Thursday, 31 May 2012

Forced and Involuntary Removal of Children


In an earlier blog post, I began to address the complex topic of the intercountry adoption of indigenous children from Guatemala as one aspect of the occurrences of forced removal that is denounced by the UN Declaration on the Rights of Indigenous Peoples. This blog post picks up the topic again, looking at the practices of forced removal of children.

Involuntary or forced removal of children is not a new phenomenon or something that has been done only to indigenous children. There are historic and current examples of removal of children who are on the margins of society.
Researcher Tobias Hubinette comments on this in his chapter “From Orphan Trains to Baby Lifts: Colonial Engineering, Empire Building and Social Engineering” in the book “Outsiders Within: Writing on Transracial Adoption” published by South End Press. He comments (pg 141):

The closest parallels to international adoption in the history of global child migration would be the 130,000 children shipped from the British Isles to populate the Empire between 1618 and 1967, and the 1000,000 American children transported by the “orphan train” from the East Coast and placed out to substitute parents in need of labor in the Midwest between 1854 and 1929.”

Removing children from their families and communities can have the devastating and obvious impacts—breaking up family units and destruction of community structures. But the harms go further and deeper. It is one way to attempt to eradicate a group if not physically then culturally. As an African-American social worker friend and former colleague once remarked to me, the most effective way to bring an end to a group of people is to take their children. The National Association of Black Social Workers (USA) has a position paper that outlines the concerns that arise due to disparate treatment of African-American children in the US foster care system and the importance of children maintaining links with their culture and community.

Forced removal of indigenous children has been given a high profile. The 2002 film "Rabbit Proof Fence" addresses forced removal of children in Australia. The ongoing Canadian Truth and Reconciliation Commission addresses the forced removal of children to residential boarding schools. And the 1979 US federal Indian Child Welfare Act was passed in order to address the high rates of forced removal of indigenous children.

Intercountry adoption is another way in which forced removal of indigenous children has occured . And this was part of the dynamic of intercountry adoption in Guatemala, which future blog posts on this topic will address.

Tuesday, 29 May 2012

Indigenous Peoples from 4 continents call on UK to ratify ILO Convention 169


It might be tempting to sometimes think of indigenous rights as something that is relevant "elsewhere"--perhaps particularly with the concerns in Europe over economic stability of various countries. But a story carried by Survival International highlights that indigenous rights are truly a global matter.

The news story carried by Survival Internation highlights a request to the United Kingdom government to ratify International Labour Convention 169.

On May 17, 2012, several different indigenous groups were represented by signatories on a letter that was sent to William Hague, MP, the Secretary of State for Foreign and Commonwealth Affairs in the United Kingdom. The letter states:

"We are aware that there are no tribal or indigenous groups in the United Kingdom, however, we respectfully remind you that British companies operate on indigenous land, British aid money funds projects on tribal territories and Britain funds World Bank and IMF development schemes planned for tribal land. Most importantly, we are certain that ratification [of ILO Convention 169] by the United Kingdom would provide extremely strong motivation for other states to ratify the Convention. Let the United Kingdom be an example to other governments, so that they may ratify."

Several key issues are raised by this letter. Firstly, the continued importance of ILO Convention 169 on indigenous matters. It is sometimes in the shadow of the UN Declaration on the Rights of Indigenous Peoples. The ILO Convention 169 is a binding "hard law" international instrument and is the only such international instrument on indigenous rights. Secondly, of course, is that indigenous issues are not confined to the boundaries of certain countries that have indigenous inhabitants. Indigenous rights and issues are global matters. Thirdly, is the symbolic importance of instrument ratification. In the international community, where arguably politics predominate decisions and relations, the value of symbolic support for indigenous rights by the United Kingdom is great.

Friday, 25 May 2012

Aboriginal legislation in Australia heavily criticized by Amnesty International

A story on today’s National Times, a well-regarded Australian newspaper, highlights Amnesty International’s criticism of legislation relating to the intervention in Australia’s Northern Territory (discussed in a previous posting in this blog). A wider campaign by the same organization accuses the legislation of being discriminatory and, most importantly, paternalistic, in the sense that it has not met requirements of Free, Prior and Informed Consent (the object of much debate in this blog), and that it simply assumes the government knows what’s best for aboriginal peoples. A current campaign by Amnesty International is trying to put pressure on the Australian Senate not to approve the legislation, which has already cleared the House of Representatives.

