Tuesday, March 22, 2022
photo by Caroline LaPorte, Anishinaabe, Descendant and Associate Judge, Little River Band of Ottawa Indians; Director, Indigenous Safe Housing Center, NIWRC
By Cameron Ewing (Legal Intern), Samantha Johnson (Legal Intern), Braelyn Saumure (Student Fellow), and Tamar Ezer (Acting Director), Human Rights Clinic, University of Miami School of Law
The right to water is fundamental. As the UN General Assembly recognized, “the right to safe and clean drinking water and sanitation” is “a human right that is essential for the enjoyment of life and all human rights.” Victoria Sweet from the White Earth Band of Ojibwe echoed, “the right to resources and the right to water are critical to the right to life.”
Today, as we celebrate World Water Day, we must take a hard look at how we’re treating the environment, as well as Indigenous communities who are frequently its defenders. All too often, the construction of gas pipelines threatens the availability, accessibility, and quality of water, required under international human rights law.
Moreover, human rights law recognizes a link between the right to water and culture. While domestic uses of water take priority, the UN Committee on Economic, Social and Cultural Rights affirms the importance of water for “enjoying certain cultural practices” and securing a livelihood. Non-consumptive uses of water crucial to Indigenous communities include its centrality in a biological habitat, its spiritual value as a source of healing, and its aesthetic value.
Indigenous advocates point to the environmental degradation pipelines cause on Indigenous lands. Angeline Cheek, a Fort Peck tribal member and ACLU organizer in Montana, stated, “pipelines cross our reservations, causing destruction to our environment and our people. We can’t live without water, and you cannot replace a life.” A teenage Indigenous protest leader explained, “When the pipeline breaks, it would not only affect us as a people, but the animals and aquatic life would be impacted too. Basically, everything that my people value and care for is at great risk of being harmed.”
The construction and operation of the pipeline also brings violence, including sexual violence, against members of nearby Indigenous communities. The hundreds—or even thousands—of male transient workers brought in to work on the pipeline construction, often housed in temporary housing communities referred to as “Man Camps,” have targeted Indigenous communities and women. Studies of the Bakken oil region have noted a 75% increase in sexual assaults and a 53% increase in violence committed by strangers that coincided with the oil boom and the influx of “well-paid oil and gas workers, living in housing units referred to as Man Camps.”
Even worse, these perpetrators often face no repercussions for their actions. Local infrastructure is strained from the influx of workers, without the provision of increased resources to health services and law enforcement, who already have large geographic regions to cover. Additionally, there is an enforcement loophole with Indian tribes lacking jurisdiction to prosecute non-Indigenous defendants. This requires reliance on the federal government, which often fails to take action. There is thus a general lack of accountability, and crimes are committed with impunity.
While the Violence Against Women Act (VAWA) helps address some jurisdictional problems, this legislation does not go far enough to protect Indigenous Peoples from non-native offenders. VAWA only authorizes “special domestic violence criminal jurisdiction” to tribal courts for offenders who commit “(1) domestic violence, (2) dating violence, or (3) violate a protective order.” These limitations mean that the non-native offender must have connections to the tribe, which is often not the case for violence perpetrated by workers at Man Camps given their temporary nature. Furthermore, the special jurisdiction does not include the crime of sexual assault when unconnected to domestic or dating violence.
Halting the Keystone Pipeline is a step in the right direction. The pipeline was set to traverse nearly 875 miles of rural land in the Northern U.S., crossing major waterways, such as the Missouri and Yellowstone Rivers, and passing through Rosebud Sioux and Fort Belknap Indian Community lands in Montana, threating sensitive ecological and cultural areas. Years of legal battles and protests from Indigenous Peoples were finally heard when the Biden Administration’s Executive Order conceded that the Keystone XL Pipeline “disserves the U.S. national interest” and revoked its permit, ending construction.
Indigenous Peoples have widely praised the Order. Angeline Cheek noted, this Order “is about honoring our ancestors’ treaties and protecting our natural resources.” Faith Spotted Eagle, founder of the Brave Heart Society and a member of the Ihanktonwan Dakota nation, remarked, “victory ending the KXL pipeline is an act of courage and it gives tribes and Mother Earth a serious message of hope for future generations as we face the threat of climate change.”
