Native American traditions and the climactic struggles between Native Americans and the white man in the American West.
INTERACTIVE WEBCAST NOVEMBER 29, 2007, 8:30 a.m.
www.cpcwebcast.com/state
US Consulate General Vancouver invites you to join a webcast November 29, 2007, to hear and interact with speakers:
Dennis Zotigh, nationally renowned Native American storyteller, author of “Moving History: The Evolution of the Powwow” and Native American Research Historian from the Museum of the American Indian and
Peter Cozzens, U.S. State Department IIP/WHA Office Director and author of definitive five volume work on the Indian Wars of the American West.
Hope you tune in,
Colleen
Tuesday, November 20, 2007
Friday, November 2, 2007
Indigenous Land Rights Pt IV
III. FRAMEWORK FOR THE ANALYSIS OF CONTEMPORARY PROBLEMS REGARDING INDIGENOUS LAND RIGHTS (Cont)
C. Failure to demarcate
"... the greatest single problem today for indigenous peoples is the failure of States to demarcate indigenous lands... Purely abstract or legal recognition of indigenous lands, territories or resources can be practically meaningless unless the physical identity of the property is determined and marked.
"Where such laws [demarcation enforcement laws] are lacking or weak, problems arise because, not having demarcated indigenous land,the State cannot identify what is indigenous land and what is not. As a result there are conflicts with indigenous communities.
"An important case now before the Inter-American Court of Human Rights raises the
issues of States’ obligations to recognize and respect the lands, resources and territories of indigenous peoples, and States’ obligations to demarcate those lands and territories. The case is that of the Mayagna indigenous community of Awas Tingni against Nicaragua...
"The case before the Court asserts, among other things, that Nicaragua has a legal obligation to demarcate and respect the traditional lands of Awas Tingni by reason of article 21 of the American Convention on Human Rights (“Everyone has the right to the use and enjoyment of his property ...”) and article 27 of the International Covenant on Civil and Political Rights, which provides: “In those States where ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” Nicaragua is a party to both the Convention and the Covenant. It is argued, with considerable authority, that traditional indigenous land tenure systems and patterns of land use are an aspect of culture that is protected by article 27 of the Covenant. This case is the first to raise indigenous land rights issues and the obligations of States to respect these rights. The decision of the Inter-American Court may have a far-reaching impact in determining the present scope of international legal obligations to respect and demarcate indigenous lands and resources under the American Convention and the International Covenant on Civil and Political Rights."
D. Failure of States to enforce or implement laws protecting indigenous lands
"Some of the most grave situations, such as the massive invasion of Yanomami lands in
Brazil and the resulting deaths of thousands of Yanomami Indians, came about in large part because of the State’s failure to enforce existing laws. Even after demarcation of the Yanomami territory, the Government of Brazil has not devoted the resources necessary to prevent the illegal invasion of thousands of gold miners. Gold miners have recently been responsible in part for the unprecedented fires that have burned extensively within the Yanomami territory, destroying vast areas of forest and food crops. The fires caused widespread outbreaks of disease that resulted in the deaths of more than 100 Yanomami in 1998. In other situations, indigenous peoples find they cannot protect their rights to lands and resources because they do not have effective recourse to the courts or other legal remedies. In the worst situations, violence, intimidation and corruption prevent effective legal action by or on behalf of indigenous peoples. This was reported, for example, concerning efforts by Macuxi Indian communities in Brazil to protect their lands.
"As with other human rights, the poverty, geographical remoteness and cultural and linguistic differences of indigenous peoples create severe impediments to the protection of their land, territorial and resource rights."
E. Problems in regard to land claims and return of lands
"The long and painful history of the unjust and inhuman dispossession of indigenous peoples from their territories has resulted in many indigenous peoples having no land or resources or too little land and resources to sustain their communities and their cultures.
"A particular problem that has been repeatedly brought to the attention of the Commission on Human Rights and the Sub-Commission is the use or misuse of claim procedures to deprive indigenous peoples of their rights or their claimed rights to land and resources. Numerous such problems have been reported by indigenous peoples in many countries. The problems may be summarized as follows: in some cases, an unauthorized or mistaken claim is made to a court or administrative body that the State has taken or paid an unfairly low price for an area of land originally owned by an indigenous people, whereas in fact the land has not been taken but is still owned by the indigenous people. In other cases, the land has been taken but the indigenous
people concerned does not want compensation but return of the land. Fraudulent or mistaken claims are sometimes, in effect, encouraged by legal provisions that permit a lawyer to earn a fee of as much as 10 per cent of the money award recovered. When such claims are taken to conclusion and an award of compensation is made, the payment of the award effectively extinguishes the indigenous title to the land in question. This has occurred even in situations where the Indian nation or tribe is still in possession of the land. Thus, these 'claims' processes are depriving Indians of their lands.
"The problems created by fraudulent and improper claims are aggravated by the lack of
proper legal procedures in the claim process. Processes such as that of the now defunct Indian Claims Commission in the United States did not ensure that claimants had proper authority to act for the tribe concerned. Procedures did not give the tribes concerned proper notice or an opportunity to be heard. The above-mentioned Commission in more than one case permitted lawyers to act in direct opposition to their supposed or nominal client tribes and even permitted lawyers to carry on money compensation claims after the claimant tribes had dismissed the lawyers in an effort to stop the claims.
"Although the Indian Claims Commission no longer exists, the cases that it handled and the problems it created continue. Some notable cases that remain unresolved are the Black Hills claim (in which the Sioux tribes have refused to accept the compensation awarded and seek a return of portions of the land) and the Western Shoshone case (in which the Western Shoshone tribes also refuse payment and seek a restoration of some of the land). In the latter case, some Western Shoshones have remained in possession of certain areas of the land supposedly taken by the United States and are resisting government efforts to interfere with their use of the land. The extensive and disruptive problems relating to the Indian Claims Commission have been given scholarly attention. These problems have also been the subject of complaints to the
United Nations and other bodies.
