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Inquiries and Reports - International
Amnesty International
May 2003
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Human rights violations against Indigenous peoples have been occurring for centuries around the world. The region now called the Americas has been no exception. More than 510 years ago, Europeans began to arrive in the Americas and lay claim to Indigenous peoples’ lands, destroying their political institutions and ways of life. The devastating impact of early European contact with native populations has been well documented. The encroachment on Indigenous peoples’ land and their subsequent colonization were often accompanied by slaughter of children, women, and men who stood in the way. Entire communities were decimated either through mass killings, starvation or from infectious diseases brought by the invading group. Unsuccessful attempts were made to enslave the native population before slaves were brought in from the African continent. Manifest Destiny, the policy behind United States’ colonization of the land deprived Indigenous peoples their ancestral land, access to life-sustaining resources and traditional ways of life.
While mass killings of Indigenous peoples may have diminished in scale since the height of the colonization period, they have never stopped. The counter insurgence tactics used by the Guatemalan army to crush armed oppositions in the late 1970s and the early 1980s led to the killing of tens of thousands of civilians, a majority of whom were unarmed Mayans. Throughout the Americas, members of national security forces, either in uniform or in the guise of ‘death squads’ and their civilian auxiliaries continue to be responsible for grave and widespread human rights violations against Indigenous peoples. Defenders of indigenous rights have been subjected to serious human rights violations for speaking out against the abuses suffered by their communities. Others have been singled out because of their involvement in trade union movements or other political activities. The cases featured here demonstrate a pattern of human rights abuses suffered by Indigenous peoples in the Americas. But they by no means constitute a comprehensive list of human rights violations suffered by Indigenous peoples in this hemisphere.
In Brazil, successive governments have not only failed to protect the fundamental human rights of Brazilian Indians, but have fostered a culture of impunity that has allowed for widespread and increasing violence against Indigenous peoples and their defenders.
In Canada, the Lubicon Cree of northern Alberta, numbering about 500, have been fighting for the recognition of their rights to their ancestral lands for decades. In 1984, having exhausted all internal legal avenues to hear their case, the Lubicons petitioned the United Nations Human Rights Committee. In 1990, the Human Rights Committee ruled that the human rights of the Lubicons were being violated.
In Guatemala, a bloody civil conflict that began in the early 1960s claimed the lives of an estimated 200,000 Guatemalans. While the victims of these human rights violations included men, women, and children, the vast majority of the victims were unarmed Mayan villagers. Today oil and mining interests threaten the environment and livelihood of Indigenous Guatemalans.
In the United States, two Western Shoshone sisters, Mary and Carie Dann, have been fighting the government for more than three decades to retain access to the use of their ancestral lands. After exhausting domestic remedies at the US Supreme Court, the Dann sisters petitioned the Inter-American Commission on Human Rights (‘IACHR’), which ruled on January 9, 2003 that US government is violating the human rights of the Dann sisters. IN spite of the IACHR ruling, the government continues to round up and impound the Dann’s livestock, further jeopardizing the economic base of their survival.
Despite a 500-year legacy of abuse, the Indigenous peoples in the Americas have struggled to preserve their culture, language, heritage and right of self-determination by linking their struggles regionally and internationally.
In recent years, Indigenous peoples around the world have been empowered by their ability to connect local struggles to the emerging global movement to affirm Indigenous peoples’ human rights. The ability to mobilize international support is particularly crucial to otherwise politically marginalized Indigenous peoples in countries where they constitute a small percentage of the population.
A case in point is Brazil where Indigenous peoples constitute less than 1 percent of the population, the smallest percentage in any country in the continental Americas. In spite of (or because of) the smallness of their size, Brazilian indigenous rights activists have been in the vanguard of the new global transnational movement to promote and protect Indigenous peoples’ human rights. Indigenous organizations in Brazil have accomplished this by developing strategies and organizational structures that connect their local struggles to the large international movement and NGOs.
