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Indian Country

Indian Rights, Human Rights

I was going to post on Israel today. Recent developments are much in the news (Jeffrey Goldberg is even pausing to consider – “This is big stuff,” he says), and more than is generally the case, there is a sense of urgency, though nothing in particular is about to happen.

But this is the point.

There is never a sense of immediacy, do not conceive of urgency, about Native America or any indigenous peoples. But Indian Country Today asks

Where do Indian nations go when United States’ courts have failed them, and justice is unattainable?

The Haudenosaunee Confederacy – the oldest continuous democratic government in North America – has long argued that Indian nations should not expect to win justice from colonizing governments, and instead must act as sovereign nations taking their quest for justice to the United Nations and its human rights mechanisms.

Though it claims to be a defender of human rights around the world, the United States is among the worst offenders of Native peoples’ rights, judging by statistics that indicate Indian women are the most raped and abused in the nation, while rampant poverty, disease, crime and unemployment are a way of life on reservations.

There’s also the inexplicably high number of Supreme Court cases decided against tribes that have led to the massive loss of Native lands and natural resources, most often without compensation.

The U.S. was even one of only four nations, along with Canada, Australia, and New Zealand – “countries with the largest indigenous populations who own vast amounts of land and natural resources” – not to ratify the 2007 U.N. Declaration on the Rights of Indigenous Peoples. Australia has since reversed its position, and Canada now indicates support.

That leaves the United States and New Zealand standing alone, refusing to support the basic human rights of the world’s 370 million indigenous peoples.

If there is some dream, then, of a higher moral, if not governing, authority, who can wonder that American Indians would seek assistance there?

The United Nations Human Rights Council has a recently (2006) created process called the Universal Periodic Review.

The Universal Periodic Review (UPR) is a unique process which involves a review of the human rights records of all 192 UN Member States once every four years. The UPR is a State-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations. As one of the main features of the Council, the UPR is designed to ensure equal treatment for every country when their human rights situations are assessed.

This, Native America thinks, is an opportunity.

Against that backdrop, the Human Rights Council is conducting a year-long Universal Period Review of the United States’ human rights record, holding “listening sessions” around the country, with two devoted to concerns of Native peoples.

A national report will be compiled and presented to the 47-member Human Rights Council that will make recommendations on how America can improve its compliance with international human rights obligations.

More than 100 people came to the University of New Mexico Law School to hear and present testimony from tribes and individuals about discriminatory and illegal tactics historically used by the federal government to confiscate land, natural resources, even children, and to suppress their rights to self-determination.

Among them were at least nine top-level officials from the Obama administration who were sent from the departments of Justice, Housing, Health, Education and Agriculture to listen and help formulate solutions for Indian country.

But like the dream of justice for indigenous peoples, moral clarity – moral consensus – can be a vision sought on the face of moving waters. Among the current member nations of the HRC with appalling records in human rights and democracy are China, Cuba, Egypt, Nigeria, and Russia. Many others are problematic to lesser degrees. In the matter of indigenous populations, the Taino of Cuba suffered one of the most complete genocidal destructions of an indigenous population in history. Of course, the communist government of the Castros claims to have risen above such colonial crimes, but just weeks ago dissident Orlando Zapata Tamayo died in prison as the long-term consequence of racial discrimination in Cuba against Afro-Cubans. The HRC has amply demonstrated its pathological bias against Israel, most recently in the mockery of international human rights investigations that was the Goldstone Report, and, like the Commission on Human Rights before it, which it replaced for just this reason, has served for non-Western, Arab, Muslim, and often undemocratic nations as a vehicle through which to wield human rights values against democracies.

Yet why should Native America concern itself with these problematics of postcolonial contention and international governance? The greatest instances, by far, of genocidal destruction and conquest of indigenous populations were carried out by the Western nations. Even today, Johnson v. M’Intosh, the Supreme Court’s 1923 Dred Scot decision for American Indians, is still prevailing law – the decision justifying the conquest of Native America by right of “discovery,” through extension of the Discovery Doctrine proclaimed by the colonizing European powers, and traceable to Pope Nicholas V’s papal bull Romanus Pontifex in 1452.

Though individual Indians and Indian communities are often deeply proud of their patriotism and wartime service – visit the veteran’s cemetery on the Navajo Reservation in Window Rock, Arizona and be struck by the sea of American flags set against the sky off Route 12 – what argument can possibly be made that Native America should deny itself recourse to the organization that made its declaration of indigenous peoples’ rights, while the nation they inhabit still denies them so much justice and accepts as law a court decision that declares them “an inferior race of people, without the privileges of citizens, and under the perpetual protection and pupilage of the government”?

So the Period Review will find, without doubt, historical, pervasive, and deeply troubling violations of Native rights. And those inclined to excuse and deny the history and the violations, and who are probably opponents, even in principle, of the U.N., even before the HRC, will use the genuine weakness of the former, and the taint of the latter, to reject the findings.

The hope for some continued redress, following upon the Obama administration’s settlement of the thirteen-year Individual Indian Money Trust Fund suit, may rest only on the continued genuine good will of the current president. Two years ago, when I wrote “Aboriginal Sin” for Tikkun, I addressed, along with IIM trust suit, the Supreme Court’s 1980 finding for the Sioux regarding the theft of the Black Hills of South Dakota.

Chairwoman Theresa Two Bulls of the Oglala Sioux, accompanied by Lakota attorney Mario Gonzalez, recounted the many treaty violations that led up to the “legalized theft” of more than 48 million acres of their homeland under the Indian Claims Commission….

The Lakota leadership of treaty chiefs and elected officials have long refused to accept money for the Black Hills, a sacred place….

“We’ve come to the realization that the courts of the United States are not designed to protect the Oglala Sioux’s interests in our claims to ancestral lands and resources. Rather, they are designed to protect the interests of non-Indians who have settled on tribal lands,” Two Bulls said. “The only viable remedy we have to settle our land claims is through negotiating with Congress.”

She was encouraged by President Barack Obama’s statement regarding the Sioux land claims indicating he did not believe the courts or federal government should force Sioux tribes to take settlement money for the Black Hills.

“He said he was open to bringing together all parties through government-to-government negotiations to explore innovative solutions to this long-standing issue,” she said, giving her people hope that the tribe will be able to obtain the return of federally held lands….

and compensation for the denial of the “exclusive use and occupation of the Black Hills as guaranteed by the 1868 Treaty of Fort Laramie.”

Elections, as the truism states, have consequences. So far, in this last, for those without heath care protection. Maybe, slowly, slowly, for American Indians too.

AJA