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Editorials
Justice For All
Tuesday, November 07 2017
 
Written by Neo Bhavsar,
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The overrepresentation of Native Americans in the U.S. criminal justice system marks a systemic problem within our society. Even though there is no direct, linear relationship indicating that all Native Americans are targeted, racial disparities permeate every aspect of our criminal justice system. For instance, racial minorities and in this case, Native Americans, are more likely to be arrested than members of majority populations or Caucasians. Following their arrest, Native Americans are more likely to be convicted for crimes. Once charged with a given crime, Native Americans are more likely to be sentenced to longer and harsher sentences.

Incarceration, or the state of being in prison, is a state all too familiar to the Native American population in the United States. Many people are aware that African-Americans are racially targeted by the police and law enforcement, and that they make up a majority in our prisons. While this is true, people are unaware of the fact that Native-Americans are disproportionately targeted and jailed even more so than African-Americans. Native-Americans compose roughly 1% of the American population, yet make up 10% of those incarcerated. In Minnesota for instance, Caucasians constitute 83% of the population, but are only 47% of those incarcerated. What are the factors that contribute to this discrepancy?

During the exploration and development of North America and the West during the 19th and 20th centuries, Native American culture was never viewed as valuable or relevant to American society and resulted in the isolation and condemnation of Native Americans to reservations. The discrimination that Native Americans faced when America was first colonized still continues today. Ralph Erickson, a chief federal district court judge in North Dakota elaborates on this discrimination when he says, “I find it gut-wrenching when I am asked by a family member of a person I have sentenced why Indians are sentenced to longer sentences than white people who commit the same crime.”

This discrepancy occurs because Native Americans are prosecuted under federal law. Criminals of other races, however, are prosecuted under state law, resulting in lighter sentences. Native Americans are prosecuted under federal law for  offenses because of the federal jurisdiction of crimes on reservations.

There are five main reasons why federal charges are typically harsher than state criminal charges. First, federal statutes have harsher sentencing laws. This means that the possible punishments a judge is able to order against persons convicted under federal law can be much longer and more severe than those who are convicted under state law. Second, the maximum punishment for federal crimes is much higher. Third, federal prosecutors have almost no inclination to negotiate plea bargains. Fourth, federal judges are typically more stringent on sentencing decisions due to inflexible sentencing guidelines mandated under federal law. State judges possess much more latitude. Finally, most crimes under federal law entail supplementary punishment enhancements. Although there is a delineation of the system which Native Americans go through when sentenced vis a vis that of their non-Native American counterparts, the difference in federal and state sentencing does not justify the overrepresentation of the indigenous population being incarcerated.

The United States incarcerates more individuals than any other nation. In Minnesota, in particular, Native Americans have the highest ethnic representation in the prison system. It is vital to continue the dialogue on the topic of mass incarceration and its impact in the context of white supremacy and its manifestation on marginalized populations in the Minnesotan community.

In order to understand how racism and inequality is implicated in mass incarceration, it is important to first research at the micro-political level. In Minnesota, Native Americans, among other minority groups, are faced with the highest rates of incarceration. It is ironic that, as a state whose history is very much bound with the development of Native American society, our public school curriculum in Minnesota often fails to address events such as the Ft. Snelling concentration camp and the US-Dakota War.

Through activism and resistance to overarching imposing institutional structures, we can open the dialogue on the injustices of mass incarceration and effect change in our criminal justice system. Societal awareness is critical to achieving any material change within a system. Only then can solutions be forged and laws be changed.

 

Into the Mist: UN Declaration at Ten Years
Friday, October 06 2017
 
Written by Winona LaDuke,
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Left to right: Frances He Crow, Phillip Deere, David Monongye, Tadadaho Leon Shenandoah,  and Larry Red Shirt at the Geneva Convention in 1977. (Photo by Dick Bancroft.)

As I drive home from Fargo towards evening, there are endless fields of farm equipment, sugar beets, potatoes and corn. The land is flat, the horizon endless. And then there is the mist. I drive into the mist.  

