Indigenous Land rights restored

First Peoples Human Rights Coalition

firstpeoplesrights@earthlink.net wrote:

The Githabul people of New South Wales (Australia) and the 8,400-strong Maldhari tribe of Gir (India) have both won major victories supporting their human rights to their lands and territories, to their own cultural practices, and to the integrity of their own cultures as distinct members of the family of humankind. In India, the bill passed by parliament in December still requires presidential approval before becoming law.

BBC NEWS
Tuesday, January 02, 2007

Aborigines in big land claim win

By Phil Mercer
BBC News, Sydney

An Aboriginal tribe in Australia has won joint control of World Heritage-listed rainforests in a major land rights claim. The deal covers 6,000 sq km (2,300 sq miles) in New South Wales state. Tribal chiefs hope it will provide jobs and enable indigenous communities to become less dependent on welfare.

The agreement between the Githabul people and New South Wales state government follows a decade of talks and legal argument. This is a fantastic victory for the Githabul tribe. Their land rights claim is one of the country's biggest and covers a vast area of national parks and forests. It includes rugged mountain peaks said to be home to powerful ancestral spirits.

High unemployment

These sorts of deals are more about shared access to land rather than exclusive ownership. They recognise that Aborigines have historic claims over parts of Australia and permit them to carry out traditional activities. The Githabul people will be allowed to hunt protected native animals, including turtles and echidnas, which are spiny anteaters. Aboriginal leaders will jointly manage the state forests and national parks, among them several UN World Heritage sites.

It is hoped that jobs and wealth will follow.

Many of Australia's Aborigines live in remote communities, which suffer from very high rates of poverty and unemployment.

Elders from the Githabul tribe are also involved in a second land rights claim taking in parts of southern Queensland.

© BBC MMVII

______________________

SCIENTIFIC AMERICAN.COM
January 02, 2007

India's forgotten tribes gain rights over forests
At: http://sciam.com/print_version.cfm?articleID=E9F4BCF9D56D5602C41B7EC6AB371BDC

By Rupam Jain Nair

GIR SANCTUARY, India (Reuters) - Daya Rakha, 36, was born in the jungles of the Gir wildlife sanctuary in western India and knows little else except how to live off the forest's resources.

Just as his ancestors did generations ago, Daya ekes out a meager living mainly by tending to his cattle which relentlessly graze in Gir's lush forests.

But Daya -- like millions of India's forest dwellers -- has never been able to call the forest his home. Instead he has been treated as a criminal by authorities as he has no legal right to stay in the forests where his forefathers lived and died.

"It is the eviction notices from the government and rules made to uproot us by the forest officials that give us sleepless nights," said Daya, who belongs to the 8,400-strong Maldhari tribe of Gir.

Over 40 million of India's most impoverished and marginalized people live in the country's forests -- including tiger reserves, wildlife sanctuaries and national parks -- but for years have been neglected by the government and left to fend for themselves.

The Maldharis have long lived with eviction threats, alleged harassment and extortion by officials who say they are guilty of environmental destruction and endangering wildlife in the sanctuary -- one of the last bastions of the rare Asiatic lion.

But a new law will for the first time enshrine their right to live in the forests and national parks. Conservationists are worried this could hamper efforts to save India's endangered wildlife such as lions and tigers.

IMPOVERISHED AND FORGOTTEN

In Gir, the pastoral Maldhari community live a simple life in small mud houses hidden deep in the forests, with no electricity, running water, schools or access to healthcare.

They earn a living by producing milk from their cattle, growing vegetables, collecting honey and trading their produce in the local market for items like food grains. Most are illiterate and unable to count or use money.

Activists say these forgotten forest people lead a primitive life and face many hardships. "The pastoral communities do not figure in the electoral rolls," said Shekla Rakha from Setu -- a charity promoting the rights of forest dwellers. "They have become non-entities, left to fend for themselves for generations."

As a result, activists say these communities are vulnerable to exploitation allegedly by forest officials who forcefully evict them or compel them to pay bribes to enter and exit sanctuaries.

"Two months ago when my mother died, the forest officials did not allow my relatives from nearby villages to enter the forest for the last rites," Amra Suba, a shepherd said as he tended to his flock of sheep.

"I had to pay to get permission for their entry to my own house."

But the Recognition of Forest Rights Bill 2006, passed by parliament in December, could help end the suffering of many of India's forest people by giving them rights over forest land.

The law, which will apply to those who have lived in the forests for at least three generations, will allow dwellers to use non-timber forest produce such as bamboo, stumps, cane and to collect honey. But it prohibits them from hunting animals.

PROTECTORS OR DESTROYERS

While this is seen as a landmark law by social activists, environmentalists and forestry officials who hold forest dwellers responsible for damaging the environment and poaching wild animals, are concerned.

"If allowed to live in the forest, they will degrade the habitat as their cattle graze in direct competition with prey like deer," said Bharat Pathak, conservator of Gir's forests, referring to how a fall in prey would hurt numbers of predators.

Livestock are also prone to epidemics and could infect Gir's wildlife which includes the rare Asiatic lion whose numbers have recovered to around 360 from less than 15 in the mid-20th century due to a successful breeding project, he added.

Conservationists are also concerned that the law will allow more encroachers into the forests and push wildlife out of protected areas, leaving them more vulnerable to hunters.Some wildlife activists say it is essential that forest dwellers be involved in conservation efforts and given a sense of ownership and responsibility over the forests, perhaps by employing them as tourist guides or forest guards.

Forest dwellers say they are not responsible for the loss of wildlife and regularly report poaching to authorities and monitor illegal activities such as mining and tree felling. "Officials say we are eating up the forest but in reality we are helping in protecting the lions and the jungle," says Lali Rudha, a mother of seven children.

