CONSEJO INTERNACIONAL DE TRATADOS INDIOS

RESPONSE TO THE UNITED STATES OF AMERICA'S FIRST PERIODIC REPORT , DATED SEPTEMBER 30, 2000, TO THE UNITED NATIONS COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION

Submitted by the

INTERNATIONAL INDIAN TREATY COUNCIL, A NON-GOVERNMENTAL ORGANIZATION WITH ECOSOC CONSULTATIVE STATUS

The Initial Report of the United States of America to the United Nations Committee on the Elimination of Racial Discrimination, dated September 30, 2000, with regard to Native Americans is sadly lacking. We refer particularly to the CERD Committee's own practices calling upon “the States parties with Indigenous peoples in their territories to include in their periodic reports full information on the situation of such peoples, taking into account all relevant provisions of the Convention.”

Although the Report recognizes the presence of Indigenous Peoples and the fact of racial discrimination directed against them, no connection is made between racial discrimination inspired if not implemented by US policy and law, and the rights of Native Americans that are diminished or annulled by such policies or laws. Given the definition of racial discrimination of the CERD Convention, that of discrimination that annuls or impairs the enjoyment of a right, if no Indigenous rights are recognized there can be no discrimination against them.

And even more telling if no Indigenous Peoples exist, there is no duty toward them under the convention or any other human rights standard.

The Report cites the President's Initiative on Race of 1998, as an example of US attempts to eliminate racial discrimination. Yet no Native Americans were appointed to this panel, whose mandate was to examine issues of race, racism, and racial reconciliation, until it was pointed out by Native Americans themselves and protest ensued. Thereafter, two Indigenous persons were added to the panel, after the fact-finding had already been done and after its draft report was well under way.

The IITC find most egregious the Report's description of the history of US policy toward Indians, and little mention of how these policies have instilled and continue to perpetuate discrimination against Indians. Although the Report mentions treaties entered into between Indigenous Peoples and England and its successor state, the US, the Report does not mention the gross and massive violations of these treaties by the U.S. leading to the loss of additional millions of acres of land and resultant loss of culture, language, religion and tradition. And although the Report does mention the so-called “allotment” policy which did result, as the Report candidly states, in the loss of other millions of acres of land (and resultant ethnocide) it does not mention prior or succeeding policies that caused and continue to lend to additional massive losses of lands and aboriginal title.

There are many gaps in the Report that if included, would shed light on the plight of Indigenous Peoples in the United States. Perhaps more importantly, this light might suggest some effective remedies for these persistent and deadly acts of racial discrimination.

I. A History of US Policies and Practices toward Indians:
It has been estimated that approximately 12 million Indigenous Peoples lived in North America when the European came. In 1900 they were reduced to less than three hundred thousand.

There is no doubt that Indigenous Peoples were self-determining Peoples before the Americas were invaded by Europeans. Over 400 Indigenous Nations controlled their own territory and had their own government, culture, language and religion.

A. Treaties (1492-1816):
Even before US took its independence from England, Indigenous Peoples entered into treaties with England. In the French and Indian War of 1763, for example, the Iroquois Confederacy sided with the British, and the war against the French was won. It is normally accepted that if this alliance had not been formed, French would be the official language of the US today.

The successor state to the English itself entered into treaties, the US regarding Indian Nations as having the same status as foreign nations, and laws were passed to prevent the taking of Indian lands by white settlers.

These laws were not enforced, although treaties were generally observed with some Indian Nations. But the taking of Indian lands continued from Indian Nations not having treaties with the US.

Between 1787 and 1871, the US entered into more than 600 treaties with Indian Nations. Most of these treaties provided for the exchange of land for guarantees of permanent reservation lands for Indian Tribes and the protection, safety and well being of its members. The US Supreme Court interpreted these treaties as establishing a “Trust Relationship” between Indian Tribes and the Federal Government. These treaties have been held by the US Supreme Court to have created a “duty of protection” on behalf of the US toward Indians and is still good law today. The US Report cites this continuing trust relationship. However, as we shall see, it was the promise that was not good. The “trust” has been violated with impunity from the beginning.

B. Removal, Relocation and the Trail of Tears (1828-1887):
The policy of  “Agreements between Equals” was replaced, in 1826, with a policy of Relocation of the Indian. Andrew Jackson, a highly venerated figure in US history, in reality a bloodthirsty man well known for his wars against Indians, ordered the removal of all Indians to west of the Mississippi River. Jackson was supported by US congressional legislation, which authorized President Jackson to “negotiate” with eastern tribes for their removal to the west, in the “Indian Removal Act of 1830.” He was responsible for the “Trail of Tears,” and the deaths of hundreds of thousands, if not millions of Indigenous people.

Thereafter, thousands of Indigenous Peoples were forcibly driven from their lands to “permanent reservations” in Arkansas, Kansas, Iowa, Illinois, Missouri and Wisconsin, only to be driven further west as time went on. Treaties were abolished, ignored, or broken, and in 1871, Congress abolished the practice of making treaties entirely, annulling the Northwest Ordinance of 1787 that recognized the sovereign integrity of Indian Tribes.

Most importantly, after the 1871 Act abolishing the making of treaties, Congress assumed the “Plenary Powers Doctrine” over Indian Affairs. This doctrine, applied to this day, has been interpreted by the Supreme Court under the Commerce Clause of the US Constitution (as well as other constitutional authority) to give the Congress “plenary” power to act on Indigenous matters, including the taking of lands and the termination of aboriginal title, without the knowledge or consent of the Indigenous Peoples concerned. And like the “Trust Relationship,” the Plenary Powers doctrine is also “good law” today.

