At the United Nations, the world has solemnly committed itself to better treatment of native populations. Well, most of the world, except for some of those that have the most responsibility for relating to indigenous populations.
Yup. The Bush administration and three other diehard governments -- Canada, New Zealand and Australia -- couldn't bring themselves to support the Declaration on the Rights of Indigenous Peoples. Far be it from us to ponder thoughts of any special ethnocentrism in largely English-speaking lands; Britain, Ireland, Jamaica and other countries didn't oppose the statement. Appropriately, the four no voters squirmed, straining to explain concerns about technicalities, language and possible conflicts with their own laws, even though the declaration generally wouldn't be binding.
It took more than 20 years for the declaration to receive Thursday's approval from the U.N. General Assembly. You would think that, even under the Bush administration, this country, with one of the largest native populations, would have found a way to be a part of the progress and celebration.
U.S. delegate Robert Hagen did put the administration on record as committed to respect for tribal governments and their rights. "My government will continue its vigorous efforts to promote indigenous rights domestically," he said. But with a new world standard, even federal, state and local authorities will have to do better as they deal with tribal rights. The U.N. declaration is a step toward greater mutual respect and progress on behalf of all.
©1996-2007 Seattle Post-Intelligencer
Thursday, September 20, 2007
Friday, September 07, 2007
Judge Strikes Down Part of Patriot Act
Friday September 7, 2007 7:16 AM
By LARRY NEUMEISTER
Associated Press Writer
NEW YORK (AP) - A federal judge struck down a key part of the USA Patriot Act on Thursday in a ruling that defended the need for judicial oversight of laws and bashed Congress for passing a law that makes possible "far-reaching invasions of liberty."
U.S. District Judge Victor Marrero immediately stayed the effect of his ruling, allowing the government time to appeal. Justice Department spokesman Dean Boyd said: ``We are reviewing the decision and considering our options at this time.''
The ruling handed the American Civil Liberties Union a major victory in its challenge of the post-Sept. 11 law that gave broader investigative powers to law enforcement.
The ACLU had challenged the law on behalf of an Internet service provider, complaining that the law allowed the FBI to demand records without the kind of court supervision required for other government searches. Under the law, investigators can issue so-called national security letters to entities like Internet service providers and phone companies and demand customers' phone and Internet records.
In his ruling, Marrero said much more was at stake than questions about the national security letters.
He said Congress, in the original USA Patriot Act and less so in a 2005 revision, had essentially tried to legislate how the judiciary must review challenges to the law. If done to other bills, they ultimately could all ``be styled to make the validation of the law foolproof.''
Noting that the courthouse where he resides is several blocks from the fallen World Trade Center, the judge said the Constitution was designed so that the dangers of any given moment could never justify discarding fundamental individual liberties.
He said when ``the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of liberty.''
Regarding the national security letters, he said, Congress crossed its boundaries so dramatically that to let the law stand might turn an innocent legislative step into ``the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.''
He said the ruling does not mean the FBI must obtain the approval of a court prior to ordering records be turned over, but rather must justify to a court the need for secrecy if the orders will last longer than a reasonable and brief period of time.
A March government report showed that the FBI issued about 8,500 national security letter, or NSL, requests in 2000, the year prior to passage of the USA Patriot Act. By 2003, the number of requests had risen to 39,000 and to 56,000 in 2004 before falling to 47,000 in 2005. The overwhelming majority of the requests sought telephone billing records information, telephone or e-mail subscriber information or electronic communication transactional records.
The judge said that through the NSLs, the government can unmask the identity of Internet users engaged in anonymous speech in online discussions, can obtain an itemized list of all e-mails sent and received by someone and can then seek information on those communicating with the individual.
``It may even be able to discover the web sites an individual has visited and queries submitted to search engines,'' the judge said.
Marrero's lengthy judicial opinion, akin to an eighth-grade civics lesson, described why the framers of the Constitution created three separate but equal branches of government and delegated to the judiciary to say what the law is and to protect the Constitution and the rights it gives citizens.
