Submission to UN Human Rights Committee on Rights Abuses of American Indian Prisoners

Here:

Joint Submission – Indigenous Prisoners’ Religious Freedoms in the United States- Report to the Human Rights Committee (109th Session)

A worthy read.

News coverage here.

Press release follows: Continue reading →

Today is International Day of the World’s Indigenous Peoples

“We must ensure the participation of indigenous peoples – women and men – in decision-making at all levels. This includes discussions on accelerating action towards achieving theMillennium Development Goals and defining the post-2015 development agenda. ”

Secretary-General Ban Ki-moon

Link to the UN announcement and New York events here.

Article from NNN with James Anaya speaking about broken treaties here.

In honor of the day, Cultural Survival, First Peoples Worldwide, and International Indian Treaty Council (IITC)  are coming together for an online panel discussion to talk about Free, Prior, and Informed Consent (FPIC) from 11:00 AM to 1:00 PM EST. To be a part of it register here.

Alta Outcome Document Released in Preparation for 2014 World Conference on Indigenous Peoples

Indigenous peoples from around the world today issued a common position for the high-level plenary meeting of the United Nations General Assembly, also known as the World Conference on Indigenous Peoples, to be held at New York Headquarters from 22 to 23 September 2014.

The “Alta Outcome Document” is a set of recommendations adopted by the Global Indigenous Preparatory Conference in Alta, Norway.  Indigenous peoples from the seven regions of the world — Asia; Africa; North America; Central and South America and the Caribbean; Eastern Europe, Russian Federation, Central Asia and Transcaucasia; the Arctic; and the Pacific, as well as the Indigenous Women and Youth Caucuses — gathered in Alta at a global meeting organized by the Saami Parliament of Norway.

“This is a crucial step leading up to the World Conference,” said Paul Kanyinke Sena, Chair of the United Nations Permanent Forum on Indigenous Issues.  “By formulating a common position, indigenous peoples have given their voices added strength and relevance in the dialogues that will make up the World Conference.”

Link to press release here.

Link to a pdf copy of the document here.

 

Q&A with James Anaya on Implementing Prior Consent with Indigenous Peoples

Most of the questions relate to implementation of this standard in Latin America, but his answers to the final two questions were particularly interesting to me, and applicable to many nations that are being called on to implement the prior consent standard.

Q: Do you think the state would lose its sovereignty if an indigenous community has the last word on whether or not an investment project can be undertaken on their territory?

A: The state does not lose its sovereignty if it respects human rights or indigenous rights. It has to comply with these rules to respect those rights; the state cannot do whatever it wants.

I would say that the respect of these rights is a way of ensuring that this sovereignty is exercised. When the state respects human rights, it exercises its sovereignty, because it is acting in favour of its citizens and peoples.

Q: Nevertheless, there has been a loss of trust in governments. What can be done to ensure legitimate consultations and to open up dialogue?

A: The mistrust and prejudice need to be overcome. It is a matter of creating open processes where indigenous peoples can voice their opinions and influence decisions, and where there is the necessary will to seek consensus.

The problem is that sometimes there is a belief that consent is about saying yes or no, about who wins. Consent is linked to consultation; the purpose of consultation is to reach consent, to reach consensus. It is not a question of one side imposing its opinion on the other.

UN Working Group, Navajo Nation Collaborate on Human Rights Issues

On April 27, in an official visit to the United States, a United Nations Working Group on Business and Human Rights met with the Navajo Nation’s human rights experts and others in Flagstaff, Arizona. The Navajo representatives reported on two situations facing the Navajo people:Arizona Snowbowl, a ski resort that has begun a much-opposed project to spray treated wastewater on the sacred San Francisco Peaks, and predatory lending issues surrounding the lending group Santander Consumer USA.

 
The rest of the article can be found here.
Previous coverage here.

New Paper from Kirsty Gover, “Indigenous Membership and Human Rights: When Self-Identification Meets Self-Constitution”

Here.

