Indigenous Rights: Changes and Challenges in the 21st Century

https://ubpl.buckingham.ac.uk/?wpsc-product=indigenous-rights-changes-and-challenges-in-the-21st-century

Now published: Indigenous Rights: Changes and Challenges in the 21st Century
Edited by Sarah Sargent and Jo Samanta
Published by University of Buckingham Press

SLSA 2017 Newcastle Call for Papers: Indigenous Rights

SLSA 2017 Newcastle

Call for Papers: Indigenous Rights

http://www.slsa2017.com/indigenous-rights

Call for papers: Horses, Society and the Law: Past, Present and Future

A symposium will be held at De Montfort University, Leicester, United Kingdom. This symposium explores the relationship of horses, society and the law across many positions, including, for instance, the use of horses in the rehabilitation of juvenile and adult criminal offenders, the role of the horse in national identity, modern popular culture and cultural heritage, in sport, and in leisure and recreation activities, and in the preservation of public access to bridle paths and other green common areas. 
We are inviting paper abstracts of 250-300 words to be submitted for inclusion in our Symposium to be held at De Montfort University.  There will be an edited edition of Contemporary Issues in Law to publish selected papers (subject to the usual peer review process) from the conference. 
Proposal Your proposal should be sent to Dr Sarah Sargent at Sarah.Sargent@buckingham.ac.uk by no later than noon, Tuesday January 31, 2017. Please also direct your abstracts queries to Dr Sarah Sargent. 
A decision regarding all abstracts/papers for the conference will be made no later than Wednesday, February 15, 2017.  

International Indian Treaty Council sends urgent communication to UN about Dakota Access pipeline

The International Indian Treaty Council has filed an urgent communication with four of the UN Special Rapporteurs regarding the Dakota Access pipeline and the concerns raised about it by the Standing Rock Sioux Tribe. The communication is addressed to four thematic rapporteurs: on the situation of human rights defenders, on the rights of indigenous peoples, on the human right to safe drinking water and sanitation, and the environment and human rights.

This press release from the International Indian Treaty Council  explains that the urgent  communication  "requests the intervention of these UN human rights mandate holders to call upon the United States to uphold its statutory, legal, Treaty and human rights obligations and impose an immediate and ongoing moratorium on all pipeline construction until the Treaty and human rights of the Standing Rock Sioux Tribe, including their right to free prior and informed consent, can be ensured."

Dakota Access Pipeline Getting National Attention in the US

Efforts to continue construction on the Dakota Access Pipeline in spite of the concerns and protests of the Standing Rock Sioux Tribe have finally reached national consciousness in the United States. The Standing Rock Sioux Tribe  has been raising concerns about the pipeline for months. This blog has been following the developments and concerns raised about the pipeline since March of this year.

There is a growing camp of supporters and protesters in North Dakota. There is also a law suit that has been filed, with a ruling expected than “no laterthan Sept. 9 on a request by the Standing Rock Sioux to stop construction andreconsider permits the project has received.” 

The comparisons to the controversial Keystone XL pipeline are inevitable, with this story noting that  the Dakota Access pipeline is “quickly emerging as a sort of Keystone XL Part 2.”

US Supreme Court decision on tribal court jurisdiction over non-tribal member

On June 23, 2016, the US Supreme Court issued a ruling on the issue of whether tribal courts have jurisdiction over non-tribal members in civil tort claims.

The decision was split 4-4, finding in favour of the jurisdiction of the Mississippi Band of Choctaw Indians, in the decision Dollar General v Mississippi Band of Choctaw Indians.  In essence this deadlock upholds the decision of the lower court, which found in favour of tribal jurisdiction.

The judgment from the US Supreme Court itself does not shed much light on the reasoning behind the decisions on either side, simply stating that “The judgment is affirmed by an equally divided Court.” 

As one opinion analysis notes, the case centered on the issue  of “exactly constitutes enough consent”  from non-members for  tribal jurisdiction to apply.

This decision is yet another part of the complex and at times unclear federal law on American Indians. One commentator notes that: 

 “Because of the uniqueness of Indian law and as a result of its patchwork nature, Justices have been known in private conversation to express frustration with the vagaries of Indian law cases. More than two decades ago, a Justice who was speaking in private to a group of scholars observed that when it came to Indian law, “we just make it up as we go.””

Useful commentary on the decision can also be found here. 

Will this decision provide clarity on the contentious issue of tribal jurisdiction, or is this to be regarded as an instance of the Court side-stepping a difficult question? 

