continents. Most have retained social, cultural, economic, and political characteristics distinct from other segments of national populations. Yet recognition of their humanity and rights has been a struggle to achieve.

Based on personal experience, James (Sa’ke’j) Youngblood Henderson documents the generation-long struggle that led ultimately to the adoption of the Declaration of the Rights of Indigenous Peoples by the United Nations General Assembly. Henderson puts the Declaration and the struggles of Indigenous peoples in a wider context, outlining the rise of international law and how it was shaped by European ideas, the rise of the United Nations, and post-World War II agreements focusing on human rights.

Henderson analyzes the provisions of the Declaration and comments on the impact of other international agreements on Indigenous peoples. He concludes with his view of what must be done to give the Declaration its full force for Indigenous peoples around the world, and what it means for Canada. The full text of the Declaration and selected excerpts of other key international agreements are included.

Stubbs & Tolmie, “Battered Women Charged with Homicide: Advancing the Interests of Indigenous Women

Kate Fort

Published in Australian & New Zealand Journal of Criminology, Vol. 41, No. 1, pp. 138-161, 2008

h/t Feminist Law Blog

Abstract:
This article examines legal responses to women charged with a homicide offence arising from killing an abusive partner and reviews Australian cases over the period 1991-2007. We focus on cases involving Indigenous women due to their very substantial over-representation as victims and offenders in intimate homicides in Australia. We find that the Australian case law to date has not developed principles adequate to reflect battered women’s interests. Our analysis of cases involving Indigenous battered women indicates that the battering they had experienced and their disadvantaged circumstances were commonly read as indicators of personal deficits and any evidence of structural disadvantage was muted. This research suggests that the limited impact of battered women’s litigation in Australia is in part attributable to the psychological individualism of the criminal law identified by Norrie (2001, 2005), which is not confined to the trial stage but also shapes prosecutorial discretion and sentencing. We urge future research to shift the focus beyond Battered Women Syndrome and the trial process to examine plea bargaining and sentencing, and we suggest that advocates on behalf of battered women cannot rely on case law developments to deliver change but need to pursue multiple strategies.

Download at SSRN

Podcast on UN Declaration Panel at AALS

Matthew L.M. Fletcher

Here is the podcast for the Indian Nations and Indigenous Peoples panel on the UN declaration at AALS.

Speakers included:

Coulter Robert T. – Speaker

Angelique Eaglewoman – Speaker

G.W. Rice – Speaker

Wenona Singel – Moderator

Indian Law-Related Panels at AALS

Matthew L.M. Fletcher

Thursday, January 8, 2009, 8:30-10:15

Section on Indian Nations and Indigenous Peoples
Columbia 3, North Tower/Lobby Level, San Diego Marriott Hotel & Marina

New Directions for International Law and Indigenous Peoples

(Program to be published in Idaho Law Review)

The United Nations’ adoption of the “Declaration on the Rights of Indigenous Peoples” in September 2007 marked an historic moment for the world’s 300 million indigenous peoples. The Declaration is the first time that the United Nations has formally recognized indigenous peoples’ rights to self-determination and control over their lands and natural resources. This year’s program will address the following issues related to the Declaration: How can the Declaration be used to improve the lives of indigenous peoples; What national laws and policies violate the Declaration, and what are the most effective remedial measures to address these violations?; and, How will the Declaration influence Congress, the administration and the courts?

Business Meeting at Program Conclusion.

Robert T. Coulter – Speaker
Angelique A. Eaglewoman – Speaker
G. W. Rice – Speaker
Wenona T. Singel – Moderator

Continue reading →

Two Recent Indian Law Related Posts at the Legal History Blog

Kate Fort

Here are two recent Legal History Blog posts which may be of interests to readers of this blog.  Follow the links for more information about both:

Hernandez-Saenz Reviews “Empire of Laws and Indian Justice in Colonial Mexico”

H-Law has published “Law and Indigenous Peoples in Seventeenth-Century Mexico,” a review by Luz Maria Hernandez-Saenz, Department of History, University of Western Ontario, of Brian Philip Owensby’s Empire of Law and Indian Justice in Colonial Mexico (Stanford University Press, 2008).

Soliz and Joseph on Native American Literature, Ceremony and Law

Native American Literature, Ceremony, and Law is a new essay by Cristine Soliz, Colorado State University-Pueblo, and Harold Joseph. It will appear in MLA OPTIONS FOR TEACHING LITERATURE AND LAW, Austin Sarat, Cathrine Frank, Matthew Anderson, eds., 2009. Here’s the abstract (only the abstract, not a fuller essay, is available to download on SSRN).

New Book: Reparations for Indigenous Peoples (Oxford)

Matthew L.M. Fletcher

Here’s the link to the book, a collection of essays edited by Federico Lenzerini, and published by Oxford. And here are a few interesting chapters:

Gerald Torres, “Indigenous Peoples, Afro-Indigenous Peoples and Reparations”

David C. Williams, “In Praise of Guilt: How the Yearning for Moral Purity Blocks Reparations for Native Americans”

Sarah Krakoff and Kristen Carpenter, “Repairing Reparations in the American Indian Nation Context”

Reparations for Neglect of Indigenous Land Rights at the Intersection of Domestic and International Law — The Maya Cases”

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/

Academic Review: Susan Gray, David Wilkins & Sheryl Lightfoot, and Siegfried Weissner

Matthew L.M. Fletcher

Here are a few recent scholarly articles of interest to the blog:

Susan Gray, Miengun’s Children: Tales from a Mixed-Race Family, 29:2&3 Frontiers 136 (2008) — article about the children of Northport, Michigan missionary George N. Smith

David Wilkins & Sheryl Lightfoot, Oaths of Office in Tribal Constitutions, 32 Am. Indian Q. 389 (Fall 2008)

Siegfried Weissner, Indigenous Sovereignty: A Reassessment in Light of the UN Declaration, 41 Vand. J. Int’l L. 1141 (2008)