Wednesday, July 28, 2010

UN: American Indian Issues, Elimination of Racial Discrimination

Action Alert

AMERICAN INDIAN ISSUES,
THE INTERNATIONAL CONVENTION ON THE
ELIMINATION OF ALL FORMS OF
RACIAL DISCRIMINATION and
UNITED NATIONS REVIEW OF THE UNITED STATES RECORD


By James Zion
Photos: Chili Yazzie and Willie Littlechild in Geneva by James Zion

July 28, 2010
The United States of America ratified the International Convention on the Elimination of All Forms
of Racial Discrimination (entry into force 4 January 1969), an international human rights treaty that
is the "law of the land" under the Constitution. Article 9(b) of the Convention requires the United
States to report its compliance with the Convention every two years or on the call of the Committee
on the Elimination of Racial Discrimination. The United States submitted its last reports late, and
they were heard by the Committee in February of2008. It is time for another report.
The Committee on the Elimination of Racial Discrimination has been giving special attention to the
United Nations Declaration on the Right of Indigenous Peoples as an international instrument that
sets human rights norms, and it gave special attention to Indian rights when reviewing the United
States' report. See Committee on the Elimination of Racial Discrimination, Concluding
observations of the Committee on the Elimination of Racial Discrimination, United States of
America, CERDI USA lCOl6 (8 May 2008).
The Committee found, at,-r26, that there was a high incidence of violence and abuse against women
belonging to national minorities, and particularly American Indian and Alaska Native women. It also
noted "the alleged insufficient will of federal and state authorities to take action with regard to such
violence" and in particular Native American women, including "their right of access to justice and
the right to obtain adequate reparation or satisfaction." Based on that the Committee made four areas
of recommendations. We can measure non-compliance with the Convention in terms of the failure
of the United States to adequately address the recommendations, particularly in recent Indian
Country crime legislation that does not provide for criminal jurisdiction against all offenders and
abusers and does not give adequate financial support for law enforcement, judicial remedies and
support for women and child victims. The report also asks the United States to give information on
what it has done to implement the recommendations in terms of numbers of victims and perpetrators,
convictions, and the types of sanctions imposed in its next report.
The Committee also gave special attention to reports about extractive industry, including nuclear
testing, toxic and dangerous waste storage, mining or logging, that are carried out in areas "of
spiritual and cultural significance to Native Americans," and the negative impact on their enjoyment
of rights under the Convention. Id.,-r 29. Based on that, the Committee recommended that the
United States must "take all appropriate measures, in consultation with indigenous peoples
1
concerned and their representatives'" to ensure that such activities do not have a negative impact.
The Committee also recommended that the United States recognize the right of Native Americans
"to participate in decisions affecting them, and consult and cooperate in good faith with the
indigenous peoples' "before adopting and implementing any activity in areas of spiritual and cultural
significance to Native Americans."
The Committee also used the recommendations in ~ 29 to urge the United States to look to the
Declaration on the Rights of Indigenous Peoples "as a guide to interpret the State party's obligations
under the Convention [to eliminate all form of racial discrimination] relating to indigenous peoples."
Finally, the Committee noted the "adverse effects of economic activities connected with the
exploitation of natural resources in countries outside the United States by transnational corporations
registered in the State party on the right to land, health, living environment and the way of life of
indigenous peoples living in those regions." Jd., ~ 30. It recommended State action to address the
problem. Given the human rights foundations of the recommendations, they equally apply to the
activities of multinational corporations in activities impacting indigenous peoples within the United
States.
While such is not in the record, a member of the Committee told the United States delegation, when
delivering the Committee's comments, that it wanted a report on the status of the Navajo-Hopi Land
Dispute in the next report under the Convention.
The next U.S. report is due on 25 February 2011 and the Committee asked that it should "address
all points raised in the present concluding observations." Jd., ~ 29. The will have to address all
points, including use of the Declaration on the Rights of Indigenous Peoples" and other violations
of indigenous rights.
James W. Zion
Relevant portions of the Committee report are attached.
* * *
1 Current United States "consultation" activities in proposed consultation policies and
legislation excludes "representatives" such as non-governmental organizations and nonprofits.
2 The Committee used the term "indigenous peoples" rather than "tribes" to catch all
groups (including Metis and Native Hawaiians, e.g.) and to include NGOs, nonprofits and
grassroots organizations.
2
UNITED
NATIONS CERD
International Convention
on the Elimination
of all Forms of
Racial Discrimination
Distr.
