Wednesday, 26 December 2012

Two Tales of the Indian Child Welfare ACt

Two Tales of the Indian Child Welfare Act

There are two stories in the media currently about the Indian Child Welfare Act (ICWA).  One is about a case pending for a decision as to whether it will be heard by the United States Supreme Court. 

The other seems to see relatively less light of day—that of the on-going call to address the high rates of removal of Lakota children in South Dakota. The case pending in front of US Supreme Court  calls for the recognition of the pernicious Existing Indian Family Doctrine in relation to the adoption of a young Cherokee child. (link to brief filed in the US Supreme Court on behalf of the child, birth father and the Cherokee Nation)

 The Existing Indian Family Doctrine allows judges—in their discretion and applying their own standards- to avoid the application of ICWA with a finding that a child is not “Indian enough” to apply ICWA, even though the child meets the application threshold of being an “Indian child” as defined in the Act.   

ICWA is on the one hand  thus presented as the villain—coldheartedly stripping children from the arms of loving parents. The great irony in this presentation is that ICWA was created to prevent just that scenario (albeit with one difference—the parents ICWA is concerned about are those of the child and not of prospective adoptive parents)—the removal of children from their families and communities. The wholesale removal of indigenous children done in the interests of assimilation was to have stopped with the passage of ICWA in 1978. The testimony  in support of the Act makes for harrowing reading.

But even more harrowing is the reality that the removals of children has not stopped. NPR called attention to this with a series aired well over a year ago. There are calls for Congressional inquiry into the practices that result in the removal of so many indigenous children.
But instead of outcries against this there instead seems to be a  determined silence about those indigenous parents in anguish and  the injustice of those actions which remove children from their parents and community.

ICWA is an important and forward thinking act. It is as necessary today as it was in 1978. The problems with the Act arise not because of the Act itself, or from any need to abolish it or give any credence to the judicial embarrassment that parades as the Existing Indian Family Doctrine. The problems arise in each instance—that in the pending US Supreme Court case and in South Dakota—when the Act is not adhered to. The problem is not the Act, but in the failure to comply, and perhaps more importantly, with those attitudes that persist in a willful ignorance about the Act which try to legitimize efforts to evade it.

Indigenous and Minority Rights: Call for Papers SLSA 2013

Call for papers
It is not too late to submit an abstract to the Indigneous and Minority Rights Stream in the SLSA 2013 conference. More information is available at this link.
The deadline for submitting an abstract in the first call for papers is January 14, 2013. The early bird registration ( with discounted price) deadline is January 28, 2013. Informal inquiries about an abstract submission for the Indigenous and Minority Rights Stream can be sent to Sarah Sargent at

Sunday, 23 December 2012

Call for Papers: University of the Gambia Student Law Review


The University of The Gambia Law Faculty will publish in September 2013 its first Student Law Review. We would welcome submissions from students, academics and law professionals. This is a call for papers with a human rights focus. The first edition will be a special edition on human rights. Please submit a 300 word abstract of your proposed article by and no later than 12.00 midday January 20 2013. The final article will be 5,000 words including footnotes (OSCOLA) and will need to be submitted by 1 May 2013.

Please send abstracts to  Fiona Batt at her email:

Friday, 14 December 2012

Calls for Summit and Congressional Investigation into Child Welfare Practices

The forced and unwarranted removal of indigenous children from their family and communities is an assimilative practice that has been decried. In the United States, the law has changed--at least on paper--to prevent the sort of wholesale removal that occured prior to the 1978 passage of the Indian Child Welfare Act.

But compliance with the requirements of ICWA and a lessening of the numbers of children that were removed from their families has been an ongoing fight ever since. It is one thing to change laws, it is another thing altogether to change practice.

For several months now concerns have been raised about child welfare practices in South Dakota. In 2011 NPR ran a report that highlighted the events that gave cause for concern about removal of Lakota children from their families and tribal communities.

In November 2012,a report detailing continuing concerns over child welfare practices was issued by "coalition of tribal directors from the state's nine Sioux tribes"

An executive summary of the report issued by the Indian Child Welfare Act Directors-- "representing six of the nine American Indian tribes in South Dakota"--
can be found here .

Further action took place with a letter sent on December 7 2012 by two US Congressman to the Assistant Secretary for Indian Affairs, which calls for "for Bureau of Indian Affairs summit and a Congressional investigation into the South Dakota Native Foster Care system".

Additional information and ways in which to get involved in this call for action can be found at the website for the Lakota People's Law Project.

It now remains to be seen what response there will be to the Congressmen's requests and the other concerns that have been raised for many long months.

Thursday, 22 November 2012

'better early than late'

In Chile we heard of a case brought by indigenous communities against a geothermal energy investigation to take place on indigenous territories. The third chamber of the Court of Appeal of Santiago received three applications filed by three different communities: Huenchullán; Consejo de Pueblos Atacameños; and comunidad Manquilef Hueche regarding an exploration permit granted by Ministry of Energy in the regions of Araucanía and Antofagasta.

 The Court of Appeal unanimously rejected the lawsuits on the grounds of extemporaneousness in the filing of this constitutional action. Moreover, the Court explained that “there has been no illegal or arbitrary action by the Minister of Energy” because the said permit meets a legal and duly founded procedure. In regards of the action been extemporaneous the Court of Appeal noted that at this stage of the geothermal examination, the permit will only allows the party involve to recognize, inquire or ascertain the existence of energy if any, in the subsoil. Therefore, it is not possible to know if the project will affect communities or individuals. However the Court extended to say that a ‘consultation and participation’ of indigenous communities that may be affected by the project is necessary at a later stage - in compliance with Articles 6, 7 and 8 of the ILO Convention No 169.

Haven’t you heard of the expression ‘better early than late’? This is what did cross my mind while I was reading the case. You may also think of ‘the early bird catches the worm’ ie avoid losing time and recognize now that anything that happens in indigenous lands they need/must be consulted...full stop.

Chile is not strange to this type of cases -- conflicts over indigenous lands and the exploration and exploitation of their natural resources and moreover, referring to consultation and participation of indigenous peoples in decisions relating to this issue (see previous posts here and here). What is of curiosity is the fact that the Ministry of Energy is a body of the State and it should know better. The government should be an example of responsibilities and obligations pursuant ILO Convention No 169. Also Chile is a member of the United Nations Declaration on the rights of Indigenous People (UNDRIP) and although it is a non- binding resolution, it is a reaffirming piece that Chile has opted to follow.

Sources: Poder Judicial and Indigenous News.

Wednesday, 7 November 2012


From Dr Valentina Valdi, a Marie Curie postdoctoral Fellow of the Faculty of Law at Maastricht Universit, we received an invitation for a conference on ‘Art and Heritage Disputes’ to be held at Maastricht University on 24-27 March 2013. The invitation is to everyone who is interested in participating, either presenting a paper or writing an article OR even both!

Abstract (up to 500 words) for consideration should be submitted by 1st December.

