Introduction

Starting in August 2016, a growing movement of Native American tribes and allies have been engaged in daily protest. Their target: The Dakota Access Pipeline. The DAPL is an oil pipeline designed to transport oil as part of the larger Bakken pipeline project.[1] The Bakken project aims to connect newly accessed crude shale oil in the Bakken oil field located in North and South Dakota. The protest is at the heart of an intersectional struggle against the pipeline, bringing in activists and concerned citizens focused on environmental rights, corporate governance and social responsibility, and Native American rights. This diverse group believes that the Standing Rock Indian Reservation serves as the physical location of the intersection of these struggles. The protests have forced construction to slow or stop several times and remained an issue, albeit largely neglected, in the 2016 US presidential election. On December 4, 2016, the Army Corp of Engineers announced that it would not grant the easement that would allow the pipeline to traverse Standing Rock sacred land, causing great celebration at the protest site.[2]

In addition to fears of worsening environmental degradation, assisted greatly by the continued extraction and widespread use of CO2 emitting fluorocarbons, the Standing Rock protest has received attention in part related to the specific claims of the Native American tribe through whose land the pipeline was to run, namely that said land is considered sacred by the tribe.[3] Therefore they argue that the construction of the pipeline violates, at minimum, their human right to property ownership.[4] This latest action is considered by the tribe to fall in a long line of US government reneging on treaties made with the native people of North America.

This paper will attempt to navigate these claims and determine whether they are valid and/or justiciable. Central to this analysis will be the notion of vulnerability in international human rights law (IHRL) and whether the Standing Rock and other similarly situated Native tribes in the US fit the definition of a vulnerable group. To do so, Part II provides necessary background on the history of European settlement in the western hemisphere, the legal framework created for native tribes after independence from Britain, including most notably the 1830 Indian Removal Act, and finishing with the situation of native tribes today. Part III is an analysis of the present standing of indigenous rights in IHRL, the recognition of the marginalized nature of the history of Native Americans and the continuing effects of that history on the present population. Finally, comparisons with the Inter-American Court of Human Rights designation of the Saramaka people as a tribe deserving of indigenous rights and the European Court of Human Rights’ decisions regarding the Roma population will be drawn so as to further underscore a simple conclusion: Native American tribes and persons may be considered vulnerable groups under IHRL due to the historical and on-going depravation of land and cultural rights.

Part IV recommends that the justification for considering Native American tribes and persons a vulnerable group is more than legally valid, but actually useful in pursuing legal remedies. It further argues that the US government is obliged to acknowledge duties owed under respect and protecting populations from rights abuses by third parties. Additionally, the situation of Native American tribes today demands that concrete policy steps are necessary if the US is to address the specific needs and challenges of Native American groups. In the end, the paper concludes by coming back to the intersection of different struggles at Standing Rock and how the new US administration could, but likely will not, act to address those serious and ongoing issues.

Factual Background

1. Brief History of European Settlement in Western Hemisphere

A popular poem-turned-children’s tune begins, “In 1492 Columbus Sailed the Ocean Blue.” This small fact marks the first impression most American schoolchildren form of European colonization of the Western hemisphere. From this tune children also learn about Columbus’ infamous mistake. “October 12 their dream came true, You never saw a happier crew! “Indians!  Indians! But “India” the land was not; It was the Bahamas, and it was hot.”  So too do they find out the real reward from Columbus’ “discovery” and the indelible mark made by the famous Italian explorer: “Columbus sailed on to find some gold, To bring back home, as he’d been told. He made the trip again and again, Trading gold to bring to Spain. The first American?  No, not quite. But Columbus was brave, and he was bright.”[5]

This version of European “discovery” of North America presented to children is understandably watered down. However, as James Loewen illustrates in his seminal work Lies My Teacher Told Me, this basic story of the intelligent and brave European who brought civilization to backward native populations remains the one presented to middle and high school children today.[6] Columbus remains an indelible figure in the history, or perhaps folklore, of America. So strong is his legacy that in 1937 the government of the United States saw fit to celebrate it and adopted “Columbus Day” as an official national holiday.[7] The irony of celebrating a man who never set foot on the mainland of North America notwithstanding, the continued public veneration of Columbus went largely unchallenged until recently.

In recent decades, the a-historical Columbus depicted in murals, statutes, and namesakes has not come without detractors and critics. In 2016, the state of Vermont and the cities of Denver and Phoenix joined at least 14 communities in the United States that have passed measures designating the second Monday in October “Indigenous Peoples Day” in order to flip the narrative on the public holiday.[8] This effort comes from a slew of new or re-discovered scholarship on the dark nature of the Columbus experience for the millions of Native groups who would come to suffer under the weight of European mercantile imperialism. They outline how Columbus initiated a multi-century campaign of what would now clearly be major international crimes against the local population including persecution, cruel and inhuman treatment, slavery, rape and other sexual crimes, as well as the most serious: genocide.[9]

The post-Columbus history of European and native interaction in North America retains similar attributes, as does Columbus himself. While children are taught moralizing and heartfelt stories of cooperative events between local native populations and early European settlers canonized in the American holiday of Thanksgiving, the less moral and more human events regarding the interaction of the groups is becoming a more competitive narrative. This narrative focuses on the reality of that history. It acknowledges that when Columbus arrived just before the 16th century there were nearly 10 million native people in North America and 400 years later that number had dropped to just 300,000.[10] It correctly describes the cause of this massive loss of life. Rather than mere acceptance of a European way of life, the native population of North America was destroyed either by disease introduced by European settlers, widespread armed conflict, and finally systematic governmental policy of removal and relocation.

