Race, Racism and the Law
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140. Indigenous Peoples live in every region of the world, including the Arctic, Africa, Russia, the Americas, Europe, Asia, Australia and the Pacific amongst other areas, and everywhere they suffer gross discrimination and marginalization. The belief in the inferiority of Indigenous Peoples, in addition to the lack of consultation on matters that effect them, remains deeply embedded in the legal, economic and social fabric of many States and has resulted in the dispossession and destruction of Indigenous territories and resources, political, religious and social systems.
141. Indigenous Peoples continue to suffer the loss of their territories and resources, the destruction of their cultures, and violence directed at their peoples. Indigenous women and children, in particular, endure multiple forms of discrimination. This dispossession, violence and discrimination constitute flagrant violations of our human rights in contravention of the Universal Declaration of Human Rights.
142. Indigenous Peoples are peoples within the full meaning of international law. Indigenous Peoples have the right to self-determination by virtue of which they freely determine their economic, social, political and cultural development and the inherent right to possession of all of their traditional and ancestral lands and territories. The knowledge and cultures of Indigenous Peoples cannot be separated from their unique spiritual and physical relationships with their lands, waters, resources and territories. The denial or qualification of the self-determination of Indigenous Peoples is racist and lies at the root of Indigenous suffering. Structural racism in past and current manifestations of colonialism, invasion, apartheid, ethnocide and genocide has denied, and continues to deny Indigenous Peoples their fundamental right to self-determination.
143. Racism against Indigenous Peoples manifests itself in discriminatory laws and policies that perpetuate and exacerbate racism against Indigenous Peoples. These laws and policies include the denial of the status of Indigenous Peoples with the right to self determination under international law, the militarization of indigenous lands and territories, doctrines that allow Indigenous territories to be taken without due process of law or adequate compensation, the unilateral extinguishment of indigenous land rights, the doctrine of plenary power, discrimination against Indigenous Peoples in the civil and criminal justice systems of States, failure to recognise the justice systems of Indigenous Peoples, the lack of equal participation of Indigenous Peoples in decision-making processes in matters that may affect their cultural, spiritual or physical integrity, the lack of respect for treaties, agreements and laws between Indigenous Peoples and States with no legal resource for Indigenous Peoples, the denial of protection of the religious freedom for Indigenous prisoners, the disproportionate incarceration of Indigenous Peoples, policies that deny, suppress or destroy Indigenous languages, and the presumption that Indigenous Peoples do not own subsoil resources under their lands.
144. Racism against Indigenous Peoples also manifests itself in many forms, including: forced and covert displacement; forced assimilation; forced removal of indigenous children from their communities; economic policies which exploit Indigenous resources without Indigenous consent and without returning any benefit to Indigenous communities; the use of sexual violence against Indigenous women as a weapon of war; misinformation and lack of reproductive information, imposition of dangerous contraceptives on Indigenous girls and women, and forced sterilisation of Indigenous girls and women; the appropriation of Indigenous intellectual and cultural property, including genetic property , and the use of the images of Indigenous peoples and individuals without their consent.
145. Religious Intolerance towards Indigenous spiritual practices and the profaning of indigenous sacred sites and objects has been a fundamental instrument in the subjugation of Indigenous Peoples since the invasion and the beginning of colonialism, and is a persistent evil that States must take action to end.
146. Environmental racism -- an historical form of racial discrimination -- has led to and continues to lead to the ruination of indigenous lands, waters and environments by the implementation of unsustainable schemes, such as mining, biopiracy, deforestation, the dumping of contaminated waste, oil and gas drilling and other land use practices that do not respect indigenous ceremonies, spiritual beliefs, traditional medicines and life ways, the biodiversity of indigenous lands, indigenous economies and means of subsistence, and the right to health.
Programme of Action
363. Strongly recommend the adoption of the draft U.N. Declaration on the Rights of Indigenous Peoples approved by the Subcommission on the Prevention of Discrimination and Protection of Minorities in its Resolution 1994/45. The draft O.A.S. Inter-American Declaration on the Rights of Indigenous Peoples should be pursued and adopted with the full and equal participation of Indigenous peoples, and must not contemplate lesser rights than those contained in the U.N. Declaration. States must recognize the collective rights of indigenous peoples.
364. Recommends the ratification by States of international conventions and agreements protective of Indigenous rights, and we exhort those States that have not already ratified the Convention on the Elimination of All Forms of Racial Discrimination, the Genocide Convention and ILO Convention 169 to do so. States ratifying ILO Convention 169 should, in consultation with Indigenous Peoples, seek to revise the Convention to overcome the Convention's present deficiencies.
365. Any qualification of the right of Indigenous Peoples to self-determination is racist and is contrary to the fundamental principles of international law. The proposed caveat paragraph (currently paragraph 27) of the official WCAR State Declaration is a manifestation of racism against Indigenous Peoples and should be deleted in its entirety.
