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.

Lakota People's Law Project Video Response to Goldwater Institute Press Conference

The Lakota People's Law Project has made a video response to the press conference held by the Goldwater Institute to announce its class-action law suit against the Indian Child Welfare Act. 

The US Adoption Industry, the Indian Child Welfare Act, and Black American Infants Sent in Intercountry Adoption

The news of the multiple legal challenges to the Indian Child Welfare Act (ICWA) are beginning to percolate through to the consciousness of news reporting outlets. The reasons behind these attacks on the law are also starting to be queried. This report from Fusion.net  explains that these law suits are a backlash against the proposed binding ICWA regulations, noting that “These proposed regulations have angered opponents of the bill, including the lucrative adoption industry.” In other words, the news story points to those involved in adoption as being opposed to not only the idea of binding ICWA regulations but to the Act itself. The news story goes on to comment that “Since the regulations were proposed, multiple lawsuits have been filed around the country challenging ICWA…”

Just how “lucrative” is the adoption industry in the United States? And why would it care about the adoption of American Indian children? The demise of children available to adopt to the United States through intercountry adoption is well-known. These statisticsfrom the United States Bureau of Consular Affairs, Department of State,  demonstrate the dramatic fall that continues in the number of children received by the United States.  And yet, at the same time, there are children sent from the United States for intercountry adoption—with an estimate, given in this article  that “as many as 500 infants, most of whom are black, leave this country through outgoing adoption every year.”

At the same time the US adoption industry is apparently concerned about restrictions on the adoptions of American Indian children to non-Indians, there is relative silence about the numbers of black children leaving the US in intercountry adoption.  Why a strong reaction to the proposed regulations to ICWA and yet seemingly very little about sending black American children in intercountry adoption? 

More on Class Action Law Suit Against the Indian Child Welfare Act

More information on the lawsuit which has been filed by the Goldwater Institute, challenging the constitutionality of the Indian Child Welfare Act (ICWA) can be found at the Turtle Talk blog.The Turtle Talk blog comments that: “This is highly funded, highly professional media campaign.” The blog also provides a link to the complaint  filed to initiate the law suit.  

Paragraph 5 of the complaint sets out the aims of the lawsuit: “They seek a declaration by this Court that certain provisions of ICWA, and Guidelines issued by the Bureau of Indian Affairs (BIA), both facially and as applied, violate the United States Constitution. They also seek an injunction from this Court against the application of certain provisions of ICWA and the accompanying BIA Guidelines.”

A statement from  theNational Indian Child Welfare Association 

 remarks that “It is disappointing that during this era of unprecedented support for Native children and youth, there are still special interests intent on mobilizing their considerable resources to dismantle critical protections for children that Indian Country and our allies fought so hard to establish.”

Backlash Against Indian Child Welfare Act Gains

It would be naïve to think that the many gains towards a full and consistent implementation of the Indian Child Welfare Act (ICWA) would go without challenge. ICWA has faced hostility from its inception, and some state courts have been reluctant to fully abide by its binding provisions—thus, the creation of the so-called “existing Indian family exception”—a  judicially created exception that is counter to the plain language of ICWA—that allowed state courts to determine whether to apply the Act or not.

And so it is that a class-action law suit has been announced. The Goldwater Institute is filing a lawsuit planning to challenge ICWA as being a “race-based law that discriminates against American Indian and Alaskan Natives” according to  Native Newsline Online.

In a season of many unprecedented and long-overdue gains for ICWA, this backlash should not have been unexpected. 

Keeping Track of the Indian Child Welfare Act

It is by now a well-rehearsed comment on the Indian Child Welfare Act that it is poorly implemented and adhered to by states. This poor implementation and state adherence was at least in part responsible for the issuance of new ICWA Guidelines and a proposed binding rule earlier this year. Each of this is a notable event in its own right. The non-binding Guidelines have not been updated since 1979, and there has never been a binding rule in place for ICWA.