Indigenous peoples around the world have been supported in their struggles through a number of international instruments and frameworks that have helped define their rights and hold governments accountable for protecting those rights. In 1989, the International Labour Organization (‘ILO’) adopted the Indigenous and Tribal Peoples Convention 169 which recognizes the collective social, cultural and economic rights of Indigenous peoples including their rights to self-determination within the framework of the nation-state, and obliges ratifying countries to take concrete steps to defend Indigenous peoples’ rights.
In recent years Indigenous peoples have become actively involved in helping shape major international treaties, conventions and declarations designed to affirm and protect their rights. In 1982, the UN established a Working Group on Indigenous Populations (‘WGIP’) whose major accomplishment was to produce a ‘United Nations Draft Declaration on the Rights of Indigenous Peoples’ and to serve as a global gathering forum for the world’s Indigenous peoples. While the Declaration has yet to be approved by the UN structures, it nevertheless reflects the agenda of indigenous groups around the world and organizations that support them. Indigenous peoples refer to the Declaration in current legal cases at the national level citing it as an emerging norm in customary law.
At the regional level, the Organization of American States (‘OAS’) proposed the American Declaration on the Rights of Indigenous Peoples. In 1995, the Declaration was made public and in 1997 a revised version was issued. Since its introduction, there have been numerous meetings and a creation of a Working Group to facilitate its adoption into regional law.
These three international instruments provide an important categorization of the individual and collective rights of Indigenous peoples and a framework for the realization of indigenous rights in international law. Indigenous peoples strive for a future convention guaranteeing the protection and promotion of human rights of Indigenous peoples.
In 1993, the United Nations declared 1995 to 2004 the ‘International Decade of the World’s Indigenous Peoples.’ While this event has helped increase global awareness on the human rights of Indigenous peoples, the decade has yet to produce many concrete changes in the social conditions of Indigenous peoples. Many governments around the world continue to violate the basic human rights of Indigenous peoples with impunity while denying that such abuses occur. The increase in corporate globalization and aggressive development projects, particularly in oil and mining industries, are further threatening economic and cultural survival of Indigenous peoples through involuntary resettlement, land encroachment, environmental destruction and loss of subsistence.
Today, Indigenous peoples are one of the most marginalized and vulnerable social groups in our society due to structural and systematic discrimination. Indigenous peoples in the Americas continue to suffer grave and widespread civil and political rights violations including rape, unfair trials, mass killings, extra-judicial executions, arbitrary detentions, torture and forms of degrading treatment as well as economic, social and cultural rights violations including loss of land, language, culture and subsistence survival. Indigenous peoples are economically disadvantaged and socially marginalized from the dominant societies. As the Decade concludes, it is important to examine what has been accomplished and explore remaining challenges to guarantee the broad range of Indigenous peoples’ human rights.
Amnesty International calls on governments around the world to uphold their obligations under international laws to respect and promote the broad spectrum of human rights accorded Indigenous peoples. The organization supports the drafting of a United Nations declaration on the rights of Indigenous peoples and looks forward to the eventual adoption of a strong and effective declaration.
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The state of the Brazilian Indians’ human rights is closely tied to their struggle for land rights. In 1991 the Brazilian Government coined the slogan ‘Indian is Land’. It was an acknowledgement of the centrality of land rights to the social, economic, cultural and political survival of Brazil's indigenous peoples. Indians derive their identity from their relationship to land; their survival as unique cultural entities is linked to land.
Amnesty International takes no side in disputes over land. What concerns the organization is the persistent failure of successive governments to protect the fundamental human rights of Brazil's Indigenous peoples. By failing to arbitrate promptly in disputes between the indigenous and non-indigenous community the state has left indigenous groups ever more vulnerable faced with escalating violence against them. The authorities at all levels have failed to protect the Indians effectively or to bring to justice those responsible for killing, abducting, harassing and threatening them. As a result, human rights abuses continue with impunity.