The mist is the remaining wetlands. Sparse they are. When I get towards Gaawaabaabaanikaag, or my reservation, called White Earth for the clay found here, the mists begin. The muskeg begins, full of medicines, life and the filters of Mother Earth. Wetlands once covered almost 5 million acres of North Dakota, along with buffalo wallows, and soft spots of prairie and biodiversity. By the l980s North Dakota had drained almost half of the wetlands, deemed useless by the industrialized agriculture. Into the mist, that’s how I know I am home.

This is the story of Indigenous peoples and biodiversity. It is a worldwide story, and this September marked the l0th anniversary of the passage of the United Nations Declaration on the Rights of Indigenous Peoples. A non -binding international agreement, the declaration, known as UNDRIP, represents a reversal on the treatment of Indigenous peoples, a comprehensive international standard to affirm and protect the collective and individual human rights of Indigenous peoples.

As a young woman, I was involved in the first United Nations forum on Indigenous peoples. That was 1977, UN headquarters in Geneva. I was eighteen. I remembered fully that our rights to exist were not recognized. Indeed, I remember seeing pictures of Wayuu Native people from what’s known as Venezuela hanging from trees like deer, hunted to the ground. I remember the villages in Chiapas and the Amazon burned down to take the land of Native peoples for mining and oil enterprises, and I remember that nation state after nation state stood by, or participated in the theft and genocide.

Indigenous peoples were viewed as internal problems of nation states, essentially the property of the state. This is not unlike how the Bureau of Indian Affairs (trust responsibility) for Native people was originally in the Department of War, and is now in the US Department of Interior. Simply stated, I am not your natural resource, I belong to the Creator and to my people.

And I remembered great leaders. As a young woman I was present when the Tadadaho of the Iroquois Confederacy addressed the UN when Phillip Deere, the great spiritual leader of the Muskogee Creek, spoke. I remember David Monongyue and the great Hopi leaders, who had prophecized the coming of the House of Mica (the United Nations is a glass building), and the Iroquois who had come to the UN for thirty years, and said, why are the red people not inside?

It was an epic time and it is now. What remains of the world, the most alive and full of the strong power of our mother, is within our territories: the worlds’ remaining biodiversity, the remaining people who carry on their instructions of prayer and sustainability.

The World Bank estimates, “…Traditional Indigenous Territories encompass up to 22 percent of the world’s land surface and they coincide with areas that hold 80 percent of the planet’s biodiversity. Also, the greatest diversity of indigenous groups coincides with the world’s largest tropical forest wilderness areas in the Americas (including Amazon), Africa, and Asia…  11 percent of world forest lands are legally owned by Indigenous Peoples and communities…”  Simply stated, if you want to save the planet, we indigenous people must be saved as well.

The United Nations Declaration on the Rights of Indigenous People is not binding, but it represents an evolving standard setting tool. To put it simply, that is how international governance and civil society work – we evolve the tools to balance our societies, adapt, and be wiser. Leadership in the implementation of UNDRIP is seen particularly in Latin America, where the Declaration is reflected in revisions to countries’ constitutions, including Ecuador, Bolivia, Costa Rica, El Salvador, Nicaragua, and Mexico. Although less explicit, UNDRIP has also influenced the constitutions of Kenya and Myanmar.

Bolivia’s incorporation stands out in its comprehensiveness by including Indigenous Peoples’ right to self-determination and self-government. Bolivia has also adopted the “Rights of Mother Earth” as an essential part of their constitution following the leadership of Evo Morales.

Perhaps the case of Standing Rock versus Energy Transfer Partners has brought center stage the lack of US remedy to the issues of exploitation. Indeed, the Special Rapporteur for the United Nations Human Rights Commission came to Standing Rock to take testimony as to the human rights violations caused by the US, Morton County, North Dakota and Tiger Swan., the private para military security firm which directed much of the so called unified command at Standing Rock.

The Standing Rock Tribe  filed  a complaint at the Inter-American Commission on Human Rights (IACHR) in December 2016. In that complaint, the Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, and Yankton Sioux Tribe, with Earthjustice and the American Indian Law Clinic-UC Boulder, submitted a Request for Precautionary Measures Pursuant to Article 25 of the IACHR Rules of Procedure Concerning Serious and Urgent Risks of Irreparable Harm Arising Out of Construction of the Dakota Access Pipeline to the IACHR.