C. Allotment and Assimilation (1887-1934):
Many thousands perished during the forced migrations under the Removal policy. It was in fact genocide. In 1887, the United States implemented its policy of Allotment and Assimilation referred to in the Report.  This policy divided communally owned lands into small privately owned parcels, and sold or leased “surplus” lands to whites. The policy was intended to assimilate the Indian, to “teach him to farm and ranch.”

Not only were additional millions of acres lost, but additional thousands of Indians died as a result of the loss of lands and means of subsistence.  Of the estimated 140 million acres of land collectively owned by Indigenous Peoples in the US in 1887, only 50 million acres remained in 1934, when the Allotment policy was formally ended.

D. Indian Reorganization, IRA, (1934-1953):
It is true, as the report states, that in 1934, President Roosevelt signed into law the so-called “Indian Reorganization Act (IRA)” recognizing a form of Indian Sovereignty. Indians were also finally recognized as citizens of the US in 1924.

This IRA prohibited any further allotments of Indian Lands and authorized the addition of lands to existing reservations. It called for the creation of new reservations, and the restoration of lands that had been declared “surplus” under the previous policy of Allotment, but not yet sold to non-Indians.

It called for the organization of Indigenous government within reservations, and the establishment of Tribal Constitutions, using the US federal model of tripartite government, with executive, judicial and legislative bodies. Although this model did provide for a measure of internal self-government, the implementation was fraught with fraud. The IRA also created divisions that persist to this day between traditional peoples (for whom such a model is an alien form of government) and elected tribal officials who administer tribal government under these federally approved constitutions under the direction and guidance of the US Bureau of Indian Affairs.

Over its 20 years, up to 1953, this policy increased Indian land holdings by over 2 million acres of restored lands. It also saw investment by the US government for Indigenous economic progress. But World War II and its aftermath had its effects on Indians.

E. Termination (1953-1968):
Policies of discrimination and ethnocide, if not genocide, by the US against Indians did not end in 1935 with the IRA. Another sudden shift in policy brought Indians again to the brink of annihilation.

In the 1950s, Congress, under its Plenary Powers, ended the goals of the IRA and called for the termination of certain economic benefits accorded certain Indian Tribes under previous treaties, agreements and other constructive arrangements between Indigenous Peoples and the government. Congress forced the dissolution of their reservations. With one congressional resolution Congress terminated the IRA and over the next decade, each of these tribes was forced to distribute its communally held land to its members, and their governments dissolved.

Under the direction of Dillon S. Myer, formerly in charge of the Japanese American internment during World War II, termination began in earnest during the Eighty-third Congress in 1954. Among 109 Indigenous Nations and portions of Nations terminated were well established Tribes and Nations, such as the Menomonee of Wisconsin, Klamath of Oregon, Alabama and Coushatta of Texas, and the Wyandotte, Ottawa and Peoria Nations of Oklahoma. Many smaller Nations in Oregon and California were also terminated. In each case, the Congress enacted specific legislation under its Plenary Powers to distribute the Tribe's communal land and property to its members, as individuals. Tribes were given the option of forming a corporation under state law, and having its property distributed to the corporation. In other cases, reservations were placed under state jurisdictions.

In furtherance of this violent Diaspora, Congress also passed the Relocation Act of 1956. This Act reduced substantially economic support to unterminated Indian Tribes, subjecting their members to even greater poverty. It also provided funds for the moving expenses, establishment of new residence and a brief period of job training for any Native American willing to relocate to federally approved urban centers, whether from terminated or unterminated tribes. Virtually half of all American Indians accounted for in the 1980 census, over 880,000 American Indians were forced off the reservation and into urban centers through economic necessity and deprivation, to be assimilated.

F. Federal Recognition and the Government to Government Relation (1966-Present):
During this period, faced with annihilation, Indian activists and writers, notably the American Indian Movement (AIM) and Vine Deloria, began a period of protest that led to a declaration by then President Johnson, pursuant to the results of a study he had commissioned on Native Americans, declared an end to the policy of Termination.


But during this period, one of activism and protest against American racism, by the American Indian Movement, as well as African-Americans of the time, brought repression against AIM and other non-Indian dissident groups, such as the Student Non-violent Coordinating Committee and the Black Panthers.

Repression against Indian activists and AIM led to the documented death at the hands of the FBI and their cohorts. On the Lakota reservation, for example, nearly 100 people were assassinated, mostly AIM Supporters and otherwise innocent men, women and children, This conflict between the FBI and AIM members protesting these deaths and defending the community, led to the arbitrary detention and falsely substantiated imprisonment of Leonard Peltier.

Official United States policy toward Indians, as the Report states, is now one of a form of self-government of Federally recognized Indian Tribes as well as promotion of tribal economic self-sufficiency.  Given this factual history, however, even the recent history as described above, it is not without some bitterness that we read in the Report that:

“A special relationship exists between the U.S. government and Native Americans. While the diversity of the indigenous North American makes generalization difficult (there are more than 550 federally recognized American Indian and Alaska Native tribes and groups, speaking more than 150 different languages) many enjoy considerable governmental autonomy on reservations or other Indian lands and Alaska villages. The provision of “federal recognition” reflects the principle of government-to-government relations founded under U.S. law and practice. Other tribal groups have over time been assimilated into local society.” (emphasis added)

Approximately 60 to 70 tribes that were terminated have not been reinstated, requiring an act of Congress for their re-instatement. Since 1978, 221 tribes not terminated but never formally recognized have applied for recognition under US Bureau of Indian Affairs (BIA) procedures. Only 41 of these petitions were resolved as of 2000. The policy of assimilation, as reflected by this grossly inaccurate statement of the Report has never been abated. And the theft and misappropriation of Indian lands continues.

