Secretary of State Rex Tillerson staked his position on human rights – and by extension on indigenous rights – pretty clearly on March 3 when he failed to deliver the United States' Annual Country Reports on Human Rights Practices in person. Whether intentional or not, Tillerson’s disinterest couldn't have done much to impress Victoria Tauli-Corpuz, in Washington, D.C. last week to wrap up and report to the United Nations Human Rights Council on her 10 days of meetings with tribal and U.S. government agencies on the impact of extractive industries – oil, gas, coal, uranium, others – on Indigenous Peoples.
Here to collect data and develop specific recommendations on the impacts of industries involved in mineral extraction on Indigenous Peoples, Tauli-Corpuz also evaluated the United States' progress in acting on Indigenous Peoples' human rights and progress on recommendations made by her predecessor, James Anaya, in 2012 and 2013.
Though diplomatic in her tone and choice of words, her verdict was clear: the United States had made little progress since 2012, and might now be seen as perhaps intentionally retreating from recognizing and protecting the inherent human rights of Indigenous Peoples given recent actions by the Trump administration when it comes to making money from oil, gas, coal, and uranium extraction by private industry in Indian country.
In addition to the January 24 memorandum by President Donald Trump expediting the construction of the Dakota Access Pipeline, the president also issued an unnumbered Executive Order entitled "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule" on February 28 aimed at "promoting economic growth" via limiting Environmental Protection Agency (EPA) jurisdiction to "navigable" waters only, and then, in another move, stripping the overall EPA budget by 25 percent including a 30 percent reduction in tribal grants and 97 percent reduction in funding for the Great Lakes. The combined effect seems to ostensibly remove any EPA constraints on water fouling by extractive industries.
Tauli-Corpuz met with a broad range of tribal and government stakeholders during her visit: the Navajo Nation, the Hopi, the Tohono O'odham Nation, several pueblos, the Standing Rock, Cheyenne River, Yankton, and Crow Creek Sioux, the Mandan, Hidatsa, and Arikara Nation, Ute Mountain Tribe, the Northern and Southern Ute Tribes, and representatives from other tribes in the first virtual consultation. Victoria Tauli-Corpuz also met with federal and regional representatives from the United States Army Corps of Engineers (USACE), Department of State, Department of the Interior, the Environmental Protection Agency, the Department of Health and Human Services, the Department of Energy, the Advisory Council on Historic Preservation, the Department of Justice, Sen. John Hoeven (R-ND), chair of the Senate Committee on Indian Affairs, Rep. Norma Torres (D-CA), ranking member of the House Subcommittee on Indian, Insular and Alaska Native Affairs, and the Inter-American Commission on Human Rights.
When asked specifically whether she had met with any of the Trump inner circle, Tauli-Corpuz said, "I wouldn't say that I've had a lot of engagement with them...this is an opening to engaging with them" and that the meeting with Hoeven had been as close as she'd gotten. She expressed relief that her invitation to visit the U.S. had not been withdrawn by the Trump administration since the initial invitation had come from the Obama Department of State, and expressed gratitude that she had been allowed to conduct an open and independent investigation.
Though Tauli-Corpuz did not iterate the full range of issues she captured in her few days on the ground, she honed in on several critical ones:
- The need for the United States, as a signatory to the United Nations Declaration on the Rights of Indigenous Peoples to obtain "free, prior, and informed consent" of indigenous people affected by United States government projects, policies, and practices. "Executive Order 13175, while well intentioned has developed into a confusing and disjointed framework that suffers from loopholes, ambiguity, and a general lack of accountability," she noted. This, when combined with the violations that recent projects such as the Dakota Access Pipeline, the Pick-Sloan, and Keystone XL projects have wrought, has resulted in an increasing lack of tribal trust when dealing with the federal government.
- There has been a "consistent cry" amongst tribal stakeholders to "precisely identify requirements for ‘meaningful consultation’ with Indian tribes and to implement a consistent system across all federal agencies to ensure that consultation is undertaken...." She added, "The goals of tribal consultation is not simply to check a box....the core objective is to provide federal decision makers with context, information, and perspectives needed to support informed decision that actually protect tribal interests."
- The tangle of varying agency-specific regulations, policies, and protocols that manage how agencies conduct government-to-government consultations with tribes is a roadblock to meaningful consultation. "They have a lot of good guidelines, but they're not implementing them!" she said with a laugh. The agencies are not talking to each other. She emphasized ensuring that indigenous people are included whenever anything of cultural significance is in play.
- The need of understanding on the part of the United States government the "indigenous definition of sacredness as an interconnected landscape with unique relationships to the practice of religions, strengthening of community, livelihoods, subsistence, and gather of traditional medicines and resources." The government in general simply does not get it because policymakers have a much different – and less holistic – framework for understanding "religion." The most recent example of this is the outright challenge by the attorneys for the Dakota Access Pipeline and USACE that summarily rejects the Cheyenne River Sioux argument that oil in the pipeline desecrates the waters of Lake Oahe.
- Sexual assault on Native women was a frequent area of concern, since extractive industry relies on a transient male workforce to construct and operate its projects. In regions with extractive industries, the rate of sexual assault on Native women rises dramatically over the already high 2.5 times likelihood of being sexually assaulted in their lifetimes. Increased rates in sex trafficking, murdered or disappeared women, and violence against women are consistent wherever extractive industries are present. Worse, according to the National Indigenous Women's Resource Center, "Non-Indian men learn quickly that the tribe doesn't have jurisdiction over them," and take advantage of the fact that they cannot be easily prosecuted after they step over reservation boundaries. Though the federal government can prosecute sexual assault, some 67 percent of cases filed are declined to be heard by the courts, leaving indigenous women with no legal recourse.
- She reported, "...oil and gas leasing approvals undertaken by the Bureau of Indian Affairs should but do not adequately consider the safety and welfare impacts of extractive energy projects on Native women and children."
- Health impacts, especially high rates of cancer and lung diseases, that occur as the result of extractive processes, are also rife in some tribal areas, especially near mines, and hydraulic fracturing must also be considered. Heavy metals, dust, chemicals, and other by-products of extraction enter tribal water systems, and enter the air and food chain where they are inhaled or ingested by indigenous people. The United States government has, at least, an obligation to make certain that tribal lands and waters are not polluted, or barring a failure to do so, to guarantee they are cleaned up and all health problems addressed.
Victoria Tauli-Corpuz was quick to remind her audience at the D.C. consultation and the ensuing press conference that tribes are not averse to energy development. But tribes' right to self-determination must be recognized, and free, prior and informed consent – not just consultation – must precede the execution of any extractive process on or near tribal lands and waters. Furthermore, consultation must be seen as a government-to-government process, as one of political equals, as well as one where one government has trust obligations to the other.
Tauli-Corpuz has been the Special Rapporteur on the rights of Indigenous Peoples for the United Nations Human Rights Council since 2014. She is a member of the Kankana-ey Igorat peoples in the Philippines, and has served in several high profile positions on indigenous issues for the United Nations. She is also the founder and Executive Director of the Tebtebba Foundation, the Indigenous Peoples' International Center for Policy Research and Education.
Serious challenges for tribes remain, but Tauli-Corpuz remains optimistic. She will continue to engage with all stakeholders on the extractive industries issue as she completes her investigation and review of findings and recommendations, which she will present in a report to the United States government and the United Nations Human Rights Council in September.