While in theory Brazilian Indians enjoy a wide array of institutional protection from human rights abuses, in reality, there is a disturbing pattern of organized violence against them. Violence against Brazilian Indians is compounded by delays in the federal process of legalization of Indigenous territories, or ‘demarcation’, which is fiercely opposed by landowners. Although indigenous groups welcomed the recent election of president Luis Inácio Lula da Silva and publicly stated their expectations of his government, there has been an alarming escalation in attacks and killings of indigenous people across Brazil so far this year. This violence appears to be as much the result of racial prejudice as motivated by disputes over land. On 6 January 2003 Leopoldo Crespo, a 77-year-old Kaingang Indian, was beaten to death by a group of youths in an apparently motiveless attack in Rio Grande do Sul, Brazil’s southernmost state. In Roraima state, in the far north of the country, the body of Aldo da Silva, a 52-year-old member of the Macuxi indigenous community, was found in suspicious circumstances in the Raposa Serra do Sol indigenous territory. This area was recently the subject of a decision in favour of the Macuxi by Brazil’s highest court. On 13 January, 72-year-old Marcos Verón, leader of the Guarani-kaiová indigenous community, was beaten to death during a violent confrontation between Indians and landowners in Mato Grosso do Sul, western Brazil. These incidents underscore the urgent need to pay serious attention to the increasing violence against Brazilian Indians and their defenders who continue to suffer constant threats and attacks.
There is perhaps no better time to address the important issues of Indigenous peoples’ human rights in Brazil. The election and inauguration of Luiz Inácio Lula da Silva as President of Brazil on January 1, 2003 gives cause for optimism. The ruling Workers Party has been a strong advocate of Indigenous peoples’ rights and President Lula promised during his campaign to protect the environment and guarantee the rights of Brazil's Indigenous peoples. It is important now that Amnesty International continues to remind the government of the need to effectively address the protection of Inidigenous peoples and their human rights and as part of that process ensure that the demarcation and protection of the Indigenous lands be concluded under the current administration.
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Over the past thirty years, the participation of Brazil’s Indigenous peoples in political life has increased, resulting in the general recognition of their rights. Unfortunately, these advancements have not resulted in real protection of the human rights of Brazilian Indians and the recognition of their Constitutional rights to their land. Indigenous people in Brazil continued to be abducted, tortured and killed for their land or the resources on them. The Brazilian government seems to have given greater priority to economic and political interests over Indigenous peoples’ rights.
Indigenous peoples remain largely excluded from political and economic decisions that affect their lives. Time after time, Amnesty International has reported assaults, massacres and targeted killings of Indigenous peoples and those defending their rights. Yet these practices have gone almost entirely unpunished. Impunity in such cases has encouraged increase in violence, putting whole communities at risk, in spite of comprehensive Constitutional guarantees for Indigenous peoples in Brazil. It is time to put an end to this impunity, and ensure that the rights of Indigenous peoples, enshrined in the 1988 Constitution, are truly enjoyed by them.
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The Lubicon Cree have seen the land on which they depend transformed by logging and largescale oil and gas extraction. The Lubicon, an Indigenous nation of approximately 500 people living in northern Alberta, have never surrendered their rights to their traditional lands. The Lubicon were simply overlooked when a treaty was negotiated with other Indigenous peoples in the region in 1899. A reserve promised to them forty years later was never established. Since the mid-1980s, negotiations with the federal and provincial governments have repeatedly broken down. Meanwhile, the Lubicon say that their health, their way of life and their culture itself are being steadily destroyed by resource extraction to which they’ve never consented.
‘I have seen sickness which should be unacceptable in any community in Canada,’ Lubicon elder Reinie Jobin said in a video released in 2000 by a Canadian church coalition. ‘Now I’m going to be seeing the total destruction of the forests in this area. When that is destroyed that will destroy our people.’
In March 1990, the United Nations Human Rights Committee concluded that ‘historical inequities’ and ‘more recent developments’ have endangered the way of life and the culture of the Lubicon Cree. The Committee ruled that ‘so long as they continue’ these threats are a violation of the Lubicons’ fundamental human rights.
At the time, the Canadian government assured the Human Rights Committee that it was seeking a settlement that would protect the rights of the Lubicon. To date, however, no such a settlement has been reached.