They asked, in addition to an injunction on the pipeline, that the Court “…Establish clear rules requiring that indigenous peoples who may be affected by government decisions have the opportunity for full and meaningful prior informed consent within the meanings established in the UN Declaration on the Rights of Indigenous Peoples and the jurisprudence of the Inter-American Court and this Commission...”

The Trump Administration overstepped federal regulatory policy issuing the permits for the Dakota Access Pipeline. The federal courts have not remedied this and the state courts in North Dakota are filled with over 800 cases of water protectors, arrested while defending Mother Earth. The civil cases – where we get to ask how it is that Morton County, Tiger Swan and $30 million of money directed at repressing first amendment and Indigenous Rights –  are just beginning. One case, a civil case regarding excessive force, will be heard in the 8th Circuit Court of Appeals on October 18th in St. Paul, Minn.

Clearly the violations of  the rights of Indigenous peoples (ie: Indigenous nations to protect water, land, and future generations) remain constant by the Trump Administration. Trump has no understanding of UNDRIP. However, ignorance does not constitute a legal excuse, and certainly since the US was the last nation to ratify UNDRIP, it would be surprising to find leadership in the US.

On the broader scale, legal implications of UNDRIP are found in a number of international cases. As Miriam Anne Frank writes in Cultural Survival Magazine, “… One of the first achievements was in the historic Cal v. Belize case, where Maya went to court over concessions granted for the exploitation of natural resources on their territories without their consent. In this case, the Chief Justice of the Supreme Court of Belize, Abdulai Conteh, upheld the Maya’s native title, recognizing customary law in their claims to traditional use and occupation, confirming that the title has legal protection under the Belize Constitution. More importantly, he explicitly stated that Belize must follow through on its obligations under the Declaration. He referred specifically to Article 26, Para 1: “‘Indigenous Peoples have the right to the lands, territories, and resources which they have traditionally owned, occupied, or otherwise used or acquired.’”

In Aotearoa (New Zealand) the Declaration was used in Wakat & Rore Staford v. Attorney General regarding the claim by the Maori that the (British) Crown owed fiduciary duties in regards to their failure to reserve the agreed upon 15,100 acres for their benefit. When sending the case back to the High Court for determination, Presiding Chief Justice Elias CJ specifically quoted Article 40, “Indigenous Peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the Indigenous Peoples concerned and international human rights,”

In Kichwa Indigenous People of Sarayaku v. Ecuador, the Inter-American Court of Human Rights found that Ecuador had violated both international and domestic law, including the Sarayaku’s right to communal property and cultural identity, and for failure to obtain their Free, Prior and Informed Consent (FPIC). This is in relation to the use of Ecuador’s armed forces to support the State Petroleum Company’s destruction of the environment and sacred sites of the Sarayaku. The Declaration is cited throughout this court case and the focus on FPIC will serve for other cases of development-induced violations….”

 Frank continues, “… Since the passage of the Declaration, some key achievements have been made in various international fora addressing major issues of concern to Indigenous Peoples, such as climate change and biodiversity. Given the enormous and disproportionate impacts of climate change on Indigenous Peoples, the UN Framework Convention on Climate Change (UNFCCC) has been a major focus of Indigenous Peoples’ attention. Using the Declaration as a tool, Indigenous Peoples garnered some results in the Paris Climate Accord, including the preamble where there was the first specific mention of the recognition of the rights of Indigenous Peoples and the importance of traditional knowledge for climate change,...” In short, the work continues, and like all societies, requires constant engagement.  Democracy is not a spectator sport, nor is governance.

It is forty years since I sat with those great leaders at the United Nations. Much hard work has been done by thousands of Indigenous peoples who have traveled far, left their homelands, and “warriored up” to protect our Nations. The leadership of the international Indigenous movement is strong, much of it is young, and it has learned from all the work done before.   