"Many of the problems discussed in the preceding paragraphs have been raised in a formal human rights complaint filed with the Inter-American Commission on Human Rights of the Organization of American States by two Western Shoshone Indian women on behalf of their Band. They assert that they are and have always been in possession of parts of the territory of the Western Shoshone Nation, an area recognized by the United States in the Treaty of Ruby Valley of 1863. They use the land for ranching, for religious purposes, for hunting and gathering, and other purposes. The United States claims that it now owns nearly all the land at
issue and that the Western Shoshone rights to the land were extinguished by the Indian Claims Commission process more than 15 years ago. The United States claims that these Western Shoshones are trespassing on the land, and the United States has taken various measures to
remove them and their livestock. In recent years, the discovery of one of the largest gold ore bodies in North America on this land has led to even greater pressure on these Western Shoshone people, who oppose open-pit gold mining.
"The complaint asserts that the United States has never lawfully extinguished the Western Shoshone title and that the Indian Claims Commission process was discriminatory and lacking in due process of law. The principal allegations are summarized as follows.
C. Failure to demarcate
"... the greatest single problem today for indigenous peoples is the failure of States to demarcate indigenous lands... Purely abstract or legal recognition of indigenous lands, territories or resources can be practically meaningless unless the physical identity of the property is determined and marked.
"Where such laws [demarcation enforcement laws] are lacking or weak, problems arise because, not having demarcated indigenous land,the State cannot identify what is indigenous land and what is not. As a result there are conflicts with indigenous communities.
"An important case now before the Inter-American Court of Human Rights raises the
issues of States’ obligations to recognize and respect the lands, resources and territories of indigenous peoples, and States’ obligations to demarcate those lands and territories. The case is that of the Mayagna indigenous community of Awas Tingni against Nicaragua...
"The case before the Court asserts, among other things, that Nicaragua has a legal obligation to demarcate and respect the traditional lands of Awas Tingni by reason of article 21 of the American Convention on Human Rights (“Everyone has the right to the use and enjoyment of his property ...”) and article 27 of the International Covenant on Civil and Political Rights, which provides: “In those States where ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” Nicaragua is a party to both the Convention and the Covenant. It is argued, with considerable authority, that traditional indigenous land tenure systems and patterns of land use are an aspect of culture that is protected by article 27 of the Covenant. This case is the first to raise indigenous land rights issues and the obligations of States to respect these rights. The decision of the Inter-American Court may have a far-reaching impact in determining the present scope of international legal obligations to respect and demarcate indigenous lands and resources under the American Convention and the International Covenant on Civil and Political Rights."
D. Failure of States to enforce or implement laws protecting indigenous lands
"Some of the most grave situations, such as the massive invasion of Yanomami lands in
Brazil and the resulting deaths of thousands of Yanomami Indians, came about in large part because of the State’s failure to enforce existing laws. Even after demarcation of the Yanomami territory, the Government of Brazil has not devoted the resources necessary to prevent the illegal invasion of thousands of gold miners. Gold miners have recently been responsible in part for the unprecedented fires that have burned extensively within the Yanomami territory, destroying vast areas of forest and food crops. The fires caused widespread outbreaks of disease that resulted in the deaths of more than 100 Yanomami in 1998. In other situations, indigenous peoples find they cannot protect their rights to lands and resources because they do not have effective recourse to the courts or other legal remedies. In the worst situations, violence, intimidation and corruption prevent effective legal action by or on behalf of indigenous peoples. This was reported, for example, concerning efforts by Macuxi Indian communities in Brazil to protect their lands.
"As with other human rights, the poverty, geographical remoteness and cultural and linguistic differences of indigenous peoples create severe impediments to the protection of their land, territorial and resource rights."
E. Problems in regard to land claims and return of lands
"The long and painful history of the unjust and inhuman dispossession of indigenous peoples from their territories has resulted in many indigenous peoples having no land or resources or too little land and resources to sustain their communities and their cultures.
"A particular problem that has been repeatedly brought to the attention of the Commission on Human Rights and the Sub-Commission is the use or misuse of claim procedures to deprive indigenous peoples of their rights or their claimed rights to land and resources. Numerous such problems have been reported by indigenous peoples in many countries. The problems may be summarized as follows: in some cases, an unauthorized or mistaken claim is made to a court or administrative body that the State has taken or paid an unfairly low price for an area of land originally owned by an indigenous people, whereas in fact the land has not been taken but is still owned by the indigenous people. In other cases, the land has been taken but the indigenous
people concerned does not want compensation but return of the land. Fraudulent or mistaken claims are sometimes, in effect, encouraged by legal provisions that permit a lawyer to earn a fee of as much as 10 per cent of the money award recovered. When such claims are taken to conclusion and an award of compensation is made, the payment of the award effectively extinguishes the indigenous title to the land in question. This has occurred even in situations where the Indian nation or tribe is still in possession of the land. Thus, these 'claims' processes are depriving Indians of their lands.
"The problems created by fraudulent and improper claims are aggravated by the lack of
proper legal procedures in the claim process. Processes such as that of the now defunct Indian Claims Commission in the United States did not ensure that claimants had proper authority to act for the tribe concerned. Procedures did not give the tribes concerned proper notice or an opportunity to be heard. The above-mentioned Commission in more than one case permitted lawyers to act in direct opposition to their supposed or nominal client tribes and even permitted lawyers to carry on money compensation claims after the claimant tribes had dismissed the lawyers in an effort to stop the claims.