The publication reads as follows: “This Special Issue aims to identify, map and critically assess the number of art and heritage disputes which have arisen in the past decades. The return of cultural artifacts to their legitimate owners, the recovery of underwater cultural heritage, the governance of sites of outstanding and universal value, the protection and promotion of artistic expressions, and the protection of cultural sites in time of war are just some of the issues which have given rise to art and heritage related disputes.”

Themes that are considered include: 1) Cultural rights 2) Tangible cultural heritage 3) Intangible cultural heritage 4) Underwater cultural heritage 5) Art law 6) Dispute settlement mechanisms

For more info contact Dr Valentina Vadi at

Tuesday, 23 October 2012

The passing of Russell Means

The passing of indigneous activist and leader Russell Means on October 22, 2012 is noted with a great deal of sorrow. Russell Means has played a key role in the shape of indigneous rights today. He was one of the generation of activists that helped to wake the world up to the need for recognition of indigneous rights, and that moved indigneous rights to a platform in the international community. The movement of indigneous rights to the international arena brought a very high profile to state actions that had long been carried out without much comment with a focus on assimilating indigenous peoples.

This video contains a very moving tribute to Russell Means and his contribution to indigenous peoples around the world.

Saturday, 13 October 2012

Addressing the Legacy of Columbus Day

Some time in mid-October various permeations of “celebrations” of “Columbus Day” occur. These are meant to commemorate the landing of Columbus in 1492 on a small island near the American continents. This is not seen as a day of celebration, however, by many indigenous peoples, and others who believe that observances of the day as a celebratory one of European colonial aspirations are appropriate. Such a view is seen as obscuring the brutal acts aimed at indigenous peoples which often had a single intent of removing or destroying indigenous groups from desired lands.

Many places now offer a different view of this day. South Dakota has replaced it with “Native American Day.” Berkeley, California observes Indigenous Peoples Day.

Elsewhere efforts are made to change Columbus Day observances to ones which recognise indigenous peoples. Students are promoting this change at the University of Wisconsin-Madison. Some events focus on trying to educate people about another view of the events that began in 1492, replacing a politically correct gloss of a holiday with facts and figures aimed at revealing a perhaps uncomfortable reality hidden behind myths.

Other commentary points out that although the events in 1492 may seem to be in the dim and misty past, their effects continue into the present day.

Perhaps the truest lesson from the recognition of “Columbus Day” is to realise that while the past cannot be undone, certainly its effects in the present and future can and must be not only recognised but addressed. A focus on what followed from an October day in 1492 reveals there is much need to address its legacy.

Thursday, 11 October 2012

Mining and human rights in Colombia and Latin America

ABColombia and the Human Rights Consortium invites to a conference regarding the impact that mining do have in different sectors in Latin America, more specifically in Colombia. The invitation was forwarded by Prof Graham Dutfield, University of Leeds and we thank him for it.

The event provides us with an opprotunity to hear experts from disciplines such as: public bodies; legal scholars and practitioners; as well as the mining industry [I guess a coin not only has two sides]. Moreover and closelly related to this blog is the fact that the conference will give space to indigenous communities who will be participating in it. The latter will share the impact that mining has in their communities.

The conferece takes place on Monday 12 November 2012, 9am-6pm at Beveridge Hall, Senate House,Malet Street, London, WC1E 7HU. Entry is £20/£10 (concessions).

For more information contact Laura Ouseley, Information and Communications Officer, ABColombia at

Tuesday, 9 October 2012

Deferring Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in Australia: When Partisan Politics Really Gets in the Way

This blog has discussed in the past the issue of constitutional recognition of Aboriginal and Torres Strait Islander Peoples in Australia, and how a referendum was being called for after an expert panel convened by the government recommended so. Surprisingly, the referendum met with support from all sides of the political spectrum, including the two major political parties. A campaign went underway, led by You Me Unity (here), an organization created by the government for the purposes of consultation with indigenous groups and also raising awareness to the referendum, so as to guarantee its passage. But work has been slow, and a significant part of the Australia population (61%) is still unaware the referendum is even on the political agenda. Most of this segment of the population is concentrated in rural areas, which are the ones where Aboriginal peoples are more likely to inhabit.

Professor George Williams of the University of New South Wales published an op-ed piece in the Sydney Morning Herald (can be read hereprecisely exploring some of these issues, and highlighting the need for popular involvement with the referendum. He even suggests a nationwide popular competition for the drafting of the new preamble, similar to the contest for the design of the Australian flag led in 1901.

As a result of this unforeseen difficulty of raising awareness, and the upcoming federal elections in Australia next year, the current (Labor) government has proposed that the referendum be postponed, and that an “Act of Recognition” be passed instead, making the recognition happen through a federal statute initially. This Act of Recognition would then contain a sunset clause, determining that a referendum be held within three years of the act’s passage.

The Act of Recognition strikes me as an elegant solution because it would pass much more quickly (it only requires voting in the two federal legislative houses, as opposed to referenda in all eight states and territories), and also because it would bind the next government (regardless of who wins the election) to really go through with the referendum. It also importantly buys more time to build consensus around the country.

But then the opposition (Liberal) leader went on to criticize the government’s move, saying it is inadmissible that the current government may seek to bind the following government to go through a referendum process. I see two possible (and not mutually exclusive) explanations for this move. The first one is a principled approach from the Liberal opposition to having the Labor government command them even after it (possibly) stops being the government (polls indicate a slight edge for the Liberals to win the next election). This possibility also speaks to the cheap political game in Australia, where the opposition spends its time decrying every single act by the government out of principle, regardless of the acts merits. After all, if the opposition supported the referendum, and wants constitutional recognition to go through, why would it oppose what is considered to be the best strategy to do so?

This leads to the second possibility: the opposition is in fact not interested in constitutional recognition, and is pushing for the referendum to happen before the elections so the referendum will fail, as You Me Unity suspects it will if the referendum is done now.

Regardless of what the reason is for the opposition’s reaction to the Act of Recognition, the fact of the matter is that the recognition of Aboriginal and Torres Strait Islanders peoples in Australia is long, long overdue, and that petty politics should give way to the greater good of peoples who have already endured colonization and are now deeply marginalized and disenfranchised. Constitutional recognition is an essential first step in making amends and allowing these peoples to flourish in Australia, their country.

Post written by Lucas Lixinski.

Wednesday, 3 October 2012

The Sarayaku Community Case in Ecuador: Community Involvement in Resource Exploitation

In April 2012, the Inter-American Court of Human Rights issued a judgment in the case of the Sarayaku Community v. Ecuador. In this case, the State of Ecuador was charged with violating the rights of members of the Sarayaku people for allowing indiscriminate oil exploitation in their territory, at the expense of their ancestral lands, including spaces of memory, mourning and ritual.

This was the first time the Inter-American Court sent a delegation to an indigenous community for fact-finding and to conduct hearings. A video (in Spanish) produced by Olger Ignacio Gonzalez (here), a lawyer at the Court’s Secretariat, documents the work of the delegation and the testimonies given to the Court. During those hearings, Ecuador acknowledged their responsibility for violating the rights of the Sarayaku community, including their right to Free, Prior and Informed Consent.