366. Recommends that States examine their constitutions, law, legal systems, and policies to identify and eradicate both explicit and inherent racism towards Indigenous Peoples
367. Recommend that States eliminate laws and policies that deny or limit Indigenous land and resource rights, including rights to subsoil resources, and affirmatively recognize Indigenous Peoples as the rightful owners and managers of their lands and resources. States must take immediate and effective measures to end the devastation and contamination of Indigenous waters, lands, territories and natural resources and the dispossession and denial of access to these waters, lands, territories and natural resources.
368. Demands that States provide appropriate remedies for breaches of rights and treaties. Remedies for such breaches shall be determined with the full and equal participation and consent of the Indigenous peoples involved. Conflicts and disputes which cannot otherwise be settled should be submitted to competent international bodies.
369. Demands that all states immediately release all Indigenous political prisoners. States must also recognize Indigenous justice systems and end discrimination in State criminal and civil justice systems.
370. Calls upon States to recognize, respect and ensure mechanisms for the development of traditional medicine, and ensure accessible and effective inter-cultural health systems.
371. Urges States to commit financial resources to anti-racism education and media campaigns to promote anti-racism awareness, the values of acceptance, tolerance, diversity and respect for the cultures of all Indigenous Peoples. In particular, States should strive to promote an accurate understanding of the histories and cultures of Indigenous Peoples. States must ensure full access to inter-cultural education at all levels.
372. Urges States to penalize degrading images of Indigenous Peoples, in particular Indigenous women. States should guarantee to Indigenous Peoples access to the media and assist in the development of Indigenous media.
373. Urges States to recognize the languages of Indigenous peoples and devote resources and establish programs to ensure the survival, promotion, and continuation of such languages. States, in agreement with Indigenous peoples, should design and implement language and education policies that promote the right of Indigenous peoples to assert their cultures and languages.
374. Demands that States take immediate and effective measures to end the devastation and contamination of Indigenous waters, lands, territories and natural resources and the dispossession and denial of access to these waters, lands, territories and natural resources. Environmental racism specifically affects Indigenous Peoples' traditional means of subsistence, their cultural and spiritual practices, and their sacred and historical sites.
375. Recommends that Indigenous governments and States along with indigenous women and with their full and equal participation, develop programs to promote their civil, political, economic, social and cultural rights; to end disadvantage due to gender and race; to address urgent problems affecting them in all areas of life, including education and employment, health and disability , traditional knowledge, justice, environment and biodiversity; and to end policies of forced sterilization and the use of violence in the public and private spheres.
376. Calls upon States to end the militarization of Indigenous Peoples' lands and territories and the forced relocation of Indigenous Peoples. The grave situation of the militarization of Indigenous lands and territories, and resultant massive violation of their civil, political, economic, social, and cultural rights must end. States have a duty to restore lands already contaminated through military use.
377. In all measures to be taken by States that may affect Indigenous Peoples there must be full and effective participation of Indigenous Peoples. Consultation on an equal basis must be undertaken by the State with the Indigenous Peoples affected and such measures must not be implemented without their free and informed consent.
378. Indigenous Peoples freely express their own identity and exercise their inherent rights free from all forms of discrimination, which necessarily entails respect for their human rights and fundamental freedoms. Efforts are now being made to secure universal recognition for those rights in processes in the U.N. and the Organization of American States to elaborate declarations on the rights of Indigenous Peoples, which include the following: to denominate themselves under their own names as a collective; to participate freely and on an equal footing with a State's political, economic, social and cultural development; to maintain their own forms of organization, lifeways, cultures and traditions; to maintain and use their own languages and names; to maintain their own legal and economic structures in the areas where we live; to take part in the development of their educational and health systems and programmes; to manage and develop their lands and natural resources, including hunting, gathering and fishing rights; and to have access to justice on a basis of equality, recognizing their own forms of administration of justice.
379. Calls for a U.N. World Conference on Indigenous Peoples.
380. Recommends that the U.N. complete, in coordination with Indigenous Peoples, a comprehensive review of the International Decade of the World's Indigenous Peoples.
381. Urges States and financial and development institutions to mitigate the negative effects of globalization by examining how their polices and practices affect Indigenous Peoples, and to ensure that their policies and practices conform to human rights standards and contribute to the eradication of racism by including the participation of Indigenous Peoples in development projects in accordance with the principle of informed consent and Indigenous self-government; by democratizing international financial institutions; by developing enforceable codes of conduct for transnational corporations; and by consulting with Indigenous Peoples in any matter that may affect their physical, spiritual or cultural integrity.
382. Recommends that the U.N. effectively implement the Permanent Forum on Indigenous Peoples, respecting the processes of the Indigenous Peoples in making nominations to the Forum. This should be done in the following manner:
383. The U.N. should provide sufficient additional funding to carry out the mandate of the forum.
384. The President of ECOSOC should establish an autonomous Secretariat including Indigenous participation in the Secretariat.
385. The U.N. should provide full financial support and resources to the Special Rapporteur on Indigenous Peoples.
Race, Racism and American Law (1993).