Indigenous Rights are Human Rights: Four Cases of Rights Violations in the Americas

Indigenous Rights are Human Rights: Four Cases of Rights Violations in the Americas May 2003 1

Introduction Human rights violations against Indigenous peoples have been occurring for centuries around the world. The region now called the Americas has been no exception. More than 510 years ago, Europeans began to arrive in the Americas and lay claim to Indigenous peoples lands, destroying their political institutions and ways of life. The devastating impact of early European contact with native populations has been well documented. The encroachment on Indigenous peoples land and their subsequent colonization were often accompanied by slaughter of children, women, and men who stood in the way. Entire communities were decimated either through mass killings, starvation or from infectious diseases brought by the invading group. Unsuccessful attempts were made to enslave the native Photo of Marcinhos Xucuru, who recently survived a second attempt on his life, believed to have been ordered by local landowners. Marcinhos is the son of Chicao Xucuru, who was killed in 1998. Those responsible have still not been brought to trial. Marcinhos is wearing his father's headdress. Amnesty International. population before slaves were brought in from the African continent. Manifest Destiny, the policy behind United States colonization of the land deprived Indigenous peoples their ancestral land, access to life-sustaining resources and traditional ways of life. While mass killings of Indigenous peoples may have diminished in scale since the height of the colonization period, they have never stopped. The counter insurgence tactics used by the Guatemalan army to crush armed oppositions in the late 1970s and the early 1980s led to the killing of tens of thousands of civilians, a majority of whom were unarmed Mayans. Throughout the Americas, members of national security forces, either in uniform or in the guise of death squads and their civilian auxiliaries continue to be responsible for grave and widespread human rights violations against Indigenous peoples. Defenders of indigenous rights have been subjected to serious human rights violations for speaking out against the abuses suffered by their communities. Others have been singled out because of their involvement in trade union movements or other political activities. The cases featured here demonstrate a pattern of human rights abuses suffered by Indigenous peoples in the Americas. But they by no means constitute a comprehensive list of human rights violations suffered by Indigenous peoples in this hemisphere. In Brazil, successive governments have not only failed to protect the fundamental human rights of Brazilian Indians, but have fostered a culture of impunity that has allowed for widespread and 3

increasing violence against Indigenous peoples and their defenders. In Canada, the Lubicon Cree of northern Alberta, numbering about 500, have been fighting for the recognition of their rights to their ancestral lands for decades. In 1984, having exhausted all internal legal avenues to hear their case, the Lubicons petitioned the United Nations Human Rights Committee. In 1990, the Human Rights Committee ruled that the human rights of the Lubicons were being violated. In Guatemala, a bloody civil conflict that began in the early 1960s claimed the lives of an estimated 200,000 Guatemalans. While the victims of these human rights violations included men, women, and children, the vast majority of the victims were unarmed Mayan villagers. Today oil and mining interests threaten the environment and livelihood of Indigenous Guatemalans. In the United States, two Western Shoshone sisters, Mary and Carie Dann, have been fighting the government for more than three decades to retain access to the use of their ancestral lands. After exhausting domestic remedies at the U.S. Supreme Court, the Dann sisters petitioned the Inter-American Commission on Human Rights (IACHR), which ruled on January 9, 2003 that U.S. government is violating the human rights of the Dann sisters. IN spite of the IACHR ruling, the government continues to round up and impound the Dann s livestock, further jeopardizing the economic base of their survival. Despite a 500-year legacy of abuse, the Indigenous peoples in the Americas have struggled to preserve their culture, language, heritage and right of self-determination by linking their struggles regionally and internationally. In recent years, Indigenous peoples around the world have been empowered by their ability to connect local struggles to the emerging global movement to affirm Indigenous peoples human rights. The ability to mobilize international support is particularly crucial to otherwise politically marginalized Indigenous peoples in countries Indigenous leaders and Amazonian Shaman filed a request for reexamination of the U.S. patent on Ayahuasca, a plant used in sacred tradition ceremonies. Washington, DC. December 2000. Courtesy of Amazon Alliance. where they constitute a small percentage of the population. A case in point is Brazil where Indigenous peoples constitute less than 1 percent of the population, the smallest percentage in any country in the continental Americas. In spite of (or because of) the smallness of their size, Brazilian indigenous rights activists have been in the vanguard of the new global transnational movement to promote and protect Indigenous peoples human rights. Indigenous organizations in Brazil have accomplished this by developing strategies and organizational structures that connect their local struggles to the large international movement and NGOs. Indigenous peoples around the world have been supported in their struggles through a number of international instruments and frameworks that have helped define their rights and hold governments accountable for protecting those rights. In 1989, the International Labour Organization (ILO) adopted the Indigenous and Tribal Peoples Convention 169 which recognizes the collective social, cultural and economic rights of Indigenous peoples including their rights to self- 4