Marrero said the constitutional barriers against governmental abuse ``may eventually collapse, with consequential diminution of the judiciary's function, and hence potential dire effects to individual freedoms.''
In that event, he said, the judiciary could become ``a mere mouthpiece of the legislature.''
Marrero had ruled in 2004, on the initial version of the Patriot Act, that the letters violate the Constitution because they amounted to unreasonable search and seizure. He found free-speech violations in the nondisclosure requirement, which for example, disallowed an Internet service provider from telling customers their records were being turned over to the government.
After he ruled, Congress revised the Patriot Act in 2005, and the 2nd U.S. Circuit Court of Appeals directed that Marrero review the law's constitutionality a second time.
By LARRY NEUMEISTER
Associated Press Writer
NEW YORK (AP) - A federal judge struck down a key part of the USA Patriot Act on Thursday in a ruling that defended the need for judicial oversight of laws and bashed Congress for passing a law that makes possible "far-reaching invasions of liberty."
U.S. District Judge Victor Marrero immediately stayed the effect of his ruling, allowing the government time to appeal. Justice Department spokesman Dean Boyd said: ``We are reviewing the decision and considering our options at this time.''
The ruling handed the American Civil Liberties Union a major victory in its challenge of the post-Sept. 11 law that gave broader investigative powers to law enforcement.
The ACLU had challenged the law on behalf of an Internet service provider, complaining that the law allowed the FBI to demand records without the kind of court supervision required for other government searches. Under the law, investigators can issue so-called national security letters to entities like Internet service providers and phone companies and demand customers' phone and Internet records.
In his ruling, Marrero said much more was at stake than questions about the national security letters.
He said Congress, in the original USA Patriot Act and less so in a 2005 revision, had essentially tried to legislate how the judiciary must review challenges to the law. If done to other bills, they ultimately could all ``be styled to make the validation of the law foolproof.''
Noting that the courthouse where he resides is several blocks from the fallen World Trade Center, the judge said the Constitution was designed so that the dangers of any given moment could never justify discarding fundamental individual liberties.
He said when ``the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of liberty.''
Regarding the national security letters, he said, Congress crossed its boundaries so dramatically that to let the law stand might turn an innocent legislative step into ``the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.''
He said the ruling does not mean the FBI must obtain the approval of a court prior to ordering records be turned over, but rather must justify to a court the need for secrecy if the orders will last longer than a reasonable and brief period of time.
A March government report showed that the FBI issued about 8,500 national security letter, or NSL, requests in 2000, the year prior to passage of the USA Patriot Act. By 2003, the number of requests had risen to 39,000 and to 56,000 in 2004 before falling to 47,000 in 2005. The overwhelming majority of the requests sought telephone billing records information, telephone or e-mail subscriber information or electronic communication transactional records.
The judge said that through the NSLs, the government can unmask the identity of Internet users engaged in anonymous speech in online discussions, can obtain an itemized list of all e-mails sent and received by someone and can then seek information on those communicating with the individual.
``It may even be able to discover the web sites an individual has visited and queries submitted to search engines,'' the judge said.
Marrero's lengthy judicial opinion, akin to an eighth-grade civics lesson, described why the framers of the Constitution created three separate but equal branches of government and delegated to the judiciary to say what the law is and to protect the Constitution and the rights it gives citizens.
Marrero said the constitutional barriers against governmental abuse ``may eventually collapse, with consequential diminution of the judiciary's function, and hence potential dire effects to individual freedoms.''
In that event, he said, the judiciary could become ``a mere mouthpiece of the legislature.''
Marrero had ruled in 2004, on the initial version of the Patriot Act, that the letters violate the Constitution because they amounted to unreasonable search and seizure. He found free-speech violations in the nondisclosure requirement, which for example, disallowed an Internet service provider from telling customers their records were being turned over to the government.
After he ruled, Congress revised the Patriot Act in 2005, and the 2nd U.S. Circuit Court of Appeals directed that Marrero review the law's constitutionality a second time.