Now, we need to build on Biden’s Executive Order and put in place better policies. International human rights law requires the “free, prior, and informed consent” of Indigenous Peoples as a prerequisite for use of Indigenous land and resources. Meaningful consultation is critical, but it is not enough. There must also be consent. Additionally, Indigenous Peoples need the resources to invest in infrastructure, as well the authority to prosecute non-Indigenous perpetrators on their lands, eliminating the jurisdiction loophole.
As we celebrate World Water Day, let’s move towards a greener and safer future, respecting both the environment, as well as the communities physically and culturally connected to the earth’s resources.
Thursday, February 10, 2022
By: Tamar Ezer, Acting Director & Braelyn Saumure, Student Fellow, Human Rights Clinic, University of Miami School of Law
Despite the challenges of 2021, it closed with some important milestones. At long last, the U.N. Human Rights Council recognized “the human right to a clean, healthy and sustainable environment” and appointed a Special Rapporteur to focus on rights in the context of climate change. Additionally, the U.S. officially designated Indigenous Peoples’ Day on October 11. President Biden’s proclamation acknowledges “the centuries-long campaign of violence, displacement, assimilation, and terror wrought upon Native communities” and celebrates Indigenous Peoples’ “resilience and strength” and “immeasurable positive impact . . . on every aspect of American society.”
Violence against Indigenous Peoples and nature is deeply intertwined. For generations, Indigenous lands have been exploited as a “hunting ground” for resources with colonialism propped up by racial and gender hierarchies. In the U.S., Native American and Alaska Native women experience sexual assault at a rate 2.5 times higher than other women, with 86% of perpetrators non-Native men. For example, the oil boom in the Bakken region brought a 75% increase in sexual assaults and a 53% increase in violence with the influx of hundreds of transient male workers, housed in “Man Camps” near Indian territories. Moreover, with strained infrastructure and Indian tribes lacking jurisdiction to prosecute non-Indian defendants, there is often no accountability. Indigenous leaders have highlighted the link between sovereignty over land and bodily autonomy.
Against this backdrop of abuse, the climate crisis is displacing Indigenous communities at increasing rates and leading to economic instability, land disputes, and disruptions in social safety nets, contributing to increased risk of gender-based violence. Moreover, Indigenous leaders have been at the forefront of sounding the alarm on climate change and may also experience violence as retaliation for their actions as human rights defenders confronting environmental degradation. Further, the COVID-19 pandemic has disproportionately impacted Indigenous Peoples, aggravating preexisting inequalities and resulting in heightened rates of infection and increased environmental degradation, economic insecurity, and gender-based violence, threatening Indigenous cultures.
Our Human Rights Clinic at the University of Miami School of Law has had the opportunity to document these intersections in collaboration with Indigenous partners and the Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic at Cardozo School of Law. A series of reports address the implications of gender and environmental violence for Indigenous rights. This includes a short synopsis report, a longer human rights framework, and case studies focused on Pipelines and Man Camps in the Northern United States; Canada’s National Inquiry into Missing and Murdered Indigenous Women; and Environmental Destruction, Land Dispossession, and Gender-Based Violence Against Indigenous Peoples in Brazil, shared with U.N. Committee on the Elimination of Discrimination against Women and various Special Rapporteurs to inform guidance on rights in connection to Indigenous women and land.
Indigenous women can lead the way in addressing the twin crises of gender-based violence and climate injustice. They have borne the brunt of these crises for generations and, in many communities, serve as keepers of seeds and cultural knowledge. As Victoria Sweet (White Earth Band of Ojibwe, NoVo Foundation) told the Human Rights Clinic, “We don’t need to be saved; we need to be empowered to save ourselves.”
Moreover, Indigenous women can share important lessons for us all. As Aimée Craft (Anishinaabe-Métis; University Research Chair, University of Ottawa) stated, “If we can understand environmental justice through the lens of having a relationship or kinship with our mother, then we will be back to a position of being able to live in sustainable ways.”
Monday, June 21, 2021
On June 30, 2021, from 5-6pm ET, the American Society of International Law (ASIL) will host a free online event consisting of a panel of experts discussing indigeneity in settler legal systems.
