Tribal Self-Government and Violence Against Women

The Violence Against Women Act (VAWA) is up for a re-authorization vote in the American Congress. Approval of a federal law that provides funding for victims of domestic violence seems like it should be a straight-forward, no brainer kind of decision. But as might be expected in Washington, things have gotten very political about it, and Republican opposition to the bill is seen as causing women to become very disenchanted with that party and throwing their support behind Barack Obama in the presidential election polls.

But beyond the politics which swirl around the re-authorization of this Act is an issue about indigenous self-government. The proposed reauthorization of the Act contains a provision that would give tribal courts jurisdiction to prosecute non-tribal members for “domestic violence, dating violence, and violations of protective orders that occur on their lands. ”

But as Levi Ricketts, the editor in chief of the Native News Network comments, there is a opposition to giving tribal courts jurisdiction over non-tribal members. There is, in short, resistance to the idea of indigenous self-government and the exercise of those powers against non-tribal members for acts done on indigenous lands. This shows up the paradox of the US position that indigenous nations are sovereign and reveals of course the reality that indigenous nations are as sovereign as the United States government chooses to let them be, which really doesn’t seem like sovereignty at all to me.

But this is a debate that goes far beyond what the exercise of indigenous sovereignty, self-determination and autonomy should be. The need for tribal jurisdiction is a matter of pragmatics. Tribal court prosecution is probably the only way that perpetrators of these acts will face criminal charges. Now, this is not a matter of tribal systems being reluctant to prosecute their own. Far from it. As Mr Ricketts indicates, NINETY PERCENT ( yes NINETY PERCENT) of “perpetrators of violence against Native women are non-Indian men.” That puts the state and federal system failure to prosecute in an entirely different light. Mr Ricketts says that figures in a “2010 GAO Study, United States Attorneys decline to prosecute 67 percent of sexual abuse and related matters that occur in Indian country.”
(Link to GAO report see page 9 of the report for the statistics referred to by Mr Ricketts)

Amnesty International has carried out a study of violence against indigenous women in the United States. It bears out the remarks made by Mr Ricketts, stating in the report summary that “in at least 86 per cent of the reported cases of rape or sexual assault against American Indian and Alaska Native women, survivors report that the perpetrators are non-Native men.”

(link to full Amnesty Report )

As the Amnesty Report comments, the reasons for non-prosecution of these cases are “complex”. Jurisdiction issues are part of the problem, but the GAO report indicates that jurisdictional problem were “cited in only 2 percent of declinations” as the reason for non-prosecution. Clearly something more is at work—both in the high rate of sexual violence against indigenous women by non-indigenous men, and in the failure to prosecute. The Amnesty Report leaves no doubt about what this something else is: “prejudice and discrimination at all stages and levels of federal and state investigations and prosecution.”

The rates at which indigenous women are targeted by non-indigenous men is alarming in itself, as shown in these comments by Mary Annette Pember: “86 percent of rapes reported by Indian women involve a perpetrator outside of their race. This is not typical. For example, in 2004, 65.1 percent of perpetrators of sexual violence against white women were white and 89.8 percent of perpetrators against African American women were African American.”

In other words, indigenous women are targeted by non-indigenous men in percentages and numbers that should sound alarm bells. The failure to prosecute these crimes should sound alarm bells. The resistance to tribal court jurisdiction over these acts should sound alarm bells. The Native News Network feature on this urges a call to action, to contact US Congressional representatives to support provisions for tribal jurisdiction over acts of violence against indigenous women. The situation as it is grossly intolerable.

"Mass White House Call in" on Behalf of Leonard Peltier

The Native News Network is carrying a story about an effort that is being organised by the Leonard Peltier Defense Offense Committee chapter in Albuquerque, New Mexico. The call is for a “mass call in to the White House”. People are being urged to phone the White House on March 30 with a specific message for the release of Leonard Peltier:

“Those willing to make calls are urged to tell the White House you are calling regarding Federal Prisoner Leonard Peltier # 89637-132. Tell them you want Leonard released immediately by Presidential Clemency or any means.”

The website for the Leonard Peltier Defense Offense Committee explains past efforts to obtain presidential clemency and the nature of such an action:

“Clemency as regards the Peltier case refers to the commutation of his sentence, not a pardon. A president can decrease the amount of time Leonard Peltier must serve prior to release or immediately release Leonard Peltier for time already served. A pardon can only be awarded once a released prisoner has been free and hasn't re-offended for a period of five years.
Before leaving office in 2001, then President Bill Clinton did not approve or deny a grant of Executive Clemency to Leonard Peltier. He opted to do nothing. According to the clemency guidelines followed by the DOJ, the petition was still pending. However, during the last week of his Administration, George W. Bush DID deny Leonard's petition for clemency.”

A previous post to this blog contained several links to information about Leonard Peltier.

"Another one bites the dust And another one gone and another one gone"

Last week the Chilean Supreme Court held a verdict in favor of a Huilliche-Mapuche community . The community was trying to stop the company Ecopower from building 56 wind turbines on the island of Chiloé under the grounds (inter allia) that they were never effectively consulted about the project. Moreover, they argued that the said project would have a negative effect on Mapuche ceremonial sites and burial grounds.

The Supreme Court agreed that consultation had not occurred and ordered the company to stop the project until consultation has been done.