The Children’s Bureau, part of the Administration for Children and Families, announced on April 2, 2015, that it intended to issue a supplemental notice of proposed rulemaking that would, for the first time, collect information on ICWA as part of the federal child welfare data. The  intent to publish a supplemental notice  states that:

“we have determined that there is authority under the statute (section 479(c) of the Act) to collect ICWA-related data in AFCARS. Specifically, the statute permits broader data collection in order to assess the current state of adoption and foster care programs in general, as well as to develop future national policies concerning those programs.”

This is significant in providing a needed mechanism to provide federal oversight of state performance with respect to ICWA. To date, no further supplemental notice of proposed rule-making has been published—and without that, the details of what would be included on the ICWA data has not been stated. Nevertheless, this information from the Children’s Bureau is a much needed step in the right direction with respect to ensuring compliance with the Indian Child Welfare Act.

Children's Bureau Policy Now Recognizes Customary Adoption for Title IV-E Requirements

A great deal of attention has rightfully been focused so far this year on the changes occurring at the federal level on the implementation and interpretation of the Indian Child Welfare Act. There have been new (non-binding) guidelines issues, and for the first time, a proposed binding rule has been put forward. But these are not the only changes happening at the federal level that are note-worthy. Perhaps hidden because of the higher profile of the ICWA-related changes is a very significant change in the policy of the Children's Bureau.

The National Indian Child Welfare Association explains that

"On February 13, 2015, the Children’s Bureau issued a new policy clarifying that tribal use of customary adoption to modify, as oppose to terminate, parental rights will meet Title IV-E Foster Care and Adoption Assistance requirements. Previously, the Children’s Bureau interpreted Title IV-E requirements to mandate that tribes operating the Title IV-E program must have a tribal code provision that terminates parental rights to be in compliance with Title IV-E. Many of the tribes that operate the Title IV-E program use customary adoptions to honor tribal customs and remove the use of nonIndian practices that resulted in the separation of many AI/AN children from their extended families and tribes"

This is an important recognition, in practice, of American Indian views of adoption, which may differ from that of the typical Western "clean-break" approach that demands the complete legal severance of ties between the child and the parent. The federal policy recognition of the place that customary adoption has in the traditions of some American Indian tribes is a significant step in the acknowledgement and respect for these in the legal arena-- and no doubt will have an impact where it matters the most, in the lives of children and families.

The Children's Bureau policy can on the recognition of customary adoption can be found here at number 3.

Proposed Binding Rule on the Indian Child Welfare Act

The comment period has now passed for the Indian Child Welfare Act (ICWA) regulations that were proposed on March 20, 2015 through their publication in the Federal Register. These rules, if adopted by the Bureau of Indian Affairs become binding on states. In other words, states have no choice but to follow them. These proposed rules come on the heels of up-dated ICWA guidelines—which are not binding upon states in the same way that rules are—published in the Federal Register on February 25, 2015.

Public meetings and tribal consultation sessions about the proposed rule have been held. Comments on the proposed rules were to have been submitted by May 19, 2015.

Having binding rules is an important step forward in ensuring that states follow ICWA, and that the rights of American Indian children, their families, communities and tribes are recognized and respected. This puts a significant barrier in the way of courts trying to evade the application of ICWA by creating doctrines such as the “Existing Indian Family” exception (EIFE) to ICWA. The guidelines already make clear that the EIFE is not compatible with ICWA and should not be used. The proposed rule does the same—with the clear advantage of doing so from – if the rule is put into force—a position that is binding upon states. Commentary on the proposed rule explains:

 “… the proposed rule clarifies ICWA applicability and codifies that there is no ‘Existing Indian Family Exception (EIF)’ to ICWA. Since first identification of the EIF in 1982, the majority of State appellate courts that have considered the EIF have rejected it as contrary to the plain language of ICWA. Some State legislatures have also explicitly rejected the EIF within their State ICWA statutes. When Congress enacted ICWA, it intended that an ‘‘Indian child’’ was the threshold for application of ICWA. The Department agrees with the States that have concluded that there is no existing Indian family exception to application of ICWA.”

 Both the guidelines and the proposed rules represent important steps towards regaining integrity in the application of ICWA that was lost with the 5-4 decision by the US Supreme Court in Adoptive Couple v Baby Girl in 2013.