II. The Issue of Land
Reference is made to the Committee's General Recommendation XXIII and the standards to be applied to State's reports under the CERD Convention:

“The Committee especially calls upon the States parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories, traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories. Only when this is for factual reasons not possible, the right of restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible, take the form of lands and territories.”

Notwithstanding the brief history of the United States and their colonization of Indigenous lands, it can be said that even now, the United States is still in the process of “conquest” of Indigenous lands.

At the turn of the 20th Century, the federal courts of the United States began accepting Tribal claims to land that was illegally taken or expropriated by government. Between 1924 and 1927, 15 cases were docketed raising this issue; most were dismissed and none resulted in the return of lands or significant compensation.

But the failure to settle Indian land claims was also a cloud on the title to these lands by non-indigenous “owners.” So on August 13, 1946, the so-called Indian Land Claims Act was enacted by the US Congress, establishing the Indian Land Claims Commission.

The mandate of the Land Claims Commission was not to terminate Aboriginal title, but where it could be shown that such title did exist, the Land Claims Commission was empowered to fix a fair market price for the lands, at the time of the taking. In fact, non-Indigenous title was being created, and once the monetary compensation was accepted, the taking was “legalized” and “justice was served.”

The Commission was empowered to act, with extensions enacted by Congress, for about thirty years, until by its own terms, it was terminated on September 30, 1978. Thereafter, all Indian land claims were transferred to the U.S. Court of Claims. All Indian land claims were thereafter barred.

At the same time, the creation of the Land Claims Commission prompted many tribes to file lawsuits in order to recover their lands. Many times, the courts referred these suits to the Land Claims Commission, resulting in monetary damages where the return of the land was the impetus for the suit in the first place. The statutory basis of the Land Claims Commission did not allow for the return of lands illegally taken, only the setting of a “fair” compensation. Yet, by its very nature, the Land Claims Commission violated its legislative mandate, extinguishing valid aboriginal title by “awarding” monetary compensation for its loss.

The need to provide legal certainty for non-Indigenous title to land also led to the enactment of the Alaska Native Claims Settlement Act (ANCSA) in 1971. This legislation avoided completely the question of aboriginal title, establishing 13 regional corporations under state of Alaska law, without any reference to Aboriginal institutions, practices or traditions, and without the creation of reservations or any other continuing obligations on the part of the United States.

It is beyond the scope of this Response to delve into the complicated and unjust taking of all Aboriginal lands and territories throughout what is now the United States. There exist many forms of United States theft of aboriginal lands, such as the outright theft of territories listed as “non-self governing,” (under Article 73 of the UN Charter) in the case of Alaska and Hawai'i. Some of these takings of Indigenous lands have been justified historically as brute “conquest.” The list of Indigenous Nations and their dispossession is long.

The IITC can only hope to address paragraph 5 of General Recommendation XXIII, and cite only two cases where “factual reasons” exist for the return of lands to the original inhabitants, the cases of the Lakota and the Western Shoshone. It is hoped that over time, the CERD Committee and other competent international fora will examine the brutal taking, by the United States, of America, of Indigenous Lands, and develop over time, through dialogue with affected Indigenous Nations, a processes whereby equity can prevail.

It is with this hope that the IITC recommends to the CERD Committee that it examine the United States with regard to these two tragic and still contentious takings, to the end that the human rights and fundamental freedoms so long denied our Peoples, so long hidden and ignored, can be brought to light and adequately addressed.

A. The case of the Lakota (Sioux) Nation:
Initially, in 1851, in exchange for peaceful passage to the West, the United States entered into the first Fort Laramie Treaty with the Lakota. The United States, in this treaty recognized Lakota Ownership of a vast tract of land covering a full 5% of the continental United States.

By 1864, silver had been discovered in Montana, and the United States sought to enlarge their right of way through Lakota territory, resulting in the “Red Cloud War” (1866-1868). In efforts at peace, the United States entered into the Second Fort Laramie Treaty of 1886, recognizing all lands from the east of the Missouri River westward within the present boundaries of the State of South Dakota, as the Lakota reservation. This Second Ft. Laramie Treaty also recognizing an even larger tract, extending to Montana and North Dakota, and a third of the state of Wyoming and parts of Nebraska as unceded traditional territories allowing for traditional uses of the Lakota Nation.

The Second Fort Laramie Treaty also provided that no greater portion of the reservation described in the agreement would be ceded or taken without the agreement executed by at least three-fourths of all adult male Lakota.

In 1873, a Catholic Jesuit Priest discovered gold in the Black Hills within the reservation, a fact verified by the U.S. military, by General George Custer.

Sioux affairs were transferred to the War Department when efforts to purchase the Sacred Black Hills proved fruitless. War resulted, and the military harassment of “recalcitrant” Indians began. Religious ceremonies, beginning with the Sun Dance, and later, the Ghost Dance, were outlawed, Lakota children were kidnapped from their parents and sent to boarding schools to have their hair cut, their language forgotten, to be assimilated into dominant white society. The Allotment policy was implemented, beginning in 1889, in spite of the treaty.