Here in Minnesota, the United Nations Declaration on the Rights of Indigenous Peoples will play out in two major battles over our territories – the battles over Line 3 and the battles over the mining of our great territories of the North.  Indeed, the idea of “consultation” by the state of Minnesota was marred by the resignation of Danielle Oxendine Molliver, the Tribal Liaison of the Department of Commerce.   Molliver resigned because of “the failure of the state of Minnesota to fulfill its obligations of good faith and fair dealing with the tribe…with the Line 3 project.”

Oxendine Molliver told The Intercept that the department had not adequately responded to the concerns of tribal members and had marginalized her after Enbridge claimed she was being overly sympathetic to indigenous pipeline opponents.

“I just kind of laughed,” Oxendine Molliver said. “It means Enbridge has the authority to call the governor’s office, who then has the authority to control the permitting process.”

The state has offered “consultation” but that is not the same as “Free Prior and Informed Consent” that which is required under the international standard set by UNDRIP. Minnesota should join other jurisdictions in setting an example of a new millennium of legal relations with Indigenous nations.

For myself, I return to the mist. Always to the mist; for there all the medicines the Creator has bestowed upon us continue to live. Inaakiingimin, our land. And while we celebrate and nourish international standards, that which shall be protected through this work, is here in the mist.

The colonization of Asemaa
Thursday, September 14 2017
 
Written by Suzanne Nash,
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The summer months are ending and the fall harvest begins. This is a time when we gather the things we need to make it through the winter. We start with our asemaa (tobacco) and make an offering for the season and for the blessings to come – the animals, water, moon and the sun that always rises up and a time to be thankful for these gifts.

The creator has given us these gifts and the first gift was asemaa. It was given as a way to communicate with the creator and send our prayers, thoughts, blessings and the four directions. Today tobacco has become many things and made in different forms and flavors and used in a non-ceremonial way. This has caused great harm to our people.

Since 1884 it was illegal for us to practice our religion. It was then that we begin to use commercial tobacco; it was the only way for us to pray without getting arrested. Asemaa has been colonized and taken from us, and altered to fit into the western world by adding chemicals and additives to enhance the flavor for the purpose of profit and gain.  

Since then tobacco companies have targeted and exploited different populations and vulnerable adults by offering free products and marketing campaigns.

During World War II (1939-1945), cigarette sales were at an all time high. Cigarettes were included in a soldier’s C-Rations (like food). Tobacco companies sent millions of cigarettes to the soldiers for free, and when these soldiers came home, the companies had a steady stream of loyal customers. In 1956 R.J. Reynolds introduced the Salem Brand, which was the first filter-tipped menthol cigarette, altering the flavor to mask the flavor of tobacco. Since then more brands have been introduced such as Kool and Camel menthol.

Tobacco use is much higher in some communities and populations such as American Indians and Alaska Natives, and in subsets of certain populations, including Cuban-Americans and Puerto Ricans. Certain types of tobacco products also are used at higher rates in certain populations.

It wasn’t until 1964 that the Surgeon Generals report on “Smoking and Health” came out.

“Today there are 5 million people around the world dying each year from tobacco use. It’s going to grow to 10 million a year by 2020 and 7 million of those deaths will be in developing countries,” said Kathy Mulvey, international policy director for Corporate Accountability International. The group works with the World Health Organization to curb smoking abroad.

This year, farmers are expected to sell more than 700 million pounds of tobacco leafs.

Let’s reclaim (Asemaa) and keep it sacred.

Suzanne Nash
Indigenous Peoples Task Force

Line 3 proposal shows willful ignorance of Ojibwe history and rights
Tuesday, August 08 2017
 
Written by Susan Allen, Jamie Becker-Finn, Peggy Flanagan, Mary Kunesh-Podein,
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In all the coverage of Enbridge Energy’s proposed Line 3 pipeline project, and in the recent and predictable pro-pipeline commentary by an Enbridge vice president, John Swanson, (Star Tribune: “Line 3 replacement is the safest option for northern Minnesota,” July 18) we have heard little regarding how Enbridge’s preferred route would specifically harm Native American people and communities.