Here we can notice several arguments based on the International Labor Organization’s Convention 169 (ILO 169). Firstly, the right that indigenous peoples be consulted about development projects that directly affect them (Art 6). Secondly, according to the Mapuche community the project will affect their cultures and spiritual values – a violation on Art 13.

Chile ratified ILO 169 in 2008 and recently we posted a similar decision hold by Temuco Appeals Court regarding the same situation: indigenous peoples no being consulted in projects that may affect them.

Yet, the defendants argued that COREMA (the Regional Environmental Commission) approved the environmental impact study and so allowing the wind farm project to move forward. Moreover, it is also argued that COREMA held meetings and invited citizen participation to occur before reaching its final decision. However, the Huilliche community argued that because such consultation did not occur when it was supposed to. The Supreme Court agrees with the Mapuche community establishing that “COREMA’s actions did not amount to meaningful consultation with the Huilliche community, in part because even if the community had fully participated in such meetings they still lacked any meaningful opportunity to influence how the project would ultimately move forward.”

The title today comes from the song 'another one bites the dust' written by John Deacon and sung by Freddie Mercury...that was the feeling I got. The message that the Chilean courts are sending is pretty clear: listen and learn (but mostly consult with the right people!)

Chilean national attire: complementing two cultures

Last week the Chilean ‘Camara de Diputados’ (MPs) unanimously approved Agreement No. 522 and so declaring the DOÑIHUE ‘Chamanto’ an Intangible Heritage.

Chamanto is a traditional attire and it is one of the most distinctive pieces wear by ‘huasos’ (huaso is the name given to countryman – i.e. cowboy). The piece is poncho-like made of woven with threads of silk and wool double-face. It is said that all chamantos are work of art and in Doñihue there are only 45 weavers that work in this trade who are very protective and reluctant to share their knowledge (TK is shared from mother to daughter).

The report given by the MPs explained that this piece is ‘unique and distinctive’ and encloses a primitive “relationship between man and land, keeping its symbols of belonging and tradition".

Finally, there is a statement made by the MPs that relates to what a nation is – rather than trying to divide what a native or non-indigenous is or what cultural aspect we need to be looking at. The assertion is as follows:

“...to exalt the cultural values of the homeland is a need for the community, since it implies recognition of national identity from elements that bind the whole society, identifying common values and principles belonging to the nation”.

I remember the movie ‘My big fat Greek wedding’ where a very traditional Greek young lady married a non-Greek and struggles to get her family to accept him. In the wedding speech her father tries to explain the roots of the young couple respective surnames saying that one is ‘apple’ and the other one is ‘orange’ – different, but in the end, they are fruits.
Today we have a fine example of that. Reading the Agreement I noticed that the MPs observed that ‘chamantos’ are complementing two cultures: the indigenous and the Hispanic, and while they are different, they harmonize and represent (beautifully) the whole nation.

Agreement No 522 can be found at this link (in Spanish)

What Do We Choose to See?

Sometimes there are events that start you thinking. Events that stay on your mind, greet you first thing in the morning, linger in the fragments of dreams that dissipate as you wake, fade only as you fall asleep. Racism in the United States—highlighted in the events around the killing of Trayvon Martin—jar and disturb. Even when viewed from across the ocean. Especially when viewed from across the ocean, because somehow my own gaze is sharper and clearer when I am not in the middle of a society that is deeply racist and just as feverently denies it. Electing Barack Obama as President did not wave a wand over the racial ills in American society and make them disappear. He remains the exception, not the rule. Racism has not gone away.

I am white. I only get glimpses of what it is like to live as a person who is not white in contemporary American society. My god-mother (yes, African-American) was a founding member of the National Association for Black Social Workers. My god-father has recounted how a desegregation of southern universities in the United States meant that his state opted to pay for his education in another state, at another university, rather than have him attend their institution.

I remember attending a conference in California with an African-American colleague. She was looking about with a wide-eyed gaze, a bright smile on her face, the look of someone who has just discovered something amazing and wonderful. She tried to explain to me: to look around me. How many people were white? How many were black? For the first time in her life, she said, in a public place, there were people of colour in great number, and she felt this immense relief, that she could relax, that she did not have to go about girded and braced against the ill-will and even outright hatred she faced as a matter of course in her daily life as a person of colour. I probably would not understand, she said, but she would do her best to let me see the world through her eyes. I did my best to understand and felt and feel profoundly grateful that she took tremendous pains to show me into the world of a person not white in America.

Shani King has written about the racism that permeates American society in the context of inter-country adoption of children. He identifies five narratives that ribbon their way through the legal discourse on intercountry adoption, including narratives of rescue and humanitarian motives. He has developed a concept, “monohumanism” where “MonoHumanism is fundamentally the notion of American culture as a superior one in comparison with all non-American peoples and cultures...What MonoHumanism represents, more specifically, is the notion that the United States has substituted its own view of all non-American peoples or cultures for positive knowledge of them, facilitating the creation of the Western identity of self as the normative center. The narrative of identity that accompanies MonoHumanism subscribes both universality and superiority to Western knowledge and discourse, which effectively results in the exclusion and displacement of the knowledge and dis-course of historically oppressed peoples.” He argues for the process of “dismantle[ing] the concept of Monohumanism...”