Post written by Sarah Sargent.

Indian Child Welfare Act: the latest news from the US

There is a great deal that has been happening with respect to the Indian Child Welfare Act and its ability to be an effective tool to safeguard American Indian families and tribes. Recently new Bureau of Indian Affairs guidelines were announced. This was the first time since 1979 that new guidelines had been put forward. The position of the guidelines with respect to ICWA is unclear- whether these are only advisory or whether they in fact should be given weight as binding.

The Bureau of Indian Affairs has stepped forward with a plan, however, to fill that breach, through announcing a plan to issue rules interpreting the Indian Child Welfare Act that would be binding on courts.There are several public meetings and tribal consultation sessions scheduled to discuss the proposed rule. Among other things, the proposed rule continues the message that there is no “existing Indian family” exception to the application of ICWA. In other words, judges cannot determine whether or not to apply ICWA on the basis of their own perceived strength of cultural ties of the child and family to tribal culture. The proposed rule states that: “ There is no exception to the application of ICWA based on the so-called “existing Indian family doctrine.” It further provides a “non-exhaustive list” of factors that courts cannot consider in deciding whether or not ICWA is applicable.

 Post written by Dr Sarah Sargent.

Updated Guidelines Issued by the Bureau of Indian Affairs on the Indian Child Welfare Act

For those who have been following the effects on the Indian Child Welfare Act ( ICWA) following the 2013 decision by the US Supreme Court in the case of Adoptive Couple v Baby Girl, there is a glimmer of good news. A previous blogpost (here) commenting on this decision noted that it upheld the spirit if not the letter of the Existing Indian Family doctrine, a judicially created doctrine that allowed judges to determine that they would not apply ICWA if the judge had made a determination that the child concerned did not have requisite ( as decided by the judge) cultural ties to their indigenous heritage.

On February 25, 2015, new Guidelines on the implementation of ICWA went into effect. The Guidelines were issued by the Bureau of Indian Affairs. It is the first time since 1979 that Guidelines on ICWA have been updated. There are many praise-worthy elements in the new Guidelines which will be examined in future blog posts. However, given the commentary in the previous blog post about the effect of the US Supreme Court decision on the Existing Indian Family Doctrine, it is important to note that the EIF doctrine is specifically addressed in these Guidelines. The Guidelines specifically state that “Section A ( of the Guidelines) is intended to make clear that there is no existing Indian family (EIF) exception to application of ICWA… The Department agrees with the States that have concluded that there is no existing Indian family exception to the application of ICWA.” This is certainly good news, however long overdue.

Post written by Sarah Sargent.

The effects of the United States Supreme Court decision in Adoptive Couple v Baby Girl: Keeping the Spirit of the Existing Indian Family Doctrine Alive

It has been just a little over four months since the United States Supreme Court handed down its decision on the case of AdoptiveCouple v Baby Girl. This is only the second case that the US Supreme Court has heard on the Indian Child Welfare Act ( ICWA).

The first was a decision that upheld tribal jurisdiction over a child whose parents were domiciled on native nation lands MississippiBand of Choctaw Indians v Holyfield.

There were concerns prior to the US Supreme Court decision that it make take the opportunity to announce support for the “existing Indian family doctrine” that renders the Act inapplicable if a judge determines the child and its family lack sufficient ties to indigenous culture and community—in contravention of the plain language of the Act. The decision did not endorse the existing Indian family doctrine—but it did limit the application of the Act in a way which is likely to create far more problems in interpretation and application than it solved.

The SCOTUS decision found that 2, and possibly 3, sections of ICWA did not apply to the father of the child. The decision finds that 2 subsections of the Act which provide heightened legal protections were not applicable- Section 1912(d) and (f). The SCOTUS decision also found that preferences for adoptive placement found in 1915(a) were potentially not applicable to this situation.

This in itself is a strained and piecemeal reading of ICWA. But what is perhaps more disturbing is the opening lines of the majority decision, which makes reference to the “blood quantum” of the child at issue—as if to suggest, in keeping with the judicially created existing Indian family doctrine—that the child was not “Indian enough” in the eyes of SCOTUS to make ICWA relevant.