There have been five rounds of talks between the Lubicon and the federal government since 1986. The latest round began in 1998. A number of longstanding points of contention have been resolved and the Lubicon and the federal and provincial governments have all expressed optimism about the progress that has been made. At the same time, supporters of the Lubicon point out that previous negotiations fell apart even when a settlement appeared close at hand.
It has now been more than 100 years since the Lubicon were overlooked in the Alberta treaty process, more than 60 years since they were first promised recognition of a secure landbase, more than a quarter century since the first negotiations began with the federal government, and more than a decade since the United Nations called on Canada to stop the violation of the Lubicons’ human rights. To say that justice is overdue is an understatement.
Amnesty International is calling upon the Canadian government to make every effort to ensure that this time, a fair settlement is reached with the Lubicon Cree that ensures the protection of their rights as required by international and national law.
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‘Canada must now work out fair and lasting terms of coexistence with Aboriginal people...Canada's claim to be a fair and enlightened society depends on it.’
– Royal Commission on Aboriginal Peoples, 1996.
The Canadian government’s Royal Commission on Aboriginal Peoples (‘RCAP’) acknowledged in its 1996 report that there have been widespread violations of Indigenous peoples’ rights over land and natural resources in Canada and that these violations have unfairly deprived Indigenous communities of opportunities for healthy and sustainable livelihoods. According to RCAP, illegal encroachment and expropriation have denied Indigenous peoples in Canada access to almost two-thirds of the land that rightfully belongs to them under existing treaties. This is in addition to Indigenous peoples like the Lubicon Cree in Alberta and the majority of Indigenous peoples in British Columbia who have never signed a treaty nor ceded their inherent or aboriginal land rights yet have seen their lands declared public property, their natural resources sold off and resource management polices imposed without consent.
The numerous ongoing land disputes between the federal government and Indigenous peoples across Canada all involve issues of aboriginal or inherent rights, treaty rights and constitutional law, the details of which Amnesty International does not have the expertise or the mandate to interpret. Amnesty International believes, however, that the rights of Indigenous peoples already recognized in treaties, the Canadian Constitution and other aspects of Canadian law are an essential part of the framework of protecting and promoting human rights in Canada. Therefore Amnesty calls on all levels of government in Canada to uphold and promote these rights, rather than seek ways to diminish, undermine or circumvent them.
Amnesty International also calls on the Canadian government, like all governments to uphold the commitments made in ratifying international human rights conventions, to live up to widely agreed upon human rights standards and to comply with the recommendations of UN treaty bodies.
In 1998, the United Nations Committee on Economic, Social and Cultural Rights called on the Canadian government to ‘act urgently with respect to the recommendations of RCAP ... to take concrete and urgent steps to restore and respect an Aboriginal land and resource base adequate to achieve a sustainable Aboriginal economy and culture.’ This recommendation was echoed by the UN Human Rights Committee, which in 1999 urged ‘decisive and urgent action be taken towards the full implementation of the RCAP recommendations on land and resource allocation.’ In 2002, the UN Committee for the Elimination of Racial Discrimination expressed its concern over the slow progress toward implementing the recommendations of RCAP.
In addition to these calls by the UN to address general concerns related to Indigenous peoples’ access to land and resources, Canada also has an outstanding obligation to take action on the specific 1990 UN Human Rights Committee ruling that continued threats to the Lubicons’ culture and way of life constitute a violation of their human rights.
Canada is also obligated to uphold the general recommendation to all states by the UN Committee on the Elimination of Racial Discrimination to ‘ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent.’ The requirement of informed consent is also found in other international human rights instruments, which, although not legally binding on Canada, are nonetheless highly authoritative and indicate a minimum standard that the federal government should meet. These instruments include the Convention on Indigenous and Tribal People (ILO Convention 169), the Draft United Nations Declaration on the Rights of Indigenous Peoples and the Organization of American States draft American Declaration on the Rights of Indigenous Peoples.