The current environmental-impact statement briefly acknowledges the disproportionate harm to Native people but fails to answer many of the questions specific to Native communities. Enbridge acts as it pleases without regard for Native people, and we as the Native American Caucus in the Minnesota House oppose its current proposed pipeline route.

Enbridge gives the misleading impression that by abandoning the current corridor, it is somehow compromising with the Leech Lake Band of Ojibwe. By Enbridge’s own admission, the current corridor is “congested.” The company now wants a pat on the back for choosing a route that snakes its way between reservation boundaries.

This new route highlights willful ignorance regarding Ojibwe history and rights in what we now call Minnesota. When the Ojibwe people signed treaties with the federal government, they explicitly retained the ability to harvest wild rice, hunt and fish on the waters and land of the ceded territory. There is a difference between reservation land and ceded territory. While skirting reservation boundaries is a nod to the affected tribal communities, Enbridge’s preferred route does not avoid the plants and wildlife Ojibwe people have a legal right to access. The new route is no compromise at all.

The importance of wild rice to Ojibwe culture, health, spirituality and history cannot be overstated. Wild rice is not just a crop that can be replanted. Wild rice is not just a food product.

It is clear that these truths have not been fully accepted by Enbridge or the authors of the environmental-impact statement.

Ojibwe people’s very existence in northern Minnesota is based on the existence of wild rice. Ojibwe spiritual teachings tell us that those ancestors traveled until they reached the place “where the food grows on the water.” That food is wild rice, manoomin, a unique grain that grows in very few places worldwide and differs greatly from the cultivated “wild rice” typically sold in grocery stores.

To thrive, wild rice requires very specific water and soil conditions. True wild rice is irreplaceable in the natural world.

When the inevitable oil spill occurs, there is no way to be certain that the affected waters and soils could ever be properly rehabilitated to allow wild rice to thrive again. Enbridge states that any damages would be “mitigated appropriately.” But appropriately according to whose point of view? And how can we trust that these hundreds of miles of pipelines will be monitored forever? Because of the extremely high cultural and spiritual importance of wild rice to Ojibwe people, it would be impossible for Ojibwe people to be made whole again if wild rice beds were destroyed.

For some of us, our ancestors have lived in northern Minnesota for centuries. We are now tasked with making sure we are thinking seven generations ahead so that the same resources – the water, the land, the wild rice – are available to our people for centuries to follow.

We reject the false premise that any new pipeline project absolutely must travel through northern Minnesota. Only a tiny percentage of the millions of barrels of oil that would be pumped through this Line 3 pipeline would even be used in Minnesota. The majority of the oil would continue on to final destinations in other states. There are alternatives that would not risk the vital, unique existence of wild rice in northern Minnesota and that would not place the preferences of an international oil company above Ojibwe people and their legal rights.

It is our hope that this message will not only be heard, but also respected.

Susan Allen, DFL-Minneapolis (Rosebud Sioux), Minnesota House of Representatives Native American Caucus;
State Rep. Jamie Becker-Finn, DFL-Roseville (Leech Lake Ojibwe);
Peggy Flanagan, DFL-St. Louis Park (White Earth Ojibwe); 
Mary Kunesh-Podein, DFL-New Brighton (Standing Rock Sioux), Minnesota House of Representatives Native American Caucus.

When simply wearing “Water is Life” becomes a threatening protest
Tuesday, April 04 2017
 
Written by Scott Russell,
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Cardboard hats in the shape of canoes lay on the floor at a public meeting on tar sands oil pipelines in Bemidji. Officials have not provided an explanation about why children were not allowed to wear them inside. (Photo by Frank Bibeau.)When did a cardboard canoe hat made by a child with the words “Water is Life” become something that needs to be suppressed for the public well being?

Quick background: On March 7, the U.S. State Department held a public meeting in Bemidji to consider a border crossing for a Canadian oil tar sands pipeline. There was a strong turnout and over-the-top security. I wrote a blog for the Sierra Club critical of the event. What I didn’t know at that time was Sanford Center security in Bemidji did not allow young children to wear their handmade cardboard canoe hats inside.

