A United Nations committee affirmed in its recently released ''Concluding Observations'' that the human rights of indigenous peoples have not been sufficiently promoted, protected or respected in the United States. It recommended substantial improvements to processes currently used by the government to meet its international legal obligations.
The Committee on the Elimination of Racial Discrimination monitors implementation of the International Convention on the Elimination of All Forms of Racial Discrimination by the 173 member states that have voluntarily ratified the convention. The United States did so in 1994, thus making its provisions legally binding obligations of the government.
All state parties to ICERD are required to periodically report to CERD regarding the measures they have taken to implement the provisions of the convention, particularly within their own country. The United States submitted its periodic report in 2007 and this report was considered by CERD in February 2008.
Members of minority groups and organizations working to eliminate racial discrimination, as well as indigenous organizations and nations, can submit additional information in what are called ''shadow reports.'' These critical reports amplify or contradict information submitted by the government. CERD then considers the entire body of information and makes ''concluding observations'' to the state, noting progress or lack of progress, and recommending steps for improvement.
CERD noted in its 2008 observations that there is ''no independent national human rights institution'' to evaluate claims of human rights abuses in the United States, and recommended that the ''state party consider the establishment'' of one. While welcoming the acknowledgement by the U.S. delegation ''that the state party is bound to apply the Convention throughout its territory and to ensure its effective application at all levels - federal, state and local,'' the committee found a ''lack of appropriate and effective mechanisms'' to ensure a coordinated approach. CERD also observed that the very definition of racial discrimination in the United States is not always ''in line'' with the convention, which ''prohibits racial discrimination in all its forms, including practices and legislation that may not be discriminatory in purpose, but in effect.''
These observations are critical for indigenous people within the boundaries of the United States. Legislation authorizing the sale of Indian land - that is not for sale, without appraisal, without full and effective participation by the peoples whose rights are being affected, and without regard for due process - is discriminatory in effect, if not in purpose. Practices allowing a department of government to collect and distribute royalties on behalf of Indian nations and individuals - without providing standard accounting - are discriminatory in effect, if not in purpose. The lack of effective ''mechanisms to ensure a coordinated approach'' for the implementation of the convention by all levels of government can create human rights violations. It is unclear whether all levels of government are even aware of ICERD, much less the obligation of the United States to uphold it.
For instance, in its response to committee questions, the United States cited protections it has established ''to ensure that the cultural and spiritual significance Indians accord to their lands and activities are taken into consideration in decision-making.'' It further claimed that the American Indian Religious Freedom Act requires ''federal agencies to evaluate their policies and procedures ... to determine appropriate changes necessary to protect and preserve native religious cultural rights and practices.''
Such protections are frequently contradicted in areas of cultural and spiritual importance to Indian peoples. According to the Consolidated Indigenous Shadow Report, private development on spiritual areas has rendered some lands ''unfit for spiritual practice, destroying the sanctity of the place.'' It adds that ''many if not most of these Sacred Lands are 'owned' by the United States and administered through the Bureau of Land Management, the National Parks Service, or the Forest Service.''
The BLM controls the vast majority of the lands within the boundaries of the ancestral lands of the Western Shoshone Nation. Current plans to drain aquifers, store nuclear waste and ''move forward with the sale of Western Shoshone ancestral lands for [open-pit gold] mining expansion plans and oil and gas leasing,'' as detailed in its shadow report, ''can only be characterized as showing a complete disregard of Western Shoshone culture and health.''
The National Park Service has ''made culturally, spiritually, physically inappropriate concrete additions'' to the sacred Caguana Ceremonial Center - a place sacred to the Taino. The Consolidated Report cites maintenance practices, ''such as weed trimmers and tractors hurling pebbles and debris at the fragile, ancient stones [petroglyphs],'' as evidence of a lack of protection and respect.
In the Southwest, a court ruled that putting treated sewage effluent on lands sacred to more than a dozen Indian tribal nations violates their ability to practice their religious beliefs. It further ruled that a ski resort owner's business expansion plan did not justify the desecration of a sacred place. Yet the Department of Justice, on behalf of the Forest Service, has joined the resort owner to appeal the court's decision.
In its shadow report, the Cherokee Nation specifically addressed two aspects of an uncoordinated government process. In regard to the Cherokee Nation, a legislative process included no opportunity ''for full and effective participation by legitimate representatives'' of the nation. This, as CERD had stated in 2001, is required under Article 5(c) of the convention.
The report also asked that elected or appointed government officials be ''fully apprised of their obligations under CERD.'' It noted that in a recent congressional floor debate regarding proposed funding to Indian nations, ''[m]embers of Congress seemed completely unaware of any obligation in this regard.'' Had these human rights obligations been known and respected, the egregious errors and omissions in this pending legislation could have been refuted in advance with facts.
In response to these shadow reports and many others, CERD upheld ''consultation with indigenous peoples concerned and their representatives chosen in accordance with their own procedures'' and ''the right of Native Americans to participate in decisions affecting them.''
Most importantly, it recommended that the United States use the U.N. Declaration on the Rights of Indigenous Peoples ''as a guide to interpret the state party's obligations under the convention relating to indigenous peoples,'' thereby establishing a significant link between the declaration and the legally binding obligations of all state parties to ICERD. Article 19 of the declaration provides, ''States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.''
Regarding government officials who seemed to be unaware of their obligations under the convention, CERD responded with a sweeping mandate. It recommended that the U.S. ''step up its efforts to make government officials, the judiciary, federal and state law enforcement officials, teachers, social workers and the public in general aware about the responsibilities of the state party under the Convention.'' Notably, CERD requested follow-up information on this initiative, the Western Shoshone situation, and three other recommendations within a year.
For indigenous peoples, these are hopeful steps. Tribal nations can only benefit from a government that, at all levels, understands and meets its responsibilities under the convention. This is its legal obligation.
Suzanne Jasper is the director of First Peoples Human Rights Coalition, a nonprofit educational organization specifically focusing on the human rights of indigenous peoples.