Indigenous Rights, Human Rights: It’s Time for the Declaration
Wednesday, March 16, 2022 | 12:00pm MST | Zoom Webinar
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Council Tree Professor of Law Director, American Indian Law School University of Colorado Law School
Kristen Carpenter is a Council Tree Professor of Law and Director of the American Indian Law Program at the University of Colorado Law School. Professor Carpenter served as a member of the United Nations Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) from 2017-2021, as its member from North America. While serving at the United Nations, Professor Carpenter worked on human rights issues regarding Indigenous Peoples in all regions of the world. With colleagues at the Native American Rights Fund, Carpenter is now co-lead on “The Implementation Project,” an effort to realize the aims of the UN Declaration on the Rights of Indigenous Peoples in the United States. She is also a Supreme Court Justice of the Shawnee Tribe.
At Colorado Law, Professor Carpenter teaches and writes in the areas of Property, Cultural Property. American Indian Law, Human Rights, and Indigenous Peoples in International Law. She has published several books on these topics and her articles appear in leading law reviews. Professor Carpenter has served in various Associate Dean roles and as a founding member of the campus-wide Center for Native American and Indigenous Studies at CU-Boulder. In 2016 she was the Oneida Indian Nation Visiting Professor of Law at Harvard Law School. Professor Carpenter is an elected member of the American Law Institute and former member of the Federal Bar Association’s Indian Law Section Board. She is a graduate of Harvard Law School and Dartmouth College.
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In 2012, the Inter-American Court of Human Rights handed down Sarayaku v. Ecuador, a crucial decision on indigenous rights. This Article considers how the Sarayaku judgment impacts the Court’s case law on indigenous lands and resources, and evaluates that jurisprudence as a whole. Examining the cases, it becomes evident that the Tribunal now connects a number of key indigenous rights to the right to property, Article 21 of the American Convention on Human Rights. When traditional lands are involved, the right to property has become the Court’s structural basis for indigenous rights.
For significant reasons, however, the right to property cannot serve as the conceptual stronghold for indigenous peoples’ survival and development. First, the Court’s approach limits the autonomy of indigenous peoples and their capacity for change. Second, the right to property inherently has difficulty providing even basic protection for ancestral lands because domestic and international law grants states wide latitude to interfere with property. Though the Court has attempted to create special ‘safeguards’ for indigenous lands and resources, they have proven inadequate.
In response, I urge a distinct way for the Court to conceptualize indigenous rights. The right to property must be subsumed by, and anchored to, a stronger configurative principle to defend indigenous peoples’ livelihood. Other human rights regimes offer the right to self-determination or specific minority protections that can safeguard indigenous rights. The relevant Inter-American legal instruments fail to establish such principles. As a result, I propose that a broad right-to-life concept, known as vida digna in the Court’s case law, serve as the new structural basis for an array of essential indigenous norms — including cultural integrity, nondiscrimination, lands and resources, social development, and self-government.
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.
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.
In Indian country, the expansion of self-governance, the growth of the gaming industry, and the increasing interdependence of Indian and non-Indian communities have intensified concern about the possible abuse of power by tribal governments. As tribes gain greater political and economic clout on the world stage, expectations have risen regarding the need for greater government accountability in Indian country. Despite these expectations, Indian tribes are largely immune from external accountability with respect to human rights. In fact, tribes have effectively slipped into a gap in the global system of human rights responsibility. The gap exists in the sense that tribal governments are not externally accountable in any broad sense for abuses of human rights that they commit. The failure of the legal system to provide for tribal accountability for human rights produces serious harms for Indian tribes and their polities. In this Article, I argue that the conventional understanding of tribal sovereignty must be reformed to reflect the transformative international law principle that all sovereigns are externally accountable for human rights violations. I then offer a proposal based on tribal accountability and respect for tribal sovereignty. I propose that tribes develop an intertribal human rights regime that includes the formation of an intertribal treaty recognizing tribal human rights obligations and establishing an intertribal institution with the capacity to enforce human rights violations. An intertribal human rights regime offers the best possible method for providing external accountability for tribal abuses of human rights. It allows tribes to address human rights violations without relying upon solutions supplied or imposed by the federal government. It also allows tribes to articulate and interpret universal human rights in light of their cultural, philosophical, spiritual, political, and social perspectives, and it allows them to develop effective and culturally appropriate institutional enforcement mechanisms.
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The notion that indigenous entrepreneurship is inherently paradoxical to participation in the western marketplace must be challenged, even though there is a fine balance indigenous entrepreneurs maintain with their own world and the western world. This balance considers that indigenous entrepreneurs exist within transgenerational communities with complex cross-cultural linkages with the west. Far from fully segregating from western society and the states in which they reside, indigenous entrepreneurs seek to promote indigeneity through indigenous and non-indigenous commerce. As Hindle and Lansdowne explain, “[t]here need be no paradox, no contradiction, no values sacrifice, no false dichotomy between heritage and innovation.” Reference to the goals and objectives of the United Nations Declaration on the Rights of Indigenous Peoples bear this out. For example, article 19 of the Declaration relates to Indigenous peoples’ participation with respect to issues that affect them, their lands, their resources, and their rights. The Declaration also calls for good-faith efforts by states to consult and cooperate with Indigenous peoples about economic and social development that directly or indirectly impacts their rights. Relevant to this paper, article 31 of the Declaration deals with Indigenous peoples’ right to exercise authority and control over their cultural heritage, traditional knowledge, and traditional cultural expressions in addition to any intellectual property rights in these assets and resources. Accordingly, this Article promotes the use of the Declaration on the Rights of Indigenous Peoples as a basis for asserting indigenous control over article 31 assets and resources to spur indigenous enterprise and innovation. After asserting control, Indigenous peoples can then operationalize the use of their article 31 assets and resources to counteract the “history of dispossession, assimilation, child removal and other previous colonial policies [that have] created a legacy” of economic disadvantage, political and structural disadvantage, geographic and cultural disadvantage, and collective and individual disadvantage. This article focuses on licensing as a mechanism to both implement the goals and objectives of the Declaration and to reassert indigenous authority and control over indigenous assets and resources.