Indigenous Peoples and Human Rights

March 4, 2009

Dooda to UN: Navajos target of racial discrimination by power plants

Dooda (NO) Desert Rock to UN: Laws prohibiting racial discrimination violated on Navajo Nation

By Brenda Norrell
Censored News
Photo Youth Climate Movement

SHIPROCK, N.M. -- James W. Zion, attorney, said Dooda (NO) Desert Rock has communicated with the United Nations on the issue of racial discrimination. The letter, sent to the staffer for the Committee on the Elimination of Racial Discrimination, states that Article 14 of the International Convention on the Elimination of all Forms of Racial Discrimination is one where a signer (a "state") can agree to allow private complaints to the Committee.
However, the U.S. has not signed on to this.
"So we can't make a 'complaint' as such. However, the Committee does have a follow-up procedure where the monitor (a member of the Committee called a 'rapporteur') can consider this information. It will be considered when the Committee reviews a U.S. report on compliance and when the next U.S. report is due. The anti-discrimination treaty requires the enforcement of anti-discrimination law where there is a negative impact," Zion said.
"The Committee found that the U.S. is not in compliance with the treaty in two ways: It does not recognize 'disparate impact' discrimination and it requires proof of an intent to discriminate. That adversely affects consideration of our complaint to the EPA Civil Rights Office. While the committee kind of recognized abusive development, it didn't go far enough."
The letter to the United Nations (below) explains that there are already two power plants in the Four Corners area where the proposed Desert Rock would operate. The letter also points out that a complaint has been filed with the US EPA.
The US EPA is aware that already Navajos in the area seek medical attention for respiratory diseases at a rate five times that of others in the area, according to the letter.
Meanwhile, grassroots Navajos continue to protest the power plant. However, both Navajo President Joe Shirley, Jr., and the Navajo Nation Council have supported the power plant. Navajo officials receive the majority of funds for their salaries and travel from fossil fuel revenues. Many Navajos live without running water and electricity, while living with the pollution and disease of power plants, as electricity is transported to non-Indians in the Southwest.
Along with coal mines and power plants, the Four Corners area is also contaminated with unreclaimed uranium tailings from the Cold War and hundreds of oil and gas wells, even in this region of the Navajos' place of origin, Dinetah.

Attorney at Law (Navajo Nation Bar)
3808 Ladera Drive N.W.
Albuquerque, NM 87120
(505) 839-9549
March 2, 2009
Torsten Schackel
Acting Secretary
Committee on the Elimination of Racial Discrimination
Human Rights Treaties Branch
Office of the High Commissioner for Human Rights
CH-1221 Geneva 10
Re: Follow-up on Opinion, United States of America, CERD/USNCO/6, 8 May 2008
Dear Mr. Shackel:
This is not a petition under Article 14 of the International Convention on the Elimination of all
Forms of Racial Discrimination (the "Convention"). It is information for the benefit of a special
rapporteur under Rule 95, ~~ 6-7, ofthe CERD rules of procedure (15 August 2005) that deals with
follow-up on Committee opinions on state reports.
The Committee issued its opinion on the fourth through sixth periodic reports ofthe United States
of America on 8 May 2008, No. CERD/USNCO/6. Paragraph 10 at page 2 addresses concerns that
the United States is not in compliance with article 1, paragraph 1 of the Convention because the
American law on what we call "disparate impact discrimination" does not effectively address indirect
or de facto discrimination. A related concern is that stated in ~ 35 at pages 12 and 13 on burdens of
proof on claims of racial discrimination requiring proof of specific intent to discriminate.
Paragraph 29 of the Opinion, at page 10, states that "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 affected indigenous
peoples of their Rights under the Convention" (citation omitted). I write to inform the Committee
of activities being permitted by the United States that have a direct impact on a particular group of
Native Americans, namely Navajos who reside at or near the community of Shiprock, Navajo Nation
(New Mexico) near an area called "the Four Corners."
I enclose a copy of a discrimination complaint against the United States Environmental Protection
Agency by a Navajo grassroots organized called "Dooda Desert Rock," and seventeen individual
Navajos, dated 24 February 2009. It was filed with the Washington D.C. Office of Civil Rights of
the Environmental Protection Agency. I send a copy of the complaint to advise the special
rapporteur of information on two distinct problems arising under the International Convention on
the Elimination of all Forms of Racial Discrimination.
While preparing some testimony on whether or not the United States Environmental Protection
Agency should regulate carbon dioxide as a pollutant and put caps on it when considering a permit
for a proposed new power plant in an area with a significant Navaj0 population (the proposed Desert
Rock Power Plant - the name of the organization, "dooda," means "no" or "no way") I learned that
the San Francisco office of the Environmental Protection Agency (EPA) was aware that pollution
from two existing power plants causes Navajos in the Shiprock area to seek medical attention for
respiratory problems at a rate that is five times greater than for others in the area. The report
mentioned by a letter from an EPA indicated that children under age 5 and adults over age 56 are
compelled to seek treatment for respiratory problems at ten times the average rate. It is likely that
when permits were granted for the Four Comers Power Plant (on Navajo land) that its proponents
and the EPA knew or should have known that winter inversions drop pollution in the Shiprock area,
and a geological feature pulls down the plume from the Four Corners Plant.
The first problem precisely involves indirect or de facto discrimination - disparate impact
discrimination. The only remedy my clients have in the United States is to ask the potential offender,
the EPA, to find that the situation is discriminatory and for it to offer adequate remedies. We do not
know if that is possible or not. The current law is that private individuals cannot bring actions to
enforce civil rights provisions on discrimination by the federal government, or its sanctioning of
discrimination by others (Title VI of the Civil Rights Act of 1964), and there must be proof of an
intent to discriminate. We feel that a "knew or should have known" standard applies in the situation
outlined above.
The second problem involves abusive development practices. The Committee recognized them in
paragraph 29 but unfortunately linked them solely to activities "in areas of spiritual and cultural
significance." The problem is where government sanctions and approves abusive and harmful
development, even where it is approved by an indigenous government. The situation my clients
complain of is pollution that causes Navajos who live in the Shiprock area to seek medical attention
for respiratory ailments at rates that range from five times an average rate in general, to ten times the
average for children and the aging.
I bring this to your attention for the purpose of follow-up review by the special rapporteur and the
Committee, and in conjunction with United States report on this review and future state reports.
Sincerely, James W. Zion
Related article ...
Combat against discrimination is top priority, UN human rights chief says
High Commissioner for Human Rights Navi Pillay presents her first annual report to the Human Rights Council 5 March 2009 – The United Nations’ top human rights official said today that combating discrimination against women, indigenous people, minorities, migrants and other vulnerable groups was the top priority for her office. “I wish to underscore once again that discrimination is all too often at the root of other human rights abuses,” UN High Commissioner for Human Rights Navi Pillay said, as she introduced her wide-ranging annual report to the Geneva-based Human Rights Council. (Read article at above link.)


Anonymous said...

Just a little clarity with the Dineh language: Dooda means "No." Thus, Dooda and Desert Rock should go together. Thanks. ~kat

Anonymous said...

I mean no disrespect and aplogise if I cause offense.
I am part Navajo and part Hawaiian raised in Hawaii who spent time each year with my grandmother in New Mexico. She taught me that a climbing party desecrated Shiprock many years ago and that our family no longer practiced sacred rituals there. Grandmother is gone now and I am trying to stay connected to my Navajo roots which is difficult. Can you please help?