"Although the Indian Claims Commission no longer exists, the cases that it handled and the problems it created continue. Some notable cases that remain unresolved are the Black Hills claim (in which the Sioux tribes have refused to accept the compensation awarded and seek a return of portions of the land) and the Western Shoshone case (in which the Western Shoshone tribes also refuse payment and seek a restoration of some of the land). In the latter case, some Western Shoshones have remained in possession of certain areas of the land supposedly taken by the United States and are resisting government efforts to interfere with their use of the land. The extensive and disruptive problems relating to the Indian Claims Commission have been given scholarly attention. These problems have also been the subject of complaints to the
United Nations and other bodies.
"Many of the problems discussed in the preceding paragraphs have been raised in a formal human rights complaint filed with the Inter-American Commission on Human Rights of the Organization of American States by two Western Shoshone Indian women on behalf of their Band. They assert that they are and have always been in possession of parts of the territory of the Western Shoshone Nation, an area recognized by the United States in the Treaty of Ruby Valley of 1863. They use the land for ranching, for religious purposes, for hunting and gathering, and other purposes. The United States claims that it now owns nearly all the land at
issue and that the Western Shoshone rights to the land were extinguished by the Indian Claims Commission process more than 15 years ago. The United States claims that these Western Shoshones are trespassing on the land, and the United States has taken various measures to
remove them and their livestock. In recent years, the discovery of one of the largest gold ore bodies in North America on this land has led to even greater pressure on these Western Shoshone people, who oppose open-pit gold mining.
"The complaint asserts that the United States has never lawfully extinguished the Western Shoshone title and that the Indian Claims Commission process was discriminatory and lacking in due process of law. The principal allegations are summarized as follows.
- It is alleged that the attorneys prosecuting the claim falsely stated and agreed that the land had been taken and Western Shoshone title extinguished long ago, when in fact it had not.
- The lawyers were permitted by the Commission to represent all Western Shoshones when in fact they did not.
- The Commission refused to permit any other Western Shoshone tribe or group to object or to be heard in the proceeding.
- The Commission entered its award, although by then not a single Western Shoshone tribe approved of the claim.
- The United States Government encouraged and participated in the proceedings throughout.
- The Claims Commission award amounted to about $0.15 per acre for the land supposedly taken.
- The United States asserts that the complaint is inadmissible on various procedural grounds and on the ground that the facts do not constitute human rights violations.
- The Inter-American Commission issued precautionary measures against the United States, requesting that the Government stay its actions against the complainants pending a full investigation of the case by the Commission. Later that same year, the Inter-American Commission declared the Danns’ case admissible, finding that the Danns had
met all procedural requirements and had raised a prima facie violation of their human rights.
"It is apparent from the proceedings in this matter that the United States has ostensibly extinguished the rights of Western Shoshone Indians to a large area of their ancestral land without according the ordinary rights of due process of law and fair market compensation that
would have been accorded to non-Indian landowners. This is the more notable because the land at issue had been recognized as Western Shoshone land by the United States in a treaty it signed with the Western Shoshones in 1863. The Indian Claims Commission process appears to have been lacking in fundamental fairness in many respects, particularly the failure to assure proper representation of the supposed claimants, the lack of notice and opportunity to be heard for other Western Shoshone parties, the failure to require proof of the supposed taking of the land, and the award of just a few cents per acre for the land at issue. The Claims Commission process in this case, and reportedly in other cases as well, appears to violate the fundamental requirements of non-discrimination and equality before the law. In all events, this case seems to demonstrate that for any claim process to be effective in resolving indigenous land rights issues it must be fundamentally fair.
"The central legal problem in this case appears to be the doctrine, which has been discussed above... that the State can extinguish Indian or indigenous land rights without due process of law and without fair market compensation. This frankly discriminatory doctrine should be rejected by the United States, and by all countries where it is found, as a violation of existing human rights standards requiring equality before the law.
"There have also been complaints about land claim mechanisms in other countries. In
Canada, the process has been reported to be extremely time consuming. In New Zealand, anger has been expressed over allegedly unauthorized settlements of claims. In Australia, the provisions of the 1993 Native Title Act were drastically changed in 1998 to make native title claims significantly more difficult, particularly by providing a substantially higher threshold test for the registration of claims. These provisions have been found racially discriminatory."
F. Expropriation of indigenous lands for national interests, including development
"The legacy of colonialism is probably most acute in the area of expropriation of indigenous lands, territories and resources for national economic and development interests. In every part of the globe, indigenous peoples are being impeded from proceeding with their own forms of development consistent with their own values, perspectives and interests.
The notion of development can be linked directly to the affirmation of “permanent sovereignty over natural resources” and the rights of States to “freely utilize and exploit” their natural resources. Of particular relevance in this context is the State assertion that it has complete rights to subsurface resources. This view has had numerous unfortunate social, economic,
environmental and cultural consequences. This is especially true in the case of the world’s indigenous peoples, who have until recently perceived development as a very negative concept. Much large-scale economic and industrial development has taken place without recognition of and respect for indigenous peoples’ rights to lands, territories and resources. Economic development has been largely imposed from outside, with complete disregard for the right of indigenous peoples to participate in the control, implementation and benefits of development.
"For years, non-governmental organizations have been saying that indigenous peoples have been deprived of much or all of their land and that it has been turned over to commercial use or for development projects. In addition, development projects designed to benefit or which affect indigenous peoples have been carried out without the peoples concerned being consulted.
"The Working Group on Indigenous Populations has also been informed of development projects and activities that were initiated with international assistance and without the involvement, consent or consultation of indigenous peoples. Examples include State initiatives to build roads and highways with the financial assistance of the Inter-American Development Bank, and the World Bank’s support for the building of dams in India and elsewhere. Other projects include the construction of dams that flood lands and terminate traditional economic practices of indigenous peoples, deforestation and gold-mining projects. National economic development schemes not only dispossess indigenous peoples of their lands, but also convert indigenous peoples into cheap labourers for industry, because the exploitation of their lands and the environmental degradation have deprived them of their livelihood.