Before the eventual independence of the United States from Britain, the relations between the European and Native people had already disintegrated. Indeed, even during relative peace, ‘redskins’ (scalps of Native Americans) were a common prize of encounters with native groups. This sorted history thrusts us back into the present, given the current name of the football team from the federal District, is still the Washington Redskins. Just before the Declaration of Independence was sent to King George he issued the 1775 Phips Proclamation in Massachusetts which called for “subjects to embrace all opportunities of pursuing, captivating, killing and destroying all and every of the [Penobscot] Indians.”[11] Indeed, colonists were even paid for each Penobscot Native they killed, so long as they had the redskin to prove it. They received fifty pounds for adult male scalps, twenty-five for adult female scalps, and twenty for scalps of boys and girls under age twelve.[12] These proclamations explicitly display the settlers’ “intent to kill,” a major indicator of genocidal acts. While the political links between Britain and the United States were eventually severed, these sorts of proclamations and legislation regarding persecution of native tribes very much continued.

2. Post-Independence Native American Legal Framework

Before the American Revolutionary War ended with the Treaty of Paris, the United States launched the Sullivan Expedition to root out loyalist and target pro-British native tribes, namely the strong and organized Iroquois Confederacy.[13] In a letter to the leader of the Expedition John Sullivan, General and future-president George Washington made his intention clear: destroy the native population.[14] After the Treaty of Paris, the new United States set out to establish itself as a nation-state like those in Europe. The leadership, including George Washington and Henry Knox, the man tasked with orienting a policy towards the native tribes, believed that the native population was not necessarily inferior unlike the widely held view of black Africans, but needed to be “civilized.”[15]

Hoping to civilize the native population, the United States government set forth a series of policies, with varying degrees of success. First, there was a distinction made among the many native groups into five civilized tribes (Cherokee, Chickasaw, Choctaw, Creek (Muscogee), and Seminole) leaving the rest to be freely and legally considered “uncivilized.”[16] The civilizing project focused on integrating tribes into European property relations such that they could participate in the commercial system of the former colonies. To facilitate this, Congress passed a series of statutes known as The Non-intercourse Act(s). Beginning in 1790 and then reaffirmed in 1790, 1793, 1796, 1799, 1802, and 1834,[17] these acts built upon the previous Royal Proclamation of 1763 in which the Crown had to approve all private native land sales and set limits to the ability to do so west of the Appalachian Mountains.[18]

Over the course of the next half century the U.S. government signed and ratified numerous treaties with several native groups, namely for the purposes of ceding land and establishing boundaries.[19] This resulted in a shrinking of land held by the tribes under “aboriginal title.” At the same time, Christian missions sought to usurp native religious doctrine with western Christianity and aimed to integrate native people into the larger European society via religion and religious guided education. Acts of Congress, such as the Civilization Fund Act of 1819, sought to assist private actors in performing this work and achieving the policy goals of the early American founders.[20]

There were varying degrees of success with the civilization program. While a large number of native people did indeed integrate into the European-dominant former colonies, others, especially those west of the Appalachian mountains and eventually the Mississippi river, sought to defend their property rather than agreeing to retain historic ownership of sacred land via European private property schemes.[21] This tension often erupted into violence. The U.S. government engaged in a number of wars with several native tribes, and was not always the victor. Though Washington had claimed in a speech to the Seneca Nation of New York that the Non-intercourse Act gave native groups “…the security for the remainder of your lands….The general government will never consent to your being defrauded. But it will protect you in all your just rights,”[22] that same federal government, under President Andrew Jackson changed course.

3. Indian Removal Act

After the purchase of the Louisiana territory from Napoleon in 1803 there was a movement to expand American landholding, settlement, and civilization to the newly acquired U.S. property. This possibility created the ideology of “Manifest Destiny” in which it was considered the destiny of the United States to be occupied by white, European settlers, thus spreading the new republic from the Atlantic Ocean to the Pacific.[23] However, several native tribes already occupied much of the land and, unlike their Eastern counterparts, were much less willing to engage in treaty-making or other attempts at what Washington and Knox would have called “civilization”. In the context of this new resistance and the growing suspicion of native tribes in the East who had seen their land holdings shrink to unsustainable levels, the U.S. Government sought to change its overall native policy.

The policy of removal of native tribes from their lands east of the Mississippi river had its origin in 1824. After requesting Congress to establish the Arkansas Territory in the Louisiana area, President James Monroe also petitioned for the creation of an “Indian Territory.”[24] This area, in the modern state of Oklahoma, would serve as the resettlement land for Eastern native tribes. Secretary of War John C. Calhoun drafted a bill that would voluntarily resettle native groups in the new territory. This effort proved futile and eventually forced the next President John Quincy Adams to make additional treaties with the Cherokee and Creek in Georgia, which only served to inflame the issue. Finally, as voters elected Andrew Jackson under the banner of the new Democratic Party, the voluntary removal and relocation of native people was tabled in favor of a more potent approach: forced relocation.

