By Katya Yegorov-Crate
From August 9-13, 2022, the 107th Session of the United Nations Committee on the Elimination of Racial Discrimination (CERD) reviewed racial discrimination in the United States—the country’s first review since 2014. Prior to the Session’s start, Batani Foundation, Cultural Survival, Earthworks, and First Peoples Worldwide prepared and submitted the “Indigenous Rights Violations in the United States Related to Increased Transition Minerals Mining and Green Energy Policies” Joint Alternative Report for consideration during the U.S. Review. The report reflects the efforts of U.S.-based partners in Securing Indigenous Rights in the Green Economy, and lays out a background for the United States’ policies and interactions with Indigenous Peoples. It also discusses the country’s approaches to climate change and aspirations for a low-carbon economy, and enumerates the ways in which its focus on transitioning away from fossil fuels is violating Indigenous rights protected by the International Convention on the Elimination of All Forms of Discrimination.
Human-induced climate change requires prompt reduction of carbon emissions, which has resulted in many nations establishing international commitments and domestic policies to promote a low-carbon future. This pivot away from carbon increases demand for transition minerals like nickel, lithium, cobalt, and copper, which play a crucial part in the development of low-carbon economies since these materials are vital for electric vehicles and solar panels. Commitments to shifting toward green energy are commendable; however, the increased demand for transition minerals necessitates greater extraction activities, and processing these minerals requires the same carbon intensive means of traditional extractive mineral mining. Thus, there are major discrepancies between these solutions and “the very real, negative impacts that building these technologies will have on Indigenous Peoples via the increase in mineral mining and extraction on or near Indigenous land that is necessary for their manufacture and operation.’”
The Biden administration has set forth ambitious green energy initiatives, such as making the federal government carbon neutral by 2050, committing to entirely renewable energy sources by 2035, and setting a target for half of all new vehicles sold in the U.S. to be zero-emission by 2030. The report poignantly notes that each of these actions have been pledged and acted upon rather swiftly, “leaving no time to address the historical harms of extractive industry or to better integrate Indigenous Peoples into the decision-making process.”
Indigenous Peoples globally are already disproportionately impacted by the climate crisis even though they produce few greenhouse gas emissions. Indigenous Peoples are first affected by adverse changes to the environment due to maintaining vital relationships with land, water, and resources, and these impacts are further compounded by political and economic disenfranchisement, loss of land and resources, human rights violations, discrimination, and unemployment.
There is a strong precedent of extraction activities in the United States being connected to substantial human rights violations; the two most prominent of which are attacks against human rights defenders and contamination of water. Other significant violations include development without the Free, Prior, and Informed Consent of Indigenous Peoples; violence against Indigenous women and higher occurrences of sex trafficking; forced migration; and environmental hazards to land, water, and subsistence resources. Against a background in which historically founded legal frameworks perpetuate racist policies limiting protections and tribal sovereignty and yielding social, economic, and environmental disparities, the rising demand for transition minerals generated by the United States’ green policies will make Indigenous Peoples vulnerable to increased threats.
The rapid growth of transition mineral extraction in the U.S. will happen on ancestral lands where Tribes do not have legal title or control due to forced relocation. Although the U.S. concluded 370 treaties and has a formal policy of consultation with Tribes, the government limits consultations, does not ensure Tribes’ participation as equals in decision-making, and makes no effort to enforce Free, Prior and Informed Consent. Therefore, Indigenous inclusion in green energy policy is restricted and the Biden administration’s goal of promoting an ethical and sustainable shift from a fossil fuel-dependent economy falls short. A “just transition” is not possible without incorporating perspectives on remedying past harms and present-day consequences of extractives on Indigenous Peoples.
The Joint Alternative Report lists seven major ways in which the United States’ “overarching commitment to the energy transition, via green energy policies and increased domestic sourcing initiatives, violates and will continue to violate Indigenous rights protected by the International Convention on the Elimination of All Forms of Racial Discrimination.”