"Even in areas where economic development has resulted in the transfer of lands to
indigenous communities, they have been unable fully to control such development. Specific examples include the Alaska Native Claims Settlement Act of 1971 and the James Bay and Northern Quebec Agreement of 1975.
Oil and gas exploration and exploitation, geothermal energy development, mining, dam
construction, logging, agriculture, ranching and other forms of economic activity ostensibly in the national interest have had an adverse impact both on indigenous peoples who have already suffered from contact and colonialism, and on indigenous peoples in areas long isolated.
Often, development takes place without indigenous peoples’ consent, consultation, participation or benefit.
To be continued...
Colleen
Saturday, October 13, 2007
Fraser Institute Report on Homeschooling
Kinda makes you wonder why we pay school taxes...
http://newsblaze.com/story/2007100403040200003.cc/topstory.html
_________
I'll get back to the report on land claims tomorrow.
Till then, have a great Saturday...
Colleen
http://newsblaze.com/story/2007100403040200003.cc/topstory.html
_________
I'll get back to the report on land claims tomorrow.
Till then, have a great Saturday...
Colleen
Thursday, October 11, 2007
Canadian Shelia Watt-Cloutier nominee for Nobel Peace Prize
For the first time in about 50 years a Canadian, Sheila Watt-Cloutier, is up for the Nobel Peace Prize.(For anyone whose wondering the last was Prime Minster Lester B. Pearson in 1957. Pearson, the father of international peacekeeping, was also the guiding hand behind the creation of NATO, and laid the groundwork for the establishment of Israel.)
"Sheila Watt-Cloutier, OC (born 2 December 1953) is a Canadian Inuit activist. She has been a political representative for Inuit at the regional, national and international levels, most recently as International Chair for Inuit Circumpolar Conference. Watt-Cloutier has worked on a range of social and environmental issues affecting Inuit, and has most recently focused on persistent organic pollutants and global climate change. She has received numerous awards and honors for her work, and has been featured in a number of documentaries and profiled by journalists from all media." (Wikipedia)
In an interview with the CBC yesterday, she described changes she has seen in the North in her lifetime. Dog sled was the main form of travel for much of the year and T-shirt weather was rarely seen. Now, temperatures in the 30s C are not uncommon and swimming in some lakes and rivers is possible. There is no Inuit word for a robin, a bird which has recently made it onto the Northern scene and other birds and many insects such as wasps are also making their home in the Arctic.
Al Gore is another nominee.
The Nobel Peace Prize will be announced on Friday, October 12, 11:00 a.m. CET.
Thursday, October 4, 2007
Indigenous Land Rights Pt III
Notes from the third section of the U.N. report: PREVENTION OF DISCRIMINATION AND PROTECTION OF INDIGENOUS PEOPLES AND MINORITIES.
Because this is a particularly long and important section, I will break it down over two or three days.
____________________________
III. FRAMEWORK FOR THE ANALYSIS OF CONTEMPORARY PROBLEMS REGARDING INDIGENOUS LAND RIGHTS
A.) Failure of States to acknowledge indigenous rights to lands, territories and resources
1. Failure of States to recognize the existence of indigenous use, occupancy and ownership
"Countries in many parts of the world are unaware of or ignore the fact that communities, tribes or nations of indigenous peoples inhabit and use areas of land and sea and have done so, in many cases, since time immemorial. These areas are typically far from the capitals and other urban areas of the country and typically countries regard these lands and resources as public or government lands. Although the indigenous people concerned regard themselves, with good reason, as owning the land and resources they occupy and use, the country itself, typically, disposes of the land and resources as if the indigenous people were not there. These
governmental tendencies are further exacerbated in federations such as Canada and the United States, where state/provincial and even municipal governments sometimes pursue such actions, either in coordination with the central or national Government, or independently and in pursuit of their own policy.
2. Failure of States to accord appropriate legal status, appropriate juridical capacity and other legal rights
"This problem is closely related to the one discussed above. Although States know that indigenous communities, nations or groups exist and have exclusive use and occupancy of an area, some States do not acknowledge that the indigenous peoples concerned have legal entitlement or rights to the land or resources. In some situations, the indigenous peoples are regarded as using the public or national lands at the sufferance of the Government.
"The concept of aboriginal title and the relationship of this legal concept to the human rights of indigenous peoples is centrally important. In many countries, particularly those of the British Commonwealth, exclusive use and occupancy of land from time immemorial gives rise to aboriginal title, a title that is good against all but the Sovereign, that is, the Government of the State. Where aboriginal title is recognized, indigenous peoples have at least some legal right that can be asserted in the domestic legal system. However, aboriginal title is often subject to the illegitimate assumption of State power to extinguish such title, in contrast to the legal protection and rights that, in most countries, protect the land and property of non-indigenous citizens, their individuals and corporations ... This single fact probably accounts for the overwhelming majority of human rights problems affecting indigenous peoples.
B.) Discriminatory laws and policies affecting indigenous peoples in relation to their lands
1. Laws regarding the extinguishment of indigenous peoples’ land and resource rights
Practically all countries where indigenous peoples live assert the power to “extinguish” the land titles and rights of the indigenous peoples within their borders, without the consent of the indigenous peoples. The concept of extinguishment includes voluntary purchase and sale of title, but more commonly the term “extinguishment” is used to mean outright taking or expropriation, most often without just compensation. Like the concept of aboriginal title, extinguishment is a term that came into prominent use during the colonial period.
"One particularly clear example of the problem of extinguishment is provided by the case of the Tee-Hit-Ton Indians v. United States. In this case the Supreme Court decided that the United States may (with limited exceptions) take or confiscate the land or property of an Indian tribe without due process of law and without paying just compensation, this despite the fact that the United States Constitution explicitly provides that the Government may not take property without due process of law and just compensation. The Supreme Court found that property held by aboriginal title, as most Indian land is, is not entitled to the constitutional protection that is accorded all other property. The racially discriminatory nature of the Tee-Hit-Ton decision can be seen in the opinion, an extract of which follows:
"The legal doctrine created by this case continues to be the governing law on this matter in the United States today."