The end result of war, persecution and massacre (and the assassination of Lakota leadership) was the loss of 7 million acres, about 80% of the Lakota land base, and the separation of the Lakota Nation into a complex of several much smaller, physically separated reservations, by 1890. The Black Hills were mined for gold, and “surplus” Lakota lands were leased to non-Indians for $1 an acre. Virtually every useful parcel of Lakota lands was leased in this fashion by the early part of the 20th Century.

In 1923, the Sioux filed suit in the US Court of Claims, pursuant to a Congressional Act allowing it (41 stat. 738). Initially, the suit asked for relief in the form of land restoration. The Court of Claims took until 1942 to dismiss the case, finding that upon the failure of the Lakota to take monetary compensation, that the situation was of a “moral issue” and not within its jurisdiction.

Upon the creation of the Indian Land Claims Commission, the Lakota again filed a claim, which was initially denied. After a long series of appeals and cross appeals, in 1974, the Circuit Court was forced by the Supreme Court to examine the case. It found that Congress had merely exercised its power of “eminent domain” and that the taking was “justified.” The Circuit Court, in effect, extinguished the aboriginal title of the Lakota.

Assessing the value of the land at the time it was taken, after an offset of $3,484 for rations issued by the War Department to Lakota captives, it awarded the Lakota approximately seventeen million dollars. The Lakota refused to take this money, saying that the Sacred Black Hills had never been for sale, and now the money sits in a bank, it is said, in Albuquerque, New Mexico.

In his final report on Treaties between States and Indigenous Peoples, Special Rapporteur Miguel Alfonso Martinez cites a Supreme Court opinion describing the treatment of the Lakota by the United States: “A more ripe and rank case of dishonorable dealing will never, in all probability, be found in our history.” With this in mind, in 1987, then Senator Bill Bradley introduced legislation to reconvey title, including water and mineral rights, of over 750,000 acres within the Black Hills to the Lakota Nation. The bill also covered several sacred sites that would be returned to the Lakota without mineral or water rights. This legislation would have also converted the Land Claims Commission award to monetary damages instead of compensation for the lands illegally taken by the United States.

If enacted, this bill would have provided a model for the restoration of lands to other Indigenous Tribes. Because of non-Indigenous backlash, the sponsors withdrew the bill. But the model remains and demonstrates the factual basis for the recovery of their Sacred Lands by the Lakota Nation. The fact remains that they have refused money offered by the United States, and their claims remain outstanding. And the fact remains, as demonstrated by this proposed legislation, that the United States and not private parties, still holds possession and “ownership” of this land. As Attachment 1 herein reflects, the federal government holds over 8% of the state of South Dakota. Much of this 8% are the Sacred Black Hills.

B. The Case of the Western Shoshone:
In 1863, the United States entered into the Treaty of Ruby Valley with the Western Shoshone Nation, providing for peace and friendship, and a right of way for settlers on route to California's gold rush. The treaty, subsequently approved by Congress (13 stat. 663) recognized approximately 24.5 million acres of traditional Western Shoshone homelands.

Nothing in this treaty sold, ceded, gave away or otherwise alienated Western Shoshone lands and territories. The Western Shoshone did tolerate some settlement, and no action was ever taken by the United States, its Congress or any public official, to extinguish title to Western Shoshone lands. No action, at least until the Indian Land Claims Commission.

In 1934, the United States installed a tribal government under the IRA, under the Temoak Band of Shoshone, even though the IRA government was objected to by other Shoshone Bands, including the Western Shoshone. And in 1946, the Temoak IRA Tribal government hired a Washington D.C. attorney, Ernest Wilkinson, to “represent their interests.”

Wilkinson had been a prime author of the Indian Land Claims Commission legislation, hired by Congress to author it. Ostensibly, his employment with the Temoak was premised on his securing Temoak title to their portion of the Ruby Valley treaty area.

As the author of the Indian Land Claims Commission legislation, Mr. Wilkinson knew or should have known that the Indian Land Claims Commission could not perfect title, but only compensate for its loss. Yet, in representation of his clients, the Temoak Band and Shoshone Tribal government, after securing Bureau of Indian Affairs approval, he filed a claim with the Land Claims Commission in 1951.

The end result was predictable, although the route taken was not. In 1962, the Land Claims Commission honestly conceded that it was unable to discover any formal extinguishment of Shoshone title. It did find that the land was taken at some point in time, and although unable to say how, it found 2 million acres of Shoshone lands, including the Western Shoshone traditional lands, had been taken, on March 3, 1853. It could not document what act of Congress, what official action, took the land. It did not matter that the Treaty of Ruby Valley precluded the finding and the Indian Land Claims Act.

The attorney, Mr. Wilkinson, agreed with the government, that the date of valuation of the land would be July 1, 1872, and that title was extinguished for over 22 million acres of Shoshone lands and territories. This agreement was entered into without the knowledge or consent of his clients. The award by the Indian Land Claims Commission totaled a little over 21 million dollars, less than $1 an acre.

The Temoak Band and the IRA tribal government joined the other Shoshone Bands in protest when they found out about the arrangement their counsel had made with the government. They fired him and secured other counsel, but the BIA continued to pay Mr. Wilkinson to represent the Shoshone. But all appeals failed, and the United States courts upheld the Claims Commission.
Ironically, in one of these suits, the court found that the Land Claims Commission had extinguished Shoshone title!