GENERAL
CERD/C/uSA/CO/6
8 May 2008
Original: ENGLISH
COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION
Seventy-second session
Geneva, 18 February - 7 March 2008
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 9 OF THE CONVENTION
Concluding observations of the Committee on the
Elimination of Racial Discrimination
UNITED STATES OF AMERICA
1. The Committee considered the fourth, fifth and sixth periodic reports of the United
States of America, submitted in a single document (CERD/C/uSA/6), at its 1853rd and
1854th meetings (CERD/C/SR.1853 and 1854), held on 21 and 22 February 2008. At its
I 870th meeting (CERD/CISR.1870), held on 5 March 2008, it adopted the following
concluding observations.
A. Introduction
2. The Committee welcomes the reports, and the opportunity to continue an open and
constructive dialogue with the State party. The Committee also expresses appreciation for
the detailed responses provided to the list of issues, as well as for the efforts made by the
high-level delegation to answer the wide range of questions raised during the dialogue.
B. Positive aspects
3. The Committee welcomes the acknowledgement of the multi-racial, multi-ethnic,
and multi-cultural nature of the State party.
4. The Committee notes with satisfaction the work carried out by the various executive
departments and agencies of the State party which have responsibilities in the field of the
elimination of racial discrimination, including the Civil Rights Division of the U.S.
Department of Justice, the Equal Employment Opportunity Commission (EEOC) and the
Department of Housing and Urban Development (RUD).
GE.08-41982
CERD/C/uSAlCO/6
page 8
The Committee therefore urges the State party to adopt all necessary
measures to guarantee the right of foreign detainees held as "enemy
combatants" to judicial review of the lawfulness and conditions of
detention, as well as their right to remedy for human rights violations. The
Committee further requests the State party to ensure that non-citizens
detained or arrested in the fight against terrorism are effectively protected
by domestic law, in compliance with international human rights, refugee
and humanitarian law.
25. While recognising the efforts made by the State party to combat the pervasive
phenomenon of police brutality, the Committee remains concerned about allegations of
brutal ity and use of excessive or deadly force by law enforcement officials against persons
belonging to racial, ethnic or national minorities, in particular Latino and African American
persons and undocumented migrants crossing the U.S.-Mexico border. The Committee also
notes with concern that despite the efforts made by the State party to prosecute law
enforcement officials for criminal misconduct, impunity of police officers responsible for
abuses allegedly remains a widespread problem (arts. 5 (b) and 6).
The Committee recommends that the State party increase significantly its
efforts to eliminate police brutality and excessive use of force against
persons belonging to racial, ethnic or national minorities, as well as
undocumented migrants crossing the U.S.-Mexico border, inter alia, by
establishing adequate systems for monitoring police abuses and developing
further training opportunities for law enforcement officials. The
Committee further requests the State party to ensure that reports of police
brutality and excessive use of force are independently, promptly and
thoroughly investigated and that perpetrators are prosecuted and
appropriately punished.
26. While welcoming the various measures adopted by the State party to prevent and
punish violence and abuse against women belonging to racial, ethnic and national minorities,
the Committee remains deeply concerned about the incidence of rape and sexual violence
experienced by women belonging to such groups, particularly with regard to American
Indian and Alaska Native women and female migrant workers, especially domestic workers.
The Committee also notes with concern that the alleged insufficient will of federal and state
authorities to take action with regard to such violence and abuse often deprives victims
belonging to racial, ethnic and national minorities, and in particular Native American
women, of their right to access to justice and the right to obtain adequate reparation or
satisfaction for damages suffered (arts. 5 (b) and 6).
The Committee recommends that the State party increase its efforts to
prevent and punish violence and abuse against women belonging to racial,
ethnic and national minorities, inter alia, by:
(i) Setting up and adequately funding prevention and early
assistance centres, counselling services and temporary shelters;
CERD/C/uSAlCO/6
page 9
(ii) Providing specific training for those working within the criminal
justice system, including police officers, lawyers, prosecutors and
judges, and medical personnel;
(iii) Undertaking information campaigns to raise awareness among
women belonging to racial, ethnic and national minorities about
the mechanisms and procedures provided for in national
legislation on racism and discrimination; and
(iv) Ensuring that reports of rape and sexual violence against women
belonging to racial, ethnic and national minorities, and in
particular Native American women, are independently, promptly
and thoroughly investigated, and that perpetrators are
prosecuted and appropriately punished.