On May 28, 1830, Congress approved the Indian Removal Act and two days later, it became law upon President Jackson’s signature.[25] Though technically not changing the voluntary status of the removal and relocation, it was the position of the Jackson administration that the native tribes were not independent nations, but subject to state laws, and so if treaties accepting the removal were resisted, the monopoly of violence held by the state could be laid to bear upon the tribes. Georgia assisted this threat by extinguishing the national status of native tribes and their land in 1828.[26] Knowing that this meant certain and likely wholesale destruction, some of the tribes began to make relocation treaties, as the non-intercourse acts were still technically in effect, demanding federal approval of land sales.

By September of 1830, Choctaws in Mississippi ceded land east of the river in exchange for payment and land in the West.[27] The Treaty of New Echota, signed in 1835, resulted in the removal of the Cherokee from Georgia on what is now known as the Trail of Tears.[28] This forced march from Georgia to Oklahoma lead to thousands of lost lives due to horrid conditions and treatment along the way. Famed commentator on early America Alexis de Tocqueville, personally witnessed the Choctaw removals while in Tennessee and wrote in his famous work Democracy in America that “…the whole scene…was an air of ruin and destruction, something which betrayed a final and irrevocable adieu; one couldn’t watch without feeling one’s heart wrung. … We … watch the expulsion … of one of the most celebrated and ancient American peoples.”[29] In sum, over 100,000 native people where relocated as part of this scheme.[30]

In the rest of the United States west of the Mississippi, the policy regarding Indians was one of conquest. Wars against various tribes ebbed and flowed, but often ended with removal and resettlement treaties that confined tribes into specific geographic areas, known as reservations, where the tribe was then legally allowed to have sovereign control. Many of these treaties were amended (sometimes unilaterally) or simply ignored as natural resources were discovered on native land and therefore removed from their control to allow for European ownership and extraction.[31] This policy served to relegate the native population to land that was either not conducive to their traditional lifestyle, or of such poor quality that no sufficient agriculture or industry could develop.

4. Status of Reservations and Sovereignty and the Dakota Access Pipeline Controversy

By 1871, the principle of treaty making with native nations came to an end with a rider to the Indian Appropriations Act.[32] This was done to facilitate yet another governmental policy change. In the late 19th and early 20th centuries, US policy towards native tribes was integration into the United States, primarily by citizenship and western education in boarding schools, still usually religious in nature. Still, a significant number of Native Americans were not citizens of the country. Finally, on June 2, 1924 then U.S. President Calvin Coolidge signed the Indian Citizenship Act, which made all Native Americans born in the United States and its territories citizens of the United States.[33]

In the context of the Civil Rights Movement of the 1960s, native groups sought to entangle their history with that of African Americans and began to organize and engage in actions of civil disobedience. Like the Southern Christian Leadership Conference (SCLC) native groups formed the American Indian Movement (AIM) which sought, like the SCLC to engage in actions to raise awareness of on-going Native American related issues. One of the most famous is the non-violent occupation of Alcatraz Island in San Francisco[34] and the more violent Wounded Knee Incident in 1973.[35] The Wounded Knee Incident involved 200 Oglala Lakota and followers of AIM who seized and occupied the town of Wounded Knee, South Dakota, on the Pine Ridge Indian Reservation that resulted in a violent confrontation with U.S. Marshalls and the FBI. Continued tensions in the area also resulted in the capture and trial of Leonard Peltier, an AIM activist who in 1977 was convicted of murdering two FBI agents in what Amnesty International deemed an unfair trial[36] and whose supporters and Native American activists claim is an American political prisoner.

In 1975, the U.S. government passed the Indian Self-Determination and Education Assistance Act.[37] The act sought to give more local control to native tribes and allowed each to develop structures and organizations to administer their own social welfare and legal situations. However, given the federal government’s obligations under the 1968 Indian Civil Rights Act[38] to protect native populations from abuse or neglect, the notion of tribal self-determination has at times served to undercut these demanded protections. This is mostly because the Bureau of Indian Affairs, the federal department tasked with ensuring these obligations, tends to act more as a police force than as a civil rights protection department.[39]

Nearly 180 years after the passage of the Indian Removal Act, President Obama signed a 2004 Senate joint resolution[40] to “offer an apology to all Native Peoples on behalf of the United States” for past “ill-conceived policies” by the U.S. government regarding Indian Tribes. At the same time the political activism of the past had changed tactics and began pursuing legal remedies for past transgressions hoping for positive judgments in an Obama administration Justice Department.[41]

As of 2012, the statistics regarding the current state of Native Americans is dire. Indeed, over one-in-four (29.1%) Native Americans live in poverty, compared to the national percentage of around on in six (14%).[42] This factor alone, combined with high infant mortality rates, high rates of domestic violence, and a serious endemic issue of alcoholism makes Native Americans one of the most difficult and often neglected groups of people in the United States. At the same time, the issue is often ignored or deemed to be under the purview of Native tribes under the self-determination policy continued after the 1970s.