Acting on these recommendations necessarily involves both federal and provincial levels of government. The federal government has argued that it cannot uphold human rights treaties or the recommendations of UN treaty bodies in areas of provincial jurisdiction. But, in fact, the federal government has exclusive fiduciary responsibility under the Canadian Constitution to protect the interests and lands of Indigenous peoples. The federal government also has an obligation to ensure that the international human rights conventions it ratifies are upheld in all jurisdictions in Canada. This obligation of the federal government has been repeatedly affirmed by UN human rights bodies.
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Over the years, the Indigenous peoples of Guatemala have learned to expect very little from their government and judicial system. The justice system is corrupt; proceedings are rarely conducted in indigenous languages; furthermore, proceedings are unnecessarily lengthy and subject to obstruction and manipulation, and indigenous persons rarely have the resources to employ lawyers, to file various legal papers, or to make court appearances. In addition, those who seek justice are often victimized themselves. As a result, a climate of impunity continues to prevail in Guatemala for most human rights violations, including those perpetrated during the civil conflict, which lasted over a period of more than 30 years.
Those especially vulnerable to human rights abuses are Guatemala’s poor and Indigenous peoples whose very existence have been threatened by deliberate and systematic repression from Guatemalan military forces and the economic interests of large landowners. Guatemala’s Indigenous peoples account for approximately 43 percent of the population, according to official sources; estimates by Mayan scholars range up to 60 percent. Backed by powerful state officials, activities by large landowners, such as unauthorized logging and ranching, and the extraction of natural resources such as oil and nickel, are denying Indigenous peoples the rights to their lands and threatening their environment. Efforts by the Indigenous communities to defend their rights have been met with further human rights abuses, including intimidation, threats, ‘disappearances,’ and extrajudicial execution of members and leaders of their communities.
The stage for Guatemala’s troubles was set in the post-Colonial era when the country’s elite minority established an authoritarian government. The newly constituted government was clearly racist in its practices and policies, and sought to promote the economic and political interests of the elite minority at the expense of the nation’s poor and excluded majority, the Indigenous Mayan population. In fact, the systematic discrimination against the Mayans and those who spoke out on their behalf by the State and the judicial system has continued throughout Guatemala’s history and characterizes its society today.
In the early 1960s a bloody civil conflict began that ultimately claimed the lives of an estimated 200,000 Guatemalans. The conflict between the Guatemalan military and the armed opposition was characterized by numerous human rights abuses that included large-scale massacres, ‘disappearances,’ and the cultural destruction of Indigenous communities through displacement. While no segment of the Guatemalan society was unaffected by the conflict, the vast majority of the victims were unarmed Mayan villagers. Indigenous women suffered from rape and sexual abuse by the army, cases which have been vastly under-reported. Male populations of entire Indigenous communities were forced to serve as civil patrols, putting them on the front line as shields for the army and forcing them to commit human rights violations. In fact, over 80 percent of the victims of human rights abuses during the civil war were Mayan. Even more disturbing is the fact that according to the Commission for Historical Clarification (Comisión para el Esclarecimiento Histórico) (‘CEH’), the Guatemalan state itself was responsible for over 90 percent of abuses committed during the conflict. The CEH itself concluded that the Guatemalan army and its civil patrols had been responsible for genocide in four specific areas of the country.
The CEH report, ‘Memory of Silence,’ concluded that the state’s violent stance stemmed from its ‘internal enemy’ policy, intrinsic to the National Security Doctrine which grouped all opponents of the state under one banner, and was used to justify the massacres carried out against the Mayan populations.4 Moreover, documented atrocities such as mass killings, rapes, kidnappings, and forced relocations were left uninvestigated and unpunished by a biased judiciary, reinforcing impunity, and the discrimination felt by the Mayan people. Those who spoke out against the injustice were labelled enemies of the state, and became vulnerable to harsh state retaliation.