Abstract:

Rules and principles governing indigenous membership have a dual aspect. First, a group’s capacity to decide its own membership is an essential element of indigenous self-governance. Second, a person’s claim to membership is sometimes supported by human rights, especially the right to enjoy one’s culture in community with other members of a minority. Because of this duality, in some instances, the interests of a self-constituting group and the interests of a self-identifying individual are directly opposed. In this chapter I argue that international human rights norms, jurisprudence and methodologies have not generated principles that could assist states and tribes in the governance of indigenous membership disputes. While the structure and ideology of international human rights law is such that the interests of tribes (and tribal members) are almost always subordinated to the interests of aspirant members and the public, CANZUS states (the affluent western settler states of Canada, Australia, New Zealand and the United States) have been able to augment domestic human rights law in order to provide normative space for tribal self-constitution. This, I argue, contributes to the development of a distinctive settler-state political theory which is premised on the cardinal importance of indigeneity and tribalism in settler-state constitutionalism, and on the enduring relevance of descent as a source of political and legal status in settler societies. I draw primarily on examples from the public and tribal law of membership in the CANZUS states and on the jurisprudence of the Human Rights Committee that oversees the implementation of the International Covenant on Civil and Political Rights (the ICCPR). I take a closer look at the interplay of HRC jurisprudence and the domestic law of Canada, by examining the origins and aftermath of Lovelace v. Canada (HRC, 1981).

New Book by Walter Echo-Hawk, “In the Light of Justice,” Out This Summer

Walter Echo-Hawk’s new book, In the Light of Justice: The Rise of Human Rights in Native America & the UN Declaration on the Rights of Indigenous Peoples, with a foreword by James Anaya, will be published this August.

Echo-Hawk and Anaya are doing a book launch event on June 12 at the annual conference of the Association of Tribal Archives, Libraries, and Museums held at Santa Ana Pueblo.

Onondaga Nation v. New York Petition for Cert

Here:

Onondaga Petition for a Writ of Certiorari

Question Presented: Whether the court of appeals’ ruling that equitable considerations bar the Onondaga Nation’s claim for a declaratory judgment for violations of the Trade and Intercourse Act, three federal treaties, and the United States Constitution contravenes the fundamental right to a remedy, international legal norms, principles of federal equity and this Court’s decisions in County of Oneida v. Oneida Indian Nation of New York State, 470 U.S. 266 (1985) and City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005).

 

Huy Letter to UN Special Rapporteur James Anaya re: Indian Prisoner Religious Freedom

Here:

UNSR Letter of Allegation Indigenous Prisoners Religious Freedom

Excerpt:

A pattern of restricting American indigenous prisoners’ religious freedoms is currently occurring throughout the United States. In recent years, states have issued new regulations curtailing the ability of American indigenous prisoners to possess religious items, participate in religious ceremonies, and otherwise engage in traditional practices. Further, changes in regulations continue to move forward absent meaningful consultation with indigenous peoples.