It strikes me that much of his critique of the discourses of intercountry adoption might easily be applied to the discourse of indigenous rights. How much of that discourse is inclusive—albeit unstated—of the ideas that run through Monohumanism? How consciously do writers about indigenous rights and issues pay attention to the pratfalls of a monohumanistic (or however this concept might be labelled) standpoint that might run through their ideas and writing?

Until recently, no one spoke very openly about racism in America. Now perhaps the society is confronting this in a move long over-due. It is an easy subject to seek to avoid because it is uncomfortable and disturbing. But as my African-American friend told me, I had the option to close my eyes to it. She never did.

Special Rapporteur at Sinte Gleska University; Leonard Peltier Awareness Event

There are some important and headline worthy events coming up in the next several weeks. Sinte Gleska University on the Rosebud Reservation will be hosting James Anaya, the Special Rapporteur for Indigenous Rights on May 1-2. According to information at lastrealindians.com, the visit will be a consultation on a variety of issues, including
“1) Treaties, land and resource rights
2) Cultural Rights, language and protection of Sacred Sites
3) Self-determination and self-government
4) Food Sovereignty and environmental protection
5) Education and health; social and economic rights
6) Indian Child Welfare and removal of Indian Children from communities and families.”

Another scheduled event is highlighted at NativeNewsNetwork. This is the 13th Annual Leonard Peltier Awareness Event, which is scheduled for June 28 on the Pine Ridge Reservation.

Who is Leonard Peltier? Amnesty International lists him as a political prisoner. The detail of the events of his case can be found at the Amnesty link. Robert Redford narrated a documentary on Leonard Peltier, “Incident at Oglala”. A book, In the Spirit of Crazy Horse, gives the history of the relationships of the Oglala peoples and the US government, and provides an indepth analysis of the case that was brought against Leonard Peltier. Robbie Robertson, indigenous musician who once played in The Band, made a song that includes the voice of Leonard Peltier--describing his situation-- called “Sacrifice.”

These are both important events and more information as well as the outcome from these will be covered in future posts on this blog.

Indigenous Peoples are consumers too

The Peruvian Institute for the Defense of Competition and Intellectual Property (INDECOPI) launches the opening of its new headquarters in the region of Cusco. Yet, since 1995, INDECOPI Cusco has provided to its citizens various consumers services.

This time and celebrating ‘consumer’s week’ it has published and made available the 'consumer Decalogue in Quechua', designed to promote and defend the rights of these indigenous peoples.

It is claimed that this step aims to promote and disseminate the top ten consumer rights, among people who speak Quechua, thus creating a healthy culture of respect for this people. INDECOPI informs that through this Decalogue it will guide and educate about a million Quechua-speakers of different communities living in the Cusco region, so that in addition to know and defend their rights, they will have access to satisfactory products and services.

Peru ratified ILO Convention 169 back in 1994 and while I can see this Decalogue as a way to integrate more the communities, I indeed believe that it is a good application of Article 4 – guaranteeing enjoyment of the general rights of citizenship without discrimination.

Ecuador, Chile, Colombia and Argentina have also ratified the Convention and have Quechua-speakers communities, but will they follow this initiative?

Another question that I might query is that INDECOPI Cusco claims that in 2011, attended 1,157 claims, having been solved 95% of them through the process of conciliation – very good indeed. But, will this initiative of bringing the Decalogue in Quechua also be extended to filing claims in Quechua? That would be the cherry on top of the cake.

Indigenous Origins

As I am working on research for an article on indigenous rights, I am struck yet again by how much indigenous peoples have impacted upon and shaped modern legal doctrine. This is not to say that the law has taken on board an indigenous point of view in law, or even indigenous forms of law (with at least one notable exception , the Family Group Conference of the Maori peoples) but that law has struggled to get to grips with the existence of indigenous peoples. The struggle that law had (and has) is evident in a great many areas of law today.

Take international law. It is almost axiomatic amongst scholars on indigenous issues and international law scholars to note that modern international law began with the legal doctrines developed to deal with the question of indigenous peoples in the New World when European powers wanted to assert land claims. (see for example an article by Antony Anghie ).

Or take English common law on company law. Who began trading in the New World? What ventures were there? Trading companies—not a company in the modern sense of the word in law perhaps—but again from the interaction of trading companies, European powers and indigenous peoples came the growth of modern company law. (see for example my favourite book on Company Law--"Critical Company Law".) Or land law—what tortuous legal doctrines were created to deal with land title issues that would work out in favour of the European powers? At the moment I am reading about the Proclamation of 1763 made by King George III, prowling through Blackstone's Commentaries on English law, defeasibility and inalienability doctrines in land rights—all in pursuit of research on a paper on modern day indigenous rights.

It is safe to say that up until very recent times these doctrines did not in general work in favour of indigenous peoples. Hopefully that tide has turned. But in learning about law—how many people know about the origins of legal doctrines that make up modern day law with indigenous peoples as the catalyst?

Now—the Family Group Conference ( see generally for example this book)This is a practice that is now widely used in child welfare in the US, New Zealand and elsewhere. It is adapted from a Maori practice of not only consulting with, but giving decision making powers to the family. In modern child welfare practice, it is used to involve family members in making decisions on placement for a child that might need to be temporarily removed from a parent, and working to use family resources to help the child and parent. It goes beyond consultation. Consultation does not give any powers to make decisions.