Although some Shoshone Bands did accept the money the Western Shoshone Nation did not. Much of Western Shoshone traditional lands fall in the western state of Nevada and is now held as “public land.” The managers of public lands, the Bureau of Land Management (BLSM) has since sought to drive the Western Shoshone peoples from these lands. In 1977, the United States courts of Nevada, upon petition by the BLM, found the Western Shoshone trespassers on their own lands. Two brave Western Shoshone women, the Dann sisters, Carrie and Mary, have fought governmental efforts to evict them and to impound their grazing stock, their means of subsistence. Their case is now before the Organization of American States Inter-American Commission on Human Rights, raising the issues of right to property, right to equality before the law, right to cultural integrity, right to self-determination, and the right to judicial protection and due process before the law.

In this commentary, we would add the right to be free of acts of racial discrimination on the part of States Parties to the CERD Convention, directed against Indigenous Peoples.

The United States has ignored two precautionary measures issued by the IACHR, requesting that the government stay enforcement of certain legal actions against the Dann sisters pending a full investigation of their case. In their latest pronouncement on the case, the IAHCR reported that the Danns raise a prima facie case of violation of their human rights.

There is a factual basis for the return of much of the land stolen by these official actions of the United States government: the United States, through its Bureau of Land Management, holds over 87% of the state of Nevada, the traditional territory of the Western Shoshone. Even now, the BLM issues mining permits to private corporations, allows the contamination and over use of precious ground water in this arid state, and issues grazing permits and leases of these lands, and seeks to establish a high-level nuclear waste dump on Sacred Yucca Mountain. Much of their traditional lands can and should be returned to the Western Shoshone.

We believe that the dialogue should begin.

III. Religious Intolerance:
Much United Nations activity, including the first two World Conferences to Combat Racism, studies by Special Rapporteurs, and Agenda 21, ILO Convention NO. 169 Concerning Indigenous and Tribal Peoples, both UN and OAS draft declarations on the right s of Indigenous Peoples, to cite a few international sources of authority, recognize the spiritual relationship between Indigenous Peoples and their lands.

It is not so in the United States.

There is still much social discrimination against the practice of Indigenous religion, engrained in the culture of the United States. And as a matter of law the United States also discriminates against the practice of native religions. We report on two important aspects.

A. Native American Religious Practice, Lands and Sacred Sites:
Historically, as cited above in the Lakota land section herein, Indigenous religions and their practice had been outlawed and restricted in many ways by the government. Although the practice of Native American religions now is not per se outlawed in the United States, the practice of Native religions is discriminated against officially by the government and state authorities in many important respects, nullifying in some cases, and severely impairing the right to religious practice in others.

1987, the Supreme Court of the United States decided that although the building of a road by the United States Forest Service on federal lands would cause serious and irreparable damage to the sanctity of the area as historically used by three Northern California Native American Tribes, that “[W]hatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land.”

On the basis of this doctrine, Congressional legislation calling for the forced removal of traditional Diné (Navajo) peoples from their traditional lands in Arizona, have been upheld as a proper exercise of Congressional Plenary Power in spite of the religious and spiritual imperative of access to traditional Sacred Lands by over 10,000 Navajo inhabitants, in spite of the Free Exercise of Religion clause of the First Amendment to the United States Constitution. The Court addressed the American Indian Religious Freedom Act, prominently addressed by the US Report, purporting to protect Native American religious practice and sacred sites, refusing to enforce it as a mere policy statement, “without teeth.”

The United Nations has on many occasions addressed the case of the Navajo elders who refused to leave their lands. The United States continually has ignored repeated requests by the Sub-Commission for information and requests that relocations be abeyed, as they have done with regard to communications generally concerning human rights of Native Americans.

As a result, pursuant to a communication on the issue of Navajo forced relocations as well as the issue of the building of a telescope on lands sacred to the Apache and other Indigenous Nations, Mr. Graham in Arizona, the Special Rapporteur on Religious Intolerance, Mr. Abdelfattah Amor visited the United States, in early 1998.

With regard to the state of religious intolerance in the United States toward Native American religion generally, Mr. Amor concluded that it was “a fundamental matter, requires still greater protection,” and, “On the subject of Black Mesa [traditional Navajo lands and the forced Navajo relocation], the Special Rapporteur also calls for the observance of international law on freedom of religion and its manifestations.”

B. The Religious Rights of Native American Inmates:
In his long and thoughtful report, Mr. Amor commented on the generally favorable state of religious tolerance toward the world's dominant religion in the United States. Not so with the state of religious intolerance toward Native American religion. He also commented on the practice of most state and federal prisons, of forcibly cutting the hair of Native American prisoners, and restricting their access to Native American religious ceremony such as the Sweat Lodge and ceremonial paraphernalia such as sage, headbands, medicine bags, cedar and tobacco. He recommended, among other things, that the practice of cutting Native American's prisoner's hair be ended, and that “steps be taken to ensure, particularly through training, and perhaps through penalties for prison officers and governors, that these rights are not treated as privileges that can be granted or refused at the whim of an authority or official.”

Unfortunately, none of Mr. Amor's recommendations have been followed by the United States. The few Diné elders that remain on Black Mesa in Big Mountain, Arizona are still under threat of forcible relocation; Native American prisoners are still subject to the whim of prison officials with regard to their religious practice. Special Rapporteur Amor's findings and recommendations belie the US Report to the CERD Committee, wherein it cites title 28, CFR Part 551.90, as guaranteeing no discrimination against federal inmates on the basis of race or religion. Prison officials continue to justify their policy of cutting Native American inmates' hair as merely a standard of “grooming,” and, as always, security.