© 1996-2007 Scientific American, Inc. All rights reserved.
Reproduction in whole or in part without permission is prohibited.

From: Robert Shimek rshimek@ienearth.org
March 14, 2006

Shoshone-Bannock Tribes win sovereignty ruling

A non-Indian company doing business on fee land within the Fort Hall Reservation in Idaho must submit to the jurisdiction of the Shoshone-Bannock Tribes, a federal judge ruled last week.

In an 18-page decision, U.S. District Judge Lynn B. Winmill rejected FMC Corporation's attempt to skirt tribal environmental laws. The company argued that the tribe lacked authority over non-Indian activities on fee land.

According to U.S. Supreme Court precedent, tribes generally cannot assert sovereignty on fee land owned by non-Indians except under two exceptions. In the case of FMC, the judge said the company's consensual relationship with the tribal government satisfied one of the exceptions.

The company agreed to pay $1.5 million a year in fees to the Shoshone-Bannock Tribes, signed a consent decree with the federal government that recognized tribal sovereignty and continued to consent to tribal authority until very recently, the judge said. "For these reasons, the tribes have jurisdiction over FMC to enforce the terms of the tribal permit system," the March 6 decision stated.

Tribal officials hailed the ruling as a victory for their rights. "The decision by the federal court finally confirms our position, declaring the tribes' inherent sovereign powers to regulate activities within the reservation," said Chairman Blaine Edmo.

FMC Corporation is the world's largest producer of the phosphorous, a chemical used in a variety of consumer products such as detergents, beverages, food and pesticides Since 1949, it has operated a phosphorous plant on the reservation that produces waste stored in ponds on the site. The plant was put out of use in December 2001 but the waste remains on the reservation.

The company's waste storage practices came under scrutiny of the Environmental Protection Administration back in 1997. Around the same time, FMC was negotiating with the tribes over the use of the fee land.

An agreement were reached with the EPA over alleged violations of environmental law. FMC agreed to pay a $12 million federal fine and spent a total of $170 million on cleanup, a settlement that was considered the largest of its kind at the time.

FMC subsequently agreed to pay $1.5 million annual fee to the tribes and agreed to obtain all necessary tribal permits related to the plant. The EPA's consent decree, approved in federal court, specifically recognized tribal sovereignty as well.

"There is no indication whatsoever in the decree that the tribe was being stripped of that sovereignty," Winmill wrote in the decision.

The Shoshone-Bannock Tribes benefited from substantial evidence that FMC consented to tribal laws. But in practice, it has been difficult for tribes to assert jurisdiction over non-Indian activities on fee land due to the Supreme Court's ruling in US v. Montana, a case from 1981.

The case said tribes lost inherent sovereignty over non-Indians. But the court laid out two exceptions: if the non-Indian has a consensual relationship with the tribal government in question, or if the actions of the non-Indian threaten the "political integrity, the economic security, or the health or welfare of the tribe."

The requirements have made it nearly impossible for tribes to collect taxes, regulate companies that use reservation land and hear civil lawsuits that impact tribal members. As recently as August 2004, the 9th Circuit Court of Appeals, which includes Idaho, had ruled that a tribal court in Montana couldn't hear a wrongful death and negligence suit even though every party involved is Indian.

That case, involving the Confederated Salish and Kootenai Tribes, was reversed in favor of tribal sovereignty this past January. But tribal lawyers still say tribes face difficult hurdles in asserting jurisdiction on their lands.

"The court has changed the rules on us," C. Bryant Rogers, a tribal attorney, said at an Indian law conference last year. "They're going to keep changing the rules on us."

As for Shoshone-Bannock Tribes, they plan to continue press FMC to abide by the agreements reached several years ago. Tribal officials have long been worried about the impact of the chemical waste on the health and safety of the reservation. FMC has been decommissioning the plant, with fewer than 60 employees -- down from over 500 -- remaining at the site.

"For the tribes, this decision means FMC cannot close up shop and skip town while disregarding tribal laws regulating land use on the reservation," said Marlene Skunkcap, a tribal council member.

The tribes have been participating in the Idaho Optimum Initiative, a blue ribbon panel created by the state of Idaho to determine potential uses for the FMC site.

Court Decision:
US v. FMC Corporation (March 6, 2006)

EPA Documents:
Hazardous Waste Management at FMC (EPA Region 10)

Relevant Links:
Shoshone-Bannock Tribes - http://www.shoshonebannocktribes.com
FMC Pocatello - http://www.idahofmc.com
FMC Corporation - http://www.fmc.com
Idaho Optimum Initiative - http://ioi-online.org

Related Stories:
Appeals court upholds tribal jurisdiction after rehearing (01/11)
Washington court refuses to halt tribe's utility tax (08/12)
Appeals court to rehear tribal jurisdiction case (06/08)
Appeals court rules against tribal jurisdiction (08/09)
Tribal authority over all Indians still unsettled question (06/23)
Supreme Court affirms tribal powers over all Indians (04/20)
Copyright C 2000-2006 Indianz.Com

2 March 2006

FW from www.unog.ch

Three cases challenging the scope of the Clean Water Act will be argued Feb. 21 in U.S. Supreme Court

February 08, 2006 Justice Alito's Green Day
Tony Mauro, Legal Times

The first time he takes the bench later this month, new Supreme Court Justice Samuel Alito Jr. will face a baptism -- not by fire but by water.

Three cases challenging the scope of the Clean Water Act will be argued Feb. 21, testing themes of federalism and commerce clause power that were much at issue during Alito's confirmation hearings. The cases have environmentalists worried about how Alito and Chief Justice John Roberts Jr. will ultimately come down.

"These are probably the most important environmental cases in a decade and will be an enormous test of the two new justices," says Douglas Kendall of the Community Rights Counsel, which filed a brief in two of the cases.

