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Monday, May 23, 2011

UNFPII-10 Agenda Item 4 (a): Implementation of the UN Declaration on the Rights of Indigenous Peoples (DRIP). To include un-recognized / unrepresented peoples, maternal rights, hydropower, borders and border militarization.

 This statement we wrote up was not read as written. I think it should be read as a statement by the tribe regarding these important issues. Thank you to Mariana Francisco for the piece on Maternal rights and NAIPC for the piece on Borders.

UNFPII-10 Agenda Item 4 (a): Implementation of the UN Declaration on the Rights of Indigenous Peoples (DRIP).
To include un-recognized / unrepresented peoples, maternal rights, hydropower, borders and border militarization.

Recognizing that the implementation of the DRIP is a final step of the multi-year process of discussion, negotiation and final approval by member states including the final Member, the United States in 2010  

Affirming that, while great excitement rose in the indigenous nations around the world at its inaugural release, the actual implementation of the many articles of the Declaration have become contentious points where the true spirit of the Declaration, diluted and molded to meet narrow definitions of compliance of the member states responsible for enactment, is now a problem,

Affirming further that one of the main obstacles to full implementation is the continued observance by some member states of the principles included in the “Doctrine of Discovery” and The Inter Caetera, Papal Bull of May 4, 1493,[i]

Concerned that if these directives are not actively pursued for revocation as guiding principles by the member states in order that the precepts of the DRIP are implemented without further interference,

Further noting that the following issues:
1) Relative to un-recognized/unrepresented Indigenous people,
2) Those associated with Maternal Rights,
3) Pertaining to the development hydropower dams and the related taking and/or loss of Indigenous homelands, and
4) The more recent escalation of issues pertinent to more strident border enforcement and the militarization of border areas are major issue areas where the implementation of the DRIP, is of utmost urgency,

Submit that this intervention raises the issues sited, to the forefront for thorough scrutiny with the caveat that it is in no way presented as an indictment of member States or of any one particular geographic area over another. It is solely an appraisal of the issues and an issuance, from the global indigenous community, of recommended actions and solutions to the problem areas identified.

Referring to the issue of Un-recognized / Un-represented Indigenous People, it is recommended that:

1)      Article 33.1 of the UN DRIP posits, “Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions...” Therefore, it is recommended that all states respect the rights of all indigenous peoples to self identify based on their traditional home territory or area of forced relocation as the case may be. (art 8 2b/c)

2)      The UN ECOSOC advises all signatory states that the DRIP does not differentiate between indigenous peoples. Recognized or unrecognized statuses are not terms of art in the DRIP. 

3)      Reaffirm to States that differentiating between indigenous peoples violates the following items from the DRIP preamble: “Reaffirming that indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind.” Further, “Bearing in mind that nothing in this Declaration may be used to deny any peoples their right to self-determination, exercise in conformity with international law.”

4)      The UN ECOSOC also advises the United States, specifically, that the current practice of differentiating amongst indigenous peoples is a form of discrimination that is inconsistent with the basic tenets of the UN DRIP, which applies to all indigenous peoples without regard to State determinations.
5)      That State constitutions meet the standards in the UN DRIP for all indigenous peoples.

6)      The UN Permanent Forum consider the inclusion and active and full participation of unrecognized, unrepresented Indigenous Peoples in United Nations activities including, but not limited to the Permanent Forum. Funding to implement this recommendation should be open to all requests for assistance regardless of State sanctioned status.

7)      The UN ECOSOC remind States that full implementation of the UN DRIP, particularly Article 28 section 1 and 2, requires that States are accountable for prevention and redress of cultural genocide.

8)      The Permanent Forum commission a study on indigenous peoples in the US with a focus on the conditions and treatment of unrecognized indigenous peoples.

Regarding the issue of Maternal Rights, it is recommended that:

Re-affirming Article 7 of the DRIP on the rights of Indigenous Peoples to “life, physical and mental integrity…” as well as the right to live in “freedom, peace and security…”  and not be “subjected to any act of genocide or any other act of violence…”. And further reaffirming Article 8(2)a and Article 9 in that IP should not be discriminated against for the exercise of their right to live within their own traditions and customs it is recommended that the UNPFII in ensuring the implementation of the DRIP acknowledge the following statement regarding Maternal Rights:

1)       “The natural maternal right in a healthy environment will provide a harmonious and complete existence through the good practice of relationship and respect with our mother earth. Such right is conducted and directed through the knowledge of the maternal cosmovision. The maternal right has been in the darkness, is invisible before the practices of genocide by the government states, and has caused a physical, mental and psychological damage in both mother and child. The government state has permitted the criminal activity and narco-traffic and it is not given any value to nor recognized maternal rights. The maternal right can be an alternative for the social peace and order that we are always looking for.”

