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.

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.

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 www.potawatomi-tda.org. 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 fchs@rtcol.com.

See www.fultoncountyhistory.org.

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.

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 Lastrealindians.com 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).

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!

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.

Source INDECOPI.