At the moment, the Office of High Commissioner on Human Rights, in the UN Human Rights structure, has opened up a “consultation on indigenous peoples' participation in the UN.” It looks to see if among other things processes used to accredit non-governmental organisations can be used to approve the participation of indigenous groups at the UN.


Indigenous peoples might argue they have more in common with states ( sovereignty claims among them) than with NGOs, which have limited international legal personality. This move seems to cabin off indigenous groups as less state like and into a separate and not at all equal status to states in the international community. Cynically, this might be read as a response to limit the effects of the international legal personality provisions of the UN Declaration on the Rights of Indigenous Peoples. Perhaps it is not right to pre-judge the consultation exercise, but in my mind, red flags are raised about what effects this could have on the place and effectiveness of indigenous groups and peoples in the international legal community.

New York catwalk: walking in the caves of Australia?

Fashion, fashion, fashion...who doesn’t like a pretty piece of garment? I do, I do – guilty on all accounts.

Left: guilty hands?!

One of the things that fascinate me the most is to see people wearing traditional cloth – I think that I mentioned that in one of my posts when referring to graduation day and seen my students’ parents wearing traditional cloth (what a proud moment). Now, the matter here today is when some of these traditional garments and arts become fashion, will I wear it? To be honest I do not know, will I be disrespectful? oi! I do not like that idea, but as said before, I am a fashionable person and I cannot say that I will not be tempted.

Anyways all of these thoughts came due to the news that in the recent New York Fashion Week two young designers (behind the label Rodarte) showed in their garments Australian Aboriginal art. They claimed that they have never been to Australia but have been inspired by books and other resources. They indeed do not denied where their inspiration came from assuring that the patterns referenced aboriginal art and that the hand prints were inspired by ancient cave paintings.

From pretty designs to theft
Megan Davis, the academic who heads up the UNSW Indigenous Law Centre and a member of the United Nations Permanent Forum on Indigenous Issues, noted that “the prints were an insensitive theft of her Australian Aboriginal culture.” She continues “It is completely insensitive to Aboriginal art and spirituality and land and how they are inextricably linked”. She did not stop here, mentioning that she “found the designs offensive”. In this regards she mentioned that there is the need to bear in mind that these people usually live in poverty and the “thought of seeing women walking around in this particular ready-to-wear collection sickens me. Because it is my culture and it is where I come from”.

From theft to License agreements
Rodarte responded to this enquiry by saying the following:

“We deeply respect and admire the work of other artists. Through the appropriate channels, we licensed the Aboriginal artwork that influenced prints in our collection. As a result, the artists will share in proceeds of the pieces inspired by their work.”

The source of the news indicated that they check with the Aboriginal Artists' Agency which represents Papunya Tula Artists in this matter, and the information was confirmed – Rodarte do have a licence.

This news today was shared by Robyn Ayres, Executive Director @ Arts Law Centre of Australia. She mentioned “Arts Law’s Artist in the Black service is proposing to develop some template documents for ethical collaborations between designers and Indigenous artists whereby guidance is provided in relation to protocols and best practice in this area.” I truly believe that this is an excellent idea and hopefully we will hear more about this in the near future.

My final thought: Will I wear it? I think that I will be killing two birds with one stone: being in fashion and knowing that some of the money will go to the aboriginal. Will I have the money to buy it? well, that is another story.

The Meaning of “Sovereignty” for Indigenous Peoples in the United States.

The relationship that the United States government has with the indigenous peoples within its borders is complex to say the least. Indigenous groups are recognised as having at least some rights as sovereign nations—but these groups are “the forgotten sovereigns” as Tonya Kowalski compelling writes about.

The United States government retains the power to bestow recognition of this sovereign status upon indigenous groups in the form of granting them federal recognition. There are over five hundred federally recognised “Indian tribes”, and also many indigenous groups that exist but nevertheless do not meet the established criteria for federal recognition. Some groups have state recognition even if there is no federal recognition, and other groups are in the lengthy process of applying for federal recognition. Other groups once had federal recognition and lost it. All of this begs the question of how a group attains or retains sovereignty—and under what legal doctrines the United States is empowered to decide if a group is sovereign, especially in the post UN Declaration on the Rights of Indigenous peoples era. But that is a discussion for another day. What is important is what it means to have this sovereign status—and this is something that is predicted to be put to the test by the Hualapai nation.

The sovereign status that indigenous groups have in the US has given them some unique positioning. Near my hometown, the indigenous nations lands are home to several petrol stations where the price is cheaper—federal tax on petrol is not charged on the indigenous tribal lands. Many indigenous groups notably have set up casinos—again federal or state restrictions on gambling enterprises did not strictly apply on indigenous lands, enabling the establishment of casinos. Casinos might be the only contact non-indigenous Americans have with indigenous groups. Many Americans are unaware that indigenous peoples are in fact still alive and did not all get killed or die out or-- simply somehow get absorbed into the general population of the US (although that was certainly the plan of the US government for many years as it ruthlessly pursued a policy of forced assimilation).

So the actions of the Hualapai nation may take many people by surprise—not in the least because many Americans will simply not know that they are there. And that beyond “being there” they are a nation with sovereign rights that are being put to the test as the nation exercises its sovereign right of eminent domain—eminent domain being a governmental power to seize land to be held in its own name and in its own right. As reported by MSNBC, The Hualapai nation has exercised this right over a tourist attraction of a walkway in the Grand Canyon. According to the MSNBC news story, “the tribe passed an ordinance last year creating a legal path to effectively cancel the developer's contract through the sovereign right of eminent domain.”