"The Exercise of External Self-Determination by Indigenous Groups: The Republic of Lakotah and the Inherent Sovereignty of American Indian Peoples"

http://heinonline.org/HOL/Page?handle=hein.journals/sljicla1&div=7&g_sent=1&collection=journals

A 2015 article on the Republic of Lakotah
"The Exercise of External Self-Determination by Indigenous Groups: The Republic of Lakotah and the Inherent Sovereignty of American Indian Peoples" Sarah Sargent and Graham Melling

Binding Regulations Issued for the Indian Child Welfare Act (ICWA)

It has been a long time coming—nearly forty years after the enactment of the Indian Child Welfare Act (ICWA)—but at long last there will be binding regulations that must be followed.  Signed on June 6, with entry into effect forecast for December 2016, this is a big step forward to ensure the proper application and adherence to the Indian Child Welfare Act.  This link is not to the official rule ( which will be published in the Federal Register) but rather is a copy of the document which was signed and “submitted …for publication in the Federal Register.” 

It did not take long after ICWA’s enactment for state courts to begin to find ways to evade its application—most notably with the so called “ existing Indian family exception”—which enabled a state court judge to apply his or her own standard of how connected a child and family must be to a tribe and to American Indian culture to apply the law. This is despite the fact that the plain language of ICWA entertains nothing of the sort as a threshold requirement for the application of the Act.

is hoped that these new binding regulations will strengthen the application of the Act, and put to rest state court efforts to devise doctrines to evade ICWA’s requirements.

A variety of commentary on the new binding regulations can be found here. 

Delay to the Dakota Access Pipeline: Route May Cross an Ancient American Indian Burial Ground

Despite opposition from members of the Standing Rock Sioux Tribe,   plans to construct the Dakota Access pipeline across four states continue, with construction under way in North and South Dakota and Illinois.


 Construction has been delayed in Iowa,  because of “the possibility of an American Indian burial site” on the planned pipeline construction route. 

A construction permit has been revoked by the US Fish and Wildlife Service, who owns the property in question, pending further investigation into the claims of the burial site. 

Sophisticated Marketing, Oil Companies and Indigenous Rights in Canada

With the Canadian government’s announcement that it intends to fully implement the provisions of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), alongside a 2014 Canadian Supreme Court decision that interprets the principle of  free prior and informed consent (FPIC) as requiring the permission of indigenous groups in most instances, and not simply an exercise in consultation, amidstproposals to extend pipelines,  there is a potent stew of issues that will play out in real life situations. What all of this means for indigenous rights is yet to be seen.

Yet, alongside these developments that are supportive of indigenous rights, oil companies have engaged in increasingly complex marketing and advertising approaches, according to research that was presented by AdamHarmes at the 2016 Congress of Humanities and Social Sciences. For instance: “Oil sector marketing initiatives found employees are more trustedspokespeople than CEOs. Their testimonials spoken before a backdrop of lush,forested areas are effective sales tools.”

As the push continues for permission to expand for instance, the Trans Mountain pipeline, the intersection of indigenous rights developments with oil company campaigns for support will play out in ways that test the strength of what the Canadian government intends in its announcement to fully implement the UNDRIP and the position the Canadian Supreme Court has taken on the meaning of FPIC.

Further information on Professor Harmes' research can be found at this link. 

FPIC, Canada, and yet another pipeline

The debate on the meaning of free, prior and informed consent  (FPIC) within the United Nations Declaration on Indigenous Peoples has centered around whether this gave indigenous groups the right to veto proposed projects, or whether the obligation to obtain consent simply was a mask for a consultation process—where the final views of the indigenous group did not carry any authority for a rejection of a project. 

With the recent announcement in May of the Canadian government’s intention to fully implement the provisions of the UNDRIP, the question of what position it might take on the contested meaning of FPIC becomes more than mere rhetorical speculation.

This becomes a key question as to whether a proposed pipeline project will proceed. An expansion of the Trans Mountain pipeline is opposed by the “The Stó:lō collective of First Nations in British Columbia”. The SupremeCourt of Canada, in 2014, ruled that indeed consent meant consent and not a consultation process, absent a showing by provincial or federal governments that “there is a pressing public need” for economic activity on some Aboriginal lands.  More information on that court decision can be located here. 

There is a view then, that FPIC in Canada will be seen as requiring consent, and not simply indicate that a consultation process must be undertaken. How all of this plays out, with respect to the proposed Trans Mountain pipeline, and other projects, remains to be seen.

