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.

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.

Protecting Horses as Part of Indigenous Culture and Heritage

The stereotypical image of a Plains Indian is someone with a feathered bonnet and a horse. The idea of a horse is ubiquitous to the popular image of the indigenous peoples in North America. The relationship of indigenous peoples with horses was outlined in the book “Broken” by Lisa Jones ( subject of an earlier blog) who explored the life of Arapaho spiritual leader Stanwood Addison. And horses were of course central to the issues that came about in the Dann v United States (subject of an earlier blog) case. That is made very clear in the video “Our Land Our Life”.   As I watched the video, one thing drew my attention with horror. That was the use of aircraft to herd the horses—and then to watch the frightened horses plunging through barbed wire. If anyone has ever seen a horse that has been lacerated with barbed wire, you will be aware that the injuries can be catastrophic. Why, inflicting injury upon injury, was this method of rounding up the horses used? It is far from humane. Horses first evolved on the North American continent, and at some point in their evolution left over the land bridge that is the present day Bering Strait to the other side of the world. It was not until European explorers returned with horses after first contact in 1492 that horses returned to the New World. And horses quickly became a part of indigenous cultures. I remember as a child reading about Wild Horse Annie ( real name Velma Johnson) and her efforts to bring about bans on herding horses on land with aircraft.

The Wild and Free Roaming Horses and Burros Act of 1971 provided protection to horses and burros on federal land. This followed an act that was passed in 1959 the Hunting Wild Horses and Burros on Public Lands Act known informally as the Wild Horse Annie Act that provided protection to the horses and burros on public lands.

So why were the horses in the Dann situation treated as they were? Don’t the protections of federal law prohibit driving horses through barbed wire when herding them with aircraft? Horses are part of the identity and culture of many indigenous groups. Surely in addition to the protections offered by these specific American federal pieces of legislation, horses that are associated with indigenous groups are deserving of protections under laws that protect indigenous culture and heritage.

Broken

I have just finished reading the book "Broken” by Lisa Jones. When I began to read it was with some scepticism, whether this was a version of “Eat, Pray, Love” that was playing itself out on Arapaho lands in Wyoming. When I finished the book, I was still not sure what I thought. A visit to Lisa Jones website revealed the sad news that the main protagonist of her book had passed away in May 2011.

The book itself is about the author and her experiences with an Arapaho spiritual healer. It talks about sweat lodges and the healing that people sought be coming to them. This thoughtful video posted at LastRealIndians.com offers a very good insight into views of the use of sweat lodges, and whether the sweat lodge is being run by an indigenous or non-indigenous person.

The book also raises another issue, also discussed at LastRealIndians.com about non-indigenous interpretations of indigenous peoples.

And finally, a video from the Lisa Jones website that really speaks for itself about the people in the book Broken, their horses, their land, and their culture.

Genomic Research, Informed Consent and Understanding Culture

The issue of what is required to obtain consent that is informed consent —consent that is obtained because the person or group providing consent truly understands what is encompassed by the consent—is at the heart of the issues that were raised in the lawsuit by the Havasupai peoples regarding blood they donated for research [More information on the background of the case, the legal case and its settlement can be found here].

This is as much, if not more, an issue for the medical research committee as it is for lawyers. A 2010 article by Jacobs, et al in the Journal of Law, Medicine and Ethics (article available at this link) comments that if researchers involved with the Havasupai had “practiced the processes of consultation, consent and collaboration here outlined [within the article], the dispute may never have started.” The point being, legal issues are unlikely to arise if meaningfully informed consent is obtained. The article by Jacobs et al points to the need for several steps to be taken to ensure that meaningfully informed consent is obtained, including an important step of consultation with the specific indigenous community from which researchers are interested in obtaining consent and doing genomic research.

An article by Roderick McInnes (available at this link) that was his 2010 Presidential Address to the American Society of Human Genetics underscores that understanding culture is a two-way exchange in the process of obtaining informed consent. It is not only important for the indigenous community and individuals to understand fully what research would be undertaken should they give consent. It is important as well for the researchers to understand the culture of the indigenous community itself. McInnes comments in his article “that the culture, priorities, values and jurisdiction of the indigenous community must be respected and that, in successful studies, it is.”

