“Can International Law Support Changes to Federal Indian Law?” 1PM-530PM 19 April 2013

1:03PM: Professor S. James Anaya, UN Special Rapporteur on the Rights of Indigenous Peoples is introduced by Bob Clinton, professor of law, Indian Legal Program Sandra Day O’Connor at ASU.

1:08PM: Professor Anaya speaks to the conference as Keynote.

“There are several [U.S. domestic] doctrinal devices that limit implementation from the courts.”

Concepts within UNDRIP are derived and supported by domestic obligations, e.g. self-determination, consultation, etc.

“[UNDRIP] can be seen to constitute customary international law.”

“I think we need to take that as a given and move forward…I think that question has already been settled.”

1:28PM:  “How can the declaration be implemented?  How can the declaration, abstract concepts, be implemented in reality?”

Visited 13 countries in role as UN Special Rapporteur on the Rights of Indigenous Peoples, including the U.S.  Cites U.S. report as given to the UN Human Rights Council in the fall of 2012.

“Perhaps the [domestic] political will isn’t there, but it can be.”

1:41PM:  “I met with 12-15 executives of federal agencies [during U.S. mission], and I was surprised about the level of ignorance of the declaration.”

“There needs to be an executive campaign for recognition of the declaration…and to raise awareness.”

1:44PM:  Only Senator Inouye was present during Senate Committee on Indian Affairs hearing on UNDRIP in summer 2012.  “I think there needs to be another hearing, where congressmen are confronted with problems of the declaration.”

“I think Congress needs to pass a resolution…to cement the declaration as a centerpiece in its future deliberations.”

1:48PM:  Speaking of the federal Judiciary.

“The courts should now discard such colonial era doctrines, and adopt the human rights doctrines which the United States has now adopted…it should now look to international law for the implementation of the declaration.”

“It is high time to bring the law in line with contemporary human rights law.”

1:51PM: The state governors as well as the legislators take stock of the declaration.

The indigenous peoples themselves must take responsibility to educate and to utilize the rights enjoyed.

“I encourage everyone in the room to be optimists.”

1:52PM: Questions posed from audience.

1:59PM: “Can the declaration be used by the traditional leadership to be used to protect themselves from the current tribal government?” – Wide laughter from the audience.

2:01PM: Off the sound-system question, stopping Professor Anaya away from the mic, from the Hopi poet Simon J. Ortiz, concerning the sale of sacred Hopi items in France.

The Special Rapporteur can only monitor issues, and cannot attempt to influence domestic legal instruments and functions.

The Special Rapporteur can receive petitions, which be can used to monitor domestic situations.

2:05PM: Another off the sound-system question, petitioning the Special Rapporteur to address a Native American freedom of religion issue.

2:08PM: New panel moderated by Mr. G. William Rice, joined by Leonard Gorman, Chief J. Wilton Littlechild, Philip S. Deloria, and Rebecca Tsosie.

2:12PM: Leonard Gorman speaks to the conference.

Consulted with the Department of Agriculture on the subject of sacred places or sacred sites to the Navajo Nation, to be managed differently from other public lands, over the span of several years.

Petitioned the State of Arizona over redistricting issues and the federal Voting Rights Act, and how international laws and norms can assist the Navajo Nation.

Working with the Department of State, Department of Justice on an MOU for implementation of UNDRIP within the Navajo Nation.

2:28PM: Chief J. Wilton Littlechild of the Canadian Ermineskin Cree Nation speaks to the conference.  Chief Littlechild served in the Canadian Parliament previously.

Summarized several instances where UNDRIP has been implemented domestically in Canada.

Brought forth to the conference: House of Commons of Canada 2012 Bill Proposal C-469 – “An Act to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples.”

2:40PM:  “Treaty rights are human rights.”

2:50PM: Philip S. Deloria speaks to the conference.

“Begging the question.”  Indigenous peoples very much beg the question of the truth of Federal Indian law.

Many concepts making up the declaration are not uniform concepts.