Written by Lucas Lixinski

Wednesday, 23 May 2012

The Message of Silence: US Supreme Court cert denial undermines exercise of self-determination


The news that the United States Supreme Court has declined to hear an appeal from the 10th Circuit Court of Appeal on tribal membership in determining the applicability of the Indian Child Welfare Act is disappointing but not surprising.

The Supreme Court has heard only one case on the Indian Child Welfare Act, since the Act was passed in 1978. That of course was the case of Mississippi Band of Choctaw Indians v Holyfield , 490 US 30 (1989) where the exclusive tribal court jurisdiction over a child who lived or whose parents lived on the tribal lands was upheld. There, the US Supreme Court set aside an adoption that was done in contravention of the jurisdictional provisions of the Indian Child Welfare Act. It was the first and so far only time that the US Supreme Court has spoken on the Act. But through the cases it fails to take, it also speaks.

Whilst the case decided in the 10th Circuit Court of Appeals turns on the membership of a child to a tribe, there are disturbing undertones to the decision. The Indian Child Welfare Act says that a tribe’s determination of a child’s membership is determinative of the status of the child. And under ICWA, if a child is a member of a federally recognised tribe, ICWA applies. The federal law has no caveats, no ifs, no ands, no buts to qualify the very straightforward determination of when and whether ICWA applies. Tribes determine their own membership criteria and ICWA requires courts to abide by that. This is an example of self-determination in action.

And this has given courts great angst since the Act was passed. A not so apocryphal statement from judges might be “What do you mean that I cannot decide who is an Indian?” Having to recognise indigenous self-determination seems to rankle with some judges. And this was what gave rise to the judicially created “existing Indian family doctrine”, which is on the wane but still in use in a few states.


The gist of the 10th Circuit reasoning to not apply ICWA is that the “wrong” kind of membership was in existence. But it is not for the state or federal courts to determine how a tribe classifies or determines its membership. The United States Supreme Court denial of certiorari to this case keeps alive the sort of thinking that allowed the existing Indian family doctrine to flourish. The reasoning undermines and is contrary to not only the plain language of ICWA but to the exercise of self-determination. In its failure to speak, the US Supreme Court has spoken very loudly.


(prior blog posts on the Indian Child Welfare Act and the existing Indian family doctrine here, here, and here)

Monday, 21 May 2012

A Wolf in Sheep’s Clothing: Or the True Confessions of an (Ex?) Legal Aid Lawyer Laying Down in the Green Pastures of Academia


(a slightly self-indulgent blog post...)
You never stop being who you are. This perhaps obvious truism was explained to me by a friend some years ago and from time to time I am given pause to stop and reflect on this. I think about this while contemplating a suit of damp and itchy wool that from to time is brought out of the wardrobe (why are there no closets in houses in England? An abiding mystery with little satisfactory explanation...) and presented with a public face.

If you have ever smelled wet wool, you know it is not the most pleasant of smells. But it is certainly a pervasive one. And wool itches. It is uncomfortable. And it can from time to time constrain. But from time to time, it seems necessary to dress in sheep’s clothing when heading to the green pastures of academia.

What would happen if my inner wolf self revealed itself in the pasture? Pandemonium? Indifference? Acceptance?

From time to time aphorisms are trotted out to graze. Or perhaps, more accurately, they are instructions on how to graze. Even a discussion of indigenous issues comes with its own list of do’s and do-nots. Do not romanticise. Do not essentialise. Do not treat culture as being in a time-warp. Etc. On the other side of the coin however, what should be presented? There is some derision of the white-middle-class-woman-telling-about-herself-narrative so that should be avoided as well unless one wants to get lumped into the rescuer group. Which I do not. But perhaps the strongest aphorism is one where people are asked to line up on either side of a line: academic or activist. The not-so-hidden message is that no self-respecting academic sullies themselves with activism.

The most masterful exposition on academic life and this conundrum (among others) is the timeless Vampires Anonymous by Robert Williams. I would not even attempt anything along those lines. His article says it all, really, and draws some wry chuckles of recognition along the way.

So then I wonder—is it really necessary to put on an ill-fitting sheep suit in this pasture after all? I can never stop being who I am inside—a Legal Aid lawyer ( in the American sense of the institution, there is no direct or even close trans-Atlantic translation for this) who wandered off into the pastures of academia. Time to put the sheep suit aside and remember the things that used to be very meaningful in being involved with law. After all, you never stop being who you are.

