American Indian Rights and Resources Organization

41801 Corte Valentine Temecula, CA 92592 (951)694-6264

Submission of the American Indian Rights and Resources Organization To the United Nations Special Rapporteur on the Rights of Indigenous Peoples
The American Indians Rights and Resources Organization submits this paper to the United Nations Special Rapporteur in response to the request to consult regarding the significance of the United Nation Declaration on the Rights of Indigenous Peoples (Declaration) as it may apply to the United States (State) and its treatment of the indigenous people within its borders. This submission will highlight the growing trend of human and civil rights abuses the States indigenous people are being subjected to; the States role in creating an environment for such injustices to occur; the States failure to uphold its trust responsibility to protect and preserve the civil and human rights of its indigenous people; the conflict of the States actions with the Declaration; and provide policies that could be expanded on or implemented that may curtail future and continued abuses against the indigenous people of the United States. The American Indian Rights and Resources Organization (AIRRO) is a Native American rights group which was established in December 2005 and is dedicated to the protection, preservation, and enforcement of the human rights of individual Indians through-out United States Indian Country. AIRRO provides information and assists individuals and/or groups who have been denied or stripped of their basic rights at the hands of tribal or State governments. Over the years, AIRRO has held information gatherings and meetings; demonstrations; participated in radio and multimedia programs; maintains a website (www.airro.org); and utilizes other web-based sites to carry out its mission. In 2010, AIRRO provided submissions to the State and the High Commissioner for Human Rights regarding the States Universal Periodic Review. The formation of AIRRO occurred as a direct result of the growing number of human and civil rights violations which were sweeping through Indian Country. Sometimes referred to as paper genocide, the epidemic of rights violations left, and continues to leave, thousands in its wake as it slices through Indian Country. These thousands of Indian people, most of whom are elders, women, and children, are systematically exterminated as a result of rights violations which lead to their disenrollment, banishment, and/or denial of membership in their indigenous communities. Disenrollment is the stripping of ones citizenship in his or her tribe. The individual Indian is denied the rights and services afforded members of the federally recognized tribe from which they have been removed from. Additionally, the individual is no longer eligible for services and programs offered by the State to members of federally recognized tribes. Many have

lost their jobs as a result of disenrollment and all are no longer eligible to participate in tribal elections or other political affairs. In some cases, disenrollments include the penalty of banishment. Banishment is an act taken against an individual or group whereby they are barred from entering and/or staying within their tribal reservation or other tribal lands. In short, they are barred from accessing their homes and land, Indian health medical facilities, and other services and facilities that can only be utilized through access and passage through the lands from which they have been banished. Failure to comply with an order of banishment is punishable by further sanction including a fine, imprisonment, or both. What is it about the violations of rights in Indian Country that elevates this issue to one which should be of concern and interest to the international community? The taking of ones citizenship, the denial of basic rights and freedoms, and the severing of spiritual and cultural ties are the most egregious of human and civil rights abuses. In place of actual physical genocide, disenrollment, banishment and the denial of citizenship are killing off generations of Indian people. Professor David Wilkins of the University of Minnesota who has written extensively on the issue stated in Self-determination or self-decimation?: In a majority of disenrollment cases, however, some tribal officials are, without any concern for human rights, tribal traditions or due process, arbitrarily and capriciously disenrolling tribal members as a means to solidify their own economic and political bases and to winnow out opposition families who disapprove of the direction the tribal leadership is headed. What was historically a rare event - the forced and permanent expulsion of a relative who had committed a terrible offense - has tragically become almost commonplace in Indian country, leaving thousands of bona fide Native individuals without the benefits and protections of the nations they are biologically, culturally, and spiritually related to.

The State is in large part responsible for the growing problem of human rights abuses in Indian Country. Its responsibility lies with the laws it has enacted and the failures of its agencies to carry out the trust responsibility due the individual Indian. The State enjoys plenary power over the tribal nations within its boundaries and the tribal nations enjoy quasi-sovereign status subject to this plenary authority. As an exercise of its plenary authority, the United States has previously enacted legislation governing individual Indians, tribal nations and the relationship between the two.

Of note, the Indian Citizenship Act of June 2, 1924 recognized all Indians born in the United States as Citizens of the State, and as citizens, they were to be afforded the Constitutional protections provided to all other citizens. And, in 1968, after an investigation by the Constitutional Rights Subcommittee of the Senate Committee on the Judiciary into the problems Indian individuals face when attempting to assert their constitutional rights, the Indian Civil Rights Act of 1968 (25 U.S.C. Sections 13011303) was passed. The Indian Civil Rights Act (ICRA) was adopted to ensure that tribal governments respect the basic human and civil rights of individual Indians and non-Indians. The ICRA was intended to extend constitutional rights to individual Indians and thereby protect individual Indians from arbitrary and unjust actions of tribal governments. In pertinent part, the ICRA states:
Section 1302 Constitutional Rights No Indian tribe in exercising powers of self-government shall 1. make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances; 2. violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized; 3. subject any person for the same offense to be twice put in jeopardy; 4. compel any person in any criminal case to be a witness against himself; 5. take any private property for a public use without just compensation; 6. deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense; 7. require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and [1] a fine of $5,000, or both; 8. deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law; 9. pass any bill of attainder or ex post facto law; or 10. deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.