1. The U.S. violates the requirement that it take special measures pursuant to Article 2(2) to prevent violations that will increase during the transition to green energy. Article 2 mandates state parties to implement specific concrete steps to guarantee appropriate development and protections of certain racial groups and individuals belonging to them in order to ensure them the complete and equal enjoyment of human rights and fundamental freedoms. Therefore, in promoting the transition to green energy, the U.S. has a responsibility under the International Convention on the Elimination of All Forms of Discrimination to supply sufficient protections to Indigenous Peoples who are adversely affected by, yet omitted from, the decision-making processes to develop on and near Indigenous lands.
2. The U.S. violates the right to equal enjoyment of human rights and fundamental freedoms pursuant to Article 1 due to known health and environmental threats attendant to extractive mineral mining. Expanding transition mineral extraction constitutes singular threats to the health of Indigenous Peoples who frequently live on or near development sites. Toxic materials––byproducts of mining activities––are released into the air and water and continue to dwell there, impacting the environment for years after mining companies cease operation. These health risks are further exacerbated by other risk factors connected with health inequalities like poverty and poor infrastructure.
3. The U.S. violates the right to equal participation in cultural activities pursuant to Article 5(e)(vi) because of the extractive mining harms and destruction of Indigenous sacred sites and religious practices. Sacred sites, including areas with spiritual significance; sites of massacres; ancestral burial sites; and resources, such as those harvested for medicines and ceremonies or sacred wildlife, are frequently on or linked to Indigenous lands. Subsequently, extractive development poses a threat to culture under Article 5(e)(vi).
4. The U.S. violates Indigenous Peoples’ economic rights pursuant to Article 5(e) by perpetuating extractive dealmaking that does not benefit the Tribes most impacted by the development. Indigenous Peoples are omitted from conversations and decision-making processes on activities that will directly impact them. Though the U.S. has a formal consultation procedure, operating practice continues to exclude Indigenous Peoples from participating in energy transitions of any sort. The Biden administration’s Executive Order on combating the climate crisis domestically and abroad mentions the policy will bring jobs to Indigenous communities. However, these jobs are impermanent, and extraction projects need to offer sustainable returns to the communities most affected by them.
5. The U.S. violates Indigenous Peoples’ rights to adequate remedies pursuant to Article 6 because the legal frameworks do not provide adequate damages, nor do they recognize the harm of these rights violations. As a result of current laws and policies, Indigenous Peoples are incapable of seeking sufficient reparation or damages under the International Convention on the Elimination of All Forms of Discrimination. Indigenous relationships with land are unique and include not solely economic relationships, but cultural, spiritual, and ancestral aspects that become disrupted and irreparable when the ecosystem is permanently disturbed by extraction projects.
6. The U.S. violates the right to security and the right to peaceful assembly and association pursuant to Articles 5(b) and 5(d)(viii) as evidenced by a pattern of increased violence against Indigenous women; increased violence to Indigenous human rights defenders; and increased law enforcement harassment and militarization near protest sites. Indigenous workers are subjected to exploitative labor practices, hazardous working conditions, and additional labor abuses. Often, short-term workers are moved in to meet the labor demands, and this influx of temporary workers (who are not community members) and establishment of “man camps” corresponds with rises in criminal activity, specifically assaults and sex trafficking of Indigenous women and girls. Due to the temporary nature of their work and issues of jurisdiction, these workers often face no repercussions for their crimes. Further, there is an intensification of police harassment and militarized reactions to Indigenous People protesting development of their lands.
7. The United Nations Declaration on the Rights of Indigenous Peoples informs International Convention on the Elimination of All Forms of Discrimination violations relating to Indigenous Peoples, including the right to Free, Prior and Informed Consent. The Declaration establishes the minimum standards for the survival, dignity, and well being of Indigenous Peoples and protects their self-determined control and use of the areas affected by extraction. The Declaration should steer U.S. development off these lands so that the current situation, in which the U.S. has reduced Free, Prior and Informed Consent to consultation, is rectified and Indigenous Peoples collectively have the right to give or withhold consent voluntarily.
