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).[1]
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.’[2] 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:
Article 10
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.
Article 26
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.
Article 27
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.
Article 28
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.
Article 30
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.
Article 37
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.
[1] 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.
[2] 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.
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