Indigenous on offense: Treaty gathering, U.N. vote coincide
Briggs: Indigenous on offense: Treaty gathering, U.N. vote coincide
by: Kara Briggs / Today correspondent
On Sept. 13, the United Nations General Assembly is expected to vote on the U.N. Declaration on the Rights of Indigenous Peoples.
Sources privy to an intervention by Mexico, Guatemala and Peru with African states that have opposed the declaration say they have reached a set of small revisions that leave key tenants of the declaration in tact.
Speaking as recently as one month ago at a treaty gathering of indigenous nations at the Lummi Nation in Washington state, Oren Lyons, Onondaga Nation Faithkeeper, was concerned. He told those assembled, ''We have worked since 1977 on the draft declaration, and it's about to be shot down by four African nations under the direction of the U.S., Canada, Australia and New Zealand.
''They're going to try to change the language on self determination, on collective rights and about all the rights concerning the natural world.''
The declaration drafted by American Indians 30 years ago was intended to recognize indigenous peoples in an international setting - a setting that had effectively brought the principles of human rights to world consciousness of the cold light of 1948 shown on the Holocaust, the murder of six million Jews and others.
While the Universal Declaration of Human Rights recognized the ''unalienable rights'' of the individual, the nine-part draft declaration states that indigenous peoples have a right to self-determination, to hold onto their land bases, to be respected for their differences.
It's this concept of self determination - the everyday language of U.S. government relations with Native nations - that has been most controversial on a world stage.
Some opponents to the declaration said in 2006, according to a statement of a spokesman for the General Assembly, the concept ''could be misrepresented as conferring unilateral right of self-determination and possible secession, thus threatening ... the stability of member states.''
Opponents of the declaration have submitted watered down drafts before. Now with days before a vote of General Assembly, member states of the African Union have told sources that their latest revision won't be available until sometime next week, probably two or three days before the vote.
Sources close to the proceedings said on Sept. 4 that the African states had agreed to let the current text, including acknowledgement of the right to self determination, stand. There was only one area of weakening, which had to do with military use of indigenous lands.
''One can never be sure that's actually what will occur,'' said attorney Tim Coulter, the author of the original draft of the declaration and executive director of the Indian Law Resource Center. ''But it could occur, even if there are other changes offered, that they might well be voted down. The votes in the General Assembly are notoriously difficult to predict, members are sovereign.''
Coulter said that the bureaucratic processes of the United Nations allow for the declaration to come back even from a no vote in the General Assembly. But he isn't expecting the declaration to be voted down.
Still through the summer months many indigenous leaders remained worried about the effectiveness of the U.N. process.
''The United Nations has not delivered enough constructive outcomes for indigenous peoples,'' Aroha Te Pareaka Mead, representative of the Ngati Awa Iwi and the Aotearoa in New Zealand, said in late July. ''It has delivered some things, but not enough and it's taking too long.''
Especially worrisome to indigenous leaders gathered in late July in the gymnasium of the Lummi Nation School were proposed compromises that would further empower states to think that they could define who is and isn't indigenous.
A treaty of their making, a United League of Indigenous Nations Treaty of North America and the Pacific Rim, could be different, could shift the paradigm of international relations.
For three days, representatives of 40 indigenous nations from around the Pacific Rim conversed about a treaty of mutual support that they would write and sign. If historic treaty making by U.S. officials in the then foreign language English were fraught with deceit, this treaty would be done with transparency.
Using an overhead projector, organizers displayed the draft treaty on a movie screen. A young man typed proposed changes into the text while the leaders of indigenous nations weighed their options. A quick trip to Kinko's provided copies.
More than one leader had expressed sentiments of intergenerational, post-traumatic stress over treaty processes that their nation had been included in or excluded from.
''Generally speaking, our people haven't been much for treaties,'' said Mike Marchand, chairman of the Confederated Tribes of the Colville Reservation, which is located on the U.S. side of the border with Canada. ''We never sold our land to Canada. We have a lawsuit against the Queen. They say we have to make a choice: be a Canadian and get kicked around in Canada, or be an American and get kicked around in the U.S.''