Alito has plenty of reading to do; more than 50 briefs on the cases have flowed into the Court. After being sworn in officially at the Court, on Jan. 31 at a private ceremony, Alito settled into the chambers his predecessor, Justice Sandra Day O'Connor, vacated last month in anticipation of retirement. His staff is still in flux, but he has already picked up two O'Connor law clerks, Benjamin Horwich and Alexander Volokh. Late Friday, Alito announced he would adopt the Court's 1993 policy on recusals in cases involving close relatives who are lawyers -- in Alito's case, sister Rosemary, a partner at Kirkpatrick & Lockhart Nicholson Graham in Newark, N.J.

The environmental cases, more than any other coming soon, will spotlight issues that got Democrats upset during Alito's contentious hearings last month. In two of the cases, Rapanos v. United States and Carabell v. United States Army Corps of Engineers, the issue is whether, under the commerce clause, the Clean Water Act protects certain wetlands that are adjacent to tributaries of navigable waters covered by the law. In the third case, S.D. Warren Co. v. Maine Board of Environmental Protection, the justices will decide whether the mere fact that a river flows through a dam produces a "discharge" that triggers federal jurisdiction under the act.

In all three cases, the Bush administration is arguing for a broad view that would preserve a "landmark" law that is "a permissible exercise of Congress' power," in the words of Solicitor General Paul Clement, who will argue the cases himself.

In Rapanos and Carabell, the cases that have gotten the most attention on both sides, environmental groups say a loss would strip federal jurisdiction from between 50 percent and 99 percent of the waterways currently covered by the law -- a level not seen "since the McKinley administration," says Howard Fox of Earthjustice.

On the other side, conservative and business groups cast the dispute as a property rights battle against overriding federal regulation. "Agency bureaucrats are exploiting an ambiguity in the law to run roughshod over property owners," says Reed Hopper, the Pacific Legal Foundation lawyer who represents Michigan developer John Rapanos in his case. "The Clean Water Act authorizes federal regulation of navigable waters, not every wet spot in the nation."

DIGGING UP BONES

A sure sign of the importance of Alito and Roberts is that one anti-regulation brief, by the conservative Washington Legal Foundation, pointedly cites appeals court writings by both justices that support a narrow view of the commerce clause.

The brief reminds Alito and the rest of the Court of his 1996 dissent as a 3rd Circuit judge in United States v. Rybar, the so-called machine gun case, that Alito was repeatedly quizzed about at his hearing. Alito argued that Congress did not have authority to ban possession of machine guns, and the foundation hopes he will rule the same way on Clean Water Act coverage.

The WLF also cites Rancho Viejo v. Norton, the "hapless toad" case in which Roberts, as a D.C. Circuit judge, said congressional commerce power did not extend to protecting California's arroyo toad under the Endangered Species Act.

Mark Perry, a D.C. partner at Gibson, Dunn & Crutcher who wrote the foundation brief, declines to discuss specific justices but says the cases before the Court pose "starkly different visions of federal power."

Perry's brief may also be the first -- and only -- to invoke the animated movie "Finding Nemo." He cites a scene in which Nemo the fish is swirling down a dentist's drain. "Don't worry. All drains lead to the ocean," the character Gill says to reassure everyone that Nemo is safe. Perry accuses the government of adopting the same principle to justify regulating every conceivable body of water. "I was watching the movie with my two kids and I thought, that actually describes what's going on here," says Perry.

Rapanos has been trying for nearly 20 years to build a shopping center near Midland, Mich. His sites were deemed to be wetlands, but Rapanos -- arguing that the nearest navigable water is 20 miles away -- began construction without permits. The Environmental Protection Agency ordered him to halt the work and eventually brought criminal charges against him. After years of litigation, the 6th U.S. Circuit Court of Appeals ruled that any "hydrological connection" between his property and navigable waters was sufficient to establish Clean Water Act jurisdiction.

Similarly, June Carabell sought to build condominiums on forested wetlands in Macomb County, Mich. She applied for a fill permit, but the Army Corps of Engineers turned her down.

Rapanos claims the government's broad definition of the act's reach unconstitutionally disturbs the traditional "division of labor" that allows states to regulate "upstream" sources of pollution while the federal government takes care of larger navigable waters downstream.

STATE ACTIONS

But two-thirds of the states have joined briefs advising the Court that they want federal protection. Eliminating federal jurisdiction over the wetlands at issue would "pull the rug out from under state officials and leave a regulatory void that the states could not easily fill," says Kendall's brief on behalf of an association of state pollution-control administrators nationwide.

A similar plea from states did not persuade the Court in the 2000 case United States v. Morrison to uphold federal powers granted by the Violence Against Women Act, but Kendall thinks the federal role in helping prevent water pollution is more deeply rooted. Utah and Alaska joined a brief arguing against the federal role in Rapanos. v In the third Clean Water Act case, the S.D. Warren Co., owner of five hydroelectric dams on the Presumpscot River in Maine, challenges the need to obtain state licenses for the dams -- a process that is triggered if they produce a "discharge" under the Clean Water Act. The dams are already licensed by the Federal Energy Regulatory Commission.

The company, joined by business and power-industry groups, claims that the dams add nothing new to the water; thus they do not produce a discharge. In a brief for the Edison Electric Institute, Jeffrey Fisher of Davis Wright Tremaine says state regulation triggered by the federal law is "unnecessary and duplicative."

Environmental groups counter that hydroelectric dams do alter the water and have strong environmental effects.

"Dammed from stem to stern, the river has witnessed a profound decline in water quality and the consequent extirpation of its once prodigious sea-run fishery," states a brief filed by the American Rivers organization and a group called Friends of the Presumpscot River.