Just how far sovereign rights extend over an indigenous nation’s lands—and what it means to be sovereign—are very important issues. Is “sovereignty” something more than window-dressing? Does it have real power and meaning, or is it somehow watered down when it comes to indigenous peoples and their lands? Especially in light of the human blockade of trucks carrying tar sands pipeline parts on the Lakota Nations land and the ensuing arrests—questions abound about who has what rights on indigenous lands—and who is going to decide. Is this a matter for indigenous jurisdiction or United States domestic (federal or state) jurisdiction? If there is a dispute, who decides?

Time to celebrate - but, to what extent?

The Native American tribe in Wyoming celebrates the ‘sun dance’ in its glory. This ritual requires the use of eagle feathers and the eagle itself playing an important part of the ceremony - “it is one of the Plains Indians' most sacred animal. The eagle flies high, being the closest creature to the Sun. Therefore it is the link between man and spirit,”. Yet, the sun dance as well as other ceremonies was banned as "Indian offences" by the bureau of Indian affairs in the 1890s and it was not until 1934 that the US government formally lifted those prohibitions. Nonetheless, up to 2007 it was illegal to kill bald eagles, which were latter on removed from the federal ‘threatened and endangered species list ‘ but yet they were safeguarded by laws; for example the Bald and Golden Eagle Protection Act.

Tribal member Lokilo St Claire noted that "The eagle has been with us for so long, even before the settlers came. For the government to tell us you can't use that bird anymore... it slaps natives in the face." Therefore, on November last year, the tribe filed a federal lawsuit claiming that the “government's ban on the taking of an eagle infringed on religious and free speech rights guaranteed to tribal members by federal law, the constitution and treaties.”

Today The Reuters reported with a big headline the following:

US Fish and Wildlife Service has approved a first-time permit allowing a Native American tribe in Wyoming to kill two bald eagles in a centuries-old religious ceremony once outlawed by the federal bureau of Indian affairs.

Indeed the news is a victory for the tribe, but will it be temporal? Will they need to apply every year for the permit? Would the government make further steps and amend the Bald and Golden Eagle Protection Act? I do not what to be pessimist, on the contrary I am sharing the good news today...but I would like to see further actions in this matter.

Thanks to Lucas Lixinski for sharing the link.

Indigenous Consultation in Australia’s Northern Territory: White Paternalism or Extraordinary Measures Required by Extraordinary Times?

A piece in today’s Sydney Morning Herald calls attention to the aftermath of the intervention in Australia’s Northern Territory a few years ago (2007-2008), where welfare payments to indigenous peoples were made conditional upon school enrolment, and strong measures were adopted to try to curb alcoholism and child sexual abuse. More about the background of this intervention can be found on Wikipedia, but, among many measures, the A$ 587 million package included restrictions on pornography access in public computers, restrictions on the sale of alcohol, and, importantly, the removal of consideration of customary law in sentencing practices. When first approved, the plan drew a lot of criticism, but also a lot of support; in fact, enough support to let it go through.

As the intervention officially lapsed in 2008, the Australian federal government has been discussing means to ensure the continuity of the measures put in place (or at least part of them), in the form of what has been referred to as the “Stronger Futures legislation”. To that effect, it undertook consultations with Aboriginal communities across the Northern Territory. But, it seems from the SMH story cited above, the consultation process was problematic, and did not actually engage with Aboriginal communities. The piece, which draws on a 144-page report criticizing the consultation process, insists that in many instances the consultation process felt more like a “controlled chat run by departmental officers” than an open forum where Aboriginal people could express their viewpoints, and have them heard.

Importantly, the UN Declaration on the Rights of Indigenous Peoples is an important part of the legal basis for this articulated critique of consultation processes and free, prior and informed consent. The fact that Australia withdrew its initial opposition to the UNDRIP, it seems, does not mean it is ready to abide by its every mandate. But, as long as there is some room for debate, there is hope.

Written by Lucas Lixinski.

Tar Sands Keystone XL Pipeline Update

Last Monday, dramatically, there was a human blockade on the Pine Ridge Reservation to prevent trucks carrying heavy loads of parts intended for the Keystone XL pipeline (previous blog post at this link) Though the passage of the trucks was prevented, five people were arrested. This raises some perplexing questions about sovereignty on the Lakota Nations land. Who has the say about what happens on these lands? Whose laws were broken and who is enforcing them? It is also clear that the trucks desired to go through the Lakota Nations land in order to avoid payment of $100,000 of fees for the use of state highways. Heavy trucks do a great deal of damage to roads—thus the high cost of permits. So the route through the Lakota Nation lands was a clear attempt to avoid paying for damage that the trucks would cause—and never mind the great deal of harm that will be caused if the plans for the pipeline were to go through as planned—danger to drinking water, to human health, to the environment. Pipeline proponent thinking at least remains consistent.


This video –showing the protest in action—presents a very clear picture of the arguments against the trucks passing through. If there are standing resolutions which would forbid the trucks to use the Lakota Nations roads, why was it the protesters who were in the end arrested? Does it not matter if the law of the Lakota Nation is violated?

