Columbia Law School Indigenous Peoples Working Conference


COLUMBIA LAW SCHOOL PRESENTS A WORKING CONFERENCE 
Identity and Implementation: The Next Ten Years of the United Nations Declaration on the Rights of Indigenous People

Walter Echohawk, lunchtime keynote speaker

Saturday, November 4, 2017 

Columbia Law School, 435 West 116th Street, New York City

Webcast: The Tenth Anniversary of the Adoption of the United Nations Declaration on the Rights of Indigenous Peoples (Sept. 13-14, 2017)

The Tenth Anniversary of the Adoption of the United Nations Declaration on the Rights of Indigenous Peoples

13–14 September 2017 ● Boulder, Colorado

Webcast will be live from 9 am to 4pm on 13 September 

Mountain Daylight Time (UTC -6)

http://www.colorado.edu/law/live

 

Other event information here, including registration for the in-person event https://www.un.org/development/desa/indigenouspeoples/uncategorized/2017/08/10th-anniversary-of-the-undrip-at-u-colorado-law-school/

Here:

Webcast UN

Ending Violence Against Indigenous Women as a Step Toward Empowerment – Event

Link to the announcement here

TOGETHER WE ARE STRONGER:

Ending Violence Against Indigenous Women as a Step Towards Empowerment

SAVE THE DATE

Wednesday, March 15, 2017
10:30 a.m.

Salvation Army
221 E 52nd St.
(Downstairs Room)
New York, NY 10022

Join us to recognize, strengthen, and honor the global movement to end violence against indigenous women.

Indigenous women around the world experience disproportionate levels of violence and murder and multiple, intersecting forms of discrimination because they are indigenous and because they are women. Too often, national justice systems fail to respond to this violence, leaving women without protection or meaningful access to justice. In this event, indigenous women leaders will speak to the situation of violence against indigenous women in the United States and Guatemala.

• Learn about barriers to safety facing American Indian and Alaska Native women in the United States, and their successes in restoring indigenous sovereignty to address violence against women.

• Learn about the grassroots movement to stop the trafficking of indigenous women in the United States.

• Learn about the spectrum of violence facing Mayan women in Guatemala and their strategies of resistance.

Panelists will also discuss strategies for urging states to advance the rights of indigenous peoples and women affirmed in the UN Declaration on the Rights of Indigenous Peoples and the American Declaration on the Rights of Indigenous Peoples.

For more information, email Jana L. Walker, at jwalker@indianlaw.org.

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Carolina Academic Press Book Announcement — Graham & Van Zyl-Chavarro: “Education, Media, and the UN Declaration on the Rights of Indigenous Peoples”

Here:

Education, Media, and the UN Declaration on the Rights of Indigenous Peoples

Lorie M. Graham & Amy Van Zyl-Chavarro

Education and media are important societal tools for sustaining and transmitting cultures. Yet for Indigenous Peoples, just the opposite has been true for much of modern history.  They have been used to silence indigenous voices, support forced assimilation, and perpetuate inequalities and marginalization. This book examines the three articles of the UN Declaration on the Rights of Indigenous Peoples aimed at countering these injustices: Article 14 on the right to education, Article 15 on the right to non-discrimination and accuracy in public information, and Article 16 on the right to media.  It explores the intrinsic and instrumental value these international norms hold for self-determining indigenous polities, and how additional domestic laws and policies can lead to their robust implementation.

New Scholarship on Explaining the Difference between Self-Determination and Self-Government

Cheryl L. Daytec has published “Fraternal Twins with Different Mothers: Explaining Differences between Self-Determination and Self-Government Using the Indian Tribal Sovereignty Model as Context” in the Minnesota Journal of International Law; also on SSRN.

Here is the abstract:

There are various legislative and judicial rhetorical flourishes on the sovereignty of at least 565 federally recognized American Indian tribes in the United States. Several legislative enactments, executive orders, policy statements, and federal opinions textually recognize the right of American Indians to self-determination. However, self-determination with its entitlements under international law particularly the International Covenant on Civil and Political Rights is not equivalent to tribal self-determination or sovereignty expressed in the United States statutes, policy statements, and judicial decisions.

The negative vote of the United States on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), despite the presence of a plenitude of federal policy statements and laws using the term self-determination, surfaced the fact that indigenous self-determination under international law is the same as self-determination under federal Indian policies. Despite claims that Indian tribes are a third form of government in the United States aside from the federal and state governments with a nation-to-nation relationship with Washington, the words ‘sovereignty’ and ‘self-determination’ affirmed in laws, policies, and jurisprudence of the United States are in reality substitutes for participation in decision-making processes at the minimum or self-government or autonomy at the maximum. In Montana v. United States and its derivative cases, it is asseverated that the exercise of inherent tribal sovereignty is limited to what is necessary for self-government or to control internal relations, and this has been re-echoed in Montana’s derivative cases.