The brief's author, Georgetown University Law Center professor Richard Lazarus, added a historical note that may catch the justices' eye. Samuel Warren, who founded the company that built the dams, was the father of Samuel Warren Jr., the law partner of Louis Brandeis before Brandeis became a justice. Warren and Brandeis co-wrote the famous 1890 Harvard Law Review article that articulated a right to privacy.

How will Alito view the cases? His track record on environmental law was not mentioned prominently during his confirmation hearings, and a study by the Congressional Research Service concluded that his rulings were "based on straightforward readings of statutes and regulations, with little disposition to infer rights or duties not clearly stated." The CRS study found that Alito took the pro-environment side in half of the 20 cases he ruled on in which there was a clear environmental side.

But the study did point to other cases, including Rybar, in which Alito's positions indicated a narrow view of standing and commerce power -- touchstones for most environmental litigation.

Alito's biggest Clean Water Act ruling was Public Interest Research Group of New Jersey v. Magnesium Elektron Inc., a 1997 case in which Alito joined a 2-1 majority that found that neither the PIRG nor Friends of the Earth had standing to challenge the company's illegal discharges into a creek that leads to a river.

His rulings on the bench led major environmental groups to oppose Alito. "Judge Alito's record is more troubling than either Judge Roberts' or Harriet Miers'," Earthjustice concluded.

Just how the rest of the Court will react to Alito's commerce clause views is uncertain. While in the Rybar case, Alito said he was following the then recent Supreme Court precedent United States v. Lopez in rejecting congressional regulation of machine gun possession, the Court since then has sometimes taken a broader view of congressional power. In Gonzales v. Raich last June, the Court upheld federal regulation of medical marijuana against a commerce clause challenge. Soon after that ruling, the Court vacated and remanded back to the 9th Circuit the case of United States v. Stewart -- the only appeals court decision that agreed with the view of the machine gun law that Alito expressed in Rybar.

Western Shoshone urge probe of human rights violations

C Indian Country Today
January 27, 2006. All Rights Reserved
http://www.indiancountry.com

ELKO, Nev. - While the United States fails to respond to the United Nations inquiry into violations of human rights of Western Shoshone, supporters have surpassed an original goal of 10,000 signatures to maintain pressure on the government to answer for the harassment of Shoshone people.

''We've got a fight on our hands,'' Western Shoshone Carrie Dann told Indian Country Today, encouraging the United Nations to increase pressure on the United States to uphold the rights of indigenous peoples.

''This is supposed to be democracy?'' Dann asked and described the United States' manipulation of laws that affect American Indians.

''What is democracy? Is democracy destroying the rights of the indigenous people? We don't see any democracy where indigenous people are concerned.''

The United States missed a year-end deadline to answer questions from the U.N. Committee on the Elimination of Racial Discrimination concerning violations of Western Shoshone human rights and their right to ancestral lands.

The committee issued a list of 10 questions the government failed to answer by Dec. 31. The questions follow a request for urgent action, which, if accepted, would allow the committee to open an investigation into U.S. conduct regarding land issues and the treatment of indigenous people.

Julie Ann Fishel, land recognition program director for the Western Shoshone Defense Project, said Western Shoshone elders see pressure from the United Nations as the only solution; the petition reveals the support of the people.

''It tells the United States the Western Shoshone are not going away,'' Fishel told ICT. ''We will seek out every opportunity and forum to press this issue.''

Fishel said Western Shoshone rights are a fundamental human rights issue that affects all of civil society in the United States. Further, Western Shoshone hope pressure from the United Nations will increase awareness of indigenous rights as a mainstream issue.

Dann and Fishel were interviewed by telephone in Miami, where they are participating in the Seventh Tribal Sovereignty Symposium, ''Sovereignty and Sustainable Development of Indigenous Peoples.''

Siegfried Wiessner, professor of international law and constitutional law at the St. Thomas University School of Law in Miami, said the recognition of indigenous rights worldwide has made tremendous progress.

''There has been a remarkable resurgence of indigenous rights,'' Wiessner told ICT.

Indigenous rights of self-governance, recognition of autonomy and the execution of treaties are progressing worldwide. Indigenous peoples are transcending borders and coming together as never before to communicate, and the mass media is helping advance indigenous rights, he said.

''Indigenous people are coming together because this is the air they breathe, the land where they live.''

Western Shoshone plan to travel in a delegation to Geneva, Switzerland, in March to meet with UNCERD members and present their case and the petition.

The petition states that the U.S. government is violating the rights of the Western Shoshone to ancestral lands - rights recognized by the Treaty of Ruby Valley of 1863. The lands in question cover 60 million acres stretching across Nevada, Idaho, Utah and California.

The United States, without Western Shoshone consent, has allowed gold mining and military testing of nuclear, chemical and biological weapons on their ancestral lands. Further, Western Shoshone said they are denied fair resolution in U.S. courts.

The United States claims the lands are ''public'' lands and no longer belong to the Western Shoshone. The Bureau of Land Management has upheld impound notices for Western Shoshone livestock in Nevada and imposed heavy trespass fines. This was done while the United States was attempting to privatize large tracts of land for the expansion of multinational gold companies' mining operations.

Without voice or resolution in the United States, the Western Shoshone appealed to the United Nations demanding reform of U.S. laws that allow for the theft and destruction of indigenous lands.

Western Shoshone said the preservation of the cultural and spiritual integrity of their way of life is dependent on protection of the land. Currently, Western Shoshone are faced with the threat of a high-level nuclear waste dump on Yucca Mountain and open-pit gold mining at Mount Tenabo, both areas spiritually significant to Western Shoshone.

The WSDP petition is being carried out in partnership with Oxfam America. The Boston-based international development and relief agency, an affiliate of Oxfam International, delivers development programs and emergency relief services. Oxfam campaigns for change in global practices and policies that keep people in poverty.