"[Canada's] Constitution Act of 1982, section 35 (1), recognizes and affirms aboriginal and treaty rights. By reason of the Constitution Act of 1982, courts in Canada no longer acknowledge government power to “extinguish” aboriginal rights. Instead, the courts have decided that aboriginal rights, including aboriginal land title, are not absolute but may be “infringed” by the federal or provincial governments when the infringement is “justified” by the needs of the larger society. In a recent case, Chief Justice Lamer of the Supreme Court of Canada wrote: 'In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title.' (Delgamuukw v. The Queen, paragraph 165 of the Chief Justice’s opinion, unpublished decision, 11 December 1997). It remains unclear whether this new requirement of “justification” will in fact provide greater protection to indigenous land rights than previous law... [I]t also remains doubtful whether the law accords an equal, non-discriminatory level of legal protection to indigenous property rights as compared to the property rights of others.
2. Plenary power doctrine
Another discriminatory legal doctrine that appears to be widespread is the doctrine that States have practically unlimited power to control or regulate the use of indigenous lands, without regard for constitutional limits on governmental power that would otherwise be applicable. In the United States, this is known as the “plenary power doctrine” and it holds that the United States Congress may exercise virtually unlimited power over indigenous nations and tribes and their property. No other population or group is subject to such limitless and potentially abusive governmental power.
3. Treaty abrogation and land rights
"... Treaties have been used, among other purposes, as mechanisms for gaining cessions of indigenous land and for ostensibly guaranteeing rights to the remaining lands held by the indigenous nation. The problem of discrimination arises when the State later abrogates or violates the treaty. In the typical case, the injured indigenous nation or tribe has no legal remedy against the State either in domestic law or under international law. The denial of any remedy under international law is inconsistent with the use of treaties as a legal mechanism and with the status of indigenous peoples as subjects of international law. Thus, indigenous peoples appear to be unique in being denied legal remedies for violation of their rights where the State abrogates or violates a treaty between the State and an indigenous nation, tribe or peoples. Certain States, including New Zealand and the United States, regard treaties as instruments of domestic law as well as international law and accordingly do not believe a remedy under international law is necessarily appropriate. The question, in such cases, remains whether a just remedy is provided for treaty violation or abrogation, and whether the use of the treaty mechanism in domestic law is non-discriminatory."
The next post will begin with the failure of States to demarcate indigenous lands.
This is all something to think about, yes?
Colleen
Because this is a particularly long and important section, I will break it down over two or three days.
____________________________
III. FRAMEWORK FOR THE ANALYSIS OF CONTEMPORARY PROBLEMS REGARDING INDIGENOUS LAND RIGHTS
A.) Failure of States to acknowledge indigenous rights to lands, territories and resources
- This most fundamental and widespread problem is divided into two parts: the failure of States to recognize the existence of indigenous use, occupancy and ownership, and the failure of States to accord appropriate legal status, juridical capacity and other legal rights in connection with indigenous peoples’ ownership of land.
1. Failure of States to recognize the existence of indigenous use, occupancy and ownership
"Countries in many parts of the world are unaware of or ignore the fact that communities, tribes or nations of indigenous peoples inhabit and use areas of land and sea and have done so, in many cases, since time immemorial. These areas are typically far from the capitals and other urban areas of the country and typically countries regard these lands and resources as public or government lands. Although the indigenous people concerned regard themselves, with good reason, as owning the land and resources they occupy and use, the country itself, typically, disposes of the land and resources as if the indigenous people were not there. These
governmental tendencies are further exacerbated in federations such as Canada and the United States, where state/provincial and even municipal governments sometimes pursue such actions, either in coordination with the central or national Government, or independently and in pursuit of their own policy.
2. Failure of States to accord appropriate legal status, appropriate juridical capacity and other legal rights
"This problem is closely related to the one discussed above. Although States know that indigenous communities, nations or groups exist and have exclusive use and occupancy of an area, some States do not acknowledge that the indigenous peoples concerned have legal entitlement or rights to the land or resources. In some situations, the indigenous peoples are regarded as using the public or national lands at the sufferance of the Government.
"The concept of aboriginal title and the relationship of this legal concept to the human rights of indigenous peoples is centrally important. In many countries, particularly those of the British Commonwealth, exclusive use and occupancy of land from time immemorial gives rise to aboriginal title, a title that is good against all but the Sovereign, that is, the Government of the State. Where aboriginal title is recognized, indigenous peoples have at least some legal right that can be asserted in the domestic legal system. However, aboriginal title is often subject to the illegitimate assumption of State power to extinguish such title, in contrast to the legal protection and rights that, in most countries, protect the land and property of non-indigenous citizens, their individuals and corporations ... This single fact probably accounts for the overwhelming majority of human rights problems affecting indigenous peoples.
B.) Discriminatory laws and policies affecting indigenous peoples in relation to their lands
- "In those States that have developed a body of positive law and a body of jurisprudence in regard to indigenous peoples... the most significant problems appear to arise because of persistent discriminatory laws and legal doctrines that are applied to indigenous peoples and their lands and resources.
1. Laws regarding the extinguishment of indigenous peoples’ land and resource rights
Practically all countries where indigenous peoples live assert the power to “extinguish” the land titles and rights of the indigenous peoples within their borders, without the consent of the indigenous peoples. The concept of extinguishment includes voluntary purchase and sale of title, but more commonly the term “extinguishment” is used to mean outright taking or expropriation, most often without just compensation. Like the concept of aboriginal title, extinguishment is a term that came into prominent use during the colonial period.