The video is particularly powerful in showing how the Sarayaku live, and how they were affected by the oil exploitation on their lands. But it is also a stark reminder of what many have referred to as “strategic essentialism” (which has been the object of discussion in this blog in the past). One can see how the Sarayaku members giving testimony struggle to package and frame their grievances in terms understandable to their audience, and easily translatable into human rights claims. However salutary the effort of the Inter-American Court (and Ecuador’s acknowledgment of responsibility), it is also somewhat worrisome that, in an era where pluralism is flagged as the word of the day, and constitutions across South America claim to be multi- and / or intercultural, that this problem in translation is still so acute.

Post written by Lucas Lixinski.

Tuesday, 2 October 2012

Indigenous land FOR SALE!

Back in 1993 the Chilean law 19.253 (here in Spanish) on ‘protection, promotion and development’ of indigenous peoples created the National Indigenous Development Corporation (CONADI) and which also established key policies providing resources and protection for native ethnic groups. As in every other legislation some flaws were noted; one of them being Article 13 which prohibits disposing of, seizing, or acquiring by prescription Indigenous lands, unless it is between Indigenous communities and/or indigenous people. This lands whose owners are Indigenous Communities cannot be leased, given on loan; cannot be transferred to third parties to use, benefit from or administer.

For this reason a new proposal, headed by Mr René Manuel García and backed on by several MPs, has been made in the ‘Camara de Diputados’ (Chamber of Deputies) to “add a subsection to Law 19.253, in order to allow the Indians to sell their land” but only if used exclusively for the construction of social housing and associated infrastructure.

Mr García noticed the constraints to indigenous ownership which prevent the landowners to generate resources by way of lease or sale of property, forcing owners land to stay with the same piece of land, unable to have another option that may mean an economic benefit.

I wonder if the Indigenous Communities have participated in this project. It comes to mind the ILO Convention 169, to be more specific:

Article 6
§  1. In applying the provisions of this Convention, governments shall:
  (a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;
Article 7
§  1. The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.

But more importantly is:
Article 17
1. Procedures established by the peoples concerned for the transmission of land rights among members of these peoples shall be respected.
2. The peoples concerned shall be consulted whenever consideration is being given to their capacity to alienate their lands or otherwise transmit their rights outside their own community.
I guess that when Law 19.253 was proposed these matters were considered (?). 
Finally, if this proposal is accepted how the following would be stop from happening:
§  3. Persons not belonging to these peoples shall be prevented from taking advantage of their customs or of lack of understanding of the laws on the part of their members to secure the ownership, possession or use of land belonging to them.

Thursday, 27 September 2012

The right of... to be NOT consulted (?)

Back in 2011 the Chilean government passed a regulation (Decreto Supremo N° 50),that lays out a process by which state-protected areas can be opened up for tourism and hence, tourism concessions are to be granted – this regulation was published in April 2012. The Council of the Atacameño People (an organization that has leaders from many different Atacameño communities) argues that such regulation affects their interests and requests that they, as well as any other indigenous communities, shall be consulted -- grounds founded under article 6 of the ILO Convention 169.

"1. In applying the provisions of this Convention, governments shall:
(a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly"

However, the Santiago Court of Appeals ( hearing the case) unanimously rejected such grounds on the basis that the said regulation “has caused no harm nor affected indigenous peoples to an extent that it requires consultation.” Yet, the Court went on to establish at numeral 10 that “any concessions that affected indigenous communities were to be held to the strict standards of consultation laid out in Articles 6,7 and 8 of ILO Convention 169, especially the reference to the participation of these communities in making decisions that affect the territories where they live.”

Source Indigenous News here.

The decision can be read here.

Tuesday, 25 September 2012

Report and Response: The Situation of Indigenous Peoples in the United States of America

James Anaya, the Special Rapporteur on the Rights of Indigenous Peoples, made a landmark visit to the United States earlier this year to evaluate the circumstances of the indigenous peoples in the United States. His report of August 30 2012 provides a comprehensive overview of the triumphs achieved and challenges faced by these communities.

On September 18, 2012, the United States made its Response

to this report at the Human Rights Council 21st Session in Geneva.

The Response acknowledges the “high rates of poverty, illness, substance abuse, suicide, and incarceration, as well as relatively low levels of education”. The Response goes on to explain how the United States is addressing these problems, citing among other things, funds from the American Recovery and Reinvestment Act provided to “renovate schools on reservations, encourage job creation, improve housing and energy efficiency; and support health facilities and policing services.”
It also references other legislation, such as the Affordable Care Act and the Tribal Law and Order Act.
Given the magnitude of challenges that some indigenous groups face, this is a tepid and rather disappointing response. It is to be hoped that this is only a preliminary response and not the whole of the United States’ reply to the Special Rapporteur’s report. Unmentioned is the pending Violence Against Women Act that would provide criminal jurisdiction for some offenses committed on indigenous homelands. Unmentioned is the UNDRIP itself and any steps that the United States is taken to implement it in the wake of its eventual endorsement. Unmentioned is any response to Mr Anaya’s call for specific steps for reconciliation, and that “unless genuine movement is made towards resolving these pending matters [specific unresolved problems of historical origins and systemic dimensions... problems [that] continue to breed disharmony, dislocation and hardship] the place of indigenous peoples within the United States will continue to be an unstable, disadvantaged and inequitable one.”

In light of that, the Response can scarcely be credited as being a response at all.

Friday, 7 September 2012

Chief White Eagle Memorial Dedication

By Shirley Willard, Fulton County Historian

A black iron teepee and a black metal plaque with lettering cut by laser form an unusual memorial in front of the Fulton County Museum, Rochester. The Chief White Eagle memorial will be dedicated Sept. 15, Saturday night of Trail of Courage at 6:30 p.m. The 42nd Royal Highlanders will play in memory of Tom Griffin, who is also memorialized. The families of William Wamego and Tom Hamilton, members of Citizen Potawatomi Nation, Oklahoma, will attend.

Chief White Eagle, aka Basil Heath, 1917-2011, was beloved by many who attended the Trail of Courage from 1985 to 2009. A former movie actor and TV personality, he was the most famous person to participate in the Trail of Courage. He was in “Northwest Passage,” “Red River,” “She Wore a Yellow Ribbon” and other films. He traveled all over the U.S. giving programs on American Indians. He played the part of Grandpa in “The Best Man in Grass Creek” in 1996. He was declared a Living Legend of Fulton County in 2005. Born on the Iroquois Reservation in Canada in 1917, he served in World War II for both England and the United States. He and wife Bobbie Bear moved to Fulton County in 1987. He did a dedication ceremony for the new Trail of Courage site in 1985. He planted the Great Peace Tree in 1988. He continued to give speeches about Indian lore at the Trail of Courage, at the museum, and for Boy Scouts and other groups in Indiana and neighboring states.

Tom Griffin, 1928-1993, Lafayette, founded the 42nd Royal Highlanders Band of Pipes, Fifes and Drums in 1975. They have provided music at the Trail of Courage since 1983. Griffin attended grade school in Kewanna and he is buried there beside his parents. The band continues to perform at many historic festivals in the Midwest.
William “Bill” Wamego, 1919-1993, Tulsa, Oklahoma, was descended from Chief Wamego who was on the Potawatomi Trail of Death from Indiana to Kansas in 1838. He helped with the Trail of Courage 1982-1993. He traveled on the Trail of Death commemorative caravans 1988 and 1993.