While the SCOTUS decision did not rule directly on the applicability or legitimacy of the existing Indian family doctrine, it does keep the spirit of that doctrine alive and well. The tenor of the SCOTUS decision suggests that it is still within the purview of the courts to comment on the degree of “Indian-ness” a parent or child possesses— and in so doing ignoring both the clear letter and spirit of ICWA which grants courts no such authority at all. 

Written by Sarah Sargent.   

 

Two Tales of the Indian Child Welfare ACt

Two Tales of the Indian Child Welfare Act

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

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

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

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

But even more harrowing is the reality that the removals of children has not stopped. NPR called attention to this with a series aired well over a year ago. There are calls for Congressional inquiry into the practices that result in the removal of so many indigenous children.

  

But instead of outcries against this there instead seems to be a  determined silence about those indigenous parents in anguish and  the injustice of those actions which remove children from their parents and community.

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

Calls for Summit and Congressional Investigation into Child Welfare Practices

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


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

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

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

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

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

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

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

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

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

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

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

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


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


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

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

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

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

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

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

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

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

Consultation and Consent

News reports about the Indian Child Welfare Act in the mainstream news press invariably seem hostile to the Act. They usually also manage to not quite get it right when describing how the Act works, or when and how states have tried to invoke the "Existing Indian Family Doctrine." To me this is a reflection of the resistance to and ignorance about ICWA that contribute to non-compliance with its provisions. ICWA after all, recognises self-identification for tribal membership-- in a rather convoluted way. If a tribe passes the hurdle of federal recognition, then the tribe can set its own membership criteria. There is no "one rule fits all" for determining who is a member of what tribe. This seems to be a troubling aspect of the Act for many--but the question of who is a tribal member or eligible for tribal membership can easily be solved by ASKING THE TRIBE in question!

ICWA also recognises some level of indigenous views on family formation. Certain definitional provisions of ICWA give way to tribal determinations, if they exist. For instance, the definition of "extended family members" ( persons with this designation receive some preference for placement considerations for the child) "shall be as defined by the law or custom of the Indian child's tribe" (Sec 1903(2). It is only in the absence of this that the statutory definition comes into play.

Section 1915 also has provisions that incorporate tribal provisions ahead of statutory provisions when it comes to the order of placement preferences. Here, "if the Indian child's tribe shall establish a different order of preference by resolution, the agency or court effecting the placement shall follow such order
so long as the placement is the least restrictive setting appropriate to the particular needs of the child..."

And again, finding out what this might be means that the state court system must communicate with the tribe and then give effect to the tribal order of placement preference if one has been established.

The issue of communication with tribes also features in some arenas. Firstly of course is the on-going visit of Special Rapporteur James Anaya to the United States to investigate the situation of indigenous peoples in the United States.


Another is the US Department of Labor's proposed tribal consultation policy that is now open for comment.

But the point that consultation is not in some instances any more than mere window-dressing and requires no commitment to take on board any of the results of consultation with indigenous peoples is powerfully made by the Black Hills Treaty Council in submissions made to Mr Anaya ahead of his planned visit to the Lakota Homelands on May 2012. Their submission states:

" As the Special Rapporteur is well aware, consultations are often performed with a preconceived outcome by the greater negotiating power and do not realistically promote debate or participation with all interested parties. By contrast, the right to FPIC [free prior informed consent] promtes the full and effective participation of indigenous peoples.."

This makes the important point that listening and consulting is one thing-- but that giving effect to indigenous standards and decisions is quite another.

A federal tribal consultation policy does not provide for consultation with those indigenous groups that are not federally recognised. It also does nothing to promote free, prior and informed consent.

What steps, if any, the United States will take to promote free, prior and informed consent in place of consultations, and what comments the Special Rapporteur will have will be of interest.

And in the background remains the Indian Child Welfare Act, with its provisions for tribal involvement that go beyond a mere "consultation" on tribal standards. ICWA compliance remains an issue throughout the United States. Where there is resistance and hostility to ICWA, it seems likely there will be resistance and hostility to the larger notions of free, prior and informed consent. It remains to be seen if the gulf between consultation and consent will be bridged.