"One particularly clear example of the problem of extinguishment is provided by the case of the Tee-Hit-Ton Indians v. United States. In this case the Supreme Court decided that the United States may (with limited exceptions) take or confiscate the land or property of an Indian tribe without due process of law and without paying just compensation, this despite the fact that the United States Constitution explicitly provides that the Government may not take property without due process of law and just compensation. The Supreme Court found that property held by aboriginal title, as most Indian land is, is not entitled to the constitutional protection that is accorded all other property. The racially discriminatory nature of the Tee-Hit-Ton decision can be seen in the opinion, an extract of which follows:
“No case in this court has ever held that taking of Indian title or use by Congress required compensation. The American people have compassion for the descendants of those Indians who were deprived of their homes and hunting grounds by the drive of civilization. They seek to have the Indians share the benefits of our society as citizens of this Nation. Generous provision has been willingly made to allow tribes to recover for wrongs, as a matter of grace, not because of legal liability.
“'... Every American schoolboy knows that the savage tribes of this
continent were deprived of their ancestral ranges by force and that, even
when the Indians ceded millions of acres by treaty in return for blankets,
food and trinkets, it was not a sale but the conquerors’ will that deprived
them of their land.'”
"The legal doctrine created by this case continues to be the governing law on this matter in the United States today."
"[Canada's] Constitution Act of 1982, section 35 (1), recognizes and affirms aboriginal and treaty rights. By reason of the Constitution Act of 1982, courts in Canada no longer acknowledge government power to “extinguish” aboriginal rights. Instead, the courts have decided that aboriginal rights, including aboriginal land title, are not absolute but may be “infringed” by the federal or provincial governments when the infringement is “justified” by the needs of the larger society. In a recent case, Chief Justice Lamer of the Supreme Court of Canada wrote: 'In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title.' (Delgamuukw v. The Queen, paragraph 165 of the Chief Justice’s opinion, unpublished decision, 11 December 1997). It remains unclear whether this new requirement of “justification” will in fact provide greater protection to indigenous land rights than previous law... [I]t also remains doubtful whether the law accords an equal, non-discriminatory level of legal protection to indigenous property rights as compared to the property rights of others.
2. Plenary power doctrine
Another discriminatory legal doctrine that appears to be widespread is the doctrine that States have practically unlimited power to control or regulate the use of indigenous lands, without regard for constitutional limits on governmental power that would otherwise be applicable. In the United States, this is known as the “plenary power doctrine” and it holds that the United States Congress may exercise virtually unlimited power over indigenous nations and tribes and their property. No other population or group is subject to such limitless and potentially abusive governmental power.
3. Treaty abrogation and land rights
"... Treaties have been used, among other purposes, as mechanisms for gaining cessions of indigenous land and for ostensibly guaranteeing rights to the remaining lands held by the indigenous nation. The problem of discrimination arises when the State later abrogates or violates the treaty. In the typical case, the injured indigenous nation or tribe has no legal remedy against the State either in domestic law or under international law. The denial of any remedy under international law is inconsistent with the use of treaties as a legal mechanism and with the status of indigenous peoples as subjects of international law. Thus, indigenous peoples appear to be unique in being denied legal remedies for violation of their rights where the State abrogates or violates a treaty between the State and an indigenous nation, tribe or peoples. Certain States, including New Zealand and the United States, regard treaties as instruments of domestic law as well as international law and accordingly do not believe a remedy under international law is necessarily appropriate. The question, in such cases, remains whether a just remedy is provided for treaty violation or abrogation, and whether the use of the treaty mechanism in domestic law is non-discriminatory."
The next post will begin with the failure of States to demarcate indigenous lands.
This is all something to think about, yes?
Colleen
Monday, October 1, 2007
Indigenous Land Rights Pt II
In case anyone out there who thinks that discrimination towards Indigenous peoples or Eurocentrist beliefs which harm Native peoples are things of the past, please read on.
(Bullets and highlighting are mine added for ease of the reader.)
II. HISTORY AND BACKGROUND: IMPACT OF THE DOCTRINES OF DISPOSSESSION
"The gradual deterioration of indigenous societies can be traced to the non-recognition of the profound relationship that indigenous peoples have to their lands, territories and resources, as well as the lack of recognition of other fundamental human rights.
"The colonization of indigenous territories has affected indigenous peoples in a number of ways.
(Bullets and highlighting are mine added for ease of the reader.)
II. HISTORY AND BACKGROUND: IMPACT OF THE DOCTRINES OF DISPOSSESSION
"The gradual deterioration of indigenous societies can be traced to the non-recognition of the profound relationship that indigenous peoples have to their lands, territories and resources, as well as the lack of recognition of other fundamental human rights.
"The colonization of indigenous territories has affected indigenous peoples in a number of ways.
- Demographic deterioration occurred through maltreatment,enslavement, suicide, punishment for resistance, warfare, malnutrition due to destruction of the natural environment or over-exploitation of natural resources, disease and outright extermination. Rodolfo Stavenhagen states that “the entire population of the Americas decreased by 95 per cent in the century and a half following the first encounter”.
- The intent to convert indigenous peoples to Christianity and bring them under the “sovereignty” of foreign monarchs created widespread havoc, despite some early attempts at “friendly treatment”.
- With population decline came the destruction of the traditional social order, due to the efforts of missionaries and Western attitudes towards the divisions of labour and of gender, among other things.
- The introduction of the practice of attaching a monetary value to things and of buying and selling things previously considered non-merchantable, including land, added the stress of an economic environment quite opposite to the traditional economic order of most indigenous communities.
- These concepts were all alien to the collective social organization of indigenous communities.
"It is safe to say that the attitudes, doctrines and policies developed to justify the taking of lands from indigenous peoples were and continue to be largely driven by the economic agendas of States.