Tom Hamilton, 1929-2010, Checotah, Oklahoma, was descended from Abram Burnett, a young Potawatomi man who went west on the Trail of Death in 1838. Burnett traveled with Father Petit to St. Louis, sometimes holding the sick priest on his horse, where Petit died in 1839. Burnett later became a chief in Kansas and was the biggest strongest man in Kansas, weighing over 400 pounds. Hamilton began attending the Trail of Courage in 1982. He helped organize the Trail of Death caravans 1988-2008. He designed the Trail of Death map used on 12 historical markers and the Potawatomi Trail of Death Assn. website He and his family sponsored five Trail of Death historical markers. He made adoption papers on his computer and had the other Potawatomi on the 2003 caravan sign it to adopt Shirley and Bill Willard as honorary Potawatomi. Born in Oklahoma, he moved to Indiana in 1978 to work as vice president of advertising at Chore Time Brock, Milford. After retirement he and wife Pat spent winters in Oklahoma and summers in Warsaw, Indiana. He searched for many years to find the birthplace of Abram Burnett and finally found it to be on Ernie Hiatt’s farm north of the Tippecanoe River and west of Rochester.

Leon Stewart, 1925-2010, Rochester, was a volunteer at FCHS, and was named RSVP Volunteer of the Year in 1995. He donated thousands of hours, working as a carpenter for FCHS, Habitat for Humanity and other non-profits. He helped remodel and repair several buildings at FCHS, including the Polke house. Leon’s son Kevin Stewart did the landscaping for the memorial.

Craig Welding of Mentone donated the metal plaque with the names and dates.

Rochester - 37th Trail of Courage will be Sept. 15-16, 2012

The 37th annual Trail of Courage Living History Festival will be held Sept. 15-16 at Fulton County Historical Society grounds four miles north of Rochester on US 31 and Tippecanoe River. Hours are 10 a.m. - 6 p.m. Saturday and 10 a.m. - 4 p.m. Sunday. Frontier Indiana comes alive with music and dance on two stages, Indian dances, pre-1840 crafts and trading, foods cooked over wood fires, contests, muzzleloader shoots, cannon demo, fur trade skit, and canoe rides on Tippecanoe River. Admission $6 adults, $2 children 6 to 11, free for children age 5 and under. Contact Fulton County Museum at 574-223-4436 or


The grounds are handicapped accessible. Trams pulled by tractors offer free rides from the museum and parking field to the admissions booth. There are many benches to sit on, with seating capacity at each stage and the Indian dance arena of about 200 each place.

New this year: dedication of iron teepee memorial for Chief White Eagle and four other men on Sat. evening, Huck and Biscuit the burro.

Friday, 24 August 2012

Grass-roots campaign to save Pe'Sla

James Anaya, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, issued a call for consultation to occur over the proposed auction of land in South Dakota that is revered as a sacred place for the Lakota, Dakota and Nakota peoples.

The auction has been cancelled, but the future status of the sacred land remains unclear at this time.

Pe'Sla has a unique and special place in the cosmology of the Lakota, Nakota and Dakota peoples.

Since word of the planned auction spread, there has been a concerted effort by individuals and tribes to raise awareness about Pe’Sla and to raise funds to try to purchase at least some of the land at the auction.

The call for consultation by the UN Special Rapporteur is one that is significant. Under the United Nations Declaration on the Rights of Indigenous Peoples, there are several provisions that address indigenous rights to sacred land such as Pe’Sla.

Article 8(2)(b) requires states to have “effective mechanisms for prevention of, and redress for... any action which as the aim or effect of dispossessing them of their lands, territories or resources.” State obligations go much further than that, however. Article 26 requires states “to give legal recognition and protection” to lands which have been “traditionally owned, occupied or otherwise used or acquired.”

There can be no doubt that Pe’Sla fits the description of lands given in Article 26. The United States should heed the call to consult with indigenous groups, but its obligations transcend mere consultation. It has a duty to protect Pe’Sla.

But waiting on the United States to take actions to protect Pe’Sla might prove fruitless. To this end, an amazing grass-roots campaign was sparked, seeking donations and raising awareness about both the sacred nature of Pe’ Sla, and how the planned auction jeopardised Pe’ Sla. This campaign, organised through joint efforts of and the Rosebud Sioux .. call for donations to help raise money towards the purchase of at least part of Pe’ Sla.

The response has been tremendous, with on-going donations now totalling over $ 266,000 with a further contribution of funds from the Rosebud Sioux Tribe of $1.3 million.

International instruments are often criticised for providing rights that are not practically accessible. It is hoped that the combined efforts of the campaigners to save Pe’ Sla, and the call issued by the UN Special Rapporteur will result in the protection of Pe’ Sla as required by the United Nations Declaration—an instrument now endorsed by the United States. Just as grass-roots advocacy movements were the genesis for the campaign for indigenous rights going international, it seems that grass-roots movements have not lost their importance in continued efforts to promote and protect indigenous rights.

28 days and counting...

In Chile, representatives from one political party have expressed the “lack of solutions and insensitivity of the government" by the recent situation at UNICEF. Since Thursday 26 July, the office of UNICEF in Santiago de Chile was peacefully occupied by members of the Mapuche Territorial Alliance. Today the only people that remain are Sandra del Rosario Meza Huencho and her two year old daughter Kimwn. The other members, mainly mothers, have gradually left the building.

Why this extreme measure? The Mapuche community is asking the government to withdraw police forces in the Araucanía Region. It is reported that police violence against Mapuche communities has now been extended to children who have been injured by bullets when police carried out their procedures.

UNICEF While the body restates that the office is not the place to address the needs of welfare of a minor, both physical and psychological, UNICEF rejects to evict the occupants of the place.

Finally, the delegate Accorsi said that the government has not yet publicly repudiated what happened in La Araucanía with minors, given that it is the responsibility of States to assume special obligations in this area due to International Conventions on Human Rights and the Rights of the Child signed by Chile. He also referred to the ILO Convention 169, specifically Article 3 (2), which states “No form of force or coercion shall be used in violation of the human rights and fundamental freedoms of the peoples concerned, including the rights contained in this Convention”.

Sources UNICEF (here)and Camara de Diputados de Chile (Chamber of Deputies) (here).

Saturday, 11 August 2012

At Risk: "The Heart of All that Is"

“The Heart of Everything that Is”—that is how the peoples of the “Great Sioux Nation” describe the Black Hills. The Black Hills are regarded as sacred, an integral part of the essence of life. Treaties in 1851 and 1868 recognised the Black Hills as land of the “Great Sioux Nation” but it did not take the United States long to break those treaties in search of the gold believed to be under those hills. Over time the land that had been granted by the treaties was seized by the United States government until only a very small percentage of land remained with the indigenous peoples of the Great Sioux Nation.