Marchand said if the treaty under discussion talked of collaboration in getting land returned, then he would sign for his nation.
He and 10 other leaders of indigenous nations signed the treaty on Aug. 1 with plans for a larger signing involving more nations later this year.
While there are historic precedents for Native nations making treaty with each other, the Haudenosaunee Confederacy or the relations of the Coast Salish from the central British Columbia coast to south of Washington's Puget Sound, this treaty is a modern exercise of a long-standing right of nations.
How many Indian nations have foreign affairs departments, asked Frank Ettawageshik, chairman of the Little Traverse Bay Bands of Odawa, of those assembled. He explained, ''The intergovernmental relations between us are on the same international level as the United Nations.''
The treaty has a more immediate potential for effecting cultural protections, land recovery and business relations among its signatories than the U.N. declaration. The declaration has the potential once entered into international law to influence national laws and court cases. The U.S. Supreme Court routinely explains that international law is one of bodies of law it consults.
What we need is both the U.N. Declaration on the Rights of Indigenous Peoples to effect laws outside indigenous nations, and the United League of Indigenous Nations Treaty to strengthen and protect from within an alliance that spans North America and the Pacific Rim.
As indigenous leaders prepare for 11th-hour negotiations at the United Nations in New York, it's worth remembering that the General Assembly's Universal Declaration of Human Rights didn't pass with the ease that we 60 years later would think.
But when it passed, the General Assembly called on members to ''cause the declaration to be disseminated, displayed, read and expounded principally in schools and other educational institutions, without distinction based on the political status of countries or territories.''
So be it with the U.N. Declaration on the Rights of Indigenous Peoples.
To read a draft of the declaration, visit www.indianlaw.org/main/resources and select U.N., then select Human Rights Council 2006. For more information on the United League of Indigenous Nations Treaty, visit www.indig enousnationstreaty.org.
Kara Briggs, Yakama and Snohomish, is associate director of the American Indian Policy & Media Initiative at Buffalo State College. She lives at the Tulalip Reservation in Washington.
by: Kara Briggs / Today correspondent
On Sept. 13, the United Nations General Assembly is expected to vote on the U.N. Declaration on the Rights of Indigenous Peoples.
Sources privy to an intervention by Mexico, Guatemala and Peru with African states that have opposed the declaration say they have reached a set of small revisions that leave key tenants of the declaration in tact.
Speaking as recently as one month ago at a treaty gathering of indigenous nations at the Lummi Nation in Washington state, Oren Lyons, Onondaga Nation Faithkeeper, was concerned. He told those assembled, ''We have worked since 1977 on the draft declaration, and it's about to be shot down by four African nations under the direction of the U.S., Canada, Australia and New Zealand.
''They're going to try to change the language on self determination, on collective rights and about all the rights concerning the natural world.''
The declaration drafted by American Indians 30 years ago was intended to recognize indigenous peoples in an international setting - a setting that had effectively brought the principles of human rights to world consciousness of the cold light of 1948 shown on the Holocaust, the murder of six million Jews and others.
While the Universal Declaration of Human Rights recognized the ''unalienable rights'' of the individual, the nine-part draft declaration states that indigenous peoples have a right to self-determination, to hold onto their land bases, to be respected for their differences.
It's this concept of self determination - the everyday language of U.S. government relations with Native nations - that has been most controversial on a world stage.
Some opponents to the declaration said in 2006, according to a statement of a spokesman for the General Assembly, the concept ''could be misrepresented as conferring unilateral right of self-determination and possible secession, thus threatening ... the stability of member states.''
Opponents of the declaration have submitted watered down drafts before. Now with days before a vote of General Assembly, member states of the African Union have told sources that their latest revision won't be available until sometime next week, probably two or three days before the vote.
Sources close to the proceedings said on Sept. 4 that the African states had agreed to let the current text, including acknowledgement of the right to self determination, stand. There was only one area of weakening, which had to do with military use of indigenous lands.