determination within the framework of the nation-state, and obliges ratifying countries to take concrete steps to defend Indigenous peoples rights. In recent years Indigenous peoples have become actively involved in helping shape major international treaties, conventions and declarations designed to affirm and protect their rights. In 1982, the UN established a Working Group on Indigenous Populations (WGIP) whose major accomplishment was to produce a United Nations Draft Declaration on the Rights of Indigenous Peoples and to serve as a global gathering forum for the world s Indigenous peoples. While the Declaration has yet to be approved by the UN structures, it nevertheless reflects the agenda of indigenous groups around the world and organizations that support them. Indigenous peoples refer to the Declaration in current legal cases at the national level citing it as an emerging norm in customary law. At the regional level, the Organization of American States (OAS) proposed the American Declaration on the Rights of Indigenous Peoples. In 1995, the Declaration was made public and in 1997 a revised version was issued. Since its introduction, there have been numerous meetings and a creation of a Working Group to facilitate its adoption into regional law. These three international instruments provide an important categorization of the individual and collective rights of Indigenous peoples and a framework for the realization of indigenous rights in international law. Indigenous peoples strive for a future convention guaranteeing the protection and promotion of human rights of Indigenous peoples. impunity while denying that such abuses occur. The increase in corporate globalization and aggressive development projects, particularly in oil and mining industries, are further threatening economic and cultural survival of Indigenous peoples through involuntary resettlement, land encroachment, environmental destruction and loss of subsistence. Today, Indigenous peoples are one of the most marginalized and vulnerable social groups in our society due to structural and systematic discrimination. Indigenous peoples in the Americas continue to suffer grave and widespread civil and political rights violations including rape, unfair trials, mass killings, extra-judicial executions, arbitrary detentions, torture and forms of degrading treatment as well as economic, social and cultural rights violations including loss of land, language, culture and subsistence survival. Indigenous peoples are economically disadvantaged and socially marginalized from the dominant societies. As the Decade concludes, it is important to examine what has been accomplished and explore remaining challenges to guarantee the broad range of Indigenous peoples human rights. Amnesty International calls on governments around the world to uphold their obligations under international laws to respect and promote the broad spectrum of human rights accorded Indigenous peoples. The organization supports the drafting of a United Nations declaration on the rights of Indigenous peoples and looks forward to the eventual adoption of a strong and effective declaration. In 1993, the United Nations declared 1995 to 2004 the International Decade of the World s Indigenous Peoples. While this event has helped increase global awareness on the human rights of Indigenous peoples, the decade has yet to produce many concrete changes in the social conditions of Indigenous peoples. Many governments around the world continue to violate the basic human rights of Indigenous peoples with 5

