USA / Indigenous peoples: UN expert urges respect for the rights of Cherokee child in custody dispute

Here.

Response from the U.S. Mission to the UN here.

GENEVA (10 September 2013) – The United Nations Special Rapporteur on the rights of indigenous peoples, James Anaya, today called on the relevant state, federal and tribal authorities in the United States of America to take all necessary measures to ensure the wellbeing and human rights of ‘Veronica,’ an almost four year old Cherokee child at the center of a highly contentious custody dispute.

“Veronica’s human rights as a child and as member of the Cherokee Nation, an indigenous people, should be fully and adequately considered in the ongoing judicial and administrative proceedings that will determine her future upbringing,” Mr. Anaya stressed. “The individual and collective rights of all indigenous children, their families and indigenous peoples must be protected throughout the United States.”

Veronica is currently facing judicially ordered removal from her Cherokee family and community. In June of this year the US Supreme Court ruled that certain protections of the Indian Child Welfare Act did not apply to proceedings in which a non-Cherokee couple sought to adopt Veronica, given the particular circumstances of the case. The high court, however, it did not make an ultimate determination of the disposition of the adoption proceedings.

Following the Supreme Court decision, a South Carolina state court awarded custody of Veronica to the non-Cherokee couple, but it did so without a determination of whether her transfer away from her Cherokee family would be in her best interests in light of her current situation and Cherokee heritage. Although Veronica lived with the non-Cherokee couple in South Carolina for the first two years of her life, she has now resided with her father and extended indigenous family in Cherokee territory in the state of Oklahoma for nearly two years.

South Carolina authorities have attempted to force Veronica’s father to release custody of her, charging him with custodial interference for his refusal to do so. On 3 September 2013 the Oklahoma Supreme Court took up the case, granting a temporary stay of an enforcement order and allowing the father to keep Veronica pending further proceedings.

“I urge the relevant authorities, as well as all parties involved in the custody dispute, to ensure the best interests of Veronica, fully taking into account her rights to maintain her cultural identity and to maintain relations with her indigenous family and people,” said the UN Special Rapporteur.

The independent expert pointed out that these rights are guaranteed by various international instruments subscribed to or endorsed by the US, including the International Covenant on Civil and Political Rights, and the UN Declaration on the Rights of Indigenous Peoples.

In his 2012 report* on the situation of indigenous peoples in the US, the Special Rapporteur noted that the removal and separation of Indian children from indigenous environments is an issue of longstanding and ongoing concern. “While past practices of removal of Indian children from their families and communities have been partially blunted by passage of the Indian Child Welfare Act in 1978, this law continues to face barriers to its implementation,” Mr. Anaya stated.

“I encourage the United States to work with indigenous peoples, state authorities and other interested parties to investigate the current state of affairs relating to the practices of foster care and adoption of indigenous children, and to develop procedures for ensuring that the rights of these children are adequately protected,” the UN Special Rapporteur said.

The UN Human Rights Council appointed S. James Anaya as Special Rapporteur on the rights of indigenous peoples in March 2008. Mr. Anaya is a Regents Professor and the James J. Lenoir Professor of Human Rights Law and Policy at the University of Arizona (United States). As Special Rapporteur, he is independent from any government or organization and serves in his individual capacity. Learn more, log on to: http://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/SRIPeoplesIndex.aspx

(*) Check the Special Rapporteur’s 2012 report on the USA: http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session21/Pages/ListReports.aspx

See the UN Declaration on the Rights of Indigenous Peoples: http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/RES/61/295&Lang=E

UN Human Rights Country Page – United States of America: http://www.ohchr.org/EN/Countries/ENACARegion/Pages/USIndex.aspx

For more information and media inquiries, please contact Maia Campbell (+ 41 22 917 9314 / mcampbell@ohchr.org) or write to indigenous@ohchr.org.

For media inquiries related to other UN independent experts:
Xabier Celaya, OHCHR Media Unit (+ 41 22 917 9383 / xcelaya@ohchr.org)

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.files.wordpress.com/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.files.wordpress.com/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.files.wordpress.com/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.

ASU Symposium on UN DRIP’s Impact of Federal Indian Policy

Can International Law Support Changes to Federal Indian Policy? Implementing the United Nations Declaration on the Rights of Indigenous Peoples Conference

April 19, 2013 – 8:30 a.m. – 5:15 p.m.

Sandra Day O’Connor College of Law at Arizona State University

Great Hall, Armstrong Hall, 1100 S. McAllister Avenue, Tempe, AZ 85287

Agenda and registration online at: http://conferences.asucollegeoflaw.com/drip/ Register early!

Contact: Darlene Lester / darlene.lester@asu.edu / 480-965-7715

Sponsored by the Indian Legal Program and the Center for Law and Global Affairs at ASU

Keynote Speaker: S. James Anaya, U.N. Special Rapporteur on the Rights of Indigenous Peoples