''One can never be sure that's actually what will occur,'' said attorney Tim Coulter, the author of the original draft of the declaration and executive director of the Indian Law Resource Center. ''But it could occur, even if there are other changes offered, that they might well be voted down. The votes in the General Assembly are notoriously difficult to predict, members are sovereign.''
Coulter said that the bureaucratic processes of the United Nations allow for the declaration to come back even from a no vote in the General Assembly. But he isn't expecting the declaration to be voted down.
Still through the summer months many indigenous leaders remained worried about the effectiveness of the U.N. process.
''The United Nations has not delivered enough constructive outcomes for indigenous peoples,'' Aroha Te Pareaka Mead, representative of the Ngati Awa Iwi and the Aotearoa in New Zealand, said in late July. ''It has delivered some things, but not enough and it's taking too long.''
Especially worrisome to indigenous leaders gathered in late July in the gymnasium of the Lummi Nation School were proposed compromises that would further empower states to think that they could define who is and isn't indigenous.
A treaty of their making, a United League of Indigenous Nations Treaty of North America and the Pacific Rim, could be different, could shift the paradigm of international relations.
For three days, representatives of 40 indigenous nations from around the Pacific Rim conversed about a treaty of mutual support that they would write and sign. If historic treaty making by U.S. officials in the then foreign language English were fraught with deceit, this treaty would be done with transparency.
Using an overhead projector, organizers displayed the draft treaty on a movie screen. A young man typed proposed changes into the text while the leaders of indigenous nations weighed their options. A quick trip to Kinko's provided copies.
More than one leader had expressed sentiments of intergenerational, post-traumatic stress over treaty processes that their nation had been included in or excluded from.
''Generally speaking, our people haven't been much for treaties,'' said Mike Marchand, chairman of the Confederated Tribes of the Colville Reservation, which is located on the U.S. side of the border with Canada. ''We never sold our land to Canada. We have a lawsuit against the Queen. They say we have to make a choice: be a Canadian and get kicked around in Canada, or be an American and get kicked around in the U.S.''
Marchand said if the treaty under discussion talked of collaboration in getting land returned, then he would sign for his nation.
He and 10 other leaders of indigenous nations signed the treaty on Aug. 1 with plans for a larger signing involving more nations later this year.
While there are historic precedents for Native nations making treaty with each other, the Haudenosaunee Confederacy or the relations of the Coast Salish from the central British Columbia coast to south of Washington's Puget Sound, this treaty is a modern exercise of a long-standing right of nations.
How many Indian nations have foreign affairs departments, asked Frank Ettawageshik, chairman of the Little Traverse Bay Bands of Odawa, of those assembled. He explained, ''The intergovernmental relations between us are on the same international level as the United Nations.''
The treaty has a more immediate potential for effecting cultural protections, land recovery and business relations among its signatories than the U.N. declaration. The declaration has the potential once entered into international law to influence national laws and court cases. The U.S. Supreme Court routinely explains that international law is one of bodies of law it consults.
What we need is both the U.N. Declaration on the Rights of Indigenous Peoples to effect laws outside indigenous nations, and the United League of Indigenous Nations Treaty to strengthen and protect from within an alliance that spans North America and the Pacific Rim.
As indigenous leaders prepare for 11th-hour negotiations at the United Nations in New York, it's worth remembering that the General Assembly's Universal Declaration of Human Rights didn't pass with the ease that we 60 years later would think.
But when it passed, the General Assembly called on members to ''cause the declaration to be disseminated, displayed, read and expounded principally in schools and other educational institutions, without distinction based on the political status of countries or territories.''
So be it with the U.N. Declaration on the Rights of Indigenous Peoples.
To read a draft of the declaration, visit www.indianlaw.org/main/resources and select U.N., then select Human Rights Council 2006. For more information on the United League of Indigenous Nations Treaty, visit www.indig enousnationstreaty.org.
Kara Briggs, Yakama and Snohomish, is associate director of the American Indian Policy & Media Initiative at Buffalo State College. She lives at the Tulalip Reservation in Washington.
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