United States It s disgraceful how the United States makes international statements about human rights and then commits this kind of assault in our own backyard. It destroys their credibility and moral authority Carrie Dann, a Western Shoshone elder in October 16, 2002. Mary Dann bringing in family horses. Courtesy of Western Shoshone Defense Project. I was indigenous and in one single evening they made me indigent. If you think the Indian wars are over, then think again Carrie Dann, a Western Shoshone elder in October 31, 2002. Introduction In 1863, the Western Shoshone Nation of Indians entered into the Treaty of Ruby Valley with the United States. The Treaty affirmed the boundaries of the Western Shoshone Nation and gave the U.S. limited access to and use of Western Shoshone lands for specified purposes. In April 1993, two Western Shoshone sisters Mary and Carie Dann, who live in the Crescent Valley of the Western Shoshone Nation in the State of Nevada, filed a petition with the Inter-American Commission on Human Rights (IACHR) alleging that their human rights have been, and are being violated by the United States under various articles of the American Declaration of the Rights and Duties of Man (the American Declaration ). Other Western Shoshone communities and the traditional Western Shoshone National Council joined the Dann sisters in their petition. The Dann sisters petition stated that the United States claimed in an illegal and discriminatory manner the extinguishment of the Western Shoshones right to their ancestral land. The petition also stated that the United States is actively seeking to deprive Western Shoshone people of access to and use of those lands. The Dann sisters further argued that the U.S. Indian Claims Commission process violated their human rights by not allowing for a hearing on Western Shoshone land title, by not recognizing the request of the Western Shoshone to fire the non-indian attorneys handling the case, and by not permitting the intervention of Western Shoshone individuals and groups to contest the presumed extinguishment of title. The U.S. government denied that it has violated the Dann sisters rights under the American Declaration. It argued that the Sisters claims are not human rights issues but rather involve lengthy litigation of land. The U.S. government further argued that the Dann sisters and other Western Shoshone lost their rights to the land in 1872 as a result of encroachment by non-native Americans. On January 9, 2003, the Inter-American Commission on Human Rights released its final report on the petition. The Commission concluded in its final report that the United States claim to Western Shoshone land are illegal and contrary to international human rights law. The IACHR also concluded that the United States had used illegitimate means to assert ownership of the lands. The Commission directed the United States to provide a fair legal process to determine the Danns (and other Western Shoshones ) land rights and review its laws, procedures and practices to ensure that U.S. policies governing the property rights of Indigenous peoples comply 30

with the American Declaration on the Rights and Duties of Man. Amnesty takes no side in disputes over land but the organization is deeply concerned by IACHR s report that the human rights of the Western Shoshone are being violated by the United States. Amnesty is also concerned about the alleged violation against them, in particular their rights to equality before the law, to be free of discrimination, to fair trial and to property. The way in which the United States has handled the land claim has been found by the Inter- American Commission on Human Rights (IACHR) to be in violation of international law. Background Following WWII, in 1946 Congress passed the Indian Claims Commission Act, which permitted American Indians to sue the United States for the wrongful taking of their lands. The act established the Indian Claims Commission (ICC) as a quasi-judicial body charged with investigating each claim brought before it. On October 16, 1962, the ICC issued a 30 page Findings of Fact, in the Western Shoshone case. Out of the 30 pages, only some 39 sentences specifically pertained to the Western Shoshones. The Findings stated in part that Indian title to the Western Shoshone land was extinguished by the gradual encroachment of settlers and others and by the acquisition, disposition, or taking of said lands by the United States for its own use and benefit or that of its citizens. However, a close reading of the 39 sentences of the ICC Findings of Fact having to do with the Western Shoshones reveals no historically documented basis for the ICC s conclusion. Because the ICC did not base its Findings on historical documentation, the ICC further stated that, the Commission may not now definitely set the date of acquisition of these lands by the United States. In 1966, the ICC issued an opinion accepting an arbitrary date of valuation that had been selected by non-indian attorneys, without the participation or consent of the Western Shoshone people. For purposes of compensation, the ICC certified July 1, 1872 as the date of valuation, and the total area for which the Western Shoshones were to be compensated for the supposed taking of their lands was determined to be 24 million acres. This amount of acreage was based on a map created by the ICC s expert witness, anthropologist Dr. Omer C. Stewart. There are discrepancies between Dr. Stewart s map and the Western Shoshone Sacred Lands Association assessment of 62 million acres, based on the places named in the 1863 Treaty of Ruby Valley. Furthermore, Dr. Stewart never mentioned consulting with any Western Shoshone while preparing his map. In 1979, despite Western Shoshone attempts to stop the proceedings, the United States Court of Claims awarded less than $27 million the 1872 value, from the ICC s point of view, without interest to the tribe to be held by the Interior Department. The award amount has since grown to approximately $140 million. The value of the Western Shoshone land, however, is now valued between $250 and $1,000 an acre. The United States vs the Dann Sisters In 1974, the United States government sued Mary and Carrie Dann for trespassing. The United States government accused the two Western Shoshone elders of grazing cattle on U.S. public land without having obtained a federal permit. The Dann s response was that they were grazing their cattle on Western Shoshone land as recognized in the Treaty of Ruby Valley. In 1984, the dispute ultimately ended up before the U.S. Supreme Court. And in 1985 the Court handed down its decision in U.S. v. Dann. The Court held that the Western Shoshone had been paid because the government had placed funds into a trust account in the name of the Western Shoshone, and that such payment barred the Dann sisters from raising Western Shoshone title as a defense against the federal government s trespass charges. The underlying basis of the Court s decision is that American Indians are classified under the U.S. Indian law system to be wards of the United States government. Thus, the Court deemed that the U.S. federal government could pay itself as the Indians guardian and say that therefore the Indians had been paid. Importantly, the Supreme Court based its ruling in U.S. v. Dann on the definition of finality 31