There is at least some good news to report on the latest attempt to push approval of the Tar Sands pipeline through the US Senate. A vote taken last Thursday, March 8, in the US Senate defeated legislation that would have permitted the construction of the tar sands pipeline. Politicians however apparently do not intend to have this as the final fate of the tar sands pipeline, according to comments in this news story on the outcome of the Senate vote.

For those not familiar with the debate on the tar sands and the proposed Keystone XL pipeline, the video “Downstream” presents information on the hazards that the plans present.

Ethical Space/Ethical Lodge

On the way up to the ‘Expert Seminar on Indigenous Peoples’ Languages and Cultures,’ I read a book ‘The Ethics of Cultural Appropriation’ eds. J Young and C Brunk, (Wiley-Blackwell 2009). I was very struck by the idea of an ethical space/ethical lodge raised in chapter 4 on the repatriation of human remains. This concept followed me for the two day Expert Seminar and just appeared to encapsulate the environment of the seminar.

So what is an ethical space/ethical lodge? The term first articulated by Roger Poole ,’ Towards Deep Subjectivity,’ (London: Allen Lane The Penguin Press, 1972). , ‘a space that no one owns where engagement involves openness and mutual learning,’ has been advanced by Professor Willie Ermine a Member of the Sturgeon Lake First Nation Canada. In his article ‘The Ethical Space of Engagement’, Indigenous Law Journal 6 194-2001 (2007) he suggests that, ‘The "ethical space" is formed when two societies, with disparate worldviews, are poised to engage each other. It is the thought about diverse societies and the space in between them that contributes to the development of a framework for dialogue between human communities.’

He suggests drawing on Poole’s work that we should focus on the space between entities that we thought as empty. This idea is a new one for me but one that I feel is so useful. What can that empty space tell us? Do the different entities move into that space as different entities and remain different or do they become something else by moving into that space? Entities here I suggest can be peoples, different paradigms, etc. It has made me think about my own research where I ‘unbundle’ property paradigms in relation to ancient human remains. Where is the ‘ethical lodge’ between these paradigms or even within them?

Professor Ermine also talks about ‘the undercurrent.’ ‘Among the challenges is to understand and confront the hidden interests, attitudes, and bedrock assumptions that animate Western dealings with Indigenous peoples.’ The "undercurrent" is an analogy used to describe these subsurface interests and attitudes that continually influence communication and behaviors between individuals, organizations and nations.’ The undercurrent appears to be a whole topic in itself but one which influences the ‘ethical space’.(Research in progress)

Did we move into the ‘ethical space’ at the Seminar? Open question!

Written by Fiona Batt.

Chilean Indigenous Peoples have a say – will they be listening to?

A few weeks back there was a ‘celebration day’ that was launched by UNESCO since 2000: February 21st “International Mother Language Day.” The purpose is to promote native languages around the globe and Chile took this day to promote not only their own indigenous languages but also their cultures. Accordingly, Chile celebrated the day by marches and public statements.

In Santiago, Chile, there is an organization dedicated to Indigenous languages: Red por los Derechos Educativos y Lingüísticos de los Pueblos Indígenas de Chile (Red EIB). On the date, they released a public statement “summarizing the current state of Indigenous languages in the country and calling on the government to take concrete steps to preserve those same languages. Red EIB indicated that Chile originally had eight spoken Indigenous languages, but now numbers have dropped to four, and none of those four languages are spoken by more than one-third of their respective populations.”

RED suggests the following:

· the national curriculum should reinstate the Indigenous education units that used to be found in history, geography and social science classes;

· strengthening Indigenous language rights under Chilean law, which might include the creation of a “National Institute on Indigenous Languages”; and

· intercultural education throughout the country.

Another event took place in the Araucanía Region of Chile, where the community requested the government to make Mapuzungun (the language of the Mapuche people, and the most-spoken language in Chile outside of Spanish) to be along with Spanish an official language. In other Chilean Regions there were also requests made to local government leaders to add the names of certain landmarks in Mapuzungun.

Source Indigenous News.

Wide Open Spaces

can you see me?

Plenty of people find London to be an invigorating and energetic space. New York is known as the “city that never sleeps”—a place that is busy and buzzy and on the go with a frenetic atmosphere that has given rise to the phrase, “ A New York minute”. And so on with many urban environments that people find satisfying and enlivening. Not me. I can think of nothing more dehumanising than the crush of humanity in a London rushhour- people filing up and down stairs in robotic fashion, crushed into the sealing cases of the underground. Me—I like wide open spaces.

In the still nascent literature on the new dawn of indigenous rights, certain mantras of prescription abound on how not to approach the writing. Do not paternalise or essentialise and do not treat cultures as if they are frozen in time. But that leaves wide open how effective academic scholarship on indigenous rights ought to be approached—and perhaps it is best that there is no prescription on what must be included. There are much debated paradigms after all on the way any law should be approached—no shortage of debate on positivism, natural law, new natural law, constructivism, legal realism, new legal realism, just for starters. If indigenous rights knock on the door of legal pluralism, then there is a entire debate that can be had on the nature of legal pluralism. So just where indigenous rights fit into the panoply of choices on how to discuss law remains—at least right now—a wide open space. And wide open spaces are energising, full of room to discover, do not require falling lock-step into a dreary queue of humanity only going through the motions. So it is that indigenous scholarship gets all the advantages ( and disadvantages if there are any) of being at least in academic discussion terms, a wide open space.