Four Years after the Australian Apology: The Value of Words?

In 2008, an historic apology (here) was issued by then Australian Prime Minister Kevin Rudd to the Aboriginal Peoples of Australia.

The Australian newspaper article notes an event that was held to commemorate the four year anniversary of the apology. But as reflected in that article, “sorry” is a place to start—it is a beginning point, not a resolution.

The current Prime Minister of Australia, Julia Gillard will provide an update on the progress made since the apology next week, according to this article in the Sydney Morning Herald.

The apology addressed particularly the events of the forced separation of children from their families, something that has happened in recent history, not in the distant past, as noted in the apology:

“But let us remember the fact that the forced removal of Aboriginal children was happening as late as the early 1970s. The 1970s is not exactly a point in remote antiquity. There are still serving members of this parliament who were first elected to this place in the early 1970s. It is well within the adult memory span of many of us. The uncomfortable truth for us all is that the parliaments of the nation, individually and collectively, enacted statutes and delegated authority under those statutes that made the forced removal of children on racial grounds fully lawful.”

Today, this kind of forced removal is prohibited by Article 7(2) of the UN Declaration on the Rights of Indigenous Peoples. What seems unthinkable today was seen as good government policy only a generation or so ago.

The Australian government was not alone in its pursuit of policies of forced assimilation and forced removal of indigenous children in the belief that this was in the best interest for the children. The United States government also pursued this prior to the passage of the Indian Child Welfare Act in 1978. ( See prior posts on the subject of the Indian Child Welfare Act here and here) And controversy rages in parts of the United States over whether the Indian Child Welfare Act is being adhered to, following a report by NPR.

All of which raises the question—what are the values of words? What is the value of an apology? What is the value of the words of laws on books if not accessible or implemented and enforced? Words alone do not begin to address the situations to which they are directed. Action is required to make them meaningful. Australia, which originally opposed the approval of the UN Declaration on the Rights of Indigenous Peoples has reversed that stance. But what will be more meaningful is to heae the report of the Australian Prime Minister, and to hear what progress has been made four years after the Australian apology.

Sacred Spaces: Litigation and Access to Justice

The Wetlands in Lawrence, Kansas, USA are not the only indigenous sacred spaces subject to litigation. In Australia, there is on-going litigation to prevent mining which is said to put many sacred sites at risk.

The article Aboriginal Group Challenges Mining Project published here contains comments from Professor Jon Altman who points out the disparity in power and resources that indigenous peoples face when it comes to litigation with large corporate interests.

This points out a very real dilemma for indigenous peoples. Access to courts can be expensive, and as the Wetlands litigation points out might conceivably go on for years. It is well and good to have laws on the books—even the “soft law” of the United Nations Declaration on the Rights of Indigenous Peoples. But those laws—as discussed in my earlier posts about the Indian Child Welfare Act-- are rendered meaningless in reality where there is no implementation or compliance with them, or when the protections that they offer are difficult to reach. But the concerns about indigenous rights is more than a point about barriers to reaching the laws or faulty implementation of laws on the books. As a report from Amnesty International (at this link) points out “Indigenous human rights defenders who speak out face intimidation and violence, often with the collaboration of the state.”

Any discussion or contemplation of indigenous rights and the exercise and access to those rights must keep in mind that the claiming and utilisation of rights is far more than an academic exercise. It is a real problem that confronts people in their every day lives. At times it seems that the academic study of indigenous rights runs the risk of being a “fad”-- the topic de jure with much ivory tower theorising—which will fade when the next major international instrument is passed. Any discussion of indigenous rights must keep in mind that there is a very human element to the discussion and that should not be forgotten.

There are many studies done that focus on the practical and real problems indigenous peoples face in accessing and exercising rights. Rachel Sieder and Maria Teresa Sierra have a paper on “Indigenous Women’s Access to Justice in Latin America”, which can be accessed at this link. The International Labour Organisation has a publication from 2009, “Indigenous and Tribal Peoples’ Rights In Practice”, which focuses on ILO Convention 169, and can be accessed at this link.

Written by Sarah Sargent.