Description of the event:
Efforts to define “Indigenous Peoples” have long been a source of contention in international law. Defining indigeneity can exacerbate problems around legitimacy, authenticity and representation; the very vectors of the human rights discourse that the participation of Indigenous Peoples is meant to remedy. Yet, the lack of a simple definition of Indigenous Peoples has created a host of problems including excuses for states to deny the existence of Indigenous Peoples, to limit their human rights, including rights to participation at the UN, and to define Indigenous Peoples as minorities in an effort to make them subjects only of domestic law.
Art 33(1) of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) provides that ‘Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions’. Is this right recognised or respected in settler legal systems? In this panel, leading experts will explore how settler national legal systems recognise, or define for their purposes, indigeneity.
- Karen Drake (Wabigoon Lake Ojibway Nation), Associate Professor, Osgoode Hall Law School
- Kirsty Gover, Professor, University of Melbourne
- Timothy Goodwin (Yuin people), Barrister, Victoria Bar
- Kent McNeil, Professor, Osgoode Hall Law School
- Shea Esterling, University of Canterbury, and Co-chair of ASIL’s Rights of Indigenous Peoples Interest Group (Moderator)
- Harry Hobbs, University of Technology Sydney, and Co-chair of ASIL’s Rights of Indigenous Peoples Interest Group (Moderator)
Pre-registration for the event is required. To register, visit: https://www.asil.org/event/indigeneity-settler-legal-systems.
Wednesday, April 14, 2021
New Article: Implementing the United Nations Declaration on the Rights of Indigenous Peoples in the United States: A Call to Action for Inspired Advocacy in Indian Country
Kristen Carpenter, Edyael Casaperalta, and Danielle Lazore-Thompson, Implementing the United Nations Declaration on the Rights of Indigenous Peoples in the United States: A Call to Action for Inspired Advocacy in Indian Country, U. Colo. L. Rev. Forum (Mar. 6, 2020). Introduction excerpt below:
In 2007, following decades of advocacy by indigenous peoples, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples (Declaration). This is a standard-setting document supported by the 148 member nations, including the United States, committing to the individual and collective rights of indigenous peoples. These rights include the right to self-determination, equality, property, culture, and economic well-being. John Echohawk, Executive Director of the Native American Rights Fund (NARF), has said that the Declaration affirms many of the rights for which American Indians have been fighting throughout generations. It “recognizes the rights of [indigenous] people to self determination, their traditional lands, and their cultures and religions,” all central aspects of tribal sovereignty. According to Echohawk, it was the tribal leaders who pushed President Barack Obama to express national support for the Declaration in hope that it would “help the tribes prevail in the U.S. judicial, legislative, and administrative forums.”
Today’s challenge is to realize the promises of the Declaration in the lives of indigenous peoples. In 2018, the University of Colorado Law School (CU Law) and NARF committed to working on this challenge in the context of American Indian, Alaska Native, and Native Hawaiian rights. Together they launched the joint “Project to Implement the U.N. Declaration on the Rights of Indigenous Peoples in the United States” (Project). In 2019, CU Law and NARF held a joint conference to set the groundwork for the Project (the Conference), gathering tribal leaders, attorneys, scholars, students, activists, and others to share ideas about the current state of federal Indian law and how the Declaration might be used to inform advocacy in the field. This Report provides a summary of the Conference and suggests next steps for assessing and advancing use of the Declaration in advocacy regarding indigenous peoples’ rights in the United States.
Thursday, May 25, 2017
Editors' Note: Guest blogger Prof. Ariel Dulitzsy and graduate fellow Scott Squires describe their successful efforts to request that CERD investigate the impact of the proposed border wall on indigenous people.
In a letter issued May 17, the UN Committee on the Elimination of Racial Discrimination asked that the U.S. Government provide information on the Trump administration’s expansion of the border wall and its effects on indigenous peoples living along the U.S.-Mexico border.
Under its early warning and urgent action procedure, CERD requested that the U.S. provide the information to address concerns that the expansion of the wall—as outlined in the Trump Administration’s executive order issued January 25th —will discriminate against indigenous groups living in the border region.