The armed conflict was finally brought to an end with the signing of the Peace Accords in December 1996 by representatives of the Guatemalan government, and the Guatemala National Revolutionary Unity (Unidad Revolucionaria Nacional Guatemalteca) (‘URNG’). Following the Peace Accords, the CEH began its work in 1997. Formed under the auspices of the United Nations, the CEH’s goal was to clarify with objectivity, equity and impartiality the human rights violations and acts of violence connected to the armed conflict. On February 25, 1998, the CEH released its recommendations, which included measures to:
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The Indigenous peoples of Guatemala have not remained silent in the face of this increasing campaign of intimidation and harassment. Indigenous communities and their leaders are working together to affirm their rights. A group of Indigenous leaders from the northern and eastern parts of Guatemala met with Rodolfo Stavenhagen, UN Special Rapporteur for Indigenous Affairs, in El Estor in September 2002 to discuss issues of concern to Indigenous communities in the region. While Indigenous leaders have presented government or international representatives with their concerns many times, the El Estor meeting was the first time that El Estor’s Indigenous leaders presented a unified agenda on the issues of extractive industries such as oil and mining, rural development, and natural resource management.
This meeting led to a Congress of Indigenous leaders in El Estor on October 6–7, 2002, and the development of a plan of action and recommendations to the government. Indigenous leaders at the conference agreed that the key issue in the region is the exploitation of natural resources and the exclusion of Indigenous peoples from the development process. It recommended that the state adapt its development plans to include the concerns of Indigenous peoples, implement the Peace Accords, include Mayan education initiatives in the national budget, ensure participation of Indigenous peoples in the Council of Rural and Urban Development, and help strengthen Indigenous leadership.
Amnesty International is concerned that the harassment and intimidation of Indigenous peoples and human rights defenders is increasing in Guatemala. It has been said that those who do not learn from mistakes of the past are bound to repeat them; Guatemala’s failure to address problems of its recent history and bring past perpetrators to justice is contributing to current human rights abuses in the country. The prime targets of these recent human rights abuses are often Indigenous peoples and those who support them.
As noted above, the CEH made important recommendations related to the suffering of Indigenous peoples caused by the armed conflict. In addition, the Peace Accords cover many issues important to Indigenous peoples, in particular the 1995 Agreement on Identity and Rights of Indigenous People, and the 1996 Agreement on Social and Economic Aspects and Agrarian Situation. The former reaffirms the identity of Guatemala’s Indigenous peoples; acknowledges the history of discrimination against them; and enumerates the cultural, social, economic, civil and political rights to which they are entitled. The latter pertains to participatory development, social development, agrarian reform and rural development, and again, many of its provisions are directly relevant to Indigenous peoples.
Thus, by failing to implement the Peace Accords and to act on the recommendations of the CEH, the Guatemalan government is reneging on two sets of commitments that together contain many important stipulations for the protection of the human rights of Indigenous peoples. As Guatemala struggles for justice, both at home and abroad, those in authority need to address what more can be done to end the culture of impunity, assure citizens of access to the full spectrum of human rights, and deliver on the promises of the Peace Accords.
Endnotes omitted.
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United States
‘It’s disgraceful how the United States makes international statements about human rights and then commits this kind of assault in our own backyard. It destroys their credibility and moral authority.’
– Carrie Dann, a Western Shoshone elder in October 16, 2002.
‘I was indigenous and in one single evening they made me indigent. If you think the Indian wars are over, then think again.’
– Carrie Dann, a Western Shoshone elder in October 31, 2002.
In 1863, the Western Shoshone Nation of Indians entered into the Treaty of Ruby Valley with the United States. The Treaty affirmed the boundaries of the Western Shoshone Nation and gave the US limited access to and use of Western Shoshone lands for specified purposes. In April 1993, two Western Shoshone sisters Mary and Carie Dann, who live in the Crescent Valley of the Western Shoshone Nation in the State of Nevada, filed a petition with the Inter-American Commission on Human Rights (‘IACHR’) alleging that their human rights have been, and are being violated by the United States under various articles of the American Declaration of the Rights and Duties of Man (‘American Declaration’). Other Western Shoshone communities and the traditional Western Shoshone National Council joined the Dann sisters in their petition. The Dann sisters’ petition stated that the United States claimed in an illegal and discriminatory manner the extinguishment of the Western Shoshones’ right to their ancestral land. The petition also stated that the United States is actively seeking to deprive Western Shoshone people of access to and use of those lands. The Dann sisters further argued that the US Indian Claims Commission process violated their human rights by not allowing for a hearing on Western Shoshone land title, by not recognizing the request of the Western Shoshone to fire the non-Indian attorneys handling the case, and by not permitting the intervention of Western Shoshone individuals and groups to contest the presumed extinguishment of title.