However, the issue of Native American cultural and property rights has reemerged in the protest movement surrounding the construction of a shale oil pipeline through the Standing Rock Reservation in North Dakota. The proposal of the path of that pipeline was rejected by the Standing Rock Nation, home to about 9,000 tribal members, yet construction began in September of 2016. Since then, thousands of Standing Rock Tribal members and allies have teamed up in actions of civil disobedience reminiscent of AIM actions in the 1960s and 1970s. Even with the announcement of the rejection of the easement for the construction, clashes continue at the site and serve as a lighting-rod to re-examine the progress, or lack thereof, regarding native populations and their rights, specifically at Standing Rock. Indeed, even with the victory at standing Rock, others remain given that the poverty rate at Standing Rock Reservation is 43.2%, or triple the national average.[43]

Analysis

1. Defining a Vulnerable Group

The entire International Human Rights scheme is aimed at identifying the fundamental freedoms and obligations that allow human beings to flourish regardless of geographic, political, cultural, or other variations in human groups. For centuries, forms of these rights and obligations have ebbed and flowed in number and in strength. Generally, under international instruments instituted after World War II, the basic proposition is that all human beings, simply by membership to the species, should be guaranteed certain rights and that states have the obligation to ensure that said rights are fulfilled and protected.[44] This basic notion is revolutionary and idealistic. History has shown that the universal promise of human rights often remains far from ubiquitous. The 20th century was witness to an explosion of these rights through instruments and institutions designed to ensure these rights are respected and the obligations fulfilled.[45] Indeed to fulfill this goal, the international community established a number of international bodies to legislate, arbitrate, or judge states that ratified human rights treaties. Yet, violations of rights persisted.

Out of this unfortunate situation came a recognition. While each person could, in principle, experience a deprivation of one liberty or another, other groups faced more systematic and long-lasting human rights abuses. With the rise of identity politics in the mid-1970s, the recognition of historically marginalized groups entered public and academic consciousness and became an invariable part of human rights vocabulary.[46] In comparing these groups to other, more privileged groups in society these historically marginalized groups became known as “vulnerable groups.” This label has had its supporters and detractors. Martha Fineman’s seminal piece on the subject attempts to describe this notion as a heuristic device that allows us to “examine hidden assumptions and biases folded into legal . . . practices.”[47] Others have argued that the notion of vulnerability is inherently relational in that a group can be identified as particularly disadvantaged only in comparison to other groups in the society.[48] Fineman disagrees with this relational approach, instead attempting to universalize the notion of vulnerability as a “universal, inevitable, enduring aspect of the human condition” and therefore able to deliver more substantive equal justice. This is possible because, rather than comparing one group to a so-called “normal” group, the universal approach serves to understand the individual by way of the institutions which produce universal vulnerability in the first place.[49]

While certainly a laudable goal, Fineman’s intent to move away from the relational into the universal will only serve to muddy waters rather than clear them. The notion of vulnerability is necessary to make a distinction in theory and law that is already apparent in social relations. There are, in society, comparative advantages and disadvantages for different groups. While Fineman is certainly correct in her attempt to make it clear that all persons can or may experience some form of vulnerability in their lives, if we assume that each person is vulnerable, whatever weight this label can provide simply disappears. Though it is quite true that the institutions in society are designed to divide and create hierarchies of different forms and purposes, in many situations there are groups who systematically or universally end up near or at the bottom of these hierarchies. If the term “vulnerability” is to have any use in theory or law, it must then be relational and generalizable to groups who do not have this experience so that we can make the same distinction in addressing social ills as is necessary to understand the causes of said ills. This can only be accomplished by a recognition of the universalizability of the notion of vulnerability, but also the relational character in which this vulnerability is always expressed.

Courts have attempted to bridge the gap between the universal and relational notions of vulnerability. As one Strasbourg judge said about the Court’s reasoning in cases involving vulnerable groups: “All applicants are vulnerable, but some are more vulnerable than others.”[50] Given this perspective, courts and other international human rights bodies have used a relational analysis to create a growing, though not exhaustive, list of the recognized vulnerable groups. They are: 1) women and girls; 2) children; 3) refugees; 4) internally displaced persons; 5) stateless persons; 6) national minorities; 7) indigenous peoples 8) migrant workers; 9) disabled persons; 10) elderly persons; 11) HIV positive persons and AIDS victims; 12) Roma/Gypsies/Sinti; and 13) lesbian, gay and transgender people.[51]

For the purposes of discussing the situation of Native Americans in North America, it will be useful to review how courts and other bodies have understood indigenous peoples’ rights and how the vulnerability label can be helpful not only to understand the current situation of these groups, but to better equip courts and bodies to address the groups’ unique needs. It is not surprising that the first use of the notion of vulnerability comes with regard to the Roma population in Europe.[52] The reasoning used by the European Court of Human Rights and others gives a guide for understanding the situation and potential vulnerability of Native American groups in the United States. We must also review the human rights instruments that specifically address the needs of indigenous people.

2. Vulnerability for Indigenous Groups in Treaties, Declarations, and Conventions

It is not difficult to fathom why indigenous groups are among the list of identified vulnerable groups. For instance, in 1991 the International Labor Organization passed ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries.[53] The convention notes “that in many parts of the world these peoples are unable to enjoy their fundamental human rights to the same degree as the rest of the population of the States within which they live, and that their laws, values, customs and perspectives have often been eroded.”[54] In 2001, the Commission on Human Rights, noting ongoing issues in the fulfillment of rights and obligations of indigenous peoples, appointed a Special Rapporteur on the Rights of Indigenous Peoples as part of the system of thematic Special Procedures.[55] The special procedures system was envisioned to allow the OHCHR to address the wide variety of needs and to focus on those most at issue.