Two further points should be taken from this:

• Firstly, the important task of understanding culture should not be ignored in genomic research and is a vital part in obtaining meaningfully informed consent. Nor is understanding culture a need limited to medical research. It is very much a required ingredient in legal education. Understanding culture is not restricted either to an indigenous sphere—it is potentially an issue anywhere that there are legally pluralistic jurisdictions. The place of culture in legal education will be the topic of a future blog post. An article by Professor Aliza Organick ( available at this link) provides important insight into the necessity and challenges of the inclusion of the idea of culture into legal education.
• Secondly, indigenous groups themselves have established research boards whose standards scientists must meet as part of the requirements to obtain informed consent. One example is the Navajo Nation Human Research Code (available here).

Self-determination and autonomy means that many indigenous groups have their own laws, and certainly this can extend into requirements for human subjects research. Yet so often, legal education neglects to provide this understanding of indigenous groups and communities, as addressed in this article by Professor Tonya Kowalski, http://washburnlaw.edu/faculty/kowalski-tonya-fulltext/2009-36floridastateuniversity765.pdf.

These points will be further discussed in future posts on this blog.

Written by Sarah Sargent.

Save the date!

A goody bag comes in your way! It is full of different topics that cover indigenous peoples. From language to land and from human rights to traditional knowledge we will be able to see all these topics under one roof.

Here is what Dr Alexandra Xanthaki says:

Brunel Law School in collaboration with the UN Expert Mechanism on Indigenous Issues is organising an Expert Workshop on Indigenous Languages and Cultures at Brunel University on the 8th-9th March 2012. The Workshop aims to contribute to the Annual Report of the Expert Mechanism, which will be on this same topic.

The themes that will be discussed in the conference include:

* An overview of indigenous peoples’ right to culture under international human rights law
* Indigenous peoples’ rights to language
* Indigenous peoples’ cultural self-determination and autonomy
* Indigenous peoples’ right to culture and lands, territories and resources, including reparations
* Custom, human rights and justified limitations
* Indigenous peoples’ traditional knowledge and traditional cultural expressions
* Indigenous intellectual property rights
* indigenous identities and spirituality

Speakers include:

Elsa Stamatopoulou (Former Chief of the Secretariat of Permanent Forum on Indigenous Issues)
Prof. Julian Burger (Former Chief of UN Minority and Indigenous Unit, currently Essex University)
Prof. Siegfried Wiessner (St Thomas Law School, US)
Prof. Rene Kuppe (University of Wien)
Dr Federico Lenzerini (Sienna University)
Prof. Samson (Essex University)
Prof. Paul Havenmann (Institute of Commonwealth Studies, University of London)
Dr. Robert Dunbar (University of Aberdeen)
Dr. Damien Short (Institute of Commonwealth Studies, University of London)
Prof. Joshua Castellino (Head of Department, Middlesex University)
Dr. Marilena Alivizatou (UCL)
Prof. Sonia Harris-Short (University of Birmingham)
Dr. Susan Aikmann (University of East Anglia)
Prof. Graham Dutfield (University of Leeds)
Dr Ghanea-Hercock (Oxford)
Prof. Marie-Benedicte Denbour (University of Sussex)
Dr. Kristin Hausler (British Institute of International and Comparative Law)

Definitely, the team that was put together is of some notoriety in the area of Indigenous Peoples and hopefully you can be there –it’s a date!

not this type of date!

Anyone interested to attend can email Dr Alexandra Xanthaki at alexandra.xanthaki@brunel.ac.uk.

More on the Tar Sands Project and Implications for Indigenous Rights and Well-Being

The controversy over the tar sands extraction and planned pipeline is featured in an article in the current edition of the International Journal on Human Rights. The article, by Jennifer Huseman and Damien Short, “A slow industrial genocide’: tar sands and the indigenous peoples of northern Alberta” examines the effects of environmental pollution on the indigenous peoples near the tar sands project. This article is important in pointing out the severe effects the tar sands project has on indigenous communities and their health.