Frank Bibeau, an attorney for Honor the Earth, attended the Bemidji event and brought the issue to my attention. In an email exchange, Bibeau wrote: “I noticed that there was a table with confiscated items. On the floor was a bunch of canoe hats kids had made to wear at the public meeting. But the hats were taken from the kids and the security told them it was because they were signs.”

It is apparent that not all of the canoe hats had written words. Some of it is simply kid art. The question is, what lesson are the kids learning?

In a related incident, Indian Country Media Network (ICMN) reports that the National Museum of the American Indian staff recently asked Native American women to remove jackets for a similar reason. The women were in Washington, D.C. for the Native Nations Rise March, and their jackets “were adorned with patches and pins supporting water protectors and the Standing Rock Sioux Tribe.” Some of the patches simply said: “Mni Wiconi: Water is Life.”

The Smithsonian has acknowledged its error. The State Department and Sanford Center security have not. The National Museum for the American Indian spokesperson Eileen Maxwell said it was incorrect for security to ask the women to remove their jackets with the patches and pins, according to the ICMN story.

“This situation has been clarified with our officers,” Maxwell added. “It is not the museum’s intention that people – and certainly Native people – ever feel unwelcome or unacknowledged here.”

Maxwell further noted that the Smithsonian does not prohibit political messages on clothing, but it does prohibit bringing in signs on posts and the displaying of banners of any nature in the museum.

“In this one instance, one officer misinterpreted this rule,” Maxwell said.

I have tried to get similar clarity on the decision to ban the canoe hats at the Bemidji event. I called and emailed Jeff Van Grinsven, head of security for the Sanford Center and Christopher Rich, Deputy Director for the Office of Policy and Public Outreach for the U.S. State Department’s Bureau of Oceans and International Environmental and Scientific Affairs. Van Grinsven said in an initial phone interview that the canoe hats were not confiscated, and referred additional questions to the State Department. I emailed him a photo of the canoe hats along with follow-up questions. He has yet to respond.

The State Department’s Rich said in an email. “As for security at the meeting, we relied on the professional advice of local law enforcement officials. I was not aware that children’s canoe hats were confiscated, and am not sure why this would have occurred.”

In the initial phone call with Van Grinsven, I asked him why the security was so tight at the event. He said it was because Enbridge’s Bemidji office was shot up earlier. (According to a Duluth News Tribune story, someone shot Enbridge office’s front door and windows on the evening of Feb. 22-23. No one was hurt. Enbridge is the company proposing the pipeline project.)

I, for one, had not heard about the Enbridge shooting and I am sure I was not alone. It would have been helpful for security to give people an explanation of the perceived need for metal detectors. Attendees also should have received advanced warning about the excessive screening – that bags, purses and even water bottles would not be allowed. Lastly, the assumption seems to have been a pipeline opponent did the shooting. There does not appear to be any evidence that was the case, at least from media accounts.

To repeat from the earlier blog, the format was flawed. Attendees could ask State Department staff questions. But there was no public discussion, no opportunity to speak directly to decision makers or hear others testify. People had to submit comments in writing or speak privately to a stenographer.

I sent the State Department a link to the blog which outlined these criticisms. Here is part of Rich’s email response: “Thank you for sharing your blog and your concerns about the March 7 Bemidji meeting with us.  I am disappointed and sorry that you felt mistreated, and that you thought that the meeting failed to engage the public. We designed the open house format of the event specifically with public engagement in mind.  The purpose of the meeting was to help explain the findings of the environmental impact statement (the Line 67 Draft SEIS), and to elicit public comments on the proposed project.  We brought a number of experts who worked on the statement so that they could engage the public. From what we observed during the meeting, they were able to do this.  We received a large number of comments.”

This response is dismissive. He doesn’t acknowledge something that shouldn’t be that controversial – that people want to speak to someone in charge about their concerns. The State Department says, “from what we observed,” the public was successfully engaged. That’s not a very scientific poll. I am sure if they would have surveyed those who attended, they would have received a different answer.

Reprinted with permission from HealingMNStories at: https://healingmnstories.wordpress.com .

 

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