"In most situations, it was only through rationalization and military domination that colonizers secured “ownership” of the lands, territories and resources of indigenous peoples. The territories of indigenous peoples in the Americas and elsewhere were taken through many means, but largely by military force. Where “just war” could not be waged, treaties sometimes were concluded. In regard to North America, Vine Deloria, Jr. wrote:
"Treaty-making was a feasible method of gaining a foothold on the continent
without alarming the natives. Treating with the Indians, then, brought an air of
civility and legitimacy to the white settlers’ relations with the Indians and
provoked no immediate retaliation by the tribes. Instead of the Indians being
subjected to bondage or their lands merely seized through the use of force,
which Spain eventually did, civility reigned in North America. Indian land and
the rights to live in certain areas were purchased at formal treaty sessions.”
"The doctrines of dispossession which emerged in the subsequent development of modern
international law, particularly terra nullius and “discovery”, have had well-known adverse effects on indigenous peoples. The doctrine of terra nullius as it is applied to indigenous peoples holds that indigenous lands are legally unoccupied until the arrival of a colonial presence, and can therefore become the property of the colonizing power through effective occupation. Strictly speaking, in the seventeenth, eighteenth, and nineteenth centuries, the doctrine of “discovery” gave to a discovering State of lands previously unknown to it, an inchoate title that could be perfected through effective occupation within a reasonable time. The doctrine, as it has come to be applied by States with little or no support in international law, gives to the discovering colonial power free title to indigenous lands subject only to indigenous use and occupancy, sometimes referred to as aboriginal title. Only recently has the international community begun
to understand that such doctrines are illegitimate and racist."
Here's an example:
"The High Court of Australia in its 1992 decision in Mabo v. Queensland discussed the
legal and other effects of the doctrine of terra nullius. The Court denounced the doctrine by concluding that this “unjust and discriminatory doctrine ... can no longer be accepted”. This decision gave rise to the Native Title Act, adopted by the Government of Australia in 1993, which established a framework and mechanism by which Aboriginal peoples in Australia could secure land rights. However, Australian Aboriginal peoples have reported to the Working Group that they have great difficulties with the Act, and regard as unjust and ill-founded the State’s asserted authority, recognized in the Mabo decision, to extinguish indigenous land rights.
"To what extent the Government of Australia can continue to extinguish indigenous land title through legislation that discriminates against indigenous title is a matter of ongoing debate. The Committee on the Elimination of Racial Discrimination, on 18 March 1999, issued a decision finding that provisions in the 1998 Native Title Act Amendments extinguish or impair the exercise of indigenous title rights and interests and discriminate against native title holders (A/54/18, para. 21, decision 2 (54))... It demonstrates that Eurocentrist and discriminatory ideas continue to be evident in legal theory and action and that such attitudes in national legislation and court decisions may trap indigenous peoples in a legal discourse that does not embrace their distinct cultural values,beliefs, institutions or perspectives."
Tomorrow, I'll post excerpts from part III: FRAMEWORK FOR THE ANALYSIS OF CONTEMPORARY PROBLEMS REGARDING INDIGENOUS LAND RIGHTS
Colleen
Sunday, September 30, 2007
A good read for those interested in indigenous land rights...
Angelique Eaglewoman sent me this U.N. Report by Special Rapporteur Erica-Irene Daes. It is on the relationship Indigenous People have to land.
It goes far beyond what many non-Indigenous people understand -- or think we understand -- this relationship to be. The difference in our cultures' connection to land is profound.
I hope you take the time to read through the following comments that I've pulled from the document. I will cover one chapter per day. I am also trying to find a link to the original that I can post here. In the meantime, here is a link to the UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES.
All highlighting below is mine.
_________________________
PREVENTION OF DISCRIMINATION AND PROTECTION OF INDIGENOUS
PEOPLES AND MINORITIES (E/CN.4/Sub.2/2001/21 11 June 2001)
"Reports and statements by indigenous peoples from all parts of the world delivered
during sessions of the Working Group on Indigenous Populations and information received in
the preparation of the working paper have made it clear that land and resource issues,
particularly the dispossession of indigenous peoples from their lands, are issues of the most
urgent and fundamental nature. At the same time, there has been great concern on the part of
certain States, academic institutions, non-governmental organizations (NGOs) and individuals
that the recognition of the human rights of indigenous peoples would supposedly require that all
the lands and resources ever taken from indigenous peoples be returned...
"There are an enormous number of problems and issues relating to indigenous land rights,
so many that no study or paper could give them all full consideration within the time-frame
allowed for this initiative. Any attempt to deal with all of the land and resource issues would
necessarily be superficial and lengthy. The better course, adopted here, is to sort and organize
the multitude of issues into an analytical framework and to attempt to identify those issues or
problems which are the most fundamental or most severe and, of these, the most deserving of
attention in the search for means of alleviating the suffering and injustices endured by
indigenous peoples.
"What core values should guide our judgement in this work? First, the great human rights
principles embodied in the Universal Declaration of Human Rights and the International
Covenants on Human Rights, particularly the principles of equality and self-determination and
the prohibition of discrimination. In addition, we must be guided by the fundamental values and
interests that form the foundation of the draft United Nations declaration on the rights of
indigenous peoples: among others, the preservation and well-being of indigenous cultures and
communities, the elimination of poverty and deprivation among indigenous peoples, and the
great goals of equality before the law and justice for indigenous peoples and all peoples....
I. RELATIONSHIP OF INDIGENOUS PEOPLES TO THEIR LANDS, TERRITORIES AND RESOURCES
"In order to understand the profound relationship that indigenous peoples have with their
lands, territories and resources, there is a need for recognition of the cultural differences that
exist between them and non-indigenous people, particularly in the countries in which they live...
"The relationship with the land and all living things is at the core of indigenous societies. For example, the land tenure system, known as Kipat, of the Limbu indigenous people of Nepal provides a means of belonging to a place and to a distinctive community - the one not separable from the other...