3:01PM: “International law and domestic implementation is not a guarantee.  We have to be careful.”

3:05PM: A lot of humor, lifting the serious atmosphere.

3:10PM: Legally defending human rights cannot be abused if we are to advance UNDRIP.

3:14PM:  Rebecca Tsosie speaks to the conference.

3:23PM: “The U.S. Constitution does not include the human rights we are talking about today,” – based on research of racial discrimination in the past during the formation of the U.S.

3:30PM: Present wave of colonization: “Colonization of Consciousness – issues of identity, self-determination, autonomy, spiritual rights – things that barely anyone can understand.”

3:51PM: After a 20 minute break, Professor Tsosie moderates a panel including Dion Killsback, Senior Counselor to Principal Deputy Assistant Secretary of Indian Affairs and Norther Cheyenne of Montana, Professor Robert Miller, and Professor G. William Rice, and Professor Patty Ferguson-Bohnee.

3:56PM: Dion Killsback speaks to the conference.

“As the only ‘Fed’ in the room, my remarks reflect the views of the Department of Interior.” – Wide laughter from the audience.

Summarizes specific instances of favorable developments in Indian Country handled in part or in whole by Interior.

4:15PM: MOUs are centerpieces for administrating laws, policies, and regulations on a government-to-government relationship with tribal governments.

4:17PM: Professor Robert Miller, of the Lewis & Clark Law School, speaks to the conference.

Analyzes the consent and consultation principles of UNDRIP.  Historically consent used in treaty and statutory language.  Consultation utilized during self-determination era.

4:20PM: “Tribes have very few substantive rights when it comes to consultations.”

“There is a higher responsibility when it comes to consultation with tribal governments, with a fiduciary responsibility.”

4:31PM: “35 different [federal] agencies have gotten serious about consultation.”

Senior agency officials should be negotiating directly with tribes during consultations.

4:37PM: “Article 19 the primary reason the four countries voted no.” – Free, Prior, and Informed Consent principle.

4:39PM: Professor Bill Rice speaks to the conference.

4:43PM: The most important participants of implementing UNDRIP are the tribal governments and peoples themselves.  The federal government is going to listen to tribal governments and peoples when it does come to implementation.

“If we don’t understand the UNDRIP, if we don’t make the UNDRIP a priority and a way of life and a way of doing things, if we don’t take measures to implement UNDRIP, it won’t ever be implemented.”

4:51PM: “It’s time for another comprehensive review of Federal Indian law.”

4:56PM: Professor Patty Ferguson-Bohnee speaks to the conference, from a perspective as a member of a non-recognized Indian tribe in Louisiana.

UNDRIP provides opportunities for non-recognized tribal groups to petition governing entities for recognition.

5:06PM: An interesting situation with the BP Oil Spill: Since Professor Ferguson-Bohnee’s tribe is not a recognized tribe, the federal agencies involved with administrating the clean-up and reparations has eventually left out her tribe in the process.  They are however continuing to petition the governing entities to continue involvement after initially consulting with the non-recognized tribe.

5:12PM: Professor Tsosie invites questions from the audience.

Question about a Pueblo suit against the US for Mr. Killsback.

Question from Alan Parker addressed to Mr. Killsback about a statement from Jodi Gillette, Special Assistant to the President on Native American Affairs, that the President would attend a future World Council on Indigenous Peoples gathering.

Follow-up question about the Self-Determination principle of UNDRIP, and the U.S. Self-Determination Act Public Law 93-638.

Question to Professor Ferguson-Bohnee about descendants who have parents as members of federally recognized tribes, but who are not officially registered on membership rolls.  [This is very common in Alaska, with confusion between tribal governments and Alaska Native Corporations].

Professor Wiessner from this morning further addressed the question of descendants who are not registered on membership rolls.

5:29PM: Professor Bill Rice will close out the conference with an impromptu round of last thoughts from panel participants.

5:32PM: The last thoughts are chaotic and are generally not-followable!  I am signing out.

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