Article 36.1 states “Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes…”

In Reference to Borders and Border Militarization, it is recommended that the statement of the North American Indigenous Peoples Caucus be included in toto:

1)      On February 5, 2011, President Obama and Prime Minister Harper announced negotiations aimed at sweeping away obstructions to trade while integrating efforts to deter “criminals” and “terrorists” regarding Canada and U.S. border management. Indigenous Peoples in North America are divided physically, culturally, socially and economically by artificial borders maintained under the guise of “homeland security.” The Eurocentric primacy of ‘security’ discriminates against the ability of Indigenous Peoples to maintain their historical cultural, social and economic relationships.  Indigenous Peoples also have rights to peace and security as set out under the UN Charter. The NAIPC recommends the UNPFII to urge the Governments of Canada and the United States to work with the Indigenous Peoples to ensure respect for the Jay Treaty and UNDRIP Article 36 in the context of Canada-US Beyond the Border Working Group discussions.

Additionally the following points are raised for inclusion and action:

1)      Western Hemispheric Travel Initiative has displaced the Indigenous peoples and increased violence and drug trafficking, affected tribal nations around California, Texas and Arizona, and, as in many areas around the globe has increased the military presence in border areas. Article 36 and Article 30, sections 1 and 2,  address the issue as these areas refer to lands seized or ceded but still contain areas of cultural and spiritual significance to the Indigenous peoples;
2)      Indigenous people stopped from crossing borders where there are contiguous tribal land areas (whether housing or sacred/ceremonial use lands) have their rights under the DRIP violated;
3)      The safety and security of women and children is in jeopardy and some are jailed. Indigenous people are assaulted in these areas as a result of the failure of Member states to follow the basic tenets and spirit of the DRIP;
4)       Article 36 referring to those “…divided by international borders…” becomes more important in regions affected by developments post-world war, and those where border wars still occur.
5)      In the Final Report of the Permanent Forum 2010, paragraph 98, the Forum commented and urged members to address border issues and take effective measures to implement article 36. It is strongly recommended that the Forum obtain said report to update the people on the progress of the action item cited in Paragraph 98.

Referring to the issue of Hydropower, it is recommended that:
Indigenous people worldwide are targeted by development of dams and the changing waterways of the Worlds Rivers. Indigenous peoples are rarely if ever consulted prior to the development of projects of this nature and surely are sorely if at all compensated. More and more the world has become aware of exterminations and genocide of Indigenous peoples far from public view for the taking of homelands and areas of cultural heritage for flooding or private, corporate development. Article 10 clearly states that Indigenous peoples shall “not be forcibly removed from their lands…” and that “… no relocation shall take place without free, prior, informed consent…” and “after agreement on just and fair compensation…”

1)      The rights of Indigenous peoples to access traditional places, protections of waters and tribal lands, and the ability to continue the traditional lifeway as well as the principle of self-determination (Articles pertaining include:10, 25,28,29,31) need to be reinforced and reported on as to compliance by Member States of these basic, human, rights and sureties.

 Final Recommendations

It is hereby believed that these recommendations may require
1)      Member States to engage in Constitutional change to include their Indigenous peoples, (those recognized or not and whose representation today is limited at best).
2)       It will require a remapping of the lands of the Indigenous so that it is included accurately within the boundaries of the Member State.

It is further believed that
1)      There will be a need for a reporting mechanism to report on what Member States have undertaken in their pursuit of implementing the DRIP. This is important in areas where a Member State’s indigenous people have been forced to relocate or have migrated due to self-survival.
2)       Each agency that works with or is responsible to ensure Indigenous peoples rights need to report on their progress and that consultation with the Special Rapporteur is conducted by the next gathering of the Forum following acceptance of this recommendation.

[i] Papal Bulls of the 15th century gave Christian explorers the right to claim lands they "discovered" and lay claim to those lands for their Christian Monarchs. Any land that was not inhabited by Christians was available to be "discovered", claimed, and exploited. If the "pagan" inhabitants could be converted, they might be spared. If not, they could be enslaved or killed.
The Discovery Doctrine is a concept of public international law expounded by the United States Supreme Court in a series of decisions, initially in Johnson v. M'Intosh in 1823. The doctrine was Chief Justice John Marshall's explanation of the way in which colonial powers laid claim to newly discovered lands during the Age of Discovery. Under it, title to newly discovered lands lay with the government whose subjects discovered new territory. The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor of colonial or post-colonial governments.
John Marshall, who is most credited with describing the doctrine, did not voice wholehearted support of the doctrine even while using it to justify judicial decisions. He pointed to the doctrine as simple fact, looking at the possession-takings, which had been supported by it as things, which had occurred and had to be recognized. The supposedly inferior character of native cultures was a reason for the doctrine having been used, but whether or not that was justified was not relevant for Marshall.
This Doctrine governs United States Indian Law today and has been cited as recently as 2005 in the decision City Of Sherrill V. Oneida Indian Nation Of N.Y.