When Talk is Cheap: The Meaningful Implementation of Free, Prior and Informed Consent


There has been a lot written about states' reception to the rights in the UN Declaration on the Rights of Indigenous Peoples and the need for these rights to be recognised and effectively implemented. More recently, focus has turned to the specific principle of free, prior and informed consent. Earlier blog posts have addressed the importance of adherence to this principle. There are some hopeful signs in that some companies have signalled an intention to comply with the principles of the Declaration, which then would presumably include that of free, prior and informed consent.

But--as the saying goes-- as with any of these stated intentions, actions speak louder than words. Free, prior and informed consent requires a much different sort of engagement with indigenous peoples than mere consultation.

To that end, it is useful to consider the concept of "normative salience." Normative salience considers the level to which a state puts a norm into use. Loren Cass, in his book, "The Failures of American and European Climate Policy: International Norms, Domestic Politics and Unachievable Commitments" (State University of New York Press, 2006, pgs 9-10) presents a scale of 8 different levels of salience--or 8 different levels at which a state may or may not accept a norm and put in into use.

The first level is "Irrelevance.National leaders do not acknolwedge the emergent international norm in any way, and it is not part of the foreign or domestic policy dialogue. National leaders do not even feel compelled to justify actions that contravene the proposed norm."

Mid-way on the scale at level four is "Rhetorical Affirmation. National leaders affirm the norm as a result of political pressure from within and/or internationally. The norms is now a part of the domestic and foreign policy dialogue, but it has not been translated into foreign and domestic policy changes."

The end of the scale, at level eight, is "Taken for granted. The norm has become embedded in the domestic institutional structure of the state, and compliance with the norm is nearly automatic."

Research by Sheryl Lightfoot ("Selective Enforcement without Intent to Implement: Indigenous Rights and the Anglosphere" (2012) 16(1) International Journal of Human Rights 100) looks at the issue of "selective enforcement" of indigneous rights--that is states pick and choose which rights within the Declaration they will implement and which they will not.

Thus the questions must be raised about the principle of free, prior and informed consent. Is it simply getting lip-service ( if that?) from states-- a right that will remain low on the Cass normative salience scale? Or is there an intention by states to ensure that the norm is implemented and effectively adhered to?

The words that states and corporations use to discuss free, prior and informed consent bear close scrutiny. As the Cass scale points out, talk at the rhetoric level is one thing, effective implementation another. Talk at the level of rhetoric might well be evidence of what Lightfoot cautions about: state decisions to not implement certain norms.

Sunday, 20 May 2012

Demonstrating the Need to Adhere to Free, Prior and Informed Consent


The post by Patricia Covarrubia on the recent Chilean Supreme Court decision points out the importance of consultation with indigenous peoples about activities on their land. Another blog post has discussed the difference between obtaining free, prior and informed consent and simply engaging in consultation, which in contrast to the need for consent carries no binding obligation.

The requirement of Free, Prior and Informed Consent (FPIC) is a key part of several articles of the United Nations Declaration on the Rights of Indigenous Peoples, including:
Article 10, regarding removal and relocation of indigenous peoples—where “no relocation shall take place without the free, prior and informed consent of the indigenous peoples”

Article 11, concerning redress for the taking of “cultural, intellectual, religious and spiritual property that was taken without free, prior and informed consent"

Article 19, where it is linked to state requirements to consult AND to obtain free, prior and informed consent before adopting or implementing legislative and administrative measures that affect indigenous peoples

Article 28, in discussing the need for redress for lands taken without the free, prior and informed consent of indigenous peoples

Article 29, in relation to obtaining permission to store or dispose of hazardous materials on indigenous lands; and

Article 32, in relation to the extraction or development of natural resources


The protections of Article 32 and its requirements are particularly applicable to the campaign that the Indigenous Environmental Network has started in partnership with the Athabasca Chipeweyan First Nation. According to this news story, the campaign was launched on May 18 in London. The news story indicates that the campaign is aimed at raising awareness of the harm caused by tar sands extraction and protest plans by Shell to drill in the Arctic this summer.

The news story also refers to a report released by the Indigenous Environmental Network and Athabasca Chipewyan First Nation that “profiles Indigenous communities impacted by Shell’s operations in Canada’s Alberta Tar Sands, Aamjiwnaang First Nation’s territory in Ontario, Alaska’s Arctic Ocean and Africa’s Niger Delta.” The report can be found at this link. The campaign and report highlight the importance of adhering to the requirements of the UN Declaration on the Rights of Indigenous Peoples for their free, prior and informed consent.