This land taking was denounced by the United State Supreme Court: “"A more ripe and rank case of dishonorable dealings will
never, in all probability, be found in our history..” (quoting the Court of Claims)in the decision rendered by the Supreme Court in United States v Sioux Nation of Indians in 1980.

Despite the denunciation, little has been done to restore the Black Hills to their rightful possessors. The loss of the Black Hills is not a lamentable historical fact. The loss continues right up until this moment in time.

Land that is privately held, the Pe’ Sla, one of the few remaining pristine areas of the Black Hills, and an area held to be deeply sacred by indigenous peoples, is due to be auctioned off on August 25. There are very realistic fears that the pristine and sacred prairies will be sold to development interests.

A campaign has been organised to try to raise money to purchase the land at the auction. This campaign is organised through LastRealIndians, Inc. More information on the urgent need for donations to save the land and how to donate, as well as the significance of this land, can be found here. Even a small donation will help—as many small donations add up!

Friday, 3 August 2012

Recognition of TK in the Latin America region - an example to follow

A couple of weeks ago the Peruvian National Institute for the Defence of Competition and Intellectual Property (INDECOPI), in order to preserve the knowledge that native peoples have on the use of biodiversity, presented 453 titles of collective knowledge to communities located in the Loreto region in Peru. 

The indigenous peoples of this region managed to register 453 knowledge related to more than 120 plants in the Amazon area, covering different uses such as food, medicine, vegetable dyes, etc. To date, INDECOPI has registered over 800 TK in the name of indigenous communities.By these titles the Peruvian State through the INDECOPI guarantees the rights of these peoples that the use of their knowledge is made only with their consent -- they are the true owners.

In August 2002, Law 27811 was enacted in Peru establishing a sui generis intellectual property protection for collective knowledge of indigenous peoples linked to biological resources, ie the properties, uses and characteristics of the biodiversity.

Since 2010, the Office of Inventions and New Technologies of INDECOPI works with the Research Institute of the Peruvian Amazon (IIAP), through its programs PIBA (Biodiversity Research Program Amazon) and Cultural Diversity Research and Economics Amazon (Sociodiversity) in the recovery of the collective knowledge of indigenous peoples. They live with the people, experiencing their customs and needs. Only then TK is identified, reassessed and recorded, so that in future the indigenous community gets the benefit.


Tuesday, 31 July 2012

Despite Legal Protections Sacred Spaces Still At Risk: The Black Hills

It is a situation that repeats itself with depressing regularity. Despite legal protections put into place by domestic, regional and international law, there seems to be no end to the onslaught of destruction to indigenous sacred places. The United Nations Declaration on the Rights of Indigenous Peoples provides specific protections for indigenous lands. There is article 8(2)(b) which requires state to “provide effective mechanisms for prevention of and redress for... any action which has the aim or effect of dispossessing them [indigenous peoples] of their lands, territories or resources.”

Further, there is Article 11(2):

"States shall provide redress through effective mechanisms, which
may include restitution, developed in conjunction with indigenous
peoples, with respect to their cultural, intellectual, religious and spiritual
property taken without their free, prior and informed consent
or in violation of their laws, traditions and customs."

Sacred spaces are surely “spiritual property.”

Article 26 is very clear about the protections to be given to indigenous lands:

"Article 26
1. Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or otherwise
used or acquired.
2. Indigenous peoples have the right to own, use, develop and
control the lands, territories and resources that they possess by reason
of traditional ownership or other traditional occupation or use,
as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands,
territories and resources. Such recognition shall be conducted with
due respect to the customs, traditions and land tenure systems of the
indigenous peoples concerned."

It is not disputed that the Black Hills are sacred to indigenous peoples nor that they were wrongfully taken. The United States Supreme Court, in its 1980 ruling in United States v Sioux Nation of Indians , made that clear.

Yet, according to this news report, another sacred space is being made vulnerable to destruction in the name of development. The article states that development plans are “spelling the end of one of the last quiet vestiges of traditional Lakota worship in the Black Hills, or Paha Sapa.”

What can be done to preserve sacred spaces? What good are provisions in international instruments if they are not enforceable and beyond the reach of those who need to access them? And while academic and bureaucratic debates and conversations abound on these matters, fragile landscapes continue to disappear. Surely this is unacceptable. Surely indigenous sacred spaces should be given legally required protections. Surely accessing those legal protections must not be put out of reach by those who need to avail themselves of these. But what is being done—in concrete practical terms—to make these legal provisions useable and meaningful?

Monday, 30 July 2012

Trail of Broken Promises broken again but not beat

The following post was written by Shirley Willard. She has been working with the Potawatomi since 1982 to commemorate the Trail of Death and has gotten over 80 historical markers erected on the 660 mile route. See

By Shirley Willard, Fulton County Historian, Rochester IN
Email address

On July 10 the 10th Circuit Court of Appeals ruled that a new highway can be built on the wetlands at Lawrence, Kansas. A panel of three judges unanimously ruled that government environmental studies were adequate to allow major highway construction through the wetlands area.

This was a blow to the group of students from Haskell Indian Nations University who walked from Kansas to Washington, D. C. to save the wetlands. Organized and led by Millie Pepion, a junior at Haskell, they called it the Trail of Broken Promises Walk.

They began their walk May 13 and ended it June 27 when they reached D. C. They followed the Potawatomi Trail of Death from Kansas to Indiana, and visited the nearly 80 historical markers on the Trail of Death They had a special ceremony at the Chief Menominee monument in Marshall County, Indiana, June 7.

In Chicago on June 8 they met former President Clinton and his daughter Chelsea and the United Nations ambassador. They presented their request and were assured that there will a Clinton Global Initiative at Haskell Indian Nations University next year. Both Clinton and Chelsea touched the staff with eagle feathers and touched the Indian blanket the group wanted to present to President Obama.

On June 9-10 they visited the Great Lakes Native American pow wow at Portland, Indiana, enjoying the dancing and food. A blanket dance brought in $300 for gasoline for the group. An older couple gave them two eagle feathers which they added to the staff from the Wetlands. Then they headed east.

Running short of gas money, they decided to cut the trip a little shorter than originally planned. They reached Washington D.C. June 27 and walked from Arlington cemetery to the Capitol. By June 29 most of the students headed home. Only Millie Pepion, her uncle Stanley Perry, and Leonard Lowery III stayed in D.C. where they are contacting officials and asking them to save the Wakarusa Wetlands at Haskell. She presented the draft bill to Kansas congressmen’s staff, telling in detail how important it is in many ways to save the wetlands: Indian burials, sacred site to Native Americans, clean water aided by wetlands, historic value, and more. They talked to the Committee on Indian Affairs, National Congress of American Indians, and U.S. Department of Agriculture and Forestry. But they did not get to see President Obama.

In D. C. they are staying with Rose White, who works with the National Congress of American Indians. They have been hanging out at the National Museum of American Indians for free parking, a place to relax and eat snacks, visit with other tribes, etc. “They have been real nice to us,” Millie said in a phone conversation I had with her July 12. She hopes to head for home to Lawrence, Kansas on July 15.

