Expert Mechanism on the Rights of Indigenous Peoples Fifth Session
9-14 July 2011, United Nations Geneva
Agenda Item 6: United Nations Declaration on the Rights of Indigenous Peoples
Submitted by: Dr. Margo Tamez (Ndé), Indigenous Studies Program, University of British Columbia Okanagan, Canada.
Lipan Apache Women Defense;
The Emilio Institute for Indigenous and Human Rights, Texas-Mexico Border;
The Lipan Apache Band of Texas;
Relative to: The collaborative study conducted by Ndé community leaders, Dr. Margo Tamez, and Ariel Dulitzky of the University of Texas School of Law, Human Rights Clinic and how the UNDRIP was utilized as a transformational framework for research on the Texas-Mexico Border Wall
Addressing: UNDRIP Articles 10, 26, 27, 28, 30, 36, 37
Danzho. On behalf of the Lipan Apache Women Defense, the Lipan Apache Band of Texas, the Emilio Institute for Indigenous and Human Rights, and our research partners at the University of Texas at Austin School of Law and Human Rights Clinic, I wish to extend congratulations to chief Wilton Littlechild and Ms. Jannie Lasimbang for their election as Chair and Vice Chair of this session. Greetings to the distinguished members of the Expert Mechanism on the Rights of Indigenous Peoples, Representatives of Indigenous Peoples and organizations, and Delegates of member States. I also wish to express my appreciation of the UN Voluntary Fund for supporting my participation in the EMRIP 5th Session.
Chairman Littlechild, I am the co-founder of the Lipan Apache Women Defense, the co-founder of the Emilio Institute for Indigenous and Human Rights on the Texas-Mexico border, and am a professor in the faculty of Indigenous Studies at the University of British Columbia Okanagan traditional territory, where I conduct research and teach on Indigenous peoples perspectives of history, justice, governance, and lands. At this time, I wish to draw your attention to a study recently completed on the U.S. border militarization and the construction of the Texas-Mexico border wall. We conducted this study in collaboration with Ariel Dulitzky, faculty of law at the University of Texas at Austin, School of Law, Director of the Human Rights Clinic, and a current member of the U.N. Working Group on Enforced or Involuntary Disappearances.
I am happy to announce that our study culminated in a formal submission to the U.N. CERD, on May 12, 2012 and is entitled, “The Situation of the Texas-Mexico Border Wall: A Request for Consideration under the Early Warning and Urgent Action Procedures of the United Nations Committee on the Elimination of Racial Discrimination (80th Session).” This study affirms that the UNDRIP is being used to create transformational justice spaces when Indigenous Elders, women, men, families and youth breath life into and shape its local and transnational meanings in the militarized border and conflict zone of the Texas-Mexico border region. This study also affirms that Indigenous Researchers “from the bottom of social hierarchies, the traditional objects of research, [have] reposition[ed] ourselves as the subjects and architects of critical inquiry, contesting hierarchy and the distribution of resources, opportunities, and the right to produce knowledge” (Fine et al.:161).
I wish to highlight key findings and the relevance of Indigenous-steered research emerging at the crossroads of Indigenous human rights struggles along U.S. borders at a time when escalating human rights violations against Indigenous peoples in U.S. domestic space are receiving global attention.
This study used and drew from mixed qualitative and quantitative Indigenous and social science research methods, critical legal studies, and a human rights legal analysis to examine allegations of gross human rights violations against Indigenous peoples, Indigenous women, ‘Latinos’, Mexican migrant communities, and the poor. We focused attention to an area bifurcated along the border walls’ path of the Rio Grande River. These lands are known to our Indigenous research partners to be full of Indigenous presence since time immemorial, and shaped by a dynamic history of intercultural exchange among Lipan Apache, Mescalero Apache, Kickapoo, Tigua, Jumano Apaches, Tlaxcaltecas, and Nahuatl. Today that base is diversified further by a high Indigenous migration from Guerrero, Coahuila, Tamaulipas, and Nuevo Leon Mexico across the river into southern Texas.
The U.S. Department of Homeland Security enforced the construction of the border wall in the local area of Cameron County in 2009. Immediately after the wall construction occurred in 2009, we received reports from Indigenous Elders and leaders that redress and restitution were “obstructed” (Gilman 2008) by the U.S. legislated policy of freezing over 35 federal laws and by enacting sovereign immunity along the wall, which, according to the American Civil Liberties Union, constructed the ‘no constitution zone.’ For your convenience, I have attached the 134 page study to this reflective statement, and provide a link to the study on the UT Law web site, here, at http://www.utexas.edu/law/clinics/humanrights/.
Our study builds upon interviews, archival research, photo documentation, affidavits, video documentation, as well as the statements of expert Rapporteurs who listened to Indigenous peoples’ testimonies on June 24-26, 2011. After a rigorous nine-month study, and the co-supervision of seven UT Law students, we arrived at the conclusion that the U.N. CERD should take up our study because our case has met the criteria, which are:
i) adoption of new discriminatory legislation;
ii) iii) encroachment on traditional lands of indigenous peoples;
iii) iii) a significant and persistent pattern of racial discrimination evidenced by social and economic factors;
iv) iv) lack of an effective recourse procedure; and
v) v) lack of judicial remedy.