found in Section 22(a) of the Indian Claims Commission Act, part of which required an ICC report to be filed with Congress. However, what the Court did not realize at the time of its decision is that the Indian Claims Commission had never filed a report with Congress as required by statute, and that finality in the Western Shoshone case had never been achieved by the ICC in the Western Shoshone case. As a result of the ICC process, the monetary award for the purported extinguishments of Western Shoshone title (nearly $140 million dollars), is still held in trust by the U.S. Treasury because the Western Shoshone have refused to accept money for land they argue was never sold, ceded, lost or abandoned. The UN and Inter-American Human Rights Commission Weighs in on the Dispute In August 2001, the United Nations Committee on the Elimination of Racial Discrimination noted the persistence of discrimination and destructive policies by the U.S. against Indigenous peoples and expressed specific concern with regard to the situation of the Western Shoshone. On January 9, 2003, the Inter-American Commission on Human Rights released its final report regarding the long-standing conflict between the United States and the Western Shoshone (the petition was filed by Mary and Carrie Dann of the Dann Band in 1993. The Western Shoshone National Council, Yomba Shoshone, Duckwater Shoshone and Ely Shoshone Tribes filed amicus curiae briefs in support of the petition). After an exhaustive review, the Commission concluded that the United States has been violating the human rights of the Western Shoshone, including the right to equality before the law, the right to judicial protection and due process, and the right to property. The ruling was highly critical of the Indian Claims Commission s handling of the Dann Sisters case. It is the first time that the U.S. has been formally found in violation of international human rights in its treatment of Indigenous peoples within its border. The U.S. Western Shoshone Protest BLM roundup and auction of Dann cattle. Courtesy of Western Shoshone Defense Project. State Department has yet to indicate whether it will comply with the Commission s decisions. In its response to the Commission s preliminary finding, the U.S. claimed that the Dann s claims had been fully and fairly litigated in domestic courts. The Commission s final report rejected this claim and reissued its call on the U.S. to give the Dann sisters a full and fair hearing on the legal merits of Western Shoshone land claims. The Commission also affirmed that the assertion of title by the United States to lands claimed by the Western Shoshone violates international human rights law because the Indian Claims Commission proceedings lacked adequate due process protections and were discriminatory. The Commission also found that Articles XVIII and XXIII (rights to judicial protection and property) require that any determination of Indigenous peoples interests in land must be based upon a process of fully informed and mutual consent on the part of the Indigenous community as a whole that is, members must 1) be fully and accurately informed, 2) have an effective opportunity to participate as individuals and as collectives. The Commission recommended that in order for the United States to come into compliance with its human rights obligations, it must seek an effective remedy for the Western Shoshone, either legislatively or otherwise, and it must 32