The recent release of the “First Peoples Worldwide Guidebook on Standard Setting for Indigenous Peoples" noted by the Native News Work is significant in the insistence of adhering to the provisions of the Declaration, in particular that of free, prior and informed consent. The same story comments that some companies have made efforts to adhere to the Declaration: “... four of the ten largest companies in the world–Exxon Mobile, BP, Conoco Philips, and Suncor–have all announced policies that recognize the Declaration.”

Certainly this is welcomed news and an impressive achievement, but the campaign that has been launched last Friday points out that there is much more to be done so that other companies make a definite positive commitment to the Declaration and its principles, including that of free, prior and informed consent.

Thursday, 17 May 2012

To consult or not to consult (?)

In light of the news that the Chilean Supreme Court nulls once again (this year) an environmental assessment due to irregularities including consult with the Indigenous Peoples, I therefore, question: shall we consider to consult or not to consult?

The answer is pretty simple, it is not a question, it is a fact! Indigenous peoples have a right to consultation when development projects are taking place on their lands – as stated in the International Labor Organization’s Convention 169 (ILO 169).


Background of the case
The case involves the 'Comunidad Agrícola los Huasco Altinos' and the “El Morro” mining project, owned by Sociedad Contractual Minera El Morro, represented by Golport, based in Vancouver, Canada. In order to exploit the mine and continue with the project, Golport needed an environmental assessment, which was granted by the Regional Environmental Evaluation Commission back in March 2011. However, according to ILC news, the case presented a ‘twist’ since the community called the Diaguita people, was not technically recognized as an ‘indigenous people’ until 2006. Therefore, the land that the project affects, and which are titled to the community, are not technically recognized as 'indigenous lands' because it predates the said year.

Nevertheless the community succeed bringing the case claiming that “when environmental impact studies were conducted for the El Morro project, and when the government assessed those studies, both the company and the Chilean government failed to apply legal protections that relate specifically to indigenous peoples.” It refers to Chile’s 1993 Indigenous Law and ILO Convention 169 both of which include:

  • protection for indigenous lands, and natural resources;
  • and consultations.
None of these were applied when the project evaluation took place.

In due course, the Supreme Court decided in favour of the Diaguita Huascoaltinos Indigenous and Agricultural Community and ordered that the environmental assessment be repeated taking into consideration indigenous legislation and rights.


Some unprofessional conduct
Mr Campusano, Community’s president, together with Nancy Yáñez, attorney who is representing the Community refer to certain practices that they have encountered:
1.- Denial of Indian status being used just to make possible this type of project .
2.- The company in charge of the project has approached individuals in the community, offering cars and money (a lump sum per year per family)in order to override the resistance to this mining project.

More info here and here.

Wednesday, 16 May 2012

A Matter Concerning Indigenous Children: Intercountry Adoption of Children from Guatemala


Intercountry adoption from Guatemala has again hit the headlines of the mainstream press. I have not read any indications one way or the other as to whether the child that is at heart of the current controversy is indigenous. She may or may not be. Nevertheless, this controversy raises again the spectre of the convoluted controversies about intercountry adoption of children from Guatemala, during and after a very long and drawn out war that was aimed in part at the extermination of the Mayan peoples—and when it was apparent they were not going to go away, to force them to the margins. Part of that included the kidnapping of Mayan children even during the conflict. Intercountry adoption of children from Guatemala has involved indigenous children and families, and was part of the dynamics of marginalisation.

It is historic fact that indigenous children have been forcibly taken from their families and communities by states across the globe. The UN Declaration on the Rights of Indigenous Peoples addresses this by stating that forced removal of indigenous children is a form of genocide-- see Article 7(2).

This is a very complex topic—so it is one that I will address over several blog posts. I will look at the current stalemate between the United States and Guatemala over the adoption of children, the public and private international law instruments that come into play, issues raised about intercountry adoption itself, and what Mayan peoples themselves have endured during and after the Guatemalan civil war. As a starting point on the polarised positions on the efficacy of intercountry adoption, the debate between Professor David Smolin and Elizabeth Bartholet is informative.
Summary here
Link to full written debate here
The blog Fleas Biting also has a wealth of information on the way in which the intercountry adoption industry operates.