The ICRA recognized the rights of individual Indians and prohibited tribal governments and tribal officials from infringing on those rights. The ICRA was not all it was made out to be. Its shortcomings lied in its enforcement and have been the death blow for most all actions taken by individuals seeking redress for violations of its provisions. Save for a writ of habeas corpus, the ICRA failed to include an effective enforcement mechanism whereby the aggrieved individual(s) could hold the offending tribal government or tribal official(s) accountable for violations of tribal and/or federal law.

The ICRA was further neutered by the United States Supreme Courts decision in Martinez v. Santa Clara Pueblo which held that the ICRA, although a federal statute, was not enforceable in federal court and deference should be paid to tribes to regulate their internal matters. The Court in Martinez based its decision on several assumptions: First, the Court assumed that tribal forums would be available for individuals to bring causes of actions for ICRA violations, and second, the Court assumed that Secretary of the Interior would hear ICRA claims in circumstances where secretarial authority was required to ratify changes in tribal governing documents. Both of these assumptions were flawed. To date, many tribal governments fail to provide tribal forums, such as tribal courts, in which to have ICRA violations resolved. And, in instances where tribal forums are available, they are very rarely, if ever, separate but equal arms of the tribal government free from the influence of tribal officials. The absence of an independent tribal judiciary leaves review of such decisions in the hands of those who may stand to profit from the outcome or who are the actual oppressors or violators of the individuals rights. The absence of independent tribal judicial forums further strips the victims of any opportunity for recourse consistent with basic notions of due process that would be available to any other citizen of the United States. In this regard, Tribal governments and/or officials have used the United States Supreme Courts decision in Martinez cut away the rights of its citizenry and selectively apply law as it sees fit. The States next failure in protecting and preserving the basic rights of those it had a duty and responsibility to serve also stems from the Martinez case. Although the Martinez decision did allow for State intervention in limited instances, the Bureau of Indian Affairs (BIA), an agency within the Department of the Interior, has routinely declined to intervene in matters involving violations of the ICRA which result in disenrollment, banishment, or denial of citizenship. Citing the Supreme Courts decision in Martinez, the BIA has deferred to the tribe to handle all such matters. The States reluctance, through the BIA, to intervene on behalf of individual Indians to protect their federally recognized rights, coupled with the general lack of tribal forums are contrary to the assumptions made by the Supreme Court in justifying its position in the Martinez decision. Moreover, the continued and unabated abuses of Federal, State and Tribal laws by tribal officials show complete disregard for the States desire and intent when passing the ICRA. Yet the State has failed to take any action to remedy the situation and has created an environment for the continued and on-going violations of the very rights it sought to protect through the enactment of the ICRA. The failure of the ICRA as well as what he believed was the States white-washing of a commissioned report to study the law and its effectiveness, was the topic of a statement by William B. Allen, a member of the United States Commission on Civil Rights. In the statement (1991), Commissioner Allen pointed out that no federal (State) money had been spent on the enforcement of fundamental civil rights of American citizens (including the indigenous population) domiciled on reservations since the Martinez decision. In effect, once the Supreme Court ruled that only tribal governments would decide which rights it would afford its citizens

and how those rights were enforced, the State determined it had no responsibility to individuals or role to ensure their basic rights, as defined in federal law, were respected and enforced. Through action of law and decisions of the judiciary, the State had created an environment where individuals and/or governments could violate the rights of thousands without fear of prosecution or retribution. As the number of rights violations grew and the abused looked for avenues of redress, the States federal courts saw more and more cases involving the violations of individual Indians rights. And while the courts have continually thrown out such cases as tribes and tribal officials claim sovereign immunity, courts, such as the United States 9th Circuit Court of Appeals in Lewis v. Norton (424 F 3d 959), lament the fact that a case may be deeply troubling on the level of fundamental substantive justice they cannot intervene even where fairness may seem to dictate otherwise. The States actions and inaction regarding the growing number of human and civil rights violations in Indian Country conflict with numerous article of the Declaration. Indigenous people of the State are being denied full enjoyment of all the human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law (Article 1). Indigenous peoples and individuals of the State are not free and equal to all other peoples and individuals, nor are they free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity. (Article 2) Thousands of indigenous people have been stripped of their nationality and are being denied the right to self-determination, are being ripped from their communities, and are being denied their right to participate in cultural and traditional events. (Articles 3, 6, 8, 9, 11, & 31) As a result of disenrollment, banishment and the denial of membership in their communities, thousands have been denied or stripped of their liberty and security of person. They have been subjected to paper genocide and acts of violence as they are deemed less than the group they used to belong to. (Article 7) The States failure to provide effective mechanisms within existing federal laws for prevention of violations of the laws and which provide redress for victims of said violations clearly contradicts Article 8 Section 2. Many have been forcibly removed from their lands and are being denied access to spiritual and religious places. (Articles 10 & 12) As a result of their rights being denied, stripped, or terminated, their histories have been changed forever. Languages and oral traditions will be lost. (Article 13) The change in their citizenship denies indigenous people access to education programs administered by the State for the benefit of federally recognized Indian individuals. Moreover,