Specifically, the letter asked that the U.S. Government provide information regarding the impact of the executive order on indigenous peoples’ rights to access their land and resources, ways in which the government plans to limit the adverse effects of the wall on those people’s rights, and measures taken by the U.S. Government to ensure the free prior and informed consent of those peoples in decisions affecting them.
CERD submitted the letter after the University of Texas at Austin School of Law’s Human Rights Clinic requested last February that the Committee re-consider the situation of indigenous and poor Latino communities along the US-Mexico border in light of the executive order. The Clinic, Dr. Margo Tamez (Lipan Apache Band of Texas) and the Lipan Apache Women Defense, an Indigenous Peoples’ Organization initially submitted a complaint to CERD in 2013 alleging the discriminatory impacts that wall would have on the Kikapoo, Ysleta del Sur Pueblo and Lipan Apache communities living along Texas’ border with Mexico. CERD, at that time, was concerned that the border wall has been constructed without the free, prior and informed consent of the affected communities.
The wall’s discriminatory effects on those groups have not been remediated, according to the Committee. And because Trump’s executive order intends to expand the wall along the entirety of the U.S.-Mexico border, CERD is now concerned that the construction of the wall will more broadly “hinder the full enjoyment” of the rights of indigenous peoples living in the border region.
The U.S. Government has until July 17, 2017 to respond to the request.
Monday, March 13, 2017
by Lauren Carasik
On March 3, Victoria Tauli-Corpuz, the UN Special Rapporteur on the rights of indigenous peoples, issued an End of Mission Statement, following her 10 day visit to the US to study the human rights situation the nation’s indigenous peoples, with a focus on energy development projects. She lamented the failure of the government to engage in meaningful consultations with tribes, concluding that "The legislative regime regulating consultation, while well intentioned, has failed to ensure effective and informed consultations with tribal governments. The breakdown of communication and lack of good faith in the review of federal projects leaves tribal governments unable to participate in dialogue with the United States on projects affecting their lands, territories, and resources."
The UN expert singled out the flawed process with respect to the Dakota Access Pipeline:
“Many indigenous peoples in the United States perceive a general lack of consideration of the future impacts on their lands in approving extractive industry projects in particular, and a lack of recognition that they face significant impacts from development of not just their own, but neighbouring resources as well. In the context of the Dakota Access Pipeline, the potentially affected tribes were denied access to information and excluded from consultations at the planning stage of the project. Furthermore, in a show of disregard for treaties and the federal trust responsibility, the Army Corps approved a draft environmental assessment regarding the pipeline that ignored the interests of the tribe… Although the final environmental assessment recognized the presence of the Standing Rock Sioux Tribe five hundred meters away, it dismissed the risks to the reservation and failed to mention any of the other tribes that traditionally used the territory. Without an adequate social, cultural or environmental assessment, and the absence of meaningful consultation with or participation by the tribes, the Corps gave multiple domestic authorizations permitting the construction of DAPL.”
While she did recognize some positive steps towards indigenous sovereignty and self-determination, Tauli-Corpuz expressed deep concern over President Trump’s executive actions on the Dakota Access and Keystone XL pipelines, and recommended “that for any extractive industry project affecting indigenous peoples, regardless of the status of the land, the United States should require a full environmental impact assessment of the project in consideration of the impact on indigenous peoples’ rights.”
In order to move forward, the UN expert emphasized the need for reconciliation:
“The issues surrounding energy development underscore the need for reconciliation with indigenous peoples in the United States. Tribal leaders and representatives indicate that they are interested in engaging in a program of reconciliation to remedy the harms they have faced and improve the government-to-government relationship going forward. Such a program would acknowledge the historical wrongs inflicted upon indigenous peoples in the United States and confront systemic barriers that prevent the full realization of indigenous peoples' rights.”