There are other academic wide open spaces, but people are not flocking to them with the enthusiasm that they do with indigenous issues. Whiteness, for example, is not an area where you see scholars racing in any great numbers. Ruth Frankenberg wrote about whiteness, some years back, saying, “whiteness is a location of structural advantage, of race privilege. Second, it is a “standpoint”, a place from which white people look at ourselves, others, and at society. Third, “whiteness” refers to a set of cultural practices that are usually unmarked and unnamed."

Perhaps a legal positivist would reject the notion of whiteness as having any bearing on how someone approaches their writing on indigenous rights. But coming from a constructivist view point, of course, the position that I come from is relevant to me—it informs my own writing. And if I take on board what Frankenberg says about whiteness, then I am writing from a place of privilege and from a place that does not name and recognise its own cultural practices when I try to write on indigenous matters. The question is, then, from such a place is it possible to not have strands (even if unwanted and guarded against) of paternalism, colonialism and essentialism in writing on indigenous matters? And if not possible to avoid these despite conscious efforts to do so, how then to approach writing on whiteness, law, indigenous matters? That discussion by itself generates plenty of wide open space. So far as I can tell it has never been had.

Human Blockade in Lakota Nation land: blocking transport of parts for Keystone XL Pipeline

Lastrealindians.com is carrying a story about a human blockade that was formed yesterday-- March 5-- on the Pine Ridge Reservation, South Dakota. The human blockade prevented trucks carrying parts for the contested Keystone XL pipeline from travelling on Oglala Lakota lands. The route through the Oglala Lakota homelands was planned without consultation with the indigenous groups, and further, planned the route to try to evade paying a significant sum for the use of state roads, according to the post at Lastrealindians.com: “The heavy-hauling trucks were allegedly cutting through Oglala country in attempts to avoid a $50,000.00 fee to pass through using State of South Dakota roadways.”

If the trucks had crossed the Lakota lands, it would also have been in violation of several resolutions that have been adopted by indigenous governance bodies. The story in full is at the Lastrealindians.com website.

"Disrupting the Dialogue”? Who Speaks in the Garden of Academe?

A garden to be proud of

"We cannot talk to you in our language because you do not understand it... The power of white Anglo women vis-a-vis Hispanas and Black women is in inverse proportion to their working knowledge of each other... Because of their ignorance, white Anglo women who try to do theory with women of color inevitably disrupt the dialogue. Before they can contribute to collective dialogue, they need to ‘know the text’, to have become familiar with an alternative way of viewing the world... You need to learn to become unintrusive, unimportant, patient to the point of tears, while at the same time open to learning any possible lessons. You will have to come to terms with the sense of alienation, of not belonging, of having your world thoroughly disrupted, having it criticised and scrutinized from the point of view of those who have been harmed by it, having important concepts central to it dismissed, being viewed with mistrust.” ( original statement by Maria Lugones, quoted by Alison Jagger, quoted by Norma Alarcon)

This kind of discussion used to take place amongst scholars of feminist law. Who could speak, should speak, whose voice represented what. Whether the experience of a white woman was in any way relevant to the experiences of women who were not white. This discussion occurred at the same time of the growth of new ways of examining and discussing law through the embrace and explosive growth of offshoots of critical race theory. At least in American scholarly discourse, as critical race theory seems to have only recently tiptoed across the Atlantic to British shores.

There were and are lively discussions of colour-blindness and colour-consciousness. Terry Cross, the Executive Director of the National Indian Child Welfare Association has written a not to miss article on exactly what is meant by colour-blind and colour-conscious and how their operation in child welfare systems.

But the prior lively discussion and debate about voice, narrative, consciousness of culture and colour seems to be largely absent from much of the scholarship on indigenous peoples today. It might be that law has moved on from the scholarship and research themes that marked feminism and critical race theory and that these sorts of discussions are as out of date and fashion as a Sony Walkman. It might be that indigenous rights lacks the universality conundrum of feminism—no parallel question of whether a white woman can speak for non-white women. But here and there hints that percolate to brief visibility of a controlling academic hand over who speaks about indigenous issues and in what manner. There are articles by scholars who are indigenous Robert Wilson and Jeff Corntassel who detail being told not to write about indigenous issues from a certain angle or even at all if they valued progression in their academic careers. Whither academic freedom? Is this a colonisation of indigenous rights issues by a non-indigenous Garden of Academe—that wants to assert who speaks, when and about what—and that voices of indigenous peoples at the door are annoying and to be permitted only in necessary degree?

Gunther Teubner and Andreas Fischer-Lescano write stingingly of the “lie” of indigenous legal incorporation into British colonial laws: “The whole thing was a scam.... The trick was hidden in exactly this lie: indigenous or customary laws were not “rules that trace back to the habits, customs, and practices of the peoples” as had been assumed by traditional anthropologists, but were “constructs of European expansion and capitalist transformations” and therefore nothing more than a “myth of the colonial era.””

Which all begs the question—what is the dialogue going on in the Garden of Academe on indigenous issues—who is welcomed and who is not?

Who is Afraid of Big Bad Soft Law?

The mainstream press has picked up the story of the Menominee student who was banned from a basketball game at her school for speaking the phrase “I love you” in her native language.