The US government denied that it has violated the Dann sisters’ rights under the American Declaration. It argued that the Sisters’ claims are not human rights issues but rather involve lengthy litigation of land. The US government further argued that the Dann sisters and other Western Shoshone lost their rights to the land in 1872 as a result of encroachment by non-Native Americans.
On January 9, 2003, the Inter-American Commission on Human Rights released its final report on the petition. The Commission concluded in its final report that the United States claim to Western Shoshone land are illegal and contrary to international human rights law. The IACHR also concluded that the United States had used illegitimate means to assert ownership of the lands. The Commission directed the United States to provide a fair legal process to determine the Danns’ (and other Western Shoshones’) land rights and review its laws, procedures and practices to ensure that US policies governing the property rights of Indigenous peoples comply with the American Declaration on the Rights and Duties of Man.
Amnesty takes no side in disputes over land but the organization is deeply concerned by IACHR’s report that the human rights of the Western Shoshone are being violated by the United States. Amnesty is also concerned about the alleged violation against them, in particular their rights to equality before the law, to be free of discrimination, to fair trial and to property. The way in which the United States has handled the land claim has been found by the Inter-American Commission on Human Rights (IACHR) to be in violation of international law.
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In 1974, the United States government sued Mary and Carrie Dann for trespassing. The United States government accused the two Western Shoshone elders of grazing cattle on US public land without having obtained a federal permit. The Dann’s response was that they were grazing their cattle on Western Shoshone land as recognized in the Treaty of Ruby Valley. In 1984, the dispute ultimately ended up before the US Supreme Court. And in 1985 the Court handed down its decision in US v. Dann. The Court held that the Western Shoshone had been paid because the government had placed funds into a trust account in the name of the Western Shoshone, and that such payment barred the Dann sisters from raising Western Shoshone title as a defense against the federal government’s trespass charges. The underlying basis of the Court’s decision is that American Indians are classified under the US Indian law system to be ‘wards’ of the United States government. Thus, the Court deemed that the US federal government could pay itself as the Indians ‘guardian’ and say that therefore the Indians had been paid.
Importantly, the Supreme Court based its ruling in US v. Dann on the definition of ‘finality’ found in Section 22(a) of the Indian Claims Commission Act, part of which required an ICC report to be filed with Congress. However, what the Court did not realize at the time of its decision is that the Indian Claims Commission had never filed a report with Congress as required by statute, and that ‘finality’ in the Western Shoshone case had never been achieved by the ICC in the Western Shoshone case.
As a result of the ICC process, the monetary ‘award’ for the purported extinguishments of Western Shoshone title (nearly $140 million dollars), is still held in trust by the US Treasury because the Western Shoshone have refused to accept money for land they argue was never sold, ceded, lost or abandoned.
In August 2001, the United Nations Committee on the Elimination of Racial Discrimination noted the persistence of discrimination and destructive policies by the US against Indigenous peoples and expressed specific concern with regard to the situation of the Western Shoshone.
On January 9, 2003, the Inter-American Commission on Human Rights released its final report regarding the long-standing conflict between the United States and the Western Shoshone (the petition was filed by Mary and Carrie Dann of the Dann Band in 1993. The Western Shoshone National Council, Yomba Shoshone, Duckwater Shoshone and Ely Shoshone Tribes filed amicus curiae briefs in support of the petition). After an exhaustive review, the Commission concluded that the United States has been violating the human rights of the Western Shoshone, including the right to equality before the law, the right to judicial protection and due process, and the right to property. The ruling was highly critical of the Indian Claims Commission’s handling of the Dann Sisters’ case. It is the first time that the US has been formally found in violation of international human rights in its treatment of Indigenous peoples within its border. The US State Department has yet to indicate whether it will comply with the Commission’s decisions. In its response to the Commission’s preliminary finding, the US claimed that the Dann’s claims had been ‘fully and fairly’ litigated in domestic courts. The Commission’s final report rejected this claim and reissued its call on the US to give the Dann sisters a full and fair hearing on the legal merits of Western Shoshone land claims.