According to a news release, Dan Wildcat, Yuchi/Muskogee, faculty advisor to the students’ Wetlands Preservation Organization, said the verdict was like “adding insult to injury” when the court ignored Native voices about the history and importance of the wetlands. Haskell was a boarding school during a period when “our very identity was threatened and children there used the wetlands as a place to speak their language, sing their songs, and offer prayers in the days when they received corporal punishment to do so.”

Is this the end of the road? No, said Millie Pepion, “trail boss” of the Trail of Broken Promises Walk. When asked if she plans to tie herself to a tree, Millie said, “No, we will continue to negotiate in a peaceful manner that does not expose our persons to injury.”

She and people backing the saving of the wetlands have three ideas. 1. Get the wetlands included in the Haskell Historic District which includes the campus. 2. File another lawsuit. 3. Get the National Parks Service to declare it a park or a conservancy.

One other way is for the public to ask President Obama to issue a proclamation to save the Wakarusa Wetlands by making it a park or nature conservancy. If you want to help Millie and the other students who spent nearly two months walking the Trail of Broken Promises from Kansas to Washington, please send a hand-written postcard to President Obama, The White House, Washington DC 20500. Hand-written postcards are individually scored and read, but typed letters and emails not always.

You will be joining your voice with the Prairie Band Potawatomi Nation, which is one of 152 tribal nations represented at Haskell and several environmental organizations including the Sierra Club, the Jayhawk Audubon Society, and Ecojustice.

Friday, 20 July 2012

A Different Story: Media Stories about Contemporary Indigenous Life

All too frequently, media depictions of indigenous peoples gives a very one-sided picture of them as passive victims, and fails to capture the resilience and vibrancy of modern indigenous lives. Perhaps mainstream media and culture are more comfortable with that image of indigenous peoples, but now and again a more rounded and complete account of indigenous peoples appears.

According to this news story, the Lakota Peoples Law Project speaks favourably about the depiction of life in the Pine Ridge Reservation in the National Geographic Article, “In the Shadow of Wounded Knee.”
Both the newstory and the National Geographic article provide informative and balanced stories on indigenous life and the way in which history is a source of strength and identity in the present, not a tale of unmitigated victimhood and suffering. These are stories well worth reading, that give an unblinking and insight view into contemporary indigenous lives.

These media stories tell a different story, removing the all-too-prevalent and inaccurate portrayal of indigenous peoples as nothing but victims.

Tuesday, 17 July 2012

What do you prefer: traditional medicine or chemical one?

BBC news report that a hospital in Riobamba, Ecuador, is offering patients “traditional indigenous Andean medicine alongside Western treatments”.

‘Hospital Andino’ gives the opportunity to patients to choose, according to their belief, what type of treatment they wish for: natural treatment or chemical treatment. If the patient does not choose a conventional doctor/medicine he will be referred to a "yachak" (shamans) who will run a diagnostic of the patient. According to yachak Mariano Atupana, the patient usually needs and/or comes for a spiritual cleansing and thus, the yachak would clean the patient's aura leaving the patient energetic by taking away the patients’ negative energy. Patients will leave feeling renew.

Certainly the Hospital is given the chance to people and more importantly to indigenous peoples who are often doubtful of chemical medicines (Western medicine). Finally, the report asserts that indigenous peoples are “more willing to take other medication if it goes alongside what the shamans say.” Ecuador ratified ILO Convention 169 and this example given by the Hospital is a clear commitment that the Ecuadorian country is in the right path.

Wednesday, 11 July 2012

The end of the road for the Wetlands? A continuation of the “Trail of Broken Promises” and failure to protect indigenous sacred spaces

Is the 10th Circuit Court of Appeals ruling on the fate of the wetlands adjoining Haskell Indian Nations University in Lawrence, Kansas, USA the end of the road? On July 10, 2012, the 3 judge panel made a unanimous ruling that would permit the construction of a road across the wetlands.

This is despite the arguments raised to preserve the wetlands as historically significant. This court ruling is not welcomed news for those who favour the preservation of the wetlands. The court's ruling fails to capture the importance of the wetlands and their connection to the history of not only Haskell, but of indigenous peoples and their relationship, past, present and future to the United States. Commentary on the wetlands has been the subject of a previous blog post.

The 10th Circuit decision can be seen as just one more event in the chain of events that devalues the sacred spaces of indigenous peoples. As detailed in this news story, Haskell students completed their “Trail of Broken Promises” walk on June 29. The walk was in support of proposed legislation that would provide additional domestic protections for indigenous sacred spaces, the Protection of Native American Sacred Spaces Act.

This fact sheet provides an overview of the US legal protections for sacred spaces, but comments that despite these, “There are numerous existing laws intended to protect Native American sacred places and even more that can be used to do so, but most of these laws are being ignored and flaunted.”

Until the laws are adhered to with regard to sacred space protection, the "Trail of Broken Promises" seems likely to continue.

Tuesday, 10 July 2012

WIPO Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) – moving forward?

Meetings, meetings and more meetings....we all hope that these reunions leave us with a step closer to a goal. But, are we optimistic? On the 22nd session of the WIPO Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) which took place from 9-13 June it seemed that we are still in standby! According to the Intellectual Property Watch, International IP Policy what was supposed to be a procedural matter by the Committee, it turned out to be an informal consultation “without reaching a compromise on the agenda”. Moreover, a panel of Indigenous Peoples emphasized the United Nations Declaration on the Rights of Indigenous Peoples.

The theme covered (or at least intended to be covered) was “Intellectual Property, Traditional Cultural Expressions and the United Nations Declaration on the Rights of Indigenous Peoples: Perspectives of Indigenous Peoples.” Mr Valmaine Toki, vice-chair of the UN Permanent Forum on Indigenous Issues sees the process of the IGC containing two issues: 1.- “The ability of Indigenous Peoples to participate meaningfully within the process; and, 2.- to recognise the intrinsic rights of Indigenous Peoples to their traditional knowledge (TK), genetic resources (GR) and traditional cultural expressions (TCEs).”

 In this regard Mr Toki recommended that there is the need to establish “an indigenous co-chair to the IGC, and establish a panel of indigenous experts on international human rights law to ensure the text aligns with those basic international human rights norms and principles.”

Source Intellectual Property Watch.

Tuesday, 26 June 2012

Chile on Indigenous land

In March, the Chilean Supreme Court had unanimously rejected arguments made by a family of Rapa Nui people (case No 9431-2011), regarding the return of ancestral lands on Easter Island. The action for restitution was filed by the Hito clan against the current owners of the Hotel Hanga Roa. For years the Hito clan has tried to regain control over land that was traditionally in their possession. However, the Supreme Court stated that: 1) 1888, all inhabitants on Easter Island became illegal squatters; 2) the land in question was legally transferred from ancestors of the Hito clan to non-indigenous people; and 3) the land in question no longer qualifies as “indigenous land” within the meaning of the law, and so, special protection is not needed.