The Committee requests the State party to include information on the
results of these measures and on the number of victims, perpetrators,
convictions, and the types of sanctions imposed, in its next periodic report.
27. The Committee remains concerned about the disparate impact that existing felon
disenfranchisement laws have on a large number of persons belonging to racial, ethnic and
national minorities, in particular African American persons, who are disproportionately
represented at every stage of the criminal justice system. The Committee notes with
particular concern that in some states, individuals remain disenfranchised even after the
completion of their sentences (art. 5 (c)).
Taking into account the disproportionate impact that the implementation
of disenfranchisement laws has on a large number of persons belonging to
racial, ethnic and national minorities, in particular African American
persons, the Committee recommends that the State Party adopt all
appropriate measures to ensure that the denial of voting rights is used only
with regard to persons convicted of the most serious crimes, and that the
right to vote is in any case automatically restored after the completion of
the criminal sentence.
28. The Committee regrets that despite the various measures adopted by the State party
to enhance its legal and institutional mechanisms aimed at combating discrimination,
workers belonging to racial, ethnic and national minorities, in particular women and
undocumented migrant workers, continue to face discriminatory treatment and abuse in the
workplace, and to be disproportionately represented in occupations characterized by long
working hours, low wages, and unsafe or dangerous conditions of work. The Committee also
notes with concern that recent judicial decisions of the U.S. Supreme Court - including
Hoffman Plastics Compound, Inc. v. NLRB (2007), Ledbetter v. Goodyear Tire and Rubber
Co. (2007) and Long Island Care at Home, Ltd. v. Coke (2007) - have further eroded the
ability of workers belonging to racial, ethnic and national minorities to obtain legal
protection and redress in cases of discriminatory treatment at the workplace, unpaid or
withheld wages, or work-related injury or illnesses (arts. 5 (e) (i) and 6).
CERD/C/uSAlCO/6
page 10
The Committee recommends that the State party take all appropriate
measures, including increasing the use of "pattern and practice"
investigations, to combat de facto discrimination in the workplace and
ensure the equal and effective enjoyment by persons belonging to racial,
ethnic and national minorities of their rights under article 5 (e) of the
Convention. The Committee further recommends that the State party take
effective measures, including the enactment of legislation, such as the
proposed Civil Rights Act of 2008,- to ensure the right of workers
belonging to racial, ethnic and national minorities, including
undocumented migrant workers, to obtain effective protection and
remedies in case of violation of their human rights by their employer.
29. The Committee is concerned about reports relating to activities, such as nuclear
testing, toxic and dangerous waste storage, mining or logging, carried out or planned in areas
of spiritual and cultural significance to Native Americans, and about the negative impact that
such activities allegedly have on the enjoyment by the affected indigenous peoples of their
rights under the Convention (arts. 5 (d) (v), 5 (e) (iv) and 5 (e) (vi».
The Committee recommends that the State party take all appropriate
measures, in consultation with indigenous peoples concerned and their
representatives chosen in accordance with their own procedure, - to
ensure that activities carried out in areas of spiritual and cultural
significance to Native Americans do not have a negative impact on the
enjoyment of their rights under the Convention.
The Committee further recommends that the State party recognize the
right of Native Americans to participate in decisions affecting them, and
consult and cooperate in good faith with the indigenous peoples concerned
before adopting and implementing any activity in areas of spiritual and
cultural significance to Native Americans. While noting the position of the
State party with regard to the United Nations Declaration on the Rights of
Indigenous Peoples (A/RES/611295), the Committee finally recommends
that the declaration be used as a guide to interpret the State party's
obligations under the Convention relating to indigenous peoples.
30. The Committee notes with concern the reports of adverse effects of economic
activities connected with the exploitation of natural resources in countries outside the United
States by transnational corporations registered in the State party on the right to land, health,
living environment and the way of life of indigenous peoples living in these regions (arts. 2
(1) (d) and 5 (e».
In light of article 2, paragraph 1 (d), and 5 (e) of the Convention and of its
general recommendation No. 23 (1~97) on the rights of indigenous peoples,
the Committee encourages the State party to take appropriate legislative
or administrative measures to prevent acts of transnational corporations
registered in the State party which negatively impact on the enjoyment of
rights of indigenous peoples in territories outside the United States. In
CERD/C/uSA/CO/6
page 11
particular, the Committee recommends that the State party explore ways
to hold transnational corporations registered in the United States
accountable. The Committee requests the State party to include in its next
periodic report information on the effects of activities of transnational
corporations registered in the United States on indigenous peoples abroad
and on any measures taken in this regard.