  • California: On February 21, 2013, the Department of Corrections issued an “emergency” regulation significantly limiting prisoners’ religious property.[i]  Effective immediately, prisoners no longer have access to sacred medicines like kinninnick, copal, and osha root, cloth for prayer ties, beads, pipes and pipe bags, and numerous other traditional items. The process for getting religious items approved was also made significantly more burdensome. Because the regulations constituted an emergency regulatory action, they went into effect immediately, without any consultation whatsoever with American indigenous peoples or opportunity for public comment.
  • Texas: Prison authorities recently changed regulations for an American indigenous prisoners’ unit, significantly restricting ceremonial participation. American indigenous prisoners are no longer allowed to participate directly in pipe ceremonies, smudge indoors, keep locks of hair from deceased relatives, or perform important ceremonies such as the Wiping Away the Tears ceremony.[ii]  Texas prison guards are also known to engage in overt racism toward indigenous prisoners. The media reports that on January 27, 2013, prison guards searched an indigenous prisoner’s cell, handling his medicine bag. When the prisoner stated that the guards were not supposed to touch his sacred items, a guard said “I don’t give a shit,” and that “being an Indian didn’t make him special.”[iii]
  • Montana: American indigenous prisoners in Montana are currently challenging en masse strip searches conducted prior to sweat lodge ceremonies as well as the confiscation or prohibition of smudge tobacco, antlers, herbs, and other sacred materials.[iv] The state of Montana issued an investigatory report in 2009 confirming almost all of the allegations as well as describing the derogatory treatment of indigenous prisoners by guards.[v]
  • South Dakota: American indigenous peoples comprise 27 percent of the South Dakota prison population, the highest proportion of any state in the country.[vi] On October 19, 2009, the Department of Corrections extended a ban on tobacco to indigenous religious uses. Indigenous prisoners were no longer allowed to use tobacco in sweat lodge ceremonies, pipe ceremonies, or for prayer ties and flags. When a federal district court held the ban violated federal law, prison authorities were still unable to agree with prisoners on an accommodation, forcing the court to issue a remedial order.[vii] South Dakota has appealed the case to the Eighth Circuit Court of Appeals.
  • Washington: In 2010, the Washington Department of Corrections barred almost all American indigenous prisoners’ religious practices, banned tobacco, reclassified sacred medicines such as sage and sweet grass as non-religious, prohibited foods for traditional meals such as frybread and buffalo, disallowed children from attending summer prison pow wows, and altered regulations so that certain religious items could no longer be securely stored.  After ten tribes petitioned the governor, the Department of Corrections reversed course, consulting with tribal leaders about reforms and reaching an accommodation to restore American indigenous prisoners’ religious rights.[viii]  Events in Washington demonstrate both the larger pattern of rising restrictions on indigenous prisoners’ rights as well as the importance of consultation with American indigenous peoples concerning administrative measures that affect them.  That state-tribal consultation and reform effort is what gave rise to Huy.

[i] State of California Office of Administrative Law, Notice of Approval of Emergency Regulatory Action, http://www.oal.ca.gov/res/docs/pdf/emergency_postings/2013-0206-01EON_App.pdf.

[ii] Appellant’s Opening Brief, Chance v. Texas Department of Criminal Justice, No. 12-41015 (January 14, 2013), https://turtletalk.blog/wp-content/uploads/2013/01/chance-opening-brief-filed.pdf.

[iii] Brian Daffron, “Inmate’s Religious Rights Allegedly Violated Within Texas Prison System,” Indian Country Today (March 8, 2013), http://indiancountrytodaymedianetwork.com/2013/03/08/inmates-religious-rights-allegedly-violated-within-texas-prison-system-148058.

[iv] Knows His Gun v. Montana, 866 F.Supp.2d 1235 (D. Mont. 2012), http://www.narf.org/nill/bulletins/dct/documents/knows_his_gun.html.

[v] Montana Department of Corrections Investigation Team, “Investigation into Complaints from Native American Inmates at the Crossroads Correctional Center, Shelby, Montana,” May 14, 2009, Part 1: http://www.aclumontana.org/images/stories/documents/montanaprisonproject/crossroadsdocinvestigation1.pdf, Part 2: http://www.aclumontana.org/images/stories/documents/montanaprisonproject/crossroadsdocinvestigation2.pdf.

[vi] Native Am. Council of Tribes v. Weber, No. Civ. 09-4182, 2012 WL 4119652 (D.S.D. Sept. 19, 2012), https://turtletalk.blog/wp-content/uploads/2013/01/dct-remedial-order.pdf.

[vii] Id.; Remedial Order, Native Am. Council of Tribes v. Weber, Civ. 09-4182-KES (D. S.D. 2013), https://turtletalk.blog/wp-content/uploads/2013/01/dct-remedial-order.pdf.

[viii] Gabriel S. Galanda, “Native American Prisoners Obtain Religious Freedom,” King County Bar Association Bar Bulletin (July 2012), https://www.kcba.org/newsevents/barbulletin/BView.aspx?Month=07&Year=2012&AID=article1.htm.

NYTs: French Court Allows Sale of Hopi Artifacts

Here.

Prior post here.