Tuesday, 15 May 2012

The Plight of Indigenous Pastoralists: Indigenous Peoples in the Far East, Europe and Russia Discussed at the United Nation Permanent Forum for Indigenous Issues


The challenges that are presented to indigenous pastoralists have been highlighted in presentations made in the on-going Eleventh Session of the Permanent Forum on Indigenous Issues. These were detailed in discussions during the morning of May 11, 2012, according to a Press Release from the United Nations. The situation of indigenous groups in Central and Eastern Europe, the Russian Federation, Central Asia and Transcaucasia highlights the diversity of indigenous peoples across the globe, as well as the common issues that they face in continued access to traditional lands and pressures faced from development. Over and over comments were addressed to the circumstances of indigenous pastoralists and the challenges that they face in continued access to traditional routes and lands.

The UN Special Rapporteur had made a visit to Nordic countries and a blog post about his visit and report can be found at this link.

The Press Release comments on on-going projects addressing the concerns faced by reindeer herders :
“...a representative of the World Reindeer Herders said that reindeer herding communities continued to struggle in the face of land use change, climate change and development. For example, intensive industrial development and expansion in Scandinavia had seriously reduced the land area of reindeer pastures there.”
Another speaker provided information on a project called “Nomadic Herders”:
“...the project kicked off in Mongolia in late 2010 with a request from that country’s Ministry of Nature, Environment and Tourism to engage further with local reindeer herders...Subsequently, in June 2011, UNEP and the Reindeer Herders Association had facilitated a community based workshop and field visits...to meet Dukha herders and to discuss with them ways to jointly address their concerns”


A previous blog post written by Fiona Batt discusses reindeer herders in Mongolia and more of the reindeer herder’s initiative.


The on-going project about reindeer herding and the efforts of the reindeer herders speak to the importance of recognising the challenges faced by those still trying to pursue pastoralist lifestyles and livelihoods. Such a way of living might seem very alien to much of the twenty-first century world, but that in no way should diminish the rights of those people engaged in pastoralist activities nor the importance of understanding the obstacles they confront and the need to find a satisfactory solution.

Friday, 11 May 2012

Drug discovery and Biopiracy

On May 9th, the University of Buckingham UK, received a privileged visit. Prof Graham Dutfield from the University of Leeds gave as a talk regarding a paper that he published last year in the topic of 'Traditional Knowledge, drug discovery and patent-based Biopiracy’ (European Intellectual Property Review 33(4)).

The (TK) King and I
Room F06 was packed and hot -- I am not sure if the topic was a boiling one or it was a warm date BUT at the end of the date, we did have some sizzling questions. The mixture of the audience was from different areas such as: Medical Law and Ethics, Intellectual Property Law; Environmental Law, Human Rights and Tort.

Prof Graham started by explaining the term biopiracy – but very carefully challenging on whether the word should be coined. Anyways, he continued to say that it could be regarded as misappropriation [most people called stealing] of biological resources or traditional knowledge (TK) through the patent system; and/or it is the unauthorised collection [once again most people called stealing] for commercial ends of genetic resources of TK. I mentioned the word ‘stealing’ because it is the people’s common word – not the lawyery one.

The talk proceeded deeper into the issue: is TK important in the pharmaceutical industry? and if it is so, what part or role, if any, TK takes into the invention per se? To patent an invention there are some requirements that need to be fulfilled: novelty (new) and inventive step (non-obvious) – and industrial application, but focus being today in the first one. Is it new or novel the use of specific plants (containing some chemical properties) for the purpose of the cure/ treatment of ‘x’ disease? As Prof Graham mentioned, it may be new to us BUT not new perhaps to an indigenous healer – the query is: does this destroy novelty? Novelty is destroyed by use and/or publication. Yet, the problem with this issue is: how will a Patent Officer, let’s say in the UK, become aware of the use of this invention in a small village community of indigenous people in the Amazon? It is not common for healers or the said community to document this and what is more, sometimes they do not even share this knowledge with their own community but passes that info to a worthy Indian– it is a ritual (we called a trade secret). This is indeed a very difficult issue because in our world we need evidence.