The following facts were established in the case:
a) the plaintiff is an ethnic Rapa Nui – the indigenous people of Rapa Nui from the Polynesian island of Te Pito o Te Henua (Easter Island) has been legally recognised in Chile according to Indigenous Law No. 19,253 of 1993.
b) the State of Chile became owner of all Easter Island due to taken possession of it by the Chilean navy Policarpo Toro Hurtado on September 9, 1888, and since then, the Republic of Chile has full acts of sovereignty over the island. Because of this the people living there came to have the status of land squatters. c) Law No. 3220 of 1917 gave to the Minister of Maritime the care of the population of Easter Island -- the Directorate of Maritime Territory of Chile decided to put in charge of the Island to a Maritime subdelegation. d) in 1928 the above subdelegation gave a temporary assignment to Mary Anne Tepihe and their children, Richard and Stephen, a land of 9.8 hectares, to be fenced in a year awaiting the Supreme Government to arrange for the final possession, thus recognizing the persons named the domain in the land, becoming thus mere holders of the property.
e) in 1933, by judgment of the First Civil Court of Valparaiso, the Real Estate of said city proceeded to register the possession of the State of Chile on Easter Island land, and establishing that the mode of acquiring ownership was the one established in Article 590 of the Civil Code.
f) in 1970, Mrs. Veronica Atamu, widow of Don Ricardo Milestone, Corfo yielded to any rights it may have on land plot No. 40 of Hanga Roa, where he established the sequence of it, appearing before Don Pedro Villagra, Chief of the Land Office of Easter Island, with his son Isidro Landmark.
g) on 31 October 1970, the State of Chile, donated to the Corporation for Economic Development Agency public lands where is located the Hotel Hanga Roa, registration was fulfilled before the Real Estate of the island that year.
h) in 1979, was released on Decree Law No. 2885, which established standards for the granting of titles of ownership and administration of public lands in Easter Island, legal text that started the process of regulating land to its inhabitants.
i) on 2 January 1981, CORFO sold the Hanga Roa Hotel to Hugo Salas Roman.
j) in 1991, Hugo Salas Roman became a partner at the Hotel Inter-American Society (Chile SA) and granted the land domain and the hotel above-- signing this in the Property Register of the Real Estate Easter Island in 1991.
k) on October 5, 1993, Law No. 19.253 established rules for the protection, promotion and development of indigenous people and the National indigenous Development Corporation (CONADI) was created, with general rules for all ethnic groups and special rules for the Rapa Nui.
l) the defendant company owns the land on which they built the Hotel Hanga Roa. m) CONADI certified that there is no evidence that the land occupied by the defendant is Indigenous land, in accordance with Article 15 of Law N ° 19,253. 
The case appears to be straightforward since the applicant failed to established dominion over the land. Moreover, the matter raised the issue that the lands are not indigenous and therefore not subject to special protection. However I wonder: what does make a territory to be indigenous land? Additionally, when does a territory that has been occupied by indigenous peoples no longer qualifies as “indigenous land”?

Plenty to be serious about...
Having a look at Art 15 of Law N ° 19,253 it establishes that “The Corporation shall open and maintain a Public Register of Indigenous Land. In the Register it shall be entered all lands referred to in Article 12 of this law. The registration credits the status of Indian land.” That said, to register there is the need to have entitlement, right? So I went to read Art 12 of the said Law which establishes the following: “Indian lands are: 1 ° Those that people or indigenous communities currently occupy on property or possession from the following titles: a) Securities Commissioner under the law of 10 June 1823. b) Titles of mercy in accordance with the laws of 4 December 1866 to August 4, 1874, and 20 January 1883...” and so forth. Yet in section 2 ° the law establishes that Indigenous land are “those that have historically been occupied and have been in possession of people or communities Mapuche, Aymara, Rapa Nui or Easter Island, Atacama, Quechua, Colla, Kawashkar and Yamana, provided that their rights are registered in the Indigenous Land Registry created by this law, by application of the respective communities or indigenous property owners. The answer to my first question is: an indigenous land is the one that is registered as such! [no very helpful I would say]

International Indian Treaty Council Statement of Support for Winnemem Wintu

The International Indian Treaty Council has released a statement in support of the right of the Winnemem Wintu peoples to be able to conduct an upcoming spiritual ceremony without the disruption and disturbance that the ceremony and its participants have been subjected to in the past. The Winnemem Wintu have made requests to have the ceremonial site protected by restrictions being placed on boats going past on the river which borders the site.

The International Indian Treaty Council statement highlights provisions of the United Nations Declaration on the Rights of Indigenous Peoples that give a right to privacy to as to religious sites and the rights of indigenous peoples to exercise and express their culture:

"We affirm the inherent and inalienable rights of the Winnemem Wintu and all Indigenous Peoples, as stated in Article 11 and 12 of the United Nations Declaration on the Rights of Indigenous Peoples, “to maintain, protect and develop the past, present and future manifestations of their cultures” and “to have access in privacy to their religious and cultural sites.”"

The plight of the Winnemum Wintu peoples and their efforts to hold the ceremonies without disturbance have been the subject of previous blog posts with links here and here.

It is hoped that the United States government will take the steps necessary to ensure that the ceremonies are conducted in privacy and without fear of disrespectful interruptions. The rights that are in place in the UN Declaration are given little value and importance if they can be so easily disregarded and ignored.

Monday, 25 June 2012

An Unlikely Birthday Guest and Remembering the Anniversary of the Battle of the Greasy Grass

Today marks the 126th anniversary of the Battle of the Greasy Grass. Once regarded as a supreme national tragedy by the white “settler” society in the United States, it is an event that has slid off the radar for that same society. If remembered at all, it is through the lens of old Western movies that trumpet about the glories of “Custer’s Last Stand.” Yet there is another group that commemorates this day and have not forgotten—the indigenous peoples whose ancestors fought in that battle and struggled to survive in its aftermath.

Last night, there was a very insightful and informative interview on this anniversary on Kansas City Public Radio, KKFI, with guests Chase Iron Eyes who founded the website and Marei Spaola commenting on the meaning of the battle—both in the historic past and its reverberations and meanings into the present day. This battle—The Battle of the Greasy Grass, Custer’s Last Stand, or the Battle of the Little Bighorn—occurred at a time that the United States government was trying to control the Black Hills of South Dakota, which only a few short years ago it had agreed was to be the land of the Great Sioux Nation” through the Fort Laramie Treaty of 1868. There was a concerted effort by the US government to force indigenous groups onto reservations, in a deliberate breach of this treaty. ( In 1980, after protracted litigation, the United States Supreme Court ruled the US government owed monetary damages to the Sioux Nation for breaching this treaty and taking the land in the case United States v Sioux Nation of Indians). As the speakers during the interview pointed out, the battle is not only about the events of that day, but of the breach of the treaty, stolen land and efforts to force assimilation of indigenous peoples—effects which continue in the present-day.

I have debated myself in my own thoughts about how and whether to blog on this day about the anniversary of this battle. Do I even have anything meaningful to contribute to what has already been masterfully said about this anniversary and its place in the collective memory of some and not in others? In the end, I have decided to give my own personal reflection on the anniversary.