This research is located culturally, geographically and geopolitically in the traditional and customary lands known to the Ndé as Kónitsąąíía gokíyaa, the ‘home land of the Big Water People’. The Texas-Mexico border bifurcates the customary lands in the middle of the Rio Grande River—a place which has spiritually, ecologically, environmentally, and culturally traditionally served as a necessary cohesion, not a separator, of all life in the south Texas to Tamaulipas and Coahuila, Mexico border region. It is important to note, within a 70 mile radius south of the wall, a majority of the 2011-2012 multiple decapitations/beheadings, abductions/kidnappings, mutilations, massacres, lynchings, and other assaults on cadavers have been tied to the militarization of the drug and cartel war in north-eastern Mexico. This has been documented in numerous articles by the respected Americas Program policy analyst Laura Carlsen.
The severity of economic and social discrimination factors cannot be overstated. There is widespread fear among Indigenous peoples of Ndé, Tlaxcalteca and Nahuatl ancestry, that Indigenous human rights defenders, particularly women who are plaintiffs in the federal law suits against the government, are targeted by the government. U.S. military control over the region has effectively shut down local police authority to administer aid to human rights defenders protecting their property against U.S. personnel encroachments, harassments, and physical enclosures which serve the purpose of intimidating plaintiffs. It is important to note that the two counties where the U.S. border wall currently stands in Indigenous lands, Cameron and Hidalgo counties, have occupied the #1 and #2 positions in the last successive census counts as the most impoverished counties across the entire U.S. Of the 10 most structurally impoverished communities in the entire U.S., the Texas border occupies four.
In our executive summary, we found, “both Indigenous peoples and poor Latino communities are disproportionately affected by the placement of the border wall. A statistical analysis conducted by the University of Texas revealed a higher income range and a higher proportion of non-Hispanic and English-speaking households in the gap areas as compared to wall-designated blocks where more Spanish-speaking and Hispanic and Native American households are concentrated.” “In order to acquire the land on which the border wall” was constructed, “the government asserted its eminent domain powers to take title to land owned by citizens living along the border wall, including the traditional lands in title ownership of indigenous peoples.” The U.S. discriminated in its differential treatment of federally recognized tribal groups on the Arizona border, such as the Tohono O’odham and the treaty based though non-recognized Lipan Apaches.
Indigenous migrants endure forced relocations specific to NAFTA, neoliberal economic policies, the U.S. assisted ‘war on terror and drugs’ via militarization, and the criminalization of Indigenous migrant labour and movement across dangerous terrains. Indigenous women, youth and children are routinely rounded up and left in detention centers or U.S. military bases a few hours to the north of the border wall. As you can see, an Indigenous perspective of the actualities of the border wall and its interconnected maze of carceral systems underlies our ongoing research.
In conflict zones around the world, researchers have innovated working relations with impacted Indigenous peoples and when States obstructed justice in domestic spaces, Indigenous peoples have persisted successfully in establishing transitional justice spaces. The Ndé are studying the lessons of Truth Commissions in Guatemala, Canada, and Greensboro, and are currently working to recover community-based oral history, memory, and documents to stimulate collective memory of violations enacted in the community before and after 2009. Through the articulation of a critical and rigorous research framework based on the pillars of the UN Declaration on the Rights of Indigenous Peoples, and Ndé self-determination principles, I have been successful in generating research funds from UBC O and the Hampton Fund in Canada to recover, collect and analyze the Indigenous collective memory of 19th c. and 20th c. genocidal violence which the Ndé claim predated the current period of dispossession and trauma.
My sincere hope is that this statement will not be dismissed due to how it highlights a State’s contradictory domestic policies relative to Indigenous people’s rights along its Mexico border. I urge the EMRIP and the OHCHR to contemplate the important aspects of interlinking the EMRIP mandate with Indigenous academic research undertaken in collaboration with Indigenous leaders in this severely understudied and under theorized region of North America.
The U.S.-Mexico border was born from a violent and bloody war fought on ideological terms on the backs of Indigenous peoples. It is important to recognize the burdens shoved onto Indigenous peoples on the Texas-Mexico border which have profound lethal consequences while militarization is being used to engineer violent impunity. Indigenous peoples have had no other choice but to glare back into the face of a punitive government and complacent American citizenry, many of whom have not idea that their government is ratcheting up the militarization of Mexico through the ‘laboratory’ on Texas-Mexico border.
Indigenous peoples’ participating in our study made their voices, analysis and demands clear to us at each stage. In the conclusion, they called for the dismantling of the wall, the return of all dispossessed lands, a formal apology from George W. Bush and Barack Obama, and the establishment of a transitional justice tribunal, or Truth Commission organized and coordinated by Indigenous peoples and all affected and interested communities.
In conclusion, it is clear that the UN Declaration on the Rights of Indigenous Peoples is being used by Indigenous peoples in militarized conflict zones as a framework for establishing emergent transitional justice spaces with new and non-traditional partners in an international legal arena to transform colonial power relations with a powerful State.
Axe’he, thank you.
Relevant UNDRIP Articles:
Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to own, use, develop and
control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands,
territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.
1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.
1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned.
2. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities.
1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements. 2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.
3. Article 36
1. Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.
2. States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right.
 Michelle Fine, Eve Tuck, and Sarah Zeller-Berkman, “Do You Believe in Geneva? Methods and Ethics at the Global-local Nexus.” In Handbook of Critical Indigenous Methodologies. Norman K. Denzin, Yvonna S. Lincoln, and Linda Tuhiwai Smith. SAGE, 2008, 157-180.
 Denise Gilman et al. “Obstructing Human Rights: The Texas-Mexico Border Wall,” June2008, at http://www.utexas.edu/law/centers/humanrights/borderwall/analysis/briefing-papers.html.