31. The Committee, while noting the efforts undertaken by the State party and civil
society organizations to assist the persons displaced by Hurricane Katrina of2005, remains
concerned about the disparate impact that this natural disaster continues to have on low income
African American residents, many of whom continue to be displaced after more than
two years after the hurricane (art. 5 (e) (iii)).
The Committee recommends that the State party increase its efforts in
order to facilitate the return of persons displaced by Hurricane Katrina to
their homes, if feasible, or to guarantee access to adequate and affordable
housing, where possible in their place of habitual residence. In particular,
the Committee calls upon the State party to ensure that every effort is
made to ensure genuine consultation and participation of persons
displaced by Hurricane Katrina in the design and implementation of all
decisions affecting them.
32. While noting the wide range of measures and policies adopted by the State party to
improve access to health insurance and adequate health-care and services, the Committee is
concerned that a large number of persons belonging to racial, ethnic and national minorities
still remain without health insurance and face numerous obstacles to access to adequate
health care and services (art. 5 (e) (iv)).
The Committee recommends that the State party continue its efforts to
address the persistent health disparities affecting persons belonging to
racial, ethnic and national minorities, in particular by eliminating the
obstacles that currently prevent or limit their access to adequate health
care, such as lack of health insurance, unequal distribution of health-care
resources, persistent racial discrimination in the provision of health care
and poor quality of public health-care services. The Committee requests
the State party to collect statistical data on health disparities affecting
persons belonging to racial, ethnic and national minorities, disaggregated
by age, gender, race, ethnic or national origin, and to include it in its next
periodic report.
33. The Committee regrets that despite the efforts of the State party, wide racial
disparities continue to exist in the field of sexual and reproductive health, particularly with
regard to the high maternal and infant mortality rates among women and children belonging
to racial, ethnic and national minorities, especially African Americans, the high incidence of
unintended pregnancies and greater abortion rates affecting African American women, and
the growing disparities in HIV infection rates for minority women (art. 5 (e) (iv)).
CERD/CIMDAICO/7
page 7
27. The Committee invites the State party to update its core document in accordance with the
requirements of the harmonized guidelines on reporting under the international human rights
treaties, in particular those on the common core document, as adopted by the human rights treaty
bodies in their fifth inter-committee meeting, held in June 2006 (see HRIlGEN/2/RevA).
28. In accordance with article 9, paragraph 1, of the Convention and article 65 of its amended
rules of procedure, the Committee requests the State party to provide information, within one
year of the adoption of the present conclusions, on its follow-up to the recommendations
contained in paragraphs 12, 14 and 19 above.
29. The Committee recommends that the State party submit its eighth and ninth periodic
reports, in a single document, due on 25 February 2010, taking into account the specific
guidelines for Committee documents (CERD/C/200711), and that the report be an update
document and address all points raised in the present concluding observations.
CERD/C/uSAlCOl6
page 14
41. The Committee recommends that the State party ratify the amendment to article 8,
paragraph 6, ofthe Convention, adopted on 15.January 1992 at the fourteenth meeting of
States parties to the Convention and endorsed by General Assembly resolution 471111. In
this connection, the Committee cites General Assembly resolution 611148, in which the
Assembly strongly urged States parties to accelerate their domestic ratification procedures
with regard to the amendment and to notify the Secretary-General expeditiously in writing of
their agreement to the amendment.
42. The Committee recommends that the State party's reports be made readily available
to the public at the time of their submission, and that the observations of the Committee with
respect to these reports be similarly publicised in the official and national languages.
43. The Committee recommends that the State party, in connection with the preparation
of the next periodic report, consult widely with organizations of civil society working in the
area of human rights protection, in particular in combating racial discrimination.
44. The Committee invites the State party to update its core document in accordance
with the harmonised guidelines on reporting under the international human rights treaties, in
particular those on the common core document, as adopted by the fifth inter-Committee
meeting of the human rights treaty bodies held in June 2006 (HRIlGEN/2/Rev.4).
45. The State party should, within one year, provide information on the way it has
followed up on the Committee's recommendations contained in paragraphs 14, 19,21,31
and 36, pursuant to paragraph 1 of rule 65 of the rules of procedure.
46. The Committee recommends that the State party submit its seventh, eighth and ninth
periodic reports in a single document, due on 20 November 2011, and that the report be
comprehensive and address all points raised in the present concluding observations.

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