In effect these officials claim that there is no religious intolerance because they do not recognze the wearing of long hair as a religious practice. Therefore no religous injury ensues. From the US Supreme Court down to the lowest prison bureaucrat, the US refuses even to recognize our religion as they do dominant religions. The US on a societal and institutional level is blind to this manifestation of racism and religious intolerance.

On March 15, 2000, the State of California executed Darryll Young Elk Rich, a Native American. During the last weeks of his life, Mr. Rich sought the solace of the Sweat Lodge Ceremony as his last rites but was denied by the State and the Courts. Citing “security concerns,” and, “..the inability to provide direct and constant supervision while his is unrestrained inside the small, dark enclosed space of the sweat lodge and the potential for weapons and other contraband to be smuggled into the sweat lodge,” the Warden of San Quentin Prison, denied this ancient ceremony to the condemned man. This in spite of the fact that all participants, including his Native American Spiritual Advisor had been allowed to conduct this ceremony for a condemned man in Arizona; in spite of the fact that both Mr. Rich and his spiritual advisor would be naked during the ceremony; in spite of the fact that all participants had agreed to be strip searched prior to the ceremony; and, in spite of the fact that Native American prison guards volunteered to be inside the Sweat Lodge as well as fully clothed and armed, outside the small fenced area.

Mr. Lenny Foster, of the Navajo Corrections Project, and Mr. Rich's spiritual advisor, in court papers, described the Sweat Lodge and its significance:

“Our ancestors were displaced physically and spiritually by the United States government. During this displacement many traditional ways of Spiritual and Religious practice were repressed. The dominant culture sought to destroy our traditions and culture. However, a spiritual revival has developed in the past thirty years in which Native Americans have sought to regain roots of our culture. This spiritual healing has seen people of all tribal backgrounds embracing the roots of traditional Native American spiritual religious practices. The sweat lodge is central to Native American practices.”

As sacred sites, religious ceremony and last rites are not denied dominant religions, we would recommend that the CERD Committee examine the United States on its discrimination and intolerance toward Native American spiritual practice.

IV. Assimilation by Data:
There is no doubt that the history of the United States of America is a long and violent history, particularly with regard to Native Americans. That history lives long, even now. Many non-Indigenous Americans feel that the Indian should be assimilated. Even the US CERD report itself is blind to its own reflection of this underlying attitude. For example, by its own account, the US Report states that outside the 550 recognized tribes, all others have been “assimilated.” There is in fact a policy that if the government does not “recognize” a person or a group, if it does not recognize a Peoples as Indigenous, they are do not exist as Indigenous. For the purposes of the US government, whether benign or malicious, whether by purpose or effect, they are not Indians, but White, Black, Hispanic or, if they are lucky, “Other.”

We have already pointed out the numbers of Tribes that were terminated and never reinstated, requiring congressional legislation for reinstatement. We have also cited the numbers of tribes that seek to be recognized but have not been. Clearly, there are Indigenous Peoples and persons in the United States that know they are Indians, that have not been “assimilated” and that are not considered Indians by the government. Once such example is Darryl Young Elk Rich, the Native American that was denied the Sweat Lodge as last rites, executed in California, listed by prison officials as “white.” In fact, the California Department of Corrections has no racial category for the Aboriginal Peoples of this land in its death row statistics. As Amnesty International observed,

“It has not been possible to obtain the exact number of American Indians under sentence of death in all states owing to the failure of some to maintain accurate records of defendant's race of origin. In California, for example, there may be more Indians under death sentence than the 13 listed in appendix I. Much depends on the ethnic classifications given them at the time of indictment; in some instances American Indians have been incorrectly classified as “Hispanic” or “other.”  It has not been possible to verify how many American Indians are under sentence of death in Texas.”

There are various ways in which the report reflects the United States unstated and unwritten policy of assimilation toward Native Americans, and the disappearing “Indians.” It is not the Indian that is disappearing, but the data. If there is no data, there are no Indians.

Things Unsaid:
It is difficult to trace what exactly the US Report does say about the state of the human rights of Aboriginal or Indigenous Peoples in the United States, their numbers or condition, or their rights. Data is interspersed within the report, confusing data from different periods, citing some statistics but not others.

1. Census Data: The Report states that in the year 2050, American Indians, Eskimos and Aleuts (the category reserved for Aboriginal or Indigenous Peoples), will be 1.1% of the US population. But what is their population figure now? Previous census data suggests that 2½ % of the US population is currently listed under this category, but this could not be verified.

Asian and Pacific Islanders are listed in the census under the separate category. Native Hawai'ians are the Indigenous Peoples of Hawai'i, but under the US view (as reflected in the US Report) and their separate classification, they are not counted as Indigenous or Native Peoples.

Mixed blood American Indians, Aleuts and Eskimos who checked more than one “race” in the 1990 census, and included white, black or Hispanic, as they are asked to do by the census form, will not be counted as “American Indian, Eskimo or Aleut.” They will be counted as that other race, or as “two or more races.” And, according to the Census Bureau, after the Census 2000 tabulations, there will be 63 possible combinations, 57 categories for those who report 2 or more races in their origin, who will, “for some presentations” be collapsed into a category of “Two or More Races,” and not be counted as American Indian.