This already unique body was augmented in 2007 when the UN General Assembly passed the UN Declaration on the Rights of Indigenous Peoples.[56] The Declaration made the situation explicit by specifically recognizing “that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests.”[57] To further assist in these efforts, the UN general Assembly in resolution 65/198 decided to organize a high-level plenary meeting of the General Assembly. This meeting, known as the World Conference on Indigenous Peoples, is intended to be a forum to share perspectives and best practices on the realization of the rights of indigenous peoples and pursuing the objectives of the UN Declaration on the Rights of Indigenous Peoples.[58]

3. Analogies to the Saramaka People v. Suriname and Roma in Human Rights Courts

In 2007 the Inter-American Court of Human Rights issued its ruling in the Saramaka People v. Suriname matter.[59] This case involved the Saramaka people, non-indigenous tribal people brought to Suriname and the government of Suriname in which the Saramaka alleged the state violated their property rights under the Inter-American Convention on Human Rights.[60] Echoing the pipeline issue in North Dakota, Suriname allowed logging and other extractive resource operations in areas traditionally claimed by the Saramaka people. In a significant decision, the Court decided that though the Saramaka people where not indigenous to the area, they shared many features of indigenous people, and therefore could claim tribal status and enjoy the rights of indigenous people under the convention.[61]  Echoing earlier decisions, the Court made it clear that “members of indigenous and tribal communities require special measures that guarantee the full exercise of their rights, particularly with regards to their enjoyment of property rights, in order to safeguard their physical and cultural survival.”[62]

In the existing human rights case law regarding vulnerable groups, the closest group to Native Americans is the Roma. For the Roma, the main determinant of their vulnerable status is historical discrimination and oppression. The European Court of Human Rights used this reasoning in 2007 in its judgment of D.H. and Others v. the Czech Republic. In this case, the Court held that the Roma people are a vulnerable minority as a result of their turbulent history and constant uprooting.[63] The European Court also noted three other factors: discrimination, marginalization, and segregation that must be present in the past and present.[64]

4. Context of US historical depravation of land and cultural rights produces vulnerability

The situation of Native Americans combines the situation of the Samaraka people and the Roma. As outlined above, the history of Native Americans upon contact with Europeans is one, like the Roma, marked by discrimination, marginalization and segregation. Though instituted to protect the rights of Native groups, the policy of the United States to consider Native American tribes as separate nations was, though understandable and seemingly justifiable, ultimately discriminatory both de jure and de facto. Laws that either created secondary systems for Native Americans or specifically targeted these groups for persecution and land confiscation in favor of European Americans are similarly discriminatory. When governmental policy changed under President Jackson to naked land confiscation, especially relocation to land specifically designed to be unincorporated territory (with no access to the sea), it was the first not the instance of marginalization but the most apparent. Further laws against acceptance of Native people as full citizens of the country, of relegating all power to disadvantaged reservations under the guise of self-determination, and the continued underfunding and lack of capacity of the Bureau of Indian Affairs only serve to continue this marginalization into the present. Finally, the entire structure of the reservation system is, de jure and de facto, segregation. Indeed, myriad schemes exist to either incorporate or isolate certain native tribes and reservations. In many cases this depends on a number of economic conditions such as natural resource locations, availability of otherwise illegal activities such as gambling or off-season hunting.

When a particular history of discrimination, marginalization, and segregation is combined with the general tendency, as recognized by the Inter-American Court of Human Rights, of indigenous and tribal groups’ need for special state protections given their unique tie to land and the continuous difficulty doing so after European encroachment, the case of Native Americans becomes rather straightforward. The systematic denial of Native American indigenous rights would violate all manner of international protections[65] and likely be a crime against humanity or genocide under the Rome Statutes of the International Criminal Court if it was in force when the US government instituted forced relocations.[66] Still, the continued action against native groups and protesters at Standing Rock reservation alone continues this discrimination, marginalization, and segregation of Native Americans in violation of the special protections demanded under international law. In addition, the denial of land rights by non-state actors still violates the obligation of the United States to protect its native population from third party violations of land usage and ownership rights under the Inter-American Convention on Human Rights in relation to the Dakota Access Pipeline issue.

Recommendations

1. Acknowledge duties owed and respect and protect populations from rights abuses

The history of Native American and European interaction in North America is one of the most tragic stories of modern humanity. Historic, religious, economic, and environmental factors all conspired to create a situa

ion in which one group of human beings would, both through ignorance and intention, nearly destroy another whole group. The modern word for such endeavors or situations is genocide. The effects of this brutal, disastrous, and heartbreaking history remain. The neglect of the Native American groups in the United States continues the historic marginalization. The uneven and inequitable application of laws, both tribal, local, state, and federal continues a discriminatory history that runs through this centuries-long crime against humanity. The relegation of native people into 19th century cantons, ghettos, and bantustans still outlines their segregation from the rest of their former country. This history is not one that demands merely feelings of regret or sympathy but a recognition of special obligations owed to this vulnerable group.

This necessity is complicated by specific legal decisions in the United States which render all non-self-executing treaties to be set in force only by congressional legislation. Thus far, legislation regarding ameliorating the condition of native groups has little hope of being proposed by the recently elected Republican-majority Congress. Indeed, president-elect Donald Trump has made no indication that Native American issues will be a priority of his incoming administration. Therefore, there is, unfortunately, every reason to believe that the current situation for Native Americans generally is unlikely to change, and the situation at Standing Rock specifically is likely to worsen. Though the administration or Congress may ignore the obligations under international human rights regarding the US native population, the United States is not absolved of its obligations. In the future, a different administration and Congress may accede to international treaties and implement those obligations under international law. The failures of the present may, by then, become crimes of the past. Therefore, the obligation to act now remains unchanged and no less a mandate under international law. Given that the DAPL protests involve both third party and state actors (in the form of militarized police action against the protesters) obligations of the state to ensure the rights guaranteed to the native population, but also protect them from third party land desecration rest at the heart of the matter.