Indigenous peoples from Namibia are asking for the international community to assist them with issues that deal with the potential loss of land, lack of recognition of their governmental structures, and other threats to their culture and traditions.

The Navajo Nation has filed a lawsuit alleging trademark infringement for the use of its name by a clothing retailer on items for sale.

These are examples from just the past week of issues that are being raised about the threats to indigenous peoples’ culture and language. Doubtless there are more examples that occurred in the last week that have not grabbed the attention of the press. Doubtless these stories are just part of a continuum of events that continues where the rights of indigenous peoples are not respected. What is different now than even in the recent past is the ability for groups to seek redress for rights violations, sometimes in domestic courts, sometimes by appealing to international community sympathy, sometimes by bringing more formal statements to the indigenous structures of the United Nations.

Which brings me to the question of who is afraid of big bad soft law? There is no agreement as to what the international legal status of the UN Declaration on the Rights of Indigenous Peoples is, or should be. Sometimes it is couched as a remedial agreement that does nothing more than restate existing rights and obligations which are found in other international human rights instruments. Sometimes it is presented as containing binding norms of international customary law, binding upon even those states who voted against the approval of the Declaration.

Those four states have now all reversed their initial opposition to the approval of the Declaration. These states—Australia, Canada, New Zealand and the United States—present an interesting quartet of states. At some point it would be an interesting research project to plumb in depth the factors that ultimately contributed to their initial rejection of approval of the Declaration. All four states were colonised by Britain and have common law systems. Can any parallels be drawn other than that? Each of these four states have dealt with indigenous peoples in very different ways. In the present day US and Canada, series of wars were fought between the English and the French over territory, and with indigenous groups sometimes caught up on the side of one or the other. New Zealand famously has the Treaty of Waitangi, Australia the site of the now discredited doctrine of terra nullius.

The four “No” states receive a lot of comment and attention. Relatively little is written in contrast about the eleven states who abstained from voting on the approval of the Declaration. And the ILO Convention 169 is international law that is binding upon the 20 states that have ratified it.

It would be interesting to compare the 20 states that have ratified the ILO Convention 169 to the four states that opposed the Declaration—a project that I will try to address in future blog posts—and to understand more of what factors led four states to initially oppose the Declaration and other states to ratify binding international law on indigenous peoples.

Rejecting the Stereotype of Victimhood

Mainstream American media representations of indigenous peoples as helpless victims is contested by the people themselves—the children who were the subject of an ABC news network “Hidden America: Children of the Plains” have made a responsive video saying “We are more than that” rejecting what they felt was inaccurate and one dimensional stereotyping.

Their responsive video presents their own views about who they are, and rejects the idea of a hapless, hopeless, victimhood. This, I think, demonstrates the importance of indigenous voice in discussion of indigenous issues. Stereotypes are prevalent, and even well-meant mainstream media presentations perhaps unwittingly play into the triad of characterisation--"Savages, Victims and Saviors" that Makua Matua warned made up the international human rights regime.Mutua scathingly notes the three part metaphor is a part of the “biased and arrogant rhetoric and history of the human rights enterprise.”

The ABC clip does present a view of the indigenous community as desperately diminished from their proud warrior past, now the victims of life. It suggests that while having moved on from the “noble savage” of the past, the indigenous peoples are victims—with the implicit message that rescue is surely needed.

The Indian Country Today Media Network reports on the response that was made, and the reason for the response. The students felt that the ABC story did not present the entire picture of who they were, focussing solely on negative aspects and not providing any message that fell outside of the " savages, victims and saviors" metaphor described by Matua.

NPR carried a story on the students’ video response and their recent trip to Washington DC press the need for more funds for indigenous homelands schools. The NPR story makes the point that in rejecting the depiction as of the ABC report that there is far more to consider about indigenous peoples and their community than the report ever considered: “The point the students are trying to make, says English teacher Heather Hanson, is that they're not victims.”

Najavo Nation files trademark violation lawsuit

The Navajo Nation has initiated a lawsuit against Urban Outfitters, a clothing retailer for trademark infringement and for claimed violations of the American Indian Arts and Crafts Act. According to the story carried in the Washington Post, “it [is] illegal to falsely suggest that merchandise is made by American Indians when it is not”

According to the webpage of Senator Jon Kyle, who was one of the original authors of the Act, “The Act prohibits misrepresentation in the marketing of Indian arts and crafts within the United States. The Indian Arts and Crafts Act is a truth-in-advertising law that provides criminal and civil penalties for marketing products as “Indian-made” when such products are not, in fact, made by Indians, as defined by the Act. The law is intended both to protect unsuspecting buyers from fraudulent works, as well as Indian artisans, craftspeople, and tribes.”

The Washington Post story says the subject of the lawsuit is merchandise that included the word “Navajo” or “Navaho” to give a false impression that these were the products of the Navajo Nation.
The Navajo peoples are well-known as having for their crafts, for weaving beautiful blankets and baskets. There is obviously enough “name recognition” of these peoples to make the use of their name a commercial marketing strategy to attract consumers.

In the run-up to next week’s Expert Seminar on Indigenous Languages and Cultures,hosted at Brunel University, this lawsuit highlights the ways in which indigenous cultural heritage is attractive to expropriate in many consumer markets, and that despite legislation to prevent this, protection of culture and heritage is not guaranteed. This points out the importance of the discussion that will be the subject of the Expert Seminar.