While sharing the same gene pool, self-determination and self-government or autonomy do not have identical DNA. This paper advances four reasons: First, self-determination is an inherent right, whereas self-government is a grant. Clearly, the Supreme Court has since abandoned the doctrine that Indian tribes possessed inherent rights of sovereignty which they may exercise unless curtailed by a treaty or by Congress. Lone Wolf v. Hitcock, Oliphant v. Suquamish Indian Tribe and their derivative cases stand for the doctrine that Indian tribes may exercise only those powers federally granted unto them via the exercise of congressional plenary power. Second, self-determination is explicitly recognized under international law as a right of peoples, with the status of a jus cogens norm. Although self-government is the political aspect of self-determination, it is not – by itself – the self-determination which States are obliged to recognize as a right of peoples within their polities. In fact, the term does not appear in any of the provisions of the ICCPR. It is a gift that that flows from the liberality of the grantor. Third, self-government is a democratic entitlement to participate in the processes of the majority who rule the democratic space, which can operate against self-determination. Self-determination on the other hand is the shelter of indigenous peoples from the rule of the majority which might harm their interest as minorities. In the United States, self-determination policies are profuse with Indian participation in planning of policies but ultimately decisions are made by the federal government acting for the majority that rules. Fourth, self-government does not necessary entitle the self-governing entity sovereignty over natural resources whereas self-determination protects the people’s right to its natural resources. Indian tribes are not actually owners of their ancestral lands. The United States is, and they are mere usufructuaries. Exercising plenary powers, the government may sell or condemn tribal lands in favor of outsiders.

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)

International Treaty to Protect the Sacred from Tar Sands Projects

Text here. Video here.

Legal analysis on the import of the treaty from the international law scholars at Opinio Juris, here. An excerpt:

Beyond the U.S. law, there’s also a fairly interesting issue of how international law regards this sort of treaty-making.  As I’ve written previously, international law imposes two conditions on treaty-making by a sub-national actor:  (1) explicit treaty-making authority from the State of which it is a component part (whether ex-ante or ex-post); and (2) the consent of potential treaty-partners to the sub-national actors’ participation in the treaty itself.  Here, it seems we have a willing group of treaty partners, so the treaty seems OK on the second element (that is, assuming the Canadian First Nations are themselves authorized to make treaties under Canadian law).  Still, there are questions as to whether the United States has to authorize this treaty, whether it has done so (or will need to do so going forward), and why it would ever do so when the treaty’s objective would be to lobby and/or constrain federal government behavior.  Now, there is an argument that, as indigenous peoples, Native American tribes should not be subject to the standard rules for treaty-making by sub-national actors (indeed, Article 36(1) of the UN Declaration on Indigenous Rights makes just such a claim).  But, the United States was one of four nations to object to that Declaration (along with Canada, Australia and New Zealand), so I’m hard pressed to see it getting traction in this case, especially where the treaty involves an alliance of indigenous peoples to oppose federal licensing efforts (and with it perhaps some key aspects of U.S. energy policy).

As such, I think the ball is now firmly in the Obama Administration’s court.  I’m interested to see how it responds to this treaty (including, which Agency takes the lead in responding to it).  I suppose silence is a possible course of action.  But, if the federal government remains silent, I think that might lead to arguments of U.S. tacit approval for this treaty in particular, and even more broadly, a right of treaty making with foreign powers for U.S. Native American tribes.

For a primer on intertribal treaty making, see Wenona Singel’s Indian Tribes and Human Rights Accountability (email me if you want a pdf).

UN Indigenous Rights Special Rapporteur Calls for Dialogue with Canadian Aboriginal Rights Protesters

Here.

An excerpt:

The United Nations Special Rapporteur on the rights of indigenous peoples, James Anaya, urged the Government of Canada and Aboriginal leaders to undertake meaningful dialogue in light of First Nations protests and a month-long hunger strike by Chief Theresa Spence of the Attawapiskat First Nation.

“I am encouraged by reports that Prime Minister Stephen Harper has agreed to meet with First Nations Chiefs and leadership on 11 January 2013 to discuss issues related to Aboriginal and treaty rights as well as economic development,” Mr. Anaya said. “Both the Government of Canada and First Nations representatives must take full advantage of this opportunity to rebuild relationships in a true spirit of good faith and partnership.”

The announcement of the meeting followed weeks of protests carried out by Aboriginal leaders and activists within a movement referred to as ‘Idle no more.’ The movement has been punctuated by Chief Spence’s hunger strike that has been ongoing since 11 December 2012. “I would like to add my voice to the concern expressed by many over the health condition of Chief Spence, who I understand will be joining indigenous leaders at this week’s meeting,” the independent expert said.

The protests and hunger strike are carried in the context of complaints about aspects of the relationships between First Nations in Canada and the Government, including in the context of recent federal legislation and executive decisions affecting Aboriginal peoples.

“Dialogue between the Government and First Nations should proceed in accordance with the standards expressed in the UN Declaration* on the Rights of Indigenous Peoples,” the Special Rapporteur emphasized. Mr. Anaya recalled that the Government affirmed a “commitment to continue working in partnership with Aboriginal peoples and in accordance with a relationship based on good faith, partnership and mutual respect,” in its statement of support for the Declaration on 12 November 2010.