''This is a critical land rights issue. The federal government needs to be held accountable for violating treaties with Indian nations, as the Inter-American Commission on Human Rights has clearly established,'' said Oxfam America's Laura Inouye, referring to an earlier decision by that body which found the BLM had violated Western Shoshone rights to due process, property rights and equality.

''A similar finding by UNCERD will help the Western Shoshone press their case for justice.''

To view the petition, go to http://ga0.org/campaign/shoshone_petition.

Please visit the Indian http://www.indiancountry.com
Country Today website for more articles related to this topic.

RIGHTS-US: Native Group Takes Land Dispute to UN
Haider Rizvi

UNITED NATIONS, Jan 26 (IPS) - Feeling cheated and betrayed by Washington for nearly 150 years, a Native American tribe is now looking to the United Nations for help in protecting its ancestral lands.

"Where else do we go?" Carrie Dann, a leader of the Shoshone people of the United States, told IPS in an interview about why her people have gone to the U.N. to demand justice.

Dann and other Shoshone leaders maintain that the U.S. government has used a series of illegal tactics to gain control of their ancestral lands, including seizures of livestock and the imposition of heavy trespass fines.

They charge the U.S. government with trying to sell or lease their land to big corporations involved in gold mining and other excavations in the area, which has disrupted not only their traditional way of life, but also caused enormous damage to the environment.

Last August, Shoshone elders filed a petition with the U.N. Committee on the Elimination of Racial Discrimination (CERD) calling for action against the U.S. government for claiming large parts of indigenous lands as federal property.

CERD was established under an international human rights treaty called the Convention on the Elimination of Racial Discrimination. It prohibits racial discrimination and defines it as a breach of international law.

The Shoshone lands cover about 60 million acres in the states of Nevada, Idaho, Utah and California. These lands, which are known to contain rich reservoirs of gold, also include a proposed national repository for radioactive waste.

The U.S. government argues that 90 percent is ''public'' or federally controlled lands.

The Shoshone people belong to the Numic branch of the larger Uto-Aztecan language family. In the past two centuries, they also have been identified as "Snake Indians", according to the Encyclopedia of North American Indians.

In their petition to the U.N., the Shoshone have argued that the U.S. government has no right to occupy or privatise their ancestral land because the treaty it had signed in 1863 does not allow Washington to do so.

The U.S. government maintains that the Shoshone people have lost their rights to ancestral lands, as identified in the treaty, due to "gradual encroachment" by non-Native Americans.

But this argument has failed to fully satisfy U.N. rights officials.

"Has the 1863 Treaty of the Ruby Valley been abrogated in whole or in part, and if so, following which process?" Mario Yatzis, chairman of the U.N. Committee, asked the U.S. envoy in Geneva in a letter sent last August.

In 2004, the U.S. government tried to resolve this issue by passing a law, known as the Western Shoshone Distribution Act, which allowed Washington to claim large swathes of indigenous lands by financially compensating the Shoshone people. However, the compensation to the tribes is based on the 1872 price for their land and minerals -- about 15 cents per acre.

Shoshone elders say the land is priceless because it is sacred and central to the survival of their traditions and belief system. Most Shoshone objected to the procedures that led to the passage of the controversial act, and refused to accept the money because they believe their ancestral lands are sacred.

"Our traditional laws tell us we are placed here as caretakers of the land," said Joe Kennedy, a Shoshone leader and one of the signatories of the petition.

"We will not stand idly by and allow the U.S. government to cement its hold on our ancestral land," he added.

Kennedy and others assert that there has never been a legally valid transfer, sale or cessation of land by Shoshone people.

In his letter, Yatzis also pressed the U.S. for an explanation of expanded mining and nuclear waste storage on Shoshone ancestral lands, and for "placing their land up for auction for privatisation".

The letter has a list of 10 questions, which are based on the Shoshone people' request for "urgent action". If accepted, the U.N. committee has the power to investigate the U.S. conduct.

In a similar inquiry, the Inter-American Commission on Human Rights issued a report in 2003 concluding that the U.S. government's claims to Western Shoshone land were illegal and contrary to international human rights law, and that it had used illegitimate means to assert ownership of the lands.

While the U.S. response to the U.N. body is still pending, Shoshone elders and their lawyers say they are planning to visit Geneva in March this year to present more than 11,000 signatures in support of their petition.

"There is no remedy in the U.S.," Julie Fishel, a Shoshone lawyer, told IPS. "They are dealing with the treaty by ignoring it. That's why were going to the U.N."

Both Fishel and Dann are cautiously optimistic that a number of non-Native groups have joined their campaign to regain control of the ancestral lands. One is the London-based Oxfam International, a leading humanitarian and development aid organisation.

"This is a critical issue," Oxfam America's Laura Inouye told IPS. "This isn't about (American) Indians. It's about everybody."

"This is about not allowing the U.S. government to place corporate interests before human rights and environmental concerns," she said of the petition. (END/2006)

Progress at the UN Working Group on
the Draft Declaration on the Rights of IP's

American Indian Law Alliance
[United Nations, Geneva] -
15 December 2005

Wednesday and Thursday, December 14 and 15, 2005, saw some forward movement in the process at the United Nations to find consensus on a useful and meaningful Declaration of Indigenous peoples' rights. In spite of efforts by some states to hinder the effective content of the document as reported earlier in the week, yesterday saw increased understanding between the Indigenous Caucus and a number of states including Mexico, Norway, Canada, and Denmark, among others.

Provisional Adoption

In addressing the Indigenous Caucus last night, Canadian and Danish representatives went so far as to say that they look forward to passage of a strong and effective Declaration by the General Assembly in 2006. This, they noted, is consistent with the 2nd Decade of the World's Indigenous Peoples and with the General Assembly affirmation earlier this year in which it committed "to continue making progress in the advancement of the human rights of the world's indigenous peoples at the local, national, regional and international levels" including "adoption of a final draft United Nations declaration on the rights of indigenous peoples." (General Assembly Resolution A/RES/60/1 24 October 2005, p. 127).