Monday, January 16, 2017
Editors' Note: The HRAH Blog welcomes Lauren Carasik, Director of the International Human Rights Clinic at Western New England School of Law. Lauren, who works with the Water Protector's Legal Collective, writes this report.
by Lauren Carasik
The Standing Rock Sioux Tribe and its supporters have largely faded from view since the Department of the Army declined to issue the easement for the Dakota Access Pipeline (DAPL) to drill under the Missouri River on December 4. The agency said it would prepare an Environmental Impact Statement (EIS) to evaluate alternative routes for the pipeline, assess the pipeline’s environmental and cultural impacts, and, notably, include an analysis of the Standing Rock Sioux Tribe’s treaty rights. Yet more than a month later, the Army Corps has not published a Notice of Intent to Prepare an EIS, prompting advocates to call on the Corps to begin the process without delay. The sense of urgency is motivated by the expectation that the incoming administration will act quickly to remove impediments to the pipeline’s completion. President-elect Donald Trump has indicated his support for the DAPL and other energy infrastructure projects, including the Keystone XL Pipeline. Rick Perry, Trump’s choice to lead the Department of Energy, recently resigned his position on the board of the DAPL’s developer, Energy Transfer Partners, and Scott Pruitt, tapped to lead the Environmental Protection Agency, is a leading opponent of environmental regulations. Adding to the dismay, the Senate recently elected John Hoeven, (R-ND), a pipeline supporter, as chair of the Indian Affairs Committee. Fearing a government hostile to the interests of DAPL opponents, activists have redoubled efforts pressuring the project’s financiers to divest.
Meanwhile, as the New Yorker notes, the criminal cases against nearly 600 water protectors arrested in connection with the protests are becoming increasingly contentious, at a time when many defendants whose cases are moving forward are still unrepresented by a lawyer. The shortage of defense attorneys admitted to practice in North Dakota prompted the Water Protectors Legal Collective (WPLC), to submit a petition in December asking the North Dakota Supreme Court to temporarily ease the rules for admission to practice law in the state. Currently, out-of-state lawyers must either apply to be admitted to the North Dakota bar pro hac vice or apply for reciprocity, both of which still require the continued participation of in-state counsel. Among those submitting comments in support of the petition were nearly 200 law professors, who wrote that “We are concerned that under these circumstances the rights guaranteed the defendants by the state and federal constitutions cannot be upheld. The right of both indigent and non-indigent defendants to adequate and effective counsel undergirds the guarantees of a fair and speedy trial, due process and equal protection that constitute the cornerstones of the rule of law.”
Compounding concern about fair trials, Acting Morton County State’s Attorney Ladd Erickson has evinced his hostility to the arrestees, including by resisting discovery requests and filing a motion to require public defenders to keep track of costs and expenses so that the state can seek reimbursement from defendants, suggesting that their right to counsel is contingent on the nature of and motivation for the crimes for which they are charged. Erikson argued that “Each protester attack on our police officers, each riot, and each incidence of private property destruction has been done to create fake news videos used to bring attention, celebrities, both passionate and gullible people, and finally money – all to be focused on multiple issues of national discontent… Most protest criminal defendants are simply props for videos of staged events.” He further said that “Our systems are set up so criminal defendants have their constitutional rights enforced. To the contrary, our systems are not set up to be foddered by economic weaponry when people from around the world come to intentionally commit crimes for political purposes and have North Dakota taxpayers pick up the tab.” Erickson’s argument apparently persuaded Judge Bruce A. Romanick, who presided over the first criminal trial: he ordered the two water protectors convicted in December to repay $500 in costs.
WPLC president Brandy Toelupe called Erickson’s characterizations inflammatory, and “intended to poison local jury pools to prevent fair trials and to provide cover for his mass overcharging and false charging of arrestees, dearth of evidence, and refusal to comply with local and Constitutional requirements for producing required discovery in these cases.”
Friday, July 31, 2015
The critical need for affordable, fresh drinking water has been the subject of several posts on this blog. Now the US Human Rights Network announced that on July 28th it, along with twenty other organizations and individuals, requested a hearing with the Inter-American Commission on Human Rights on the right to safe drinking water and sanitation in the U.S.
Among concerns, the letter requesting a hearing addressing water shutoffs in Detroit, Baltimore and Boston. The letter addresses concerns around contamination and lack of sanitation in rural areas as well, namely the San Joaquin and Salinas Valleys of California along with the Black Belt of Alabama. The disparate impact on African Americans and Indigenous peoples is documented for the Commission.
Rebecca Landy of the USHRN is the point of contact for the Commission. We look forward to her periodic updates on this important development.
Watch for more information on Northeastern Law's conference "Tapping into the Human Right for Water", being held on November 5 and 6.