"Professor James Sakej Henderson attempts to illustrate this distinct relationship and
conceptual framework by stating that 'the Aboriginal vision of property was ecological space
that creates our consciousness, not an ideological construct or fungible resource ... Their vision
is of different realms enfolded into a sacred space ... It is fundamental to their identity,
personality and humanity ... [the] notion of self does not end with their flesh, but continues with
the reach of their senses into the land'. Such a relationship manifests itself in the elements of
indigenous peoples’ cultures, such as language. For example, an Inuit elder tried to articulate
this relationship by stating that 'our language contains an intricate knowledge of the Arctic that
we have seen no others demonstrate.'”
"Mr. MartÃnez Cobo [author of the Study of the Problem of Discrimination against Indigenous Populations] states:
'It is essential to know and understand the deeply spiritual special relationship between indigenous peoples and their land as basic to their existence as such and to all their beliefs, customs, traditions and culture.
'For such peoples, the land is not merely a possession and a means of production. The entire relationship between the spiritual life of indigenous peoples and Mother Earth, and their land, has a great many deep-seated implications. Their land is not a commodity which can be acquired, but a material element to be enjoyed freely.'
"In summary, each of these examples underscores a number of elements that are unique to
indigenous peoples:
It goes far beyond what many non-Indigenous people understand -- or think we understand -- this relationship to be. The difference in our cultures' connection to land is profound.
I hope you take the time to read through the following comments that I've pulled from the document. I will cover one chapter per day. I am also trying to find a link to the original that I can post here. In the meantime, here is a link to the UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES.
All highlighting below is mine.
_________________________
PREVENTION OF DISCRIMINATION AND PROTECTION OF INDIGENOUS
PEOPLES AND MINORITIES (E/CN.4/Sub.2/2001/21 11 June 2001)
"Reports and statements by indigenous peoples from all parts of the world delivered
during sessions of the Working Group on Indigenous Populations and information received in
the preparation of the working paper have made it clear that land and resource issues,
particularly the dispossession of indigenous peoples from their lands, are issues of the most
urgent and fundamental nature. At the same time, there has been great concern on the part of
certain States, academic institutions, non-governmental organizations (NGOs) and individuals
that the recognition of the human rights of indigenous peoples would supposedly require that all
the lands and resources ever taken from indigenous peoples be returned...
"There are an enormous number of problems and issues relating to indigenous land rights,
so many that no study or paper could give them all full consideration within the time-frame
allowed for this initiative. Any attempt to deal with all of the land and resource issues would
necessarily be superficial and lengthy. The better course, adopted here, is to sort and organize
the multitude of issues into an analytical framework and to attempt to identify those issues or
problems which are the most fundamental or most severe and, of these, the most deserving of
attention in the search for means of alleviating the suffering and injustices endured by
indigenous peoples.
"What core values should guide our judgement in this work? First, the great human rights
principles embodied in the Universal Declaration of Human Rights and the International
Covenants on Human Rights, particularly the principles of equality and self-determination and
the prohibition of discrimination. In addition, we must be guided by the fundamental values and
interests that form the foundation of the draft United Nations declaration on the rights of
indigenous peoples: among others, the preservation and well-being of indigenous cultures and
communities, the elimination of poverty and deprivation among indigenous peoples, and the
great goals of equality before the law and justice for indigenous peoples and all peoples....
I. RELATIONSHIP OF INDIGENOUS PEOPLES TO THEIR LANDS, TERRITORIES AND RESOURCES
"In order to understand the profound relationship that indigenous peoples have with their
lands, territories and resources, there is a need for recognition of the cultural differences that
exist between them and non-indigenous people, particularly in the countries in which they live...
"The relationship with the land and all living things is at the core of indigenous societies. For example, the land tenure system, known as Kipat, of the Limbu indigenous people of Nepal provides a means of belonging to a place and to a distinctive community - the one not separable from the other...
"Professor James Sakej Henderson attempts to illustrate this distinct relationship and
conceptual framework by stating that 'the Aboriginal vision of property was ecological space
that creates our consciousness, not an ideological construct or fungible resource ... Their vision
is of different realms enfolded into a sacred space ... It is fundamental to their identity,
personality and humanity ... [the] notion of self does not end with their flesh, but continues with
the reach of their senses into the land'. Such a relationship manifests itself in the elements of
indigenous peoples’ cultures, such as language. For example, an Inuit elder tried to articulate
this relationship by stating that 'our language contains an intricate knowledge of the Arctic that
we have seen no others demonstrate.'”
"Mr. MartÃnez Cobo [author of the Study of the Problem of Discrimination against Indigenous Populations] states:
'It is essential to know and understand the deeply spiritual special relationship between indigenous peoples and their land as basic to their existence as such and to all their beliefs, customs, traditions and culture.
'For such peoples, the land is not merely a possession and a means of production. The entire relationship between the spiritual life of indigenous peoples and Mother Earth, and their land, has a great many deep-seated implications. Their land is not a commodity which can be acquired, but a material element to be enjoyed freely.'
"In summary, each of these examples underscores a number of elements that are unique to
indigenous peoples:
(i) a profound relationship exists between indigenous peoples and
their lands, territories and resources;(ii) this relationship has various social, cultural, spiritual,
economic and political dimensions and responsibilities;(iii) the collective dimension of this relationship is significant; and
(iv) the intergenerational aspect of such a relationship is also
crucial to indigenous peoples’ identity, survival and cultural viability.
"There may be additional elements relating to indigenous peoples and their relationship to their lands, territories and resources which have not been captured by these examples."
It really makes you think about the impacts of taking land, doesn't it?
I'll highlight the second section next: HISTORY AND BACKGROUND: IMPACT OF THE DOCTRINES OF DISPOSSESSION.
Colleen
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