Over the past several days at the Working Group, Norway chaired numerous meetings with Indigenous peoples' representatives and states in order to find common ground and effective final language for the text of the Declaration. These meetings occurred both in and out of the formal plenary sessions with all delegations present. June Lorenzo of the American Indian Law Alliance and Devashish Roy, Chakma people, are to be particularly commended for much of the leg work involved in bringing these discussions to fruition.

This morning Ms. Guri Hestflatt of the Norwegian delegation presented the outcomes to the chairperson of the Working Group. In her statement she said that progress was "encouraging in both form and substance" and that all delegations "demonstrated considerable effort to reach consensus." As a result, ten preambular and ten operative paragraphs were presented as ready for provisional adoption. (Provisional adoption simply refers to agreement on the text while noting that none of the articles of the Declaration are considered adopted until the entire Declaration is accepted.) In addition to the 20 paragraphs now considered ready for provisional adoption, an additional 15 are "very close.". This would represent acceptance of more than half of the total 64 paragraphs that constitute the text of the Declaration.

Remaining Hurdles

However, major obstacles still remain. The difficult issue of the total package of paragraphs on self-determination have not been resolved. The United States, New Zealand and Australia continue to put forth substantial objections. In a complicated twist of legalese the United States has actually used circumstances surrounding national disasters as a reason to limit this critical right of Indigenous peoples. (One might ask if the Declaration's passage would have further reduced the inadequate response to Katrina - it seems like a hallow argument at best.) These states (US, NZ and Australia) are still insisting on language that would protect their "territorial integrity" and plenary power over Indigenous peoples.

Compelling arguments against the position of these few states have been presented and supported by Indigenous peoples and other states. A group of non-Indigenous human rights organizations made an excellent intervention yesterday in an attempt to hold states accountable for their positions:

"With the obvious imbalance of power between states and Indigenous peoples, it is not clear to us why this discussion is preoccupied with perceived threats to states, rather than the very grave and pervasive threats to Indigenous peoples.

"Indigenous representatives have expressed concern that the concepts of political unity and territorial integrity are already being used by some states to justify denial of Indigenous peoples' rights and repression of the defenders of those rights.

"As human rights organizations, we are concerned that the inclusion of a specific reference to the principles of political unity and territorial integrity in a Declaration on the Rights of Indigenous Peoples would at best, reinforce an unacceptable status quo and at worst may encourage even greater human rights violations against Indigenous peoples.

"Furthermore, the proposal of New Zealand, Australia and the United States for article 45bis is particularly concerning as it would allow states to invoke the concepts of political unity and territorial integrity to justify the denial of any and all rights in the Declaration, no matter how fundamental to the welfare and survival of Indigenous peoples." [Intervention of Amnesty International, International Federation of Human Rights Leagues, IWGIA, KAIROS: Canadian Ecumenical Justice Initiatives, Rights and Democracy, NCIV, Friends World Committee for Consultation (Quakers)]

The text of this intervention accurately reflects the principles upported by a majority of states and Indigenous representatives. Together we are working to agree on langauge that would preserve the riginal text on the right of self-determination. States that cannot support the total expression of human rights will hopefully find themselves increasingly isolated.

Treaty Provisions

Additionally, Willie Little Child presented revised articles on treaties (preambular paragraphs 6, 13, and Article 36) that had also been the subject of intensive negotiations. However, when presented to the Working Group, the United States again took the floor to state that they did not concur and would be introducing their own language on these paragraphs. Unfortunately, representatives of many North American Indigenous nations whose territories lie within the borders of the United States (especially large treaty nations like the Lakota and Haudenosaunee) did not participate in this aspect of the work.

Coming soon.

Although these essential elements remain to be tackled in the next session of the Working Group (January 30 - February 3, 2006), there are clear indications that progress is being made. The more text that is agreed to between states and Indigenous peoples' representatives, the less room there is for the Chairperson to introduce his own interpretation of a compromise. In this way, the strongest possible Declaration will be presented to the Commission on Human Rights, which represents the minimum standard for Indigenous peoples. The American Indian Law Alliance will prepare a final report, including the language of the text that has been proposed as well as some of the highlights of the debate prior to the January/February session.

American Indian Law Alliance
611 Broadway, Suite 632
New York, NY 10012 USA
212-477-9100 telephone
212-477-0004 facsimile
aila@ailanyc.org

Declaration on the Rights of the World's Indigenous Peoples

7 December 2005
United Nations
Geneva, Switzerland

Dear brothers, sisters and friends:

The American Indian Law Alliance delegation from the United Nations in Geneva sends you our greetings. We are here to move forward the eventual passage of the Declaration on the Rights of the World's Indigenous Peoples by the Commission on Human Rights and eventual adoption by the General Assembly.

We would optimistically suggest that progress is being made, especially on the critical issue of self-determination. Nonetheless, a few nations still seem committed to blocking the unqualified acceptance of this human right with respect to Indigenous peoples. Of course, two of these countries are the United States and Australia. Their positions and opposition are not unexpected. However, New Zealand has taken an increasingly hostile position towards Indigenous peoples and our right to self-determination. Without going into too much detail, yesterday (December 6, 2005), the representative of New Zealand stated from the floor of the United Nations that without inclusion of the concept of the territorial integrity of states (a serious impediment to the exercise of self-determination, taken out of the context in which it is generally accepted in international law) there would not be a principle of self-determination in the Declaration. Additionally, they are proposing that Article 31 (on self-government over internal affairs) be amended and moved to a position in the Declaration following Article 3 on self-determination. This too can be interpreted to bring the concept of internal autonomy into a position of significance equal to and/or potentially limiting Indigenous peoples right to self-determination.