How can we help? To document or not to document
I am afraid I do not have an answer. In one side of the coin, to document will give protection not only in situations of Patent and other intellectual Property Rights (IPRs), and moreover, will be helpful in cases of entitlement of land and preserving their culture. There is indeed the traditional knowledge digital library in place; but, on the other side of the coin, indigenous peoples want to keep their identity, heritage, autonomy, so why do they need to disclose their way of living? We need to remember that their purpose of life is not material to them. Their spirituality (not religion as such) is based on what they called ‘cosmovision’. It means people do not have hierarchy! Everything is part of the ‘one’ i.e. animals, land, people, plants; they all are part of the one cosmos. That is the reason why I cannot make my mind – I cannot recommend with a blind eye the documentation of this rituals. It is asking for transformation –perhaps an involuntary transformation and this may have negative effects.

The lecture of course covered many more issues, but this is the one that I felt needed some addressing today, perhaps tomorrow or another day I will cover other issues. Many thanks to Prof Graham for given us not only the time and his valuable knowledge BUT given us the chance to open our minds in a very interesting topic.

Wednesday, 9 May 2012

Turning Its Back on the Existing Indian Family Doctrine: Decision from Kansas Supreme Court


On May 4, 2012, the Kansas (USA) Supreme Court issued a decision that upholds the importance of compliance with the Indian Child Welfare Act. The decisions coming from Kansas, since its repudiation of the Existing Indian Family doctrine in 2009 have been very clear that it will be intolerant of noncompliance with ICWA. The Kansas cases attract attention, in no small part because of their symbolic, if not binding value, since it was the Kansas courts that came up with the Existing Indian Family doctrine in the first place. Other courts began to use this doctrine as a way to evade the application of the Indian Child Welfare Act. In short, if a judge –using his or own criteria—decided if a child was not “Indian enough”, that was used with the application of the doctrine to avoid the requirements of ICWA.

(See earlier blog posts on the Indian Child Welfare Act and the Existing Indian Family Doctrine here and here, for commentary on the pending South Carolina case at this link )

The kinds of cases that attract the application of the Existing Indian Family doctrine are often where there is an indigenous father and non-indigenous mother, and the mother wishes to put the child up for adoption, and a non-indigenous family has been selected as the prospective adoptive placement. These are the facts of the case decided by the Kansas Supreme Court, and similar to the facts of the case awaiting a decision from the South Carolina Supreme Court.

The Kansas decision turned on, among other issues, whether the order of placement preferences under ICWA had been followed. The statutory preferences are to be adhered to, unless the child’s tribe has set out a different order of preference. There was no indication in the decision that the tribe had a differing order of preference. Thus, the statutory preferences had to be followed, unless good cause was shown as to why they should not be. The statutory order of preference is
1) The child’s extended family
2) Other members of the child’s tribe
3) Other Indian families
(Sec 1915 of ICWA)

It is important to note as well the role played by the Cherokee Nation in this case. Under the provisions of the Indian Child Welfare Act, the child’s tribe can become involved in the case, and this is exactly what happened here. The Cherokee Nation filed as the Appellant with the Kansas Supreme Court. ICWA recognises the importance that a “tribe” has in and for indigenous families and children.

Kansas courts are now headed in the right direction in their interpretation and application of the Indian Child Welfare Act. Kansas has firmly turned its back on the usage of the Existing Indian Family Doctrine: it is hoped that the few other states that continue to use this doctrine will follow suit.

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Tuesday, 8 May 2012

Aboriginal and Torres Strait Islander motifs, designs and fabrics: a recipe for a ‘fashion label’

I learned from the ABC news in Australia that the manager of an art centre in the Badu Island has hired a textile tutor to assist local artist to launch a label. Mr Richard Butler, the manager that brought the idea, noted that this project is an opportunity for the artist to share their work. He added "What I see is a huge level of enthusiasm and pride in what they do and that the artists are taking steps not only for a financial independence but a cultural independence as well". According to the news the proposed fashion label “could help to bring traditional culture into households around the country.”

