international law

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)

2009 Geneva Institute on Indigenous Peoples Law

Matthew L.M. Fletcher1 Comment

Study the Developing International Human Rights Law Applicable to Indian People in a classroom near the United Nation’s European Headquarters

Geneva, Switzerland

First Two Weeks : July 4-18

Comparative and International Indigenous Peoples Law, Dr. Julian Burger

Special Topics in Indian & Indigenous Peoples Law : Lands and Territories, Professor G. William Rice

Second Two Weeks : July 18-August 1

Social and Economic Rights as Universal Human Rights, Professor Scott Leckie

International Trade & Commerce: Drafting and Negotiating International Commercial Agreements, Dean Janet K. Levit

Here is the flyer: 2009-geneva-save-the-date-flyer

Patrick Macklem on Indigenous Recognition in International Law

Matthew L.M. Fletcher

Patrick Macklem has posted his paper, “Indigenous Recognition in International Law: Theoretical Observations,” published in the Michigan Journal of International Law. Here is the abstract:

Drawing on a classic essay by Hans Kelsen, this Article addresses the status of indigenous peoples in international law. It argues that the criteria for determining the legal existence of indigenous peoples in international law are a function of the nature and purpose of international indigenous rights. The twentieth century legal history of international indigenous rights, from their origins in international protection of indigenous workers in colonies to their contemporary expression in the United Nations Declaration on the Rights of Indigenous Peoples, demonstrates that their purpose is to mitigate injustices produced by how the international legal order treats sovereignty as a legal entitlement that it distributes among collectivities it recognizes as states. The criteria by which indigenous peoples can be said to exist in international law relate to their historic exclusion from the distribution of sovereignty initiated by colonization that lies at the heart of the international legal order.

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