These positions make the rights of Indigenous peoples less than the right of all other peoples. Without a change in New Zealand's position, the hopes for progress are seriously stifled.

There are no Maori people here at the United Nations. This means that the government of New Zealand is acting with impunity. They operate without accountability to the Indigenous peoples whose lands they occupy and whose treaties are at stake. We would therefore urge our brothers and sisters, in particular our Maori brothers and sisters, to seek out the government of New Zealand and ensure that this government is responsible and accountable for the positions they are taking and the risk they are presenting to the rights of Indigenous peoples everywhere.

American Indian Law Alliance
611 Broadway, Suite 632
New York, NY 10012
USA
Phone: (212)477-9100
Facsimile: (212-477-0004
Website: www.ailanyc.org  Email: aila@ailanyc.org

From: Kent Lebsock kent@ailanyc.org
Aug. 31, 2005
Executive Director
AMERICAN INDIAN LAW ALLIANCE
611 Broadway, Suite 632
New York, NY 10012

CERD Decision about the United States

The following deals specifically with a decision by CERD relative to United States discrimination against Indigenous peoples and is a critical step forward in international reaction to the American abuses both contemporary and historical. United Nations calls for U.S. accountability re. Western Shoshone.

United Nations calls for U.S. accountability

by: Brenda Norrell 
Indian Country Today,
Posted: August 29, 2005

GENEVA - A United Nations committee on racial discrimination has asked the United States to respond to the Western Shoshone appeal for urgent intervention, regarding the attack on their spiritual and cultural areas by the United States and mining corporations.

Mario Yutzis, chairman of the U.N. Committee for the Elimination of Racial Discrimination, issued a formal letter to the United States and questioned why Western Shoshone sacred land and treaty rights are not being honored.

The committee pressed the United States for an explanation of expanded mining and nuclear waste storage on Western Shoshone ancestral land, and for ''placing their land up for auction for privatization.''

Further, the committee questioned whether the Treaty of Ruby Valley of 1863 has been abrogated and the imposition of grazing fees, trespass and collection notices, horse and livestock impoundments and restrictions on hunting and fishing.

Western Shoshone said their lands cover approximately 60 million acres stretching across what is now referred to as the states of Nevada, Idaho, Utah and California. The United States claims about 90 percent of the land base is ''public'' or federally controlled lands.

Western Shoshone challenge the United States' assertion of ownership, stating that there has never been a legally valid transfer, sale or cession of land by the Western Shoshone.

The United States was asked to report to the U.N. committee on the arrests of Western Shoshone while using lands claimed as their ancestral lands. Further, the United States was asked how it deals with sacred lands and whether it ensures effective participation by indigenous communities in decisions affecting them.

The United States was asked to provide an explanation of the approval of expanded mining activities in the Mt. Tenabo area in Crescent Valley and the approval to store nuclear waste at Yucca Mountain.

''Both areas are of spiritual and cultural importance to the Western Shoshone and are sites where local creation stories originate,'' a Western Shoshone delegation, in Geneva Aug. 8 - 20, said in a statement.

Western Shoshone said the appeal for urgent intervention was taken to prevent further escalation of federal assaults on Western Shoshone people and their ancestral lands. The delegation was and presented the requests.

Chief Raymond Yowell of the Western Shoshone National Council was encouraged by the U.N. response.

''We are pleased that the United Nations committee is willing to look into this. We encourage the U.S. to respond in an honorable manner and to begin to work toward a solution on this long standing matter - for the benefit of all concerned.''

In the August letter, the U.N. committee noted with concern the allegation that Western Shoshone are being denied their traditional rights to land. Further, the committee questioned whether the subsequent use and occupation of these lands by others would cumulatively lead to irreparable harm:

''The committee, in particular, has received information concerning reinvigorated federal efforts to open a nationwide nuclear waste repository on Western Shoshone land; passage of controversial legislation allowing for distribution of compensation for the alleged extinguishment of Western Shoshone title over land; alleged legislative efforts to privatize Western Shoshone lands for transfer to multinational extractive industries and energy developers; and alleged seizures of Western Shoshone livestock and imposition of heavy trespass fines against Western Shoshone people.''

Further, the committee questioned the United States' assertion that the Western Shoshone people lost their rights to their ancestral lands, as identified in the 1863 treaty, as a result of ''gradual encroachment'' by non-American Indians.

The committee asked whether this violated the right of everyone, without discrimination, to own property alone as well as in association with others.

Another issue raised was whether Western Shoshone were involved and informed of the U.S. Indian Claim Commission decision regarding their ancestral lands.

The United States was asked for its response to Western Shoshone protests over compensation in the 2004 Western Shoshone Claims Distribution Act and whether the act was fair and adequate.

Another question raised concerned Western Shoshone's access to the judicial process to assert title to their land.

The committee's letter was issued on the final day of its 67th session, Aug. 19, after a private meeting with representatives from the United States. The United States was informed that the questions presented were based on the request from the Western Shoshone National Council, and by the Western people of the Timbisha Shoshone Tribe, Winnemucca Indian Colony and Yomba Shoshone Tribe.

In the letter, Yutzis said the committee appreciates the frank and open preliminary discussion, which took place Aug. 8 between representatives of the United States and the committee's Working Group on Early Warning and Urgent Action Procedure.

According to Yutzis, the United States assured the committee that reports on Western Shoshone issues, now far behind schedule (they were due in November 2003), are currently being prepared. However, the committee said it regrets that the United States has not agreed to submit the reports by a specific date.

The committee asked for a response to the questions by Dec. 31 for further examination at its next session, beginning Feb. 20, 2006 in Geneva.