This concern was of course outlined in the Mother Earth Accord (and which is evidence of the well-organised indigeneous activism on this and other issues) which was briefly discussed in an earlier post on this blog. The Mother Earth Accord document itself calls attention to the health problems that nearby indigenous communities have which have been “potentially linked to petroleum products”: “The Assembly of First Nations of Canada called on the United States government to take into account the environmental impacts of tar sands production on First Nations in its energy policy, citing the high rates of cancer in the downstream Fort Chipewyan community, which prominent scientists say are potentially linked to petroleum products;”

Concern about the tar sands project is not new. This link here details activity that has been ongoing to raise concerns and protest the tar sands project effects on indigenous peoples in Canada. See also this link here which raises issues about the violation of Treaty 8 in the tar sands project.

Treaty 8 is a treaty that was entered into between indigenous peoples in Canada and Queen Victoria of England. It set aside certain portions of land for the use and occupation of indigenous peoples and is one of a series of numbered treaties involving the indigenous peoples of Canada. (Click here for more information on Treaty 8)

The tar sands issue is one that has many complex and issues with both immediate and far-reaching consequences. There are short and long term environmental and health effects. There are further issues about what recognition will be given to the principle of free, prior and informed consent that is raised in the Mother Earth Accord, and is enshrined in the UN Declaration on the Rights of Indigenous Peoples. It might be tempting to think that the land-taking and disregard for not only the cultural integrity but the simple health and well-being of indigenous peoples is a thing of the past. But the tar sands issue shows that these are very much issues of the present day.

The responses of Canada and the United States, who both originally opposed the adoption of the UNDRIP, in particular to the claims raised about free, prior and informed consent, may be very telling as to how the rights in the UNDRIP will be received or resisted in these two countries.

Written by Sarah Sargent.

“The Wisest Future Course”

Kansas — what is there? The temptingly easy answer is of course, tornadoes and dogs named Toto. Sky and prairie grass, cattle, Dodge City… but there is more. Just under a deceptive placid appearance, there is so much more, both good and bad, of relevance to the idea of culture and identity, and the way in which groups of people do and do not live together. The shadow of the case Brown v Topeka Board of Education –the United States Supreme Court case decision on the de-segregation of American schools --leaves an uncertain legacy. Is Kansas to be championed for its place in the civil rights movement or is it to be remembered as a place of modern-day apartheid, well within living memory? And how is this reconciled with the history of the state itself—Bleeding Kansas—brought into being a state that prohibited slavery and was the site of intense fighting between pro-slavery and anti-slavery citizens? ( a story well told in the novel by Jane Smiley, “The All-True Travels and Adventures of Lidie Newton”

Lucas’ post brings out an important point—the danger of manipulation of indigenous identity to suit the aims of settler culture. Much has been written on this, much more needs to be written. The question that Fiona raises in her post about who is indigenous raises the danger of identity manipulation to the fore. And Kansas itself was the site of a pernicious judicially created doctrine, “The Existing Indian Family Exception” that allowed judges to side-step the protections within the Indian Child Welfare Act—when the judge as sole arbiter of culture and identity decided if a child was “Indian enough” for the Indian Child Welfare Act to apply.* This is despite this doctrine being clearly in conflict with the plain language of the Act itself. Judicial resistance to an Act that gave great weight to a child’s indigenous identity and in the protection of this identity led to the application of the doctrine outside of the State of Kansas. Finally, a 2009 decision ( In the Matter of A.J.S.) from the Kansas Supreme Court over-ruled the use of the doctrine in Kansas cases, stating clearly, “we are persuaded that abandonment of the existing Indian family doctrine is the wisest future course.”
And not a moment too soon.

A full discussion of the Indian Child Welfare Act and the Existing Indian Family Exception can be found in the link to the decision In the Matter of A.J.S, above.

Written by Sarah Sargent.