The reporting organizations urged the Committee on the Elimination of Racial Discrimination to make the following general recommendations:
1. Respect, protect, and fulfill Indigenous Peoples’ rights to participate fully in the political, economic, social, and cultural life of the State and secure their right to Free, Prior and Informed Consent.
2. Reform policies and proposed legislation that incentivizes the green economy to incorporate Indigenous Peoples’ rights under the International Convention on the Elimination of All Forms of Discrimination, the Declaration, and treaties between the U.S. and Indigenous Tribes.
3. Require that the consultation process and government-to-government relationship between the U.S. and Indigenous Peoples incorporate the right to Free, Prior and Informed Consent.
4. Require that corporations and companies that develop on or near Indigenous lands and territories, both ancestral and presently occupied, obtain the Free, Prior and Informed Consent of Indigenous Peoples.
5. Recognize that the U.S., consistent with the commitments that it has made under the Committee to End Racial Discrimination and the Declaration, recognize the denial of rights to Indigenous Peoples as a human rights issue and begin to take action to rectify the above described human rights abuses.
On August 30, 2022, the Committee to End Racial Discrimination released its Concluding Observations, mentioning the detrimental impacts of colonization, ongoing violations of Treaties the U.S. concluded with Indigenous Peoples, lack of acknowledgement of many Indigenous Peoples, neglect to fully enforce Free, Prior and Informed Consent, effects of imposed extractive and infrastructure projects and environmental pollution, and human rights violations against Indigenous Peoples outside the United States wrought by the activities of U.S.-held corporations outside the United States. Indigenous Peoples were discussed in sections addressing discrimination in adult and juvenile justice systems, use of excessive force by law enforcement, and child removal by foster care programs. Indigenous Peoples were mentioned 49 times in the Concluding Observations and reiterated in its recommendations to the U.S. to fight racist hate crimes, hate speech, gun violence, racial profiling, excessive use of force by law enforcement officials, discrimination and segregation in housing, and violence against women, all of which affect minorities, especially Indigenous Peoples. The Committee also drew attention to the legacies of colonialism that Indigenous Peoples have endured and continue to suffer from its consequences.
The Committee also made several repeat recommendations. Regarding the Convention in the domestic legal order, the Committee once more recommended that the U.S. take on all measures required to guarantee the consistent application of the provisions of the Convention at the federal, state, and local levels; prohibit racial discrimination in federal and state legislation, covering all areas of law and public life; consider removing or narrowing the scope of its reservation to Article 2 of the Convention, and to widen the protection offered by law against all discriminatory acts perpetrated by individuals, groups, or organizations. The U.S. should adopt and strengthen the use of special measures when circumstances justify their use as a tool to eliminate the continuing disparities in the enjoyment of human rights and fundamental freedoms by racial or ethnic minority groups or individuals belonging to them.
With respect to institutional framework and national action plan to combat racial discrimination, the Committee advised the U.S. to establish a permanent and functional coordinating mechanism (i.e., a national human rights institution) in order to guarantee application of the Convention and to monitor agreement with its provisions through the U.S. and its territories; agree to a national action plan to combat systemic racism and structural racial discrimination; and set in motion a process of consultation with all relevant parties with a view to prepare such national plan. Concerning racist hate crimes and hate speech, the Committee urged the U.S. to bolster its efforts to effectively tackle hate crimes and hate speech by considering withdrawing or narrowing its reservation to Article 4 of the Convention and adopting all necessary measures to prevent, condemn, and combat hate speech; establishing a thorough data collection system on occurrences of hate speech to evaluate the extent of the problem and effect of the actions taken by the government; making hate crime reporting to the FBI compulsory for all law enforcement agencies or allocating federal funds to do such reporting; maintaining provision of mandatory training on preventing and combating hate speech and hate crimes for law enforcement officials; and outlawing and prohibiting organizations that encourage and incite racial hatred.