2. Concrete policy steps for US to address specific needs and challenges of Native American groups

The difficult history of Native Americans and the neglect of their conditions by the US government has created serious and substantial issues for many Native communities. The two most dire are education and health. When only 67% of Native American students are graduating from primary school, compared to 80% of their non-native peers, the US government has an obligation to create or divert funds to be specifically funneled into specialized programs to address this failure.[67] To the benefit of the current Obama administration, after visiting Standing Rock in 2015, President Obama tasked several agencies with coming up with solutions to this educational deficit.[68] However, with the DAPL issue overtaking the educational deficits, the work of this taskforce may be insufficient to address the issue before the next administration begins and potentially changes course.

Another major issue for many Native American groups is alcoholism. While the exact reason, if there is only one, has yet to be identified, Native Americans and Alaskan Natives are five times more likely than other ethnicities in the United States to die of alcohol-related causes.[69] Though this issue is highly complicated, much serious work has been done reviewing and discussing different approaches and policy proposals to specifically target both genetic and behavioral factors that lead to alcoholism prevalence.[70]  However, like educational issues, much of the difficult and expensive work drafting and implementing these policy proposals has been left to underfunded or incapable state or local agencies or universities. Until this issue is the priority it ought to be, the vulnerable status of the Native American population and the scale of the problem means that little in the way of progress should be expected.

Another issue gripping many Native communities is domestic abuse and violence against women. The segregated nature of Indian Reservations makes even understanding the depth of the problem difficult.  American Indian women residing on Indian reservations suffer domestic violence and physical assault at rates far exceeding women of other ethnicities.[71] A 2004 Department of Justice report estimates these assault rates to be as much as 50% higher than the next most victimized demographic.[72] Further data gathered by the U.S. Department of Justice indicates that Native American and Alaskan Native women are more than 2.5 times more likely to be raped or sexually assaulted than women in the US in general (5 vs. 2per 1,000).[73] Additionally, 34%, or more than one in three Native women will be raped during their lifetime, whereas for women as a whole the risk is less than one in five.[74] Overall, this issue, like the others is multi-facet, inter-related, and complex. Though a Violence Against Women Toolkit is available and promoted by the Congress of American Indians, it seems to have had little effect on lowering the rate of violence in native communities.[75]

Conclusion

As the UN Declaration of the Rights of Indigenous Peoples notes, indigenous peoples around the world have a suffered from historic injustices. The Native Americans of North American are no different. They too have a history of “colonization and dispossession of their lands, territories and resources.”[76] These groups of human beings, cherished by those who recorded their admirable qualities and sometimes less-admirable qualities, even as they declined, have been subject to a long list of abuses. Echoing the language of the genocide convention, these groups were often attacked with an intent to destroy them, their culture, their way of life. There was a systematic and widespread campaign of cleaning territory of native groups. There was a plan and policy of relegating whole groups of people to areas of little use to that population in favor of other groups who claimed to know how to exploit the resources of that land “more productively”.

The irony of the current standoff at Standing Rock is that the land is not being used most productively, but destructively. The native population is now having to defend the small, otherwise useless, territory from further encroachment by those claiming to have same perceptive as did their ancestors. Just as it has happened before, the policy orientation of the United States oscillates between laissez-faire and ignorance, to heavy handed and oppressive. This only serves to exacerbate the problems in the native communities. It is this governmental vacillation that is in large part the expression of the ongoing marginalization, discrimination and segregation of tribal people protected under international human rights law; obligations ignored by the United States government to this day.

Footnotes:

[1] Dakota Access Pipeline Project, http://www.daplpipelinefacts.com/.

[2] National Public Radio, In Victory For Protesters, Army Halts Construction On Dakota Pipeline, December 4, 2016, http://www.npr.org/sections/thetwo-way/2016/12/04/504354503/army-corps-denies-easement-for-dakota-access-pipeline-says-tribal-organization.

[3] Jessica Ravitz, The sacred land at the center of the Dakota pipeline dispute, CNN, November 1, 2016, http://www.cnn.com/2016/11/01/us/standing-rock-sioux-sacred-land-dakota-pipeline/.

[4] See e.g. Art. 21, American Convention on Human Rights, http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.htm.

[5] Columbus Day Poem, available at http://www.scholastic.com/teachers/sites/default/files/columbus_day_poem_ns.pdf.

[6]James W. Loewen, Lies My Teacher Told Me: Everything Your American History Textbook Got Wrong, (2008).

[7] 36 U.S. Code § 107, (“The President is requested to issue each year a proclamation— (1) designating the second Monday in October as Columbus Day;(2) calling on United States Government officials to display the flag of the United States on all Government buildings on Columbus Day; and(3) inviting the people of the United States to observe Columbus Day, in schools and churches, or other suitable places, with appropriate ceremonies that express the public sentiment befitting the anniversary of the discovery of America.”).

[8] NPR, Indigenous Peoples’ Day Gains Momentum As A Replacement For Columbus Day, October 7, 2016, http://www.npr.org/sections/thetwo-way/2016/10/07/497046525/indigenous-peoples-day-gains-momentum-as-a-replacement-for-columbus-day.

[9] Eric Kasum, Columbus Day? True Legacy: Cruelty and Slavery, Huffington Post, October 11, 2010, http://www.huffingtonpost.com/eric-kasum/columbus-day-a-bad-idea_b_742708.html.