The benefits:
  • Exploitation of Intellectual Property Rights by their own people: In this matter I would like to refer to a post that was published on 20th March 2012, here in this blog, when two fashion designers used indigenous motif in the fabric of their dresses in a catwalk. The story did have a happy ending when we learnt that the designers did pay royalties for the use of the said art. But this is not always the case. Reading ‘the carpet case’ for example will give you an idea that Torres Starit Islander not always has had a good experience. The case refers to a businessman who had carpets made in Vietnam with images from Aboriginal paintings. The artists took him to court and the businessman was ordered to pay compensation but went bankrupt.
  • Exploitation of creative work is more than a mere exploitation: Aboriginal creation and designs are based on symbols and motifs that do hold cultural significance. The utilization of this by third parties may impact not only the artist but also the community e.g. mistreatment, misuse and depletion to name a few.
Doing a little bit of digging here and there I found two interesting pieces of information:
1.- The Aboriginal and Torres Strait Islander Protocols: section 10 covers ‘Respecting Culture and Heritage’ covering the following:
 “...Copyright and the protection of intellectual property are key issues to be aware of when working with the Indigenous community. Aboriginal and Torres Strait Islander people are the custodians of their culture and have the right to own and control their cultural heritage. Unfortunately the cultural and intellectual property rights of Indigenous Australians are not always recognised or appropriately respected and our current legal framework provides limited recognition and protection of these rights.”
Therefore, in this regard, the idea of bringing a fashion label will grant them a more straightforward entitlement [not that they did not have any].

2.- The web page from the NWS Department of Education and Training Resources is full of goodies in this area. It covers issues on fashion design, aboriginal motif and art, copyright and the like. I read how the Aboriginal and Torres Strait Islander textiles have had an influence in non-indigenous designers. Moreover and relevant to the blog: have these designers acknowledged these? As mentioned the exploitation of aboriginal art covers not only monetary reward (licenses/royalties) but also the need to be treated respectfully. While I did not find a direct answer to my query I believe that it could be answer it affirmatively. The info reveals by naming particular designers: how they have worked with the aboriginal communities, not only to obtain better knowledge of their art but also giving back -- by being members of different projects which seek Aboriginal development. Also, designers usually will show their products to the communities – perhaps a way of looking for approval and I believe a policy of goodwill.

Is this the start of Aboriginal people making a statement?

The Harmful Legacy of the Doctrine of Discovery


The doctrine of discovery and its ongoing harmful effects are featured in two high-profile happenings this month in indigenous rights. Both the statement released by UN Special Rapporteur James Anaya at the conclusion of his visit to the United States, and the UN Permanent Forum on Indigenous Issues eleventh session have considered the consequences of the doctrine of discovery. This is a religious and legal doctrine that stems from the late Middle Ages used as part of the legitimisation of European land claims to the “New World.” It is, however, disturbingly used in the present day to justify the taking of indigenous lands without compensation. The harmful consequences also stem from the way in which it categorised indigenous peoples as “lesser than” Europeans in the eyes of the religious dogma and the law.

The United Nations Permanent Forum on Indigenous Issues (UNPFII) has opened its eleventh session on Monday, May 7, 2012. In the opening session, the Deputy Secretary Asha-Rose Migiro noted that there is still much to be done to successfully and effectively implement the rights in the UN Declaration on the Rights of Indigenous Peoples, according to this story from the UN News Centre. It remarks:

Five years after the United Nations Declaration on the Rights of Indigenous Peoples was adopted, a great deal remains to be done to realize the objectives contained in that landmark document, Deputy Secretary-General Asha-Rose Migiro said today.”



This point is underscored by the preliminary statement made by UN Special Rapporteur James Anaya, regarding his just-concluded visit to the United States to assess the situation of indigenous peoples there. He sees the the repudiation of the doctrine as important to achieving the aims of the UNDRIP:

Continued and concerted measures are needed to develop new initiatives and reform existing ones, in consultation and in real partnership with indigenous peoples, to conform to the Declaration, with a goal towards strengthening indigenous peoples' own self-determination and decision-making over their affairs at all levels. The Declaration provides a new grounding for understanding the status and rights of indigenous peoples, upon which the legal doctrines of conquest and discovery must be discarded as a basis for decision-making by judicial and other authorities.”

The doctrine of discovery is the focus of part of the UNPFII session, where it is the special theme of the year: "the Doctrineof Discovery: its enduring impact on indigenous peoplesand the right to redress for past conquests (articles 28 and
37 of the United Nations Declaration on the Rights ofIndigenous Peoples)”.