Canada Announces Intent to Fully Implement UNDRIP

In May, Canada took further steps towards more fully supporting the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). It had been one of the four states that voted in opposition of General Assembly approval in 2007. But with an announcement by Canada’s Indigenous Affairs Minister on May 10,2016, Canada now has declared its intention to fully implement the Declaration. 

The announcement was made during a session of the UN  Permanent Forum on Indigenous Issues.

Canada reversed its initial opposition to the Declaration in 2010, when it announced its endorsement of the instrument. 

The announcement in May of an intention to fully implement is seen by some as a milestonefor indigenous rights in Canada. 

But there are mixed views on Canada’s announcement. Tori Cress, who attended the UNPFII, does not see the intentions of implementing the UNDRIP in accordance with the Canadian Constitution as a step forward for indigenous rights. 

Cress also criticizes the UNPFII as a forum dominated by state participants, leaving the indigenous participants in a “subordinate position.” 

Proposed binding rule for ICWA data collection

There has been a further  important development regarding the Indian Child Welfare Act (ICWA) -- one which would require states to collect and submit data to the Administration for Families and Children on ICWA related matters.

There is a proposed binding rule that would require-- for the first time since the enactment of ICWA in 1978-- that data be collected by states on the Indian Child Welfare Act. While there is a complex and detailed data collection system on other aspects of foster care and adoption, there has been a conspicious absence on a requirement to collect information about ICWA. The lack of systemic data gathering and inconsistencies in available data were noted for instance in 2005 GAO report on how the Act affected children in the foster care and adoption system. This lack of information  as noted in the GAO report is cited in the proposed rule as detrimental in providing appropriate oversight for Indian children in the foster care system.

The proposed rule is currently open for public comment.

The Dakota Access pipeline continues to get attention in the media, as events continue to unfold about its possible construction. A state permit has been requested from  Iowa to begin construction on the pipeline.  According to this article, there was an application made for an expedited decision on the permit, but that that request was not successful. Instead, the decision about the permit will proceed in the usual fashion, which allows "public comments through March 25." Among other requirements to obtain the permit, the article says that "The terms and conditions issued by the board include Dakota Access must:

• Obtain and maintain a general liability insurance policy of at least $25 million

• Demonstrate and file the unconditional and irrevocable guarantees from its parent companies for remediation of damages from a leak or spill

• Make modifications to easement forms on properties utilizing eminent domain

• Continue to offer to purchase voluntary easements

• File a revised Agricultural Impact Mitigation Plan to include landowner notifications and the separation of all topsoil from affected areas

• File a winter construction plans

• File quarterly status reports"

Indian Country Today Media Network has a detailed article on the pipeline plans, which discusses the concerns raised by the Standing Rock Sioux Tribe. These concerns include the damage that would result from a pipeline leak: "If a leak were to occur, it would undoubtedly devastate the environment, people, resources and land of the Standing Rock nation. The quality of the water of the Missouri River is critical to the health and well-being of the tribe, both economically and culturally."

Dr Covarrubia: Publication of the Week

A big shout out to TK Totem blogger Dr Patricia Covarrubia.

Dr Covarrubia's recent article has featured on the University of Buckingham's website as "Publication of the Week"! 

Her article discusses the importance of different protections available to non-agricultural products in Latin America-- an issue that is of great significance for the safeguarding of indigenous culture.

More Pipelines in the News: Dakota Access Pipeline

The issue of pipelines has not gone away, entirely, it would seem. And this is to do with a pipeline other than the controversial Keystone XL project. Now in the news is the proposed Dakota Access pipeline, which would run "through North Dakota, South Dakota, Iowa and Illinois." 

This proposed pipeline is being opposed by members of the Standing Rock Reservation. 
Tribal members cite concerns about the environmental hazards posed by the proposed pipeline  by putting water supplies at risk, as well as alleging that the  "company bypassed federal laws requiring direct discussion with the tribes." 

Approval for construction of the pipeline was secured in Iowa on March 11, 2016.  This is despite objections raised by Iowa land owners who would be affected by the pipeline construction. 

While the threat from the Keystone XL pipeline may have abated, the appetite for pipeline building does not seem to have been curbed, even with the current very depressed prices for oil and gas. 

Actions Speak Louder Than Words?

In developments in the long running debate on whether there should be Constitutional recognition of Australia's Indigenous Peoples, it now appears a referendum is targeted to be held in 2017.  As one commentator has noted, there is a debate within the Indigenous Peoples of Australia as to the desirability of Constitutional recognition---or whether there should be a recognition of Aboriginal sovereignty. 