[10] Russel Thornton, American Indian holocaust and survival: a population history since 1492. 43 (1990).

[11] Penobscot Culture.com, Phips Proclamation, http://www.penobscotculture.com/?option=com_content&view=article&id=88&Itemid=72.

[12] Id.

[13] See Generally, Albert H. Wright, The Sullivan Expedition Of 1779 (2009).

[14] George Washington, From George Washington to Major General John Sullivan, 31 May 1779, Founders Online, National Archives. (“The Expedition you are appointed to command is to be directed against the hostile tribes of the Six Nations of Indians, with their associates and adherents. The immediate objects are the total destruction and devastation of their settlements, and the capture of as many prisoners of every age and sex as possible. It will be essential to ruin their crops now in the ground and prevent their planting more.”).

[15] Barbara Alice Mann, George Washington’s War on Native America 54 (2008).

[16] See Dawes Records, National Archives, https://www.archives.gov/research/native-americans/dawes

[17] For a discussion of “aboriginal title” and the Non-intercourse Acts in U.S. law see Oneida Indian Nation of N.Y. State v. Oneida Cnty. (1974)(“Oneida I”) and Oneida Cnty. v. Oneida Indian Nation of N.Y. State (1984) [“Oneida II”] (holding that tribes have a federal common law cause of action, not pre-empted by the Nonintercourse Act, for possessory land claims based upon aboriginal title; the court also rejected the following affirmative defenses: limitations, abatement, ratification or nonjusticiability).

[18] Indigenous Foundations, Royal Proclamation of 1763, http://indigenousfoundations.arts.ubc.ca/home/government-policy/royal-proclamation-1763.html.

[19] For a list of said treaties see Treaties Between the United States and Native Americans, The Avalon Project, http://avalon.law.yale.edu/subject_menus/ntreaty.asp.

[20] Francis Paul Prucha, Documents of United States Indian Policy, 33 (2000).

[21] See Generally Jane Fleischer, Tecumseh, Shawnee War Chief (1998).

[22] National Archives – Founders Online, From George Washington to the Seneca Chiefs, December 29 1790, http://founders.archives.gov/documents/Washington/05-07-02-0080.

[23] See Generally, Anders Stephanson, Manifest Destiny: American Expansion and the Empire of Right, (1996).

[24] Office of the US Historian, Indian Treaties and the Removal Act of 1830, https://history.state.gov/milestones/1830-1860/indian-treaties.

[25] Mark Stewart, The Indian Removal Act: Forced Relocation (2007).

[26] See b.g. Cherokee Nation v. Georgia, 30 U.S. 1 (1831) (Contesting Constitutionality of Georgia’s extinguishing legislation).

[27] Stewart supra note 25.

[28] Id.

[29] Alexis de Tocqueville, and Thomas Bender, Democracy in America (1981).

[30] Stewart supra note 25.

[31] See Generally, John R. Wunder, Native American Sovereignty 22 (1996); see also, U.S. Native Treaties, 25 USC 3.

[32] Jeffrey D. Schultz, Encyclopedia of Minorities in American Politics: Hispanic Americans and Native Americans (2000); Indian Appropriations Act of 1871 (“That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, that nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.”).

[33] Indian Freedom Citizenship Suffrage Act of 1924, 8 U.S.C. ch. 12, subch. III § 1401b.

[34] See Generally Margaret J. Goldstein, You Are Now on Indian Land: The American Indian Occupation of Alcatraz (2011).

[35] See Generally Stanley David Lyman, ‎Floyd A. O’Neil, ‎June K. Lyman, Wounded Knee 1973: A Personal Account (1993).

[36] Amnesty International USA, Annual Report: USA 2010, available at: http://www.amnestyusa.org/research/reports/annual-report-usa-2010?page=4; See Also James W. Messerschmidt, The Trial of Leonard Peltier (1983).

[37] Indian Educational Reform Act, 25 U.S.C. ch. 14, subch. II § 450 et seq.

[38] 25 U.S.C.§§ 1301-1304.

[39] See Wunder supra note 31.

[40] A joint resolution to acknowledge a long history of official depredations and ill-conceived policies by the United States Government regarding Indian Tribes and offer an apology to all Native Peoples on behalf of the United States, S.J.Res.37, 108th Congress, (2003-2004).

[41] See e.g. Cobell V. Salazar, 573 F.3d 808 (D.C. Cir. 2009) and Keepseagle v. Vilsack, No. 14-5223 (DC Cir. 2016).

 

[42] Pew Research Center, One-in-four Native Americans and Alaska Natives are living in poverty, http://www.pewresearch.org/fact-tank/2014/06/13/1-in-4-native-americans-and-alaska-natives-are-living-in-poverty/

[43] Id.

[44] See generally, Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (1999).

[45] For a list of the core human rights treaties see The Core International Human Rights Instruments and their monitoring bodies, OHCHR, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx.

[46] See e.g. OHCHR, Marginalized groups: UN human rights expert calls for an end to relegation, Press Release, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14690&LangID=E and David Weissbrodt (ed.), Vulnerable and Marginalised Groups and Human Rights, 1 Human Rights Law series 1 (2011).

[47] Martha A. Fineman, The Vulnerable Subject and the Responsive State, 60 Emory L.J. 251, 126 (2010).