The Committee admonished the U.S. to strengthen its legislative and policy measures and their application to prevent and decrease gun violence and fulfill its duty to safeguard the right to life and the security of person. Suggested methods to do so include increasing the scope of background checks for all private firearm transfers; outlawing assault weapons and high-capacity magazines; banning the practice of carrying concealed handguns in public; expanding transparency regarding gun use in crime and illegal gun sales; and reviewing “stand your ground” laws to guarantee strict compliance with the principles of necessity and proportionality when using deadly force in self defense. In regard to racial profiling, the Committee restated the guidance that the U.S. increase efforts to contend with and end the practice of racial profiling by law enforcement by accepting and implementing legislation that specifically prohibit law enforcement officials from engaging in racial profiling; expeditiously revising policies that allow or enable racial profiling, illegal surveillance, monitoring, and intelligence gathering; terminating immigration enforcement programs and policies that promote racial profiling; taking on prompt, rigorous, and unbiased examination of all allegations of racial profiling, surveillance, monitoring, and illegal intelligence gathering; and setting up a thorough data collection system for all incidents, complaints, and investigations of racial profiling by law enforcement.
Concerning excessive use of force by law enforcement officials, the Committee called on the U.S. to affect or reevaluate federal and state legislation overseeing the use of deadly force by law enforcement, making certain that they are in line with international law and standards; enhance reporting of cases involving excessive use of force and guarantee that reported cases are forthwith and effectively investigated and that legal action is taken against alleged perpetrators; institute or strengthen independent oversight bodies to guarantee accountability of law enforcement for inappropriate use of force; supply sufficient and continuous training to law enforcement; and ensure that data collection and case reporting of excessive or deadly use of force by law enforcement to the FBI database is compulsory, public, and disaggregated.
The Committee advised the U.S. to take all required measures to guarantee the exercise of the right to peaceful assembly without discrimination on the grounds of race, color, descent, national or ethnic origin. Further, the Committee suggested the U.S. investigate allegations of excessive use of force during peaceful protests and of harassment, surveillance, and threats against human rights defenders by law enforcement. On the subject of the criminal justice system and juvenile justice system, the Committee gave the following counsel: the U.S. should take definite and effective measures to eliminate racial inequalities at all stages of the criminal and juvenile justice systems by revising laws resulting in racially disparate impacts; reducing needless criminal justice interactions; enforcing strict restriction on the use of solitary confinement and chemical agents; and addressing the disparate impacts and consequences of the criminal justice system on racial and ethnic minorities.
The U.S. was advised to expand and further apply measures to protect racial and ethnic minorities from the COVID-19 pandemic and its socio-economic impact. The Committee again recommended the U.S. develop a comprehensive plan of action to attend to socioeconomic and racial segregation in schools; analyze and remedy funding disparities to public schools; expand federal funding for programs that encourage racial integration in schools; and adopt appropriate measures to address racial discrimination in applying student discipline. The Committee advised the U.S. to implement all necessary measures to expand existing health care programs so everyone has effective access to affordable and sufficient health care services. Additionally, the U.S. should take further measures to eradicate racial and ethnic discrepancies in the field of sexual and reproductive health and rights.
The Committee further advised the U.S. ensure effective enforcement of federal legislation prohibiting environmental pollution, particularly in areas inhabited by racial and ethnic minorities and Indigenous Peoples that have been mistreated to date; consider affecting prohibitions on the authorization of new heavy industry facilities and expansion of existing one; and take on independent and thorough investigations into incidents of mining and environmental polluting activities affecting the rights of racial and ethnic minorities and Indigenous Peoples.
According to a release by the International Indian Treaty Council, there was an unprecedented degree of recognition of many forms of racial discrimination experienced by Indigenous Peoples in the United States. The Committee implored the U.S. to supply sufficient funding to combat the ongoing crisis of Missing and Murdered Indigenous Women, Girls, and Two Spirit people and violence against Indigenous women; to adopt additional measures to honor Treaties and fortify consultation methods; and to guarantee the principle of Free, Prior and Informed Consent. These concluding observations strongly support Indigenous Peoples and underscore the many complex ways in which Indigenous Peoples in the United States are discriminated against.
Photo: International Women’s Day Women of the Tohono Indian Tribe in Tucson, AZ led the Tucson Women’s March in January 2019.
Photo by Dulcey Lima.