Mary and Carrie Dann. Courtesy of Western Shoshone Defense Project. review its laws, policies and procedures to ensure that the property rights of Indigenous persons are determined in accordance with the rights established in the American Declaration. The Western Shoshones and groups that represent them have questioned why would the U.S. want Western Shoshone land. One reason may be that once the Treaty of Ruby Valley was signed, gold mining operations spread across the landscape. With the repression of Western Shoshone resistance and independence, the United States saw fit to facilitate the development of Western Shoshone lands for their mineral potential to the fullest extent possible. More than one hundred years of government policy in subsidizing and promoting the mining industry has led to a modern mining boom unlike any in world history. Western Shoshone lands now account for the majority of gold produced within the United States and almost 10 percent of world production. The scale of mining operations in the area is unprecedented and could leave a legacy of environmental impacts for centuries into the future. Even after two requests, one in 1993 and the other in 1998, by the Inter-American Commission on Human Rights to stay its intention to impound Dann livestock until the case is resolved, the U.S. continues to threaten the livelihood of the Danns. In September 2002, 40 agents from the Bureau of Land Management, heavily armed and accompanied by helicopters, confiscated 232 cattle off the Dann ranch. The cattle (about half of the family herd) was later sold off at auction, bringing in a mere $24,444 of the $3 million the government claims the Dann sisters owe in grazing fees dating back since the 1970s. In early January 2003, the BLM announced it would round up the nearly 1,000 of the Danns horses. In response to the threat of a roundup, the Western Shoshone National Council (WSNC) created the Western Shoshone International Goodwill Horse Program to which the Dann sisters are donating their horses. The purpose of the program is to promote economic development opportunities for Indian nations through horse management and gentling programs and to strengthen youth empowerment activities. Though the horses will be used to benefit the Western Shoshone peoples rather than coming under control of the BLM, the Dann sisters are still suffering a major blow to their economic survival. In a legislative bit to legitimize the U.S. government s claim to the land, Senator Harry Reid (D- Nev.) sponsored Senate Bill 958, the Western Shoshone Claims Distribution Act, that would distribute the almost $140 million settlement. The Dann sisters, along with other Western Shoshone, oppose the bill, which they believe will thwart their challenges to land rights and will open up the land to even more gold mining. On November 16, 2002, a day after being passed in the Senate, the bill died in the House of Representatives as the 107 th Congress ended. However, the 108 th Congress has seen the reintroduction of the bill into the House (HR 884) by Representative Jim Gibbons of Nevada. The bill is opposed by traditional Western Shoshone as well as a majority of the Western Shoshone Indian Reorganization Act governments who were left out of the discussion about whether to distribute this money - a flagrant violation of the longstanding policy of the U.S. to respect Indian sovereignty and government-to-government relations. The Western Shoshones did not cede their lands to the United States and are still fighting for the recognition of their rights to their ancestral homeland. References: LeDuff, Charlie. October 31, 2002. Range war in Nevada pits U.S. against 2 Shoshone sisters. The New York Times. Page A16. Sewall, Christopher. June 1999. Digging holes in the spirit: Gold mining and the survival of the Western Shoshone Nation. Inkworks Press. 33

TAKE ACTION!! Please send a courteously worded letter or fax to the U.S. authorities below. Please write in your own capacity and/or as a member of Amnesty International: Express concerns about the situation of the Western Shoshone people of Nevada and the Inter-American Commission of Human Right s reports that their human rights are being violated; Call on the U.S. government to abide by the ruling of the Inter-American Commission on Human Rights on the case; Call on the U.S. government to meet and negotiate in good faith with leaders of the Western Shoshone people for a fair and just settlement of this land dispute and other Native American land disputes; Urge the U.S. government to review its laws, procedures and practices to ensure the property rights of American Indians are determined in accordance with the principles for fair trials and due process in U.S. and international law. Write to: Department of State Secretary of State Colin Powell 2201 C Street, NW Washington D.C. 20520 Phone: (202) 647-6575 Fax: (202) 261-8577 Undersecretary of State for Global Affairs Paula Dobriansky 2201 C Street, NW Washington D.C. 20520 Phone: (202) 647-6575 Fax: (202) 261-8577 Secretary of the Interior Secretary of the Interior Gale Norton 1849 C Street, NW Washington, DC 20240 Phone: (202) 208-7351 e-mail: gale_norton@ios.doi.gov U.S. Senate Senator Harry Reid United States Senate Washington, DC 20510 Phone: (202) 224-3542 Fax: (202) 224-7327 Senator Daniel Inouye United States Senate Washington, DC 20510 Phone (202) 224-3934 Fax: 202-224-6747 Senator Ben Nighthorse Campbell United States Senate Washington, DC 20510 Phone: (202) 224-5852 Fax: (202) 228-4609 U.S. House of Representatives Representative Jim Gibbons 100 Cannon House Office Building Washington, DC 20515 Phone: (202) 225-5679 Fax: (202) 225-6155 U.S. Permanent Representative to the Organization of American States Ambassador Roger Noriega U.S. Permanent Representative to the Organization of American States U.S. Department of State, Room 5914 Washington, DC 20520 Tel: (202) 647-9430 Fax: (202) 647-9376 Please send copies of your letter to: Amnesty International USA, Just Earth! Program 600 Pennsylvania Avenue, SE, 5 th Floor Washington, DC 20003 Fax: (202) 546-7142 E-mail: env@aiusa.org Western Shoshone Defense Project P.O.Box 211308 Crescent Valley, NV 89821 Fax: (775) 468-0237 E-mail: wsdp@igc.org 34