[48] Florencia Luna, Elucidating the Concept of Vulnerability: Layers Not Labels, 2 International Journal of Feminist Approaches to Bioethics 121 (2009).

[49] Fineman, supra note 9 at 1.

[50]Lourdes Peroni and Alexandra Timmer, Vulnerable groups: The promise of an emerging concept in European Human Rights Convention law, Int J Constitutional Law (2013) 11 (4): 1056-1085.

[51] Icelandic Human Rights Centre, The Human Rights Protection of Vulnerable Groups, http://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/the-human-rights-protection-of-vulnerable-groups/

[52] See D.H. and Others supra note 61.

[53] International Labour Organization (ILO), Indigenous and Tribal Peoples Convention, C169, 27 June 1989, C169, available at: http://www.refworld.org/docid/3ddb6d514.html.

[54] Id.

[55] See generally, Special Rapporteur on the rights of indigenous peoples, OHCHR, http://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/SRIPeoplesIndex.aspx.

[56] Outcome Document of the High-level Meeting of the General Assembly: The World Conference on indigenous peoples 2014, OHCHR, http://www.un.org/en/ga/president/68/pdf/letters/9152014WCIP%20-%20CFs%20on%20Draft%20Outcome%20Document.pdf.

[57] United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295, Resolution adopted by the General Assembly on 13 September 2007.

[58] OHCHR, World Conference on Indigenous Peoples, http://www.ohchr.org/EN/Issues/IPeoples/Pages/WorldConference.aspx.

[59] Case of the Saramaka People v Suriname, Saramaka People v Suriname, Interpretation of the judgment on preliminary objections, merits, reparations and costs, IACHR Series C No 185, IHRL 3058 (IACHR 2008), 12th August 2008, Inter-American Court of Human Rights [IACtHR].

[60] Id.

[61] Id.

[62] See also Case of The Mayagna (Sumo) Awas Tingni Community, Series C No. 79, paras. 148-149, and 151; Case of the Indigenous Community Sawhoyamaxa v.  Paraguay.  Merits, Reparations  and  Costs. Judgment of March 29, 2006. Series C No. 146, paras. 118-121, and 131, and Case of the Indigenous Community Yakye Axa v. Paraguay. Merits, Reparations and Costs. Judgment of June 17, 2005 Series C No. 125, paras. 124, 131, 135-137 and 154.

[63] ECtHR 13 November 2007, no. 57325/00 (D.H. and Othersv. the Czech Republic)(“The  Court  notes  that  as  a  result  of  their  turbulent  history  and  constant  uprooting  the  Roma  have become a specific type of disadvantaged and vulnerable minority (see also the general observations in the  Parliamentary  Assembly’s  Recommendation  No.  1203  (1993)  on  Gypsies  in  Europe,  cited  in paragraph  56  above,  and  point  4  of  its  Recommendation  no.  1557  (2002)  on  the  legal  situation  of Roma in Europe, cited in paragraph 58 above). As the Court has noted in previous cases, they therefore require special protection.”)

[64] See e.g. id, ECtHR [GC] 16 March 2010, no. 15766/03 (Oršuš and others v. Croatia); 122ECtHR 29 January 2013, no. 11146/11 (Horváth and Kiss v. Hungary)

[65] Art. 6 of the IACHR; ILO No. 169, E/CN.4/Sub.2/1986/7 and Adds. 1–4; UN Declaration on the Rights of Indigenous Peoples; Art. 1, 2 UN Universal Declaration of Human Rights; Art. 27 ICCPR; Art. 1 Convention on the Elimination of All Forms of Racial Discrimination; Art. 1-4 Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities.

[66] Art. 6 & 7, UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, available at: http://www.refworld.org/docid/3ae6b3a84.html.

[67] Lauren Camera, Native American Students Left Behind, U.S. News and World Report, Nov. 6, 2015, http://www.usnews.com/news/articles/2015/11/06/native-american-students-left-behind.

[68] Id.

[69] National Institute of Alcohol Abuse and Alcoholism, The Genetics Of Alcohol Metabolism: Role Of Alcohol Dehydrogenase And Aldehyde Dehydrogenase Variants, http://pubs.niaaa.nih.gov/publications/arh301/3-4.htm.

[70] Matthew D. Berman, Alcohol Control Policy and Native American Communities, (1999), http://www.falmouthinstitute.com/cdc-ihs-success/IHS/Day%203/A.%20Alcohol/Resource%20articles/Alcohol%20Policy%20resource2.pdf.

[71] Brief for National Network to End Domestic Violence et al. as Amici Curiae Supporting Respondents at 2,Plains Commerce Bank v. Long Family Land and Cattle Co., 128 S. Ct. 2709 (2008) (No. 07-411).

[72] Steven W Perry, American Indians and Crime- A BJS Statistical Profile 1992-2002, Bureau of Justice Statistics, US Department of Justice, Office of Justice Programs, December 2004.

[73] Id.

[74] Tjaden, P. & Thonennes. (2000). The Prevalence, Incidence, and Consequences of Violence Against Women: findings from the National Violence Survey Against Women. National Institute of Justice & the Centers for Disease Control & Prevention. http://www.ncjrs.gov/txtfiles1/nij/183781.txt.

[75] National Congress of American Indians, Statistics on Violence Against Native Women, http://www.ncai.org/resources/ncai_publications/policy-insights-brief-statistics-on-violence-against-native-women.

[76] United Nations Declaration on the Rights of Indigenous Peoples, supra Note 57.