Despite Legal Protections Sacred Spaces Still At Risk: The Black Hills

It is a situation that repeats itself with depressing regularity. Despite legal protections put into place by domestic, regional and international law, there seems to be no end to the onslaught of destruction to indigenous sacred places. The United Nations Declaration on the Rights of Indigenous Peoples provides specific protections for indigenous lands. There is article 8(2)(b) which requires state to “provide effective mechanisms for prevention of and redress for... any action which has the aim or effect of dispossessing them [indigenous peoples] of their lands, territories or resources.”

Further, there is Article 11(2):

"States shall provide redress through effective mechanisms, which
may include restitution, developed in conjunction with indigenous
peoples, with respect to their cultural, intellectual, religious and spiritual
property taken without their free, prior and informed consent
or in violation of their laws, traditions and customs."

Sacred spaces are surely “spiritual property.”

Article 26 is very clear about the protections to be given to indigenous lands:


"Article 26
1. Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or otherwise
used or acquired.
2. Indigenous peoples have the right to own, use, develop and
control the lands, territories and resources that they possess by reason
of traditional ownership or other traditional occupation or use,
as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands,
territories and resources. Such recognition shall be conducted with
due respect to the customs, traditions and land tenure systems of the
indigenous peoples concerned."



It is not disputed that the Black Hills are sacred to indigenous peoples nor that they were wrongfully taken. The United States Supreme Court, in its 1980 ruling in United States v Sioux Nation of Indians , made that clear.

Yet, according to this news report, another sacred space is being made vulnerable to destruction in the name of development. The article states that development plans are “spelling the end of one of the last quiet vestiges of traditional Lakota worship in the Black Hills, or Paha Sapa.”

What can be done to preserve sacred spaces? What good are provisions in international instruments if they are not enforceable and beyond the reach of those who need to access them? And while academic and bureaucratic debates and conversations abound on these matters, fragile landscapes continue to disappear. Surely this is unacceptable. Surely indigenous sacred spaces should be given legally required protections. Surely accessing those legal protections must not be put out of reach by those who need to avail themselves of these. But what is being done—in concrete practical terms—to make these legal provisions useable and meaningful?

Forced and Involuntary Removal of Children

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Special Rapporteur at Sinte Gleska University

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

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

Not Yet Ready to Face the Past in the Present

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

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


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

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.