A conference room paper prepared for the UNPFII Special Session by the Haudenosaunee the American Indian Law Alliance and the Indigenous Law Institute North Americacomments on both the historical legacy and harmful consequences in the present-day of the doctrine of discovery. It makes specific comment on the reliance upon this doctrine by the United States Supreme Court in 2005:


Our research reveals that domination and dehumanization were written into numerous documents issued by the Holy See, and into treaties between Christian monarchs and between states. The resulting devastation is still evident today in the oppression experienced by Indigenous nations and peoples across the planet. In the United States, we see contemporary evidence of this thinking in recent U.S. Supreme Court rulings such as the 2005 decision City of Sherrill v. Oneida Indian Nation of New York, in which the Court cited the “doctrine of discovery” as central to its decision.19 This means that the doctrine of Christian discovery found in Johnson v. M’Intosh was also part of the basis for the 2005 City of Sherrill ruling by the U.S. Supreme Court.”(paragraph 13)

It is clear then that the doctrine's harmful effects are not only as a result of its use in the past, but in the continued reliance upon this doctrine in the present day. It is indeed well past time to repudiate this doctrine.

This blog will have further comment on the UNPFII session and the doctrine of discovery.

Monday, 7 May 2012

Special Rapporteur at Sinte Gleska University


Sinte Gleska University played host to Special Rapporteur James Anaya during his twelve day visit to the United States to assess the condition of indigenous peoples. This is a link to his consultation there, well worth watching.

This blog post earlier noted the planned visit to Sinte Gleska University.

UN Special Rapporteur Anaya releases statement on US visit


On May 4, 2012, Special Rapporteur James Anaya issued a statement after his twelve day visit to the United States, to assess the conditions of the indigenous peoples there. His report indicates that he will make a full report to the United Nations Human Rights Council, “most likely at its plenary session in September”. His statement notes several things:
• Members of the US Congress did not make themselves available to meet with him. This is a glaring omission on their part, given the role that the federal government plays in the lives of indigenous peoples in the United States.
• That the wrongs of the past continue to reverberate into the present day, and the reluctance of the United States to acknowledge these wrongs and the harms they continue to cause is among the root causes of the condition of indigenous peoples today.
• That whilst the United States government has made strides in dealing with the indigenous peoples within its borders, that more needs to be done to advance and realise the rights within the UN Declaration on the Rights of Indigenous Peoples. Among other things, Anaya calls for the US government to “work in consultation and real partnership with indigenous peoples.”

The content of his statement is worth reading on its own. This blog will continue to consider the importance of his preliminary statement and look in more depth at the issues he has raised in the run-up to the release of the full report.

Sunday, 6 May 2012

Not Yet Ready to Face the Past in the Present


How many Americans have heard of Dahlonega, Georgia? How many know that it was the site of the first large scale gold-rush in the United States? How many people know that in order to get access to that gold, forced removal of several indigenous tribes became the policy of the United States government? How many people know about the horrible conditions of t forced removal that resulted in the deaths of women, children, and the elderly from starvation and disease? Without knowing this, how is it that mainstream America has enough knowledge about indigenous peoples and the Cherokee peoples to offer any comment as to whether or not Elizabeth Warren is “an Indian”?

As I have blogged about in prior posts, the controversy kicked up in the mainstream American press about whether or not Elizabeth Warren is or is not an “Indian” has revealed several unpleasant realities about American society. It has revealed the deeply racist views that are held in mainstream America towards indigenous peoples. More than that, it has revealed that it is also apparently acceptable and even seen as humorous and good jolly fun to express those racist views—good journalism even. And it also reveals the deep ignorance and apathy that mainstream Americans have about the indigenous peoples in their midst, both past and present. But the Elizabeth Warren situation with its racist and disrespectful depictions of indigenous peoples is hardly an isolated incident in modern America.


A government that has created secondary status for indigenous groups to which it does not grant federal recognition leaves those groups with little recourse within the United States. These groups have rights under the UN Declaration on the Rights of Indigenous Peoples. But what good do those do with a government that is deeply unresponsive to these people? Take the failure of the US Forestry Service to respond to the requests of the Winnemem Wintu peoples to close a part of a river so that their coming-of-age ceremonies can be conducted without drunken white people disrupting the ceremonies by, among other things, women flashing their naked breasts and mocking the ceremony? (see story and video of disturbance at this link )
For mainstream America to get to grips with what it means to be indigenous, who is indigenous and how things got to be the way they are in the present day means confronting a past that has been largely airbrushed from the historical memory of mainstream America. It means confronting and acknowledging the harms done by government policies of assimilation ( there is a video clip at this link that brings tears to my eyes—this is the living face of devastation that was wrought by government policies determined to make indigenous peoples disappear). But confronting and acknowledging that is a step that mainstream America hardly seems ready to take—it is not yet ready to face the legacy of the past that reverberates in the present.