One of the first steps in preparing for a referendum is a consultation with representatives of Australian Aboriginal and Torres Strait Islanders to craft language that would be acceptable to them. 

And yet, with this focus on sensitivity to language, it might be something of a surprise that at the same time  it is being reported that "The parliament of Australia's Northern Territory turned down the request by an Aboriginal minister to speak in her Indigenous language." The request follows an incident in December 2015 where "Northern Territory MP Bess Price was ­chided by the Speaker of the Legislative Assembly for an interjection in her mother tongue, Warlpiri".

What value is there is Constitutional recognition versus the value placed on the use of Indigenous languages in daily life and the life of a state? One gives a sort of symbolic recognition, the other is about making space for an active exercise of an existent culture-- the official existence of which continues to be a vacuum in the Constitution. 

Australia: Constitutional Recognition or Treaty?

Whether there should be constitutional recognition of Australia's indigenous peoples is a long-running political debate. On one hand, this kind of recognition is a clear marker of changing thinking that may continue to permeate policies, even though the terra nullius doctrine was over-turned in the 1992 Mabo decision. Some may feel that the legacy of terra nullius lives on in the failure to have Australian Constitutional recognition of indigenous peoples. But as this editorial by Celeste Liddle points out, there is some indigenous opposition to the idea of Constitutional recognition. What is wanted, Liddle  argues, is a level of recognition that transcends that which would be obtained through Constitutional inclusion.

Liddle  notes that "Australia is the only Commonwealth Nation that does not have a treaty with its Indigenous Peoples." 

And having a treaty, she argues, provides a greater form of recognition-- one of sovereignty. Liddle points out the advantages of having a treaty:  "Provisions contained within a treaty could greatly address the current disadvantages faced by many Indigenous people as the government would have obligations to fill including the obligation to consult the community on proposed legislation affecting us."

TransCanada pursues community support for project

Even after the costly loss that TransCanada has attributed to the failed efforts to construct the Keystone XL pipeline, it appears that efforts continue to find a way forward to build it. This article reports that the company is pursuing a plan to consider the pipeline construction in the future. It is also trying to win support from communities for the construction of its Energy East project, to address "mounting opposition from First Nations and other communities along the proposed route of Energy East, including the opposition of all the mayors in the Greater Montreal region." 

TransCanada's Keystone XL Pipeline costs

TransCanada, the company that had pursued permission to build the controversial Keystone XL pipeline, has posted a $2.5 billion loss in the fourth quarter of 2015. A "non-cash charge" of $2.9 billion is attributed to the Keystone XL pipeline, according to this article. 

Law suit over Treaty Terms

The implications over treaty terms and the boundaries of indigenous nations' lands is not something that is a relic from the past. It is something that continues to have a great deal of relevance in the present day, as this article about a law suit on the 1855 treaty between the US federal government and the Little Traverse Bay Band of Odowa Indians points out.  At issue includes jurisdiction over legal matters -- whether the jurisdiction is in tribal court or in the state legal system. The article notes "child welfare, grave protection, income tax laws, and jurisdiction within the reservation" are raised as areas of contention in the law suit. 

Editorial Comment about Keystone XL Pipeline Litigation

Not surprisingly, the TransCanada litigation against the United States about the Keystone XL pipeline has drawn editorial comment. The contentious plans to build the pipeline leave a legacy in the litigation, and also in the discussion about it. 

This editorial written by the Sierra Club Senior Managing Attorney and Sierra Club Research Analyst is dismissive of the litigation, referring to it as out of step with the realities of climate change and of the implications of the December 2015 Paris Climate Agreement. 

Dispute over Keystone XL Pipeline Rumbles On

After President Obama denied the approval needed for the Keystone XL pipeline to be built, in November 2015, it might have been thought that the matter would be finally over. It had, after all, been in dispute for an extended period over seven years.


Opposition to the pipeline galvanized an unlikely coalition of environmental activists, indigenous advocates, and farmers and ranchers, as this article details. 



But what had been claimed as a victory for these interests is now clouded by the news that a lawsuit has been filed against the US government. TransCanada, the company that has been seeking permission to build the pipeline is quoted in this article as saying that the denial of permission to build the pipeline was a political one, fuelled by concerns about  an international image  on climate change policies.

It would appear the battle over the Keystone XL pipeline is not yet finished.