-- C 1998 - 2005 Indian Country Today

August 23, 2005

Crescent Valley, Nevada (Newe Sogobia). On the final day of its 67th Session, August 19, 2005, the Chairman of the United Nations Committee for the Elimination of Racial Discrimination issued a formal letter and series of questions to the United States regarding the situation of the Western Shoshone. The letter was issued after a private meeting with representatives from the United States on August 15, 2005 based on requests by the Western Shoshone Nation* that the Committee act under its early warning and urgent action procedure to prevent further escalation of federal assaults on Western Shoshone people and their ancestral lands. A delegation of Western Shoshone traveled to Geneva August 8-20 to present the requests.

A full copy of the letter is attached to this release. Questions range from the U.S.' position on the Treaty of Ruby Valley, seizures of Western Shoshone livestock, efforts to privatize Western Shoshone land to benefit mining and energy industries and ongoing harassment of Western Shoshone people. The Committee asked specifically about United States approval of expanded mining activities in the Mount Tenabo area in Crescent Valley and the approval to store nuclear waste at Yucca Mountain. Both areas are of spiritual and cultural importance to the Western Shoshone and are sites where local creation stories originate.

The Committee has asked the United States to respond to the questions by December 31, 2005 for further examination at its next session beginning February 20, 2006 in Geneva Switzerland.

Upon receipt of the letter earlier today, Raymond Yowell, Chief of the Western Shoshone National Council stated:

"We are pleased that the United Nations Committee (CERD) is willing to look into this. We encourage the U.S. to respond in an honorable manner and to begin to work toward a solution on this long standing matter - for the benefit of all concerned."

Western Shoshone lands cover approximately 60 million acres stretching across what is now referred to as the states of Nevada, Idaho, Utah and California. The United States claims around 90% of the land base as "public" or federally-controlled lands. The Western Shoshone challenge the U.S. assertion of ownership stating that there has never been a legally valid transfer, sale or cession of land by the Western Shoshone to the United States.          THE LETTER .pdf

• Urgent Action under Early Warning Measures (Western Shoshone/United States) .pdf
• Request for Early Warning Measures and Urgent Procedures .pdf
• 2nd Request for Urgent Action under Early Warning Procedure to the Committee on the Elimination of Racial Discrimination of the United Nations .pdf

download the free . pdf Reader

Medicine Lake victory

November 10, 2006

Press Release for Medicine Lake Highlands

For more information on press release contact the Advocates for the Protection of Sacred Sites:

9th Circuit Court stops geothermal energy development at sacred Medicine Lake Highlands!

Pit River Country, CA-Native Americans and their supporters have scored another victory in the effort to protect the Medicine Lake Highlands from the establishment of a geothermal power plant by Calpine energy corporation on lands held by the U.S. Forest Service (FS) and Bureau of Land Management (BLM). Since genesis the Highlands have always been sacred to the Pit River, Wintu, Modoc, Shasta, Klamath, and other Native nations. Many of the families in these nations are the traditional caretakers of these lands and it is their responsibility to protect them. Numerous strategies have been used to accomplish these goals, including securing investor divestment of shares from Calpine, exposing the company's illegal energy price-fixing scheme, and staging a massive protest at the company's headquarters in San Jose earlier this year. In addition, the Pit River

Nation and various Native sacred sites protection and environmental groups sued the federal government and Calpine in an attempt to stop the development which will cause irreparable damage to the natural environment and Native cultures of the area. We invite all Native nations working to protect their sacred places to use any of the strategies we have employed, if such approaches would be beneficial to your efforts.

When the plaintiffs lost in federal court in 2004, the judge indicated that federal agencies had complied with all applicable environmental and historic preservation laws and did not violate the federal trust responsibility to the Pit River Nation. However, these laws and the trust responsibility in particular are not to be taken lightly. The federal government has a unique relationship with Indian nations derived from the U.S. Constitution, treaties, Supreme Court doctrine, federal statutes, executive orders, and presidential directives. Federal agencies have a duty to consult with Indian nations on proposed projects and services that may impact upon their socio-economic and governmental wellbeing. When federal agencies issued leases to energy companies to build geothermal power plants in the Highlands, neither the FS nor the BLM consulted with the Pit River Nation.

The plaintiffs appealed the ruling and in a unanimous decision, the 9th Circuit Court on November 6, 2006 reversed the lower court decision. Judge Clifford Wallace indicated that the federal agencies neglected their fiduciary responsibilities to the Pit River Nation by violating the National Environmental Protection and the National Historic Preservation Acts and that the agencies never took the requisite 'hard look' at whether the Highlands should be developed for energy at all. As a result, the court rejected the extension of leases that would have allowed Calpine to develop the geothermal plant and the district court is now directed to enter summary judgment in favor of Pit River consistent with this opinion.

The federal government could appeal the Circuit Court decision to the Supreme Court. In preparation for this potential outcome, the Advocates for the Protection of Sacred Sites is asking you to write Dirk Kempthorne, Department of Interior Secretary, and urge him to ensure that the FS and BLM (two agencies under his jurisdiction) will not appeal and will abide the current rule of law on this issue. The following letter could be used for this purpose:

Department of the Interior
1849 C Street, NW
Washington, DC 20240

Dear Secretary Kempthorne,

I am writing to strongly urge you to oppose appealing the decision of the 9th Circuit Court in Pit River v. USFS/BLM. Two federal courts have already spent a great deal of time and other resources reviewing the case. In a unanimous decision, the Circuit Court ruled that the federal agencies neglected their fiduciary responsibilities to the Pit

River Nation by violating the NEPA and the NHPA and that the agencies never took the requisite 'hard look' at whether the Medicine Lake Highlands should be developed for energy at all. As a result, the court rejected the extension of leases that would have allowed Calpine energy corporation to develop a geothermal plant. Another appeal would further drain tax payer dollars and detract agency staff from carrying out their normal functions. The DOI and its agencies need to abide by the current letter of the law in this case.

Sincerely,