I grew up sandwiched between two forts—Fort Leavenworth and Fort Riley. Both featured in the “Indian Wars” of the expansion of the United States. Fort Riley for a time was the home of the Seventh Cavalry, the unit that Custer headed in the Battle of the Greasy Grass. But those forts left little impression on me growing up—what did catch my attention was the horse that I often had as a “guest” at my birthday party.

As a child (and as an adult!) I was completely mad about horses. Anything at all to do with horses fascinated me, held my attention. Even if it was an old barn where horses had once been—that was hallowed ground. It did not matter so much if the horse was not living and breathing—certainly live ones were the best, but there was a particular horse that did not live and breathe that was the birthday party “guest.” This was the preserved remains of the horse, Comanche.

Comanche was on display at the University of Kansas Museum of Natural History. Comanche had been the horse of Captain Myles Keogh, who was part of Custer’s regiment and was killed during the Battle of the Greasy Grass. Comanche was found, wounded, on the battlefield by the US Army a few days after the battle. He was billed as the “sole survivor” of “Custer’s Last Stand” and retired to Fort Riley as an iconic symbol of the “Indian Wars”. After his death, his remains were mounted and displayed at the University of Kansas. After a time, the exhibit around him grew to include the story of the indigenous peoples who were part of the battle, and Comanche was no longer billed as the sole survivor—because that of course, as romantic and tragic as it sounded, was incorrect. (This website indicates that the display has now been changed to remove that information, which is very disappointing indeed, but perhaps reflective of the airbrushing of the battle from white America’s collective memory)

Of course, when I first set eyes on the preserved Comanche, I had no idea of this history. All I saw before me was a horse. That captured my attention, and with frequent trips to the museum ( this was a treasured, favourite Sunday afternoon family outing) I learned about the battle, and the struggle for survival that surrounded it. I went home and voraciously read about that and more in Dee Brown’s book, “Bury My Heart at Wounded Knee.”

Because of the display and its information, which included a recounting of events from an indigenous view point, Comanche opened up a window to the past and to the present. As a child, I knew that the anniversary of the battle was June 25, because that day fell near my own birthday, and I always wanted to hold my birthday celebration at the museum, with Comanche as a “guest.” On that day, I would approach the glass case more reverently than usual, holding my breath and willing my child’s imagination to go back over time to that day, trying to imagine what the horse had seen and heard, the silent witness. I tried to imagine what it had been like on that day—and the days after, when Crazy Horse was murdered, and Sitting Bull fled to Canada.

It is hard now from the vantage point of adult hood to describe what those moments meant or how they burned themselves into my consciousness. Comanche for me was not a symbol of tragedy or triumph—he was a horse. But he was a gateway into an understanding of an event, of a time, of lots of time and events, that as interviewee Chase Iron Eyes said in the radio interview, also contribue to the shaping of the present day. Perhaps some of this is expressed in the famous William Faulker quote, “The past is never dead. It’s not even past.”

Comanche was a gateway into understanding the stolen land I stood upon, of the treaties broken and promises broken and lives shattered as the US trumpeted its Manifest Destiny. He was a gateway into learning about those events from the indigenous perspective as well as that of white America. And he stood for something else to me, somehow, this silent witness to the past and of the present— to me reflecting somehow the survival and resurgence of the indigenous peoples in the face of those events that were meant to annihilate and assimilate them.

It has been quite awhile since I have gone to see Comanche for my birthday. But I will have a chance again, when I will be home again in only a few more short days. And one of the things that I will do is step up to the glass case that surrounds him, close my eyes, and remember.

Friday, 22 June 2012

US Government as the Grinch: Commentary on US Supreme Court ruling on tribal trust land

As the British might describe it, the state of affairs to do with self-determination, autonomy and inherent sovereignty and indigenous lands in the United States is a bloody mess. The United States government has spent the past two hundred plus years trying to sort out what relationship it wants with the indigenous groups that were there first, before the US, before the first European colonizers made their way over the ocean.

On the one hand, the US has an invented fiction now accepted as fact in the form of the Thanksgiving holiday “tradition” that venerates the help of indigenous groups that saved the “Pilgrims” from starvation at Plymouth Colony. The tradition goes that without the help of the benevolent and altruistic neighboring indigenous groups, the Pilgrims would not have known how to plant crops and harvest them in the New World and would have died rather miserable deaths of starvation and disease in what was meant to be the land of plenty. After being saved by the wisdom of the Indians, a big harvest feast was thrown where everyone got together in a happy celebration, perhaps not unlike the Christmas feast after the Grinch found out his heart was not in fact three sizes too small and that he could enjoy a feast with the Whos.

As a child growing up, playing outside with neighbourhood kids and making up games (yes I was fortunate enough to grow up in a time when this was possible and the word play-date had never been uttered) around October we started to play “Pilgrims.” The problem was, no one in fact wanted to play the Pilgrim, we all wanted the role of the Indians. The Indians were cool, skilled, heros. The Pilgrims were sort of grim and mostly ungrateful bumblers.

The United States like its Indians in myths and traditions, in dusty relics of the past, in sports mascots and nicknames. Presented like that, Indians are just like envisioned in my childhood games: cool, skilled, heros.

Thus, on the other hand, The United States government has never really gotten over the fact that the indigenous groups within its boundaries or on the land it wanted to put in the boundaries were there. It tried to make them go away. It tried massacres. Then again, from time to time, the United States thought it might be helpful to be friends. Especially when there was a war to be fought against the British. So the United States would strike up treaties of friendship, treaties that made provisions for land and so forth. But then it would be back to business as usual and the United States government would be again trying to find ways to make the Indians go away. If massacres did not work, perhaps shipping them off to lands no one else would want would work. That was fine for awhile, until it turned out that the United States really wanted that land after all. Then assimilation was tried. Perhaps simply getting the indigenous groups to fade into the European white society would work. Nope, that did not work either. Unrecognizing all the tribes might force the issue... reorganizing them on a blueprint that mimicked the assimilative government styles of white society and that disregarded the traditional ways in which peoples had lived and organized themselves, quite successfully in fact.

Now and again the United States would have a pang of conscious. Self-determination era. Restoring lands that were taken—albeit held in trust by the United States for the benefit of the tribe. Occasionally deciding to pay monetary damages for treaties breached and land stolen.

The thing is, the US just cannot make up its mind what its relationship should be with indigenous groups. Now it seems to be backfooting, this latest United States Supreme Court decision reveals the utter farce of the way in which the US deals with trust lands, and anything else they have been trusted with in regard to indigenous groups. This is a ridiculous decision and deserves to be treated with contempt and utterly condemned. There is no judicial soundness in the decision. If this were the answer to a law exam question, it would have been failed as being pure fiction based on no legal authority. But this is not an errant student. It is the United States Supreme Court and once again, in its supreme indecision and flip-flopping of whether to be friend or foe to indigenous groups, it has added a new layer to the bloody mess it makes of state-indigenous relationships.

Unlike the Grinch, who eventually overcame the problem of a heart three sizes too small, the United States Supreme Court and the government is unable to do this, and instead slither about in the dark, forcing trees and presents and such back up the chimney--taking back what was never really theirs to seize in the first place.