they have been stripped of the right to engage freely in their traditional and other economic activities. (Article 14 & 20) Thousands of indigenous people are no longer afforded the opportunity to consult and cooperate with the State or other governments on issues which may affect them. (Article 19) Many indigenous people, especially women, children and elders, are being denied the right to improve their lives through State programs for which they are no longer eligible. Women, children and elders are also being subject to violence and discrimination based on their change of citizenship status. To date, the State has taken no measures to address these issues. (Articles 21 & 22) Indigenous people are being stripped of or denied access to housing and health care programs available to other indigenous people within the State. (Articles 23 & 24) Denial of access to traditionally owned, occupied, and/or used lands and waters denies thousands of indigenous people of the State the right to maintain and strengthen their spiritual relationships with their homes and to utilize their lands and resources as they deem proper. Individuals have also had their lands, homes, and other resources confiscated, taken, occupied, used and damaged without their consent. (Articles 25, 26, 27, 28, & 32) For thousands, the right to determine their own identity in accordance with their customs and traditions no longer exists. They have been stripped or denied their place within their indigenous communities and they are not allowed to participate in their customs, traditions, practices, or other procedures as available to other indigenous members of the communities. (Article 33, 34 & 35) The State has failed to carry out the trust owed to thousands of indigenous people. It has violated this responsibility and failed to comply with or enforce treaty provisions which protect the rights of thousands. (Article 37) The State no longer has an obligation to thousands of indigenous people to ensure that they may enjoy the rights contained in the Declaration or that all infringements on their individual and collective rights shall be justly and fairly resolved. (Articles 39 & 40) The State has fallen woefully short in equally guaranteeing the rights and freedoms of its indigenous people and has failed to meet the minimum standards for the survival, dignity, and well-being of its indigenous peoples. (Articles 43 & 44) In the course of discussions with its members and those who have been affected by the rights violations described above and through a numerous listening sessions, AIRRO received testimony regarding the growing number of human and civil rights violations occurring in Indian Country. Those who testified and other attendees also provided input as to actions the State should take to address the issues. The proposed actions are consistent with Article 8, Section 2 which provides:

States shall provide effective mechanisms for the prevention of, and redress for: (a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; (b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources; (c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; (d) Any form of forced assimilation or integration; (e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.

Moreover, enactment of the proposed actions listed below would go a long way to achieving the ends of the Declaration. (Article 38) First and foremost, the State should provide an efficient enforcement mechanism for the redress of alleged violations of the ICRA and other tribal and/or federal laws enacted to protect and preserve the rights of the individual Indian. The mechanism should include de novo review by federal courts of tribal court actions, upon the exhaustion of tribal remedies, where violations of the ICRA are or have been alleged. And, in instances where there is no tribal court, individual(s) alleging violations of the ICRA or other human and civil rights violations shall be allowed to file an action in federal court and the federal court shall have jurisdiction to hear the dispute. Tribal officials, as well as State officials, shall not be allowed to invoke immunity from prosecution for alleged rights violations nor shall a tribes sovereignty shield its officers, employees, or agents. The State has previously amended the ICRA, so such action is not unprecedented. The Tribal Law and Order Act of 2010 changed the ICRA to ensure that defendants in criminal proceedings in tribal courts are afforded the same or similar rights and/or privileges as criminal defendants in the courts of the State. While the rights of criminal defendants were expanded on, no action was taken by the State to fix the flaws of the ICRA which affect the basic human and civil rights of those victimized as a result of the ICRA. Secondly, State agencies, such as the Department of Justice, the Department of the Interior, and the State Department, shall have the authority and responsibility to investigate and/or prosecute alleged rights violations committed against indigenous people of the State. At its homepage (www.jostice.gov/otj/civilrights.htm), the Department of Justice Civil Rights Division clearly states that it does not have the authority to enforce the ICRA. The AIRRO is unaware of any State department or agency which exercises such authority or which will uphold its trust responsibility to protect the rights of the individual Indian. The BIA shall also be required to review and approve or deny any and all actions taken by tribal governments and/or tribal officials which may affect the rights of an individual or group. Alleged violations of the ICRA shall require automatic review and the BIA shall have the authority to over-rule actions taken in violation of the ICRA or other applicable tribal or State

laws. BIA intervention, as a department wide policy can be effective if it has the authority to act and hold violators liable for their actions. Furthermore, the State must be proactive in addressing the growing number of abuses committed against its indigenous people. The State needs to address the policies, programs, and laws governing the rights of its indigenous people. The State must take action to change the current environment, an environment it created, which allows for and fosters the wholesale denial and abolishment of basic rights. The indigenous people of the State must also look to the international community, the United Nations, and other intergovernmental organizations for assistance to address the growing number of rights violations occurring in Indian Country. The AIRRO appreciates this opportunity to submit this information as this conference and consultation is important to the promotion and effectiveness of the Declaration within the State and Indian Country. Please feel free to contact AIRRO at the address listed above or via email at AIRRO_01@msn.com if you require additional or follow-up information.