Although many mixed race peoples are increasingly identifying with their Indigenous heritage given US policy as stated in the US Report based upon “Recognition,” if no Indians are recognized by the US, there are no Indians.

2. Federal Recognition: The BIA is now revising its rules on blood lines that are used to determine American Indian status. Even though Tribes themselves are ostensibly allowed to set their own membership standards, the BIA will use these new blood quantum standards to determine the federal benefits, (some of which are proudly listed in the US Report) to which Indian Tribes and Indigenous individuals are entitled, such as health, housing, food, and other “reservation benefits.”

These rules would require that an individual whose blood quantum is less than 50% of a federally recognized tribal blood line, not be counted for the purposes of these federal programs. Only Indian populations stand to lose by these racial standards, as no other federal benefits are premised on race alone. Leonard Bruguier, a Yankton Sioux and college professor was quoted as saying, “What the hell's going to happen then?  It's potentially disastrous for Indian Tribes.”
“Its kind of scary the way they can terminate us,” said Joe Marrival, an Oglala Sioux who ranches on the Pine Ridge Reservation.” What they did to us in the past they're still doing it now.”

The federal recognition process set by the federal government, in order that “groups of Indian descendants petition for Federal acknowledgment as an Indian Tribe,” instructs: “BIA researchers assume that people marry those they associate with. So if succeeding generations marry non-Indians, it suggests that they are no longer bound to an Indian community.”

As reported by the Daily Oklahoman, the US 1999 Census estimates that the state of Oklahoma's Native American Population rose from 258,000 people in 1990, to 263,000 in 1999, a net gain of 6,000 Indians. But in that same period of time, the Oklahoma health department recorded 56,000 Indigenous live births. Even subtracting 11,000 Indigenous deaths also recorded for that same period, there remain 45,000 born Indians in Oklahoma, 39,000 of which were apparently not counted by the census.

The US Report cites great “Hispanic” immigration, particularly from Mexico. The Executive Director of the IITC is married to a Yaqui man, a traditional healer by profession, who was born and raised in the Indigenous Yaqui Community of Potam, in Rio Yaqui, in the state of Sonora, Mexico. A native speaker of the Yaqui language, his petition for permanent residence did not include any questions as to his Indigenous heritage. He is now counted as one of those many “Hispanic” immigrants from Mexico.

Things Said:
The Report acknowledges the US failure to adequately address Native Peoples within its borders:

“Because the United States uses an acknowledgement process through which Native American tribes are given federal recognition (making them eligible to receive services and benefits provided to Native Americans) the figures may not reflect the number of people of Native American ancestry who do not belong to a federally recognized tribe.”

This failure to acknowledge Indians leads to some of the results actually reported as the condition of Native Americans in the United States. Although no data is reported for college completion by Native Americans, the report does cite Presidential Executive Order 13096 of 6 August 1998, recognizing the educational and culturally related academic needs of American Indian and Alaska Natives. The culturally related academic needs of Pacific Islanders and immigrant Indigenous persons are not mentioned.

The US candidly states that economic, social and cultural rights are not recognized in the United States, although the CERD Convention specifically lists these rights as rights that cannot be nullified or impaired. Some of the data that is reported indicates impairment or nullification of these critical rights.

For example, child poverty with regard to Native American children is reported only for 1989. According to these figures, 38.6% of all American Indian, Aleut and Eskimo children live in poverty. And although the Report cites an “unprecedented economic growth and employment in the United States,” the highest rate of unemployment is reported for Native Americans, in some cases over 50%. (No unemployment rates are cited for Native Hawai'ians and Pacific Islanders, also Indigenous and also marginalized and disporportionately unemployed and underemployed.)

Diabetes is likely to affect Native Americans at twice the rate of the general population, and 579% more likely to die from alcoholism, 475% more likely to die from tuberculosis, 231% more likely to die from diabetes, than Americans as a whole.



C. The Case of the Lakota, an example of Indigenous Marginalization:
In the state of South Dakota, during the past two years, Indian men have been found dead, six in the shallow waters of Rapid Creek, in Rapid City, drowned. Rapid City police found no evidence of foul play in any of these deaths. Several other questionable deaths of Indian men also occurred in this area, including the acquittal of a white teen-ager who ran over and killed a drunken Indian man who lay on a road. This teen-ager justified his killing of the defenseless man on the basis that “it is illegal to swerve on a public road.” In another case, an Indian 18 year old, who drunk, ran over a non-Indian, was charged with vehicular homicide, convicted and sent to prison. Two Lakota men were found just inside the Pine Ridge Lakota Reservation, beaten to death, but no-one had been charged for the crime. Another Lakota was found dead, stuffed into a garbage can. The Advisory Committee to the United States Commission on Civil Rights conducted hearings on these deaths, and made several recommendations to the Attorney General of the United States.

The Advisory Committee found that the issues facing the Lakota cannot be understood fully without reference to South Dakota's history and the historical relationship between Indians and non-Indians. We also believe that is necessary to trace this history as it gave rise and perpetuated racial hatred and discrimination against Indians. This history includes, for the Lakota, the history of the Fort Laramie Treaties, the Land Claims Commission, the assassination of Sitting Bull in 1880, the Wounded Knee Creek massacre by General George Custer, of between 150 and 370 Lakota Sioux men, women and children, and the fact that Custer's regiment received 20 medals of honor for this massacre of innocents.

