Indigenous Peoples (CERD Shadow Report, 2008)

The International Convention on the Elimination of All Forms of Racial Discrimination provides numerous protections for indigenous peoples. Article 1 addresses freedom from discrimination based on race, color, descent or national or ethnic origin. Article 2 requires States to refrain from practicing racial discrimination. Article 5(a) guarantees the “right to equal treatment before the tribunals and all other organs administering justice,” and Article 5(b) guarantees the “right to security of person and protection by the State against violence or bodily harm ….” Article 5(c) guarantees equality in the enjoyment of political rights. Articles 5(d)(v) and (d)(vii) provide that signatory States must guarantee the right of everyone to equality before the law, particularly with regard to the “right to own property alone as well as in association with others” and the “right to freedom of thought, conscience and religion.” Articles 5(e)(iv), (e)(v), and (e)(vi) provide that signatory States must guarantee the right of everyone to equality before the law, particularly with regard to the “right to public health, medical care, social security and social services,” the “right to education and training,” and “the right to equal participation in cultural activities.”

Despite these protections and obligations, by every measure, indigenous peoples in the United States continue to rank at the bottom of every scale of economic and social well-being, in and of itself powerful evidence of the existence of racial discrimination in the US. Moreover, the domestic laws and policies of the United States perpetuate a legal system that has blatant and significant discriminatory impacts on indigenous peoples, particularly with regard to rights to property, religious freedom, cultural activities, health, education and political rights. The federal government, acting through Congress and the executive branch, continues to take tribal lands and resources, in many cases without payment and without any legal remedy for the tribes. Congress frequently responds to Indian property and Indian claims by enacting legislation that would be forbidden by the Constitution if addressed to any other group’s property or claims. Because the federal government asserts essentially limitless power over Indians, and engages in constant intrusion in the affairs of indigenous peoples under the plenary power doctrine, Indian governments cannot effectively govern their lands or carry out much-needed economic development. This denial of simple justice has long served to deprive Indian nations of a fair opportunity to advance the interests of their communities. The untenable and insecure position of indigenous peoples vis-à-vis the federal government in the US is unique, and gives rise to multiple violations of the rights of indigenous peoples under the Convention.

The federal court system of the United States has affirmed that the federal government is under an obligation to conform its laws as much as possible to international law. Despite this obligation, the United States continues to flagrantly violate many of its legal obligations under the Convention when developing and implementing domestic policy relating to indigenous peoples.

While acknowledging the domestic laws and policies that have the potential to promote indigenous peoples’ well-being, this report will discuss those areas in which the United States is continuing to falter in meeting its human rights obligations under the Convention. This report will also address some of the issues that the US failed to include in its Periodic Report, in order to provide the Committee with more complete information. Finally, this report will make recommendations to the United States on how to better meet its obligations to comply with international human rights laws pertaining to indigenous peoples, particularly with regard to the Convention.