Black Hills Treaty Fishing: Galvanizing Sovereignty and Law

SOUTH DAKOTA ATTORNEY GENERAL: 'I’VE NEVER READ THE FT. LARAMIE TREATIES'

By Natalie Hand
Censored News
http://www.bsnorrell.blogspot.com

PINE RIDGE, S.D. -- What began as an attempt to exercise sovereignty at Sheridan Lake in the Black Hills last summer, now has Russell Means in deep water with South Dakota law enforcement.

On Tuesday, March 3, 2009, a Pennington County judge issued a bench warrant for Means arrest after he failed to appear in court for a charge of fishing without a license.

“I do not understand why the State is continuing to press for a major court trial when they know I have petitioned to have this case heard in federal court. This is a constitutional issue, which means that local courts have no jurisdiction and they know this," Means said.

However, South Dakota Attorney General Larry Long disagrees. In a telephone interview, Long contended, “There is no distinction between a Native American and a non-native in this State. If either is breaking our laws in the Black Hills, they will be arrested. The State does have jurisdiction over Indians here.”

“Furthermore, why are they bringing in a magistrate from Pierre to hear this case?” questioned Means.

“I would speculate that all the Pennington County judges have disqualified themselves because they all live in the Black Hills. For that reason I would suspect that they appointed someone from outside the Circuit," Long said.

When asked whether or not Means had a valid argument to move his case to a federal court based on constitutional rights violation, Long replied, “Mr. Means ‘claims’ that the Black Hills is treaty territory and that South Dakota has no jurisdiction over him. I don’t believe that he has any rights to fish without a license under the U.S. Constitution.”

Means reference to the U.S. Constitution pertains to Article VI, which states: “ . . . This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby . . .”

In his application to move his case to federal court, Means contends that he is within his inherent rights under the 1868 Ft. Laramie Treaty.

“I have never even read the Ft. Laramie Treaty," Long admitted.

“Russell is within his rights under the 1868 Ft. Laramie Treaty. He Sapa, the sacred Black Hills, is within our treaty territory. That treaty is a living document. We have a Nation-to-Nation agreement with the U.S. More of us Lakota need to exert our sovereign power. The U.S. has violated the Treaty, which they authored. They have offered us compensation. We have refused it. We will never sell the Black Hills. It is what defines us," stated Floyd Hand, an Oglala Lakota and delegate to the Black Hills Sioux Nation Treaty Council.

A Federal Court clerk confirmed that Means filed a complaint in October, 2008 to move the case to Federal Court. The State filed for a continuance on January 12th and it was granted the next day.

Long concluded, “I suspect that Mr. Means’ application is unique. I would assume that someone has written a response not to touch this.”

To date, no hearing date has been scheduled. There is no deadline for a federal judge to rule on Means’ petition.

Native Human Rights Defenders Honored in San Francisco

By Brenda Norrell
http://www.bsnorrell.blogspot.com/

SAN FRANCISCO -- The International Indian Treaty Council honored Carrie Dann, Western Shoshone, and Manny Pino, Acoma Pueblo, with Human Rights Defenders Awards Saturday night in San Francisco.
"We have the original rights, not aboriginal rights, because we were the first here," Dann said at San Francisco State University.
Dann and Pino spoke during the seminar, "Indigenous Peoples Struggles to Defend Sacred Places," which focused on human rights, sacred places and the international inherent rights of Indigenous Peoples.
Dann spoke on the oppression of the colonizers and the necessity of rising to protect Native sacred places.
Dann said Indigenous Peoples all over the world are suffering because of the so-called civilized worlds. "What does it mean to be civilized?"
"Does it mean you have the right to rape and murder?"
Barrick Gold continues its rape of the land for massive gold mines, coring out mountains and poisoning the water with cyanide, in Indigenous territories around the world.
In Western Shoshone territory, Barrick Gold continues the destruction of the area of sacred Mount Tenabo.
"It is too heartbreaking," Dann said when asked if she had been to Mount Tenabo to witness the destruction.
Pino, known for his efforts to expose the injustices of uranium mining in the Southwest and the assaults on sacred places, said it was an honor to be here with Carrie Dann.
Pino spoke on the need for learning the Native languages and the continuance of the ceremonies.
"It's never too late, hang out with your grandma, hang out with your grandpa," Pino said.
"The most important advice we can get is listening to them."
Pino presented a slide presentation on the horrors of uranium mining for Pueblo and Navajo people. The radioactive contamination was carried by the winds into the foods of the people, in the fields and the foods that were drying. This radioactive dust coated the vegetation of the sheep and contaminated the people.
Photographs of the Jackpile Mine in New Mexico revealed the devastation to the land.
The horror of this 30-year legacy of mining remains now in the form of widespread cancers and Down Syndrome. At the time of the mine, the tribal government was unaware of the impact.
On the Navajo Nation alone, there are 1,300 unreclaimed uranium mines. The radioactive tailings in the Monument Valley area are one fact that no one tells the tourists, Pino said.
"Of course, it is the grassroots people who live in these areas."
Navajos used radioactive materials to build their hogans. Many are sick and dying today.
Pino said the Bush administration claimed that nuclear power was the key for the future, but there was no solution of where to put the waste. At the same time, radioactive waste is blowing in the Southwest.
Pino said it is important to be vigilant with the Obama administration to ensure a nuclear free future.

Earthcyles Broadcast Live, Native Sacred Places, San Francisco

"LISTEN NOW" online today, Saturday:
"Indigenous Peoples Struggles to Defend Sacred Places:
http://www.earthcycles.net/

Earthcycles broadcasts live from San Francisco on Saturday

Join us on Saturday, March 7, 2009, during the daylong seminar on Native American human rights and sacred places, broadcasting live. Presenters include Carrie Dann, Manny Pino, Radley Davis, Mark Lebeau, Corrina Gould and members of the International Indian Treaty Council. Join us live, Longest Walk Talk Radio producer Govinda Dalton of Earthcycles and cohost Brenda Norrell of Censored News.

Speakers, schedule and location: http://bsnorrell.blogspot.com/2009/03/native-sacred-places-seminar-saturday.html

Listen at Earthcycles on Saturday: http://www.earthcycles.net/

Photo: Govinda Dalton's Earthcycles bus at the culmination of the Longest Walk 2 in DC. Photo Brenda Norrell

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
http://www.bsnorrell.blogspot.com
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.

JAMES W. ZION
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
UNOG-OHCHR
CH-1221 Geneva 10
SWITZERLAND
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

http://www.un.org/apps/news/story.asp?NewsID=30095&Cr=Pillay&Cr1=#
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.)