Native Americans make up 8% of the population of the state, whites, 90.6%. Despite booming economic times, the Advisory Committee, citing BIA statistics, outlined unemployment by Indian Reservations in 1997: 40% in Lower Brule, 58% in Lake Traverse, 68% for Crow Creek, 71% for Flandreu, 73% for Pine Ridge, 74% for Rosebud and Standing Rock, 80% for Cheyenne River and 85% for the Yankton Reservation.

Citing statistics on the health of Native Americans in South Dakota, the Advisory Committee found that men in Bangladesh can expect to live longer than Native American men in South Dakota.

“In 1993, age adjusted death rates for the following causes were considerably higher for American Indians [throughout the United States]: alcoholism, 579 percent greater; tuberculosis, 475 percent; diabetes melitus, 231 percent; accidents, 212 percent; suicide, 70 percent; pneumonia and influenza, 61 percent; and homicide, 41 percent. Further, infant mortality in Indian Country is double the national average, and Pine Ridge Reservation has the highest infant mortality rate in the Nation.”

Citing US Department of Justice statistics, the Advisory Committee found that American Indians experience per capita rates of violence twice the national average, at 124 per 1000 population for Indians 12 years or older, with women experiencing violence 50 percent higher than that reported for black males, or 122 percent higher than the general population. Pointedly, for American Indian victims of rape/sexual assault, the offender was found to be white in 82 percent of cases.

Incarceration rates for American Indians, who generally make up 8% of the population of the state, were also high: in South Dakota's prisons, Indians make up 31% of both men and women's prisons population; Indigenous juvenile inmates make up 31% of that inmate population.

Based upon this and other data demonstrating the extreme marginalization of Indigenous Peoples generally in the United States, and the State of South Dakota, as well as testimonies by state and federal, and tribal officials and interested parties, the Advisory Committee recommended, among other things, that the US federal government set up a task force to study these inequities including the disparities between whites and Indians in rates of arrests, criminal prosecutions, incarcerations and sentencing. The Advisory Committee found that that these and other conditions, including the condition of the law itself, led to a total lack of confidence in the US criminal justice system:

“Information was received by the Advisory Committee suggesting disparities in many aspects of the criminal justice system, including law enforcement stops and racial profiling, arrests, prosecutions, legal representation, and sentencing. The belief that systematic and institutionalized discrimination pervades the justice system in South Dakota cannot be ignored or lightly dismissed. Indeed, this belief is pervasive throughout Indian Country.”

The Attorney General of the United States, Ms. Janet Reno, rejected these recommendations.

V. Conclusions and Recommendations:
There is no doubt that the past repeats itself and history projects itself into the future when it comes to Native Americans in the United States. The recently ended policies of forced assimilation have been replaced by equally violent legal, economic and social pressures to leave their culture and the reservation and to assimilate into the dominant urban white society.

The United States, basing its population of Indigenous Peoples on arbitrary and totally unsound and highly objectionable process of “official US recognition,” now seeks to pretend that Indians are disappearing. Indians are not Indians unless the United States officially recognizes them. Without such “recognition,” their very existence is denied. The very process of “recognition” necessarily includes no recognition for many Indigenous Peoples in the United States. It is no wonder that the present UN Draft Declaration on the rights of Indigenous peoples, drafted by the Working Group on Indigenous Populations, with the full participation for over 12 years, of thousands of Indigenous representatives of hundreds if not thousands of Indigenous organizations and nations, rejects a state based “definition” of Indigenous Peoples, and relies on self-identification and acceptance by the group.

Indigenous Peoples in the United States have survived much repression, and in spite of that repression continue to be Indigenous. Mr. Lenny Foster, the spiritual leader for Indigenous inmates and the Indigenous condemned, is quoted herein as reflecting that Indigenous Peoples throughout the United States are seeking to reconstruct their memory, their traditional practices and way of life. Given the history of Indigenous Peoples in the United States, the massacres, denials, and Diaspora, as recent as the last half of the 20th Century, the process will necessarily have to evolve within the dominant culture in a manner different from other Indigenous Peoples of other parts of the world. But Indigenous Peoples cannot seek to establish themselves given the present policies of the United States as briefly outlined above.

As all Indigenous Peoples in all parts of the world, Indigenous Peoples in the United States only seek to be who they are, to follow their traditions, to pray in their traditional way, to belong to themselves.

We therefore Recommend to the CERD Committee that it examine the United States with regard to Indigenous Peoples in the United States pursuant to General Recommendation XXIII, and that it examine the United States particularly with regard to:

1/ The case of the Western Shoshone, and the refusal of the United States to comply with the Inter-American Commission on Human Rights Precautionary Measures in the Dann case;

2/ The factual basis on which the US could return traditional Western Shoshone lands or any parts thereof to the Western Shoshone Nation;

3/ The factual basis on which the US could return of the Sacred Black Hills, or parts thereof, particularly Sacred Sites, to the Lakota (Sioux) Nation;

4/ The denial, despoliation, desecration and destruction of Indigenous Sacred Sites committed or permitted under law by the United States government;

5/ The disparagement and denial of traditional ceremony and religious practice to Indigenous inmates in many states of the United States, as well as its own federal penitentiaries;

6/ The system of “recognition” of Indigenous Peoples, and its inherent discrimination against those Indigenous persons not fortunate enough to be “recognized;” and,

7/ The failure of the United States to gather and report data relevant to the condition of human rights and fundamental freedoms of Indigenous Peoples in the United States, particularly those rights and freedoms that are diminished or annulled by official acts of racial discrimination.

for all our relations                            Date: 27 November, 2000