The Commission also affirmed that the assertion of title by the United States to lands claimed by the Western Shoshone violates international human rights law because the Indian Claims Commission proceedings lacked adequate due process protections and were discriminatory. The Commission also found that Articles XVIII and XXIII (rights to judicial protection and property) require that any determination of Indigenous peoples’ interests in land must be based upon a process of fully informed and mutual consent on the part of the Indigenous community as a whole – that is, members must 1) be fully and accurately informed, 2) have an effective opportunity to participate as individuals and as collectives.
The Commission recommended that in order for the United States to come into compliance with its human rights obligations, it must seek an effective remedy for the Western Shoshone, either legislatively or otherwise, and it must review its laws, policies and procedures to ensure that the property rights of Indigenous persons are determined in accordance with the rights established in the American Declaration.
The Western Shoshones and groups that represent them have questioned why would the US want Western Shoshone land. One reason may be that once the Treaty of Ruby Valley was signed, gold mining operations spread across the landscape. With the repression of Western Shoshone resistance and independence, the United States saw fit to facilitate the development of Western Shoshone lands for their mineral potential to the fullest extent possible. More than one hundred years of government policy in subsidizing and promoting the mining industry has led to a modern mining boom unlike any in world history. Western Shoshone lands now account for the majority of gold produced within the United States and almost 10 percent of world production. The scale of mining operations in the area is unprecedented and could leave a legacy of environmental impacts for centuries into the future.
Even after two requests, one in 1993 and the other in 1998, by the Inter-American Commission on Human Rights to stay its intention to impound Dann livestock until the case is resolved, the US continues to threaten the livelihood of the Danns. In September 2002, 40 agents from the Bureau of Land Management, heavily armed and accompanied by helicopters, confiscated 232 cattle off the Dann ranch. The cattle (about half of the family herd) was later sold off at auction, bringing in a mere $24,444 of the $3 million the government claims the Dann sisters owe in grazing fees dating back since the 1970s. In early January 2003, the BLM announced it would round up the nearly 1,000 of the Danns’ horses. In response to the threat of a roundup, the Western Shoshone National Council (WSNC) created the Western Shoshone International Goodwill Horse Program to which the Dann sisters are donating their horses. The purpose of the program is to promote economic development opportunities for Indian nations through horse management and gentling programs and to strengthen youth empowerment activities. Though the horses will be used to benefit the Western Shoshone peoples rather than coming under control of the BLM, the Dann sisters are still suffering a major blow to their economic survival.
In a legislative bit to legitimize the US government’s claim to the land, Senator Harry Reid (DNev.) sponsored Senate Bill 958, the Western Shoshone Claims Distribution Act, that would distribute the almost $140 million settlement. The Dann sisters, along with other Western Shoshone, oppose the bill, which they believe will thwart their challenges to land rights and will open up the land to even more gold mining. On November 16, 2002, a day after being passed in the Senate, the bill died in the House of Representatives as the 107th Congress ended. However, the 108th Congress has seen the reintroduction of the bill into the House (HR 884) by Representative Jim Gibbons of Nevada. The bill is opposed by traditional Western Shoshone as well as a majority of the Western Shoshone Indian Reorganization Act governments who were left out of the discussion about whether to distribute this money – a flagrant violation of the longstanding policy of the US to respect Indian sovereignty and government-to-government relations. The Western Shoshones did not cede their lands to the United States and are still fighting for the recognition of their rights to their ancestral homeland.
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The full text of the Report is available online via the Amnesty International Just Earth website at <http://www.amnestyusa.org/justearth> .
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