A new tool - Since President Obama signed the U.N. Declaration of the Rights of Indigenous Peoples, Some Alaska Natives believe they have new standing in land use conflicts by Joshua Tucker

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A new tool - Since President Obama signed the U.N. Declaration of the Rights of Indigenous Peoples, Some Alaska Natives believe they have new standing in land use conflicts

By Joshua Tucker

President Obama signed the U.N. Declaration of the Rights of Indigenous Peoples on December 16, the last day of the trial in the latest case against the Pebble Partnership and the Alaska Department of Natural Resources (DNR) over the development of the proposed Pebble Mine.

The United States was the last U.N. member nation to sign the Declaration, invoking nearly 50 individual rights for Alaska Natives and all Native Americans, many of which were not previously recognized by the federal and state governments.

Many of these rights, like the right to subsistence and to offer or withhold their “free prior and informed consent” to all development deals in the “lands, territories and resources which they have traditionally owned or otherwise occupied or used,” were at issue in the trial.

When the verdict is announced, it will lay the foundations for new precedents in Alaskan land use conflicts.

Aiming to define and defend the rights of Alaska Natives and invalidate the permitting of mining exploration for the proposed Pebble Mine, Nunamta Aulukestai, an association of eight Bristol Bay village corporations, along with former Alaska First Lady Bella Hammond, Alaska founding father Vic Fischer and Nondalton resident Rick Delkittie, made their case in a two-week trial in Anchorage Superior Court in December.

Plaintiffs allege that the Alaska DNR failed to abide by Article VIII of the Alaska Constitution and consider the public’s interest in sustaining the region’s rich salmon, wildlife, and subsistence resources, which, they argued, are negatively affected by exploration activities.

“The Department of Natural Resources routinely rubber-stamps permits without public input or notice and at the expense of people who depend on subsistence resources that would be damaged by Pebble Mine exploration and development,” says Bobby Andrew, a spokesman for Nunamta Aulukestai (which means “caretakers of our lands” in Yupik). “The state has a moral and legal obligation to listen to the public when making decisions that affect the public’s natural and subsistence resources. Our lives and livelihoods are too important for the state to deny us that.”

For the last seven years Andrew has traveled the Koktuli river each year, which has branches to the west, the north and the south of the sites where the Pebble Partnership is conducting exploratory drilling.

Current exploratory mining by the Pebble Partnership includes drilling over 1,200 bore holes some over 6,500 feet deep with hundreds between 2,000 and 4,000 feet deep. In a 2005 article, the Alaska Journal of Commerce reported that the Pebble Partnership hopes to eventually excavate an open pit that would be 1,700 feet deep and about 2 miles by 1 3/4 miles wide.

“When they go down over 17 feet they are hitting ground water. I strongly believe they are having a profound effect on the Koktuli River,” Andrew says. He reported observing significant decreases in the presence of salmon and caribou in the region on his trips.

While working with Yupik tribal leaders in the village of Ekwok, Andrew learned that local residents have also witnessed these apparent declines in the presence of wildlife while practicing subsistence hunting and fishing. Many attribute the decreasing presence of Mulchatna Caribou Herd to ongoing helicopter flights in the area operated by the Pebble Partnership.

According to census data, the median household income in the subsistence-dependent community is $16,250 per year. Tribal leaders in Ekwok have asked Andrew to speak for them in opposing the Pebble Partnership’s exploratory drilling.

The state Department of Law is representing the DNR in the trial. Spokesman Bill McAllister says the department is not prepared to comment on the relevance of U.N. Declaration before the defense files is final briefs in the case on February 26.

“We will ask the court to hold that the DNR met its constitutional obligations in issuing the exploration permits to the Pebble project,” said Matt Singer, an attorney for the Pebble Partnership, in his opening statement at trial. “The evidence will support that the activities at the site have not caused harms to the natural ecology,” Singer concluded.

The Pebble Partnership joined the case on the side of the DNR as an “intervener,” tasking its extensive legal team with defending the DNR from what Pebble Partnership CEO John Shively termed “legal terrorism” by Trustees for Alaska, the nonprofit law firm representing Nunamta Aulukestai and Bella Hammond in the case.

Shively later modified his remarks in an ad. “I described the more egregious actions [by Trustees for Alaska] such as overreaching discovery requests and excessive depositions as ‘legal terrorism.’ I apologize if the use of this term has caused offense, as that was not my intent,” Shively wrote.

President Obama had initially opposed signing the Declaration. When he announced at his second Tribal Nations Conference December 16 in Washington D.C. he was reversing his earlier decision and signing the U.N. Declaration of the Rights of Indigenous Peoples, Andrew was in the audience of 500 Indigenous leaders representing 320 tribes.

As the president began speaking, “It was very, very quiet; everyone was paying very close attention,” Andrew remembers. “When he announced he was signing the Declaration everyone just burst out clapping.”

“When he announced it I was ecstatic,” Andrew says. “I was happy because quite a number of years back I got a little booklet from the Western Shoshone Tribe that gave the whole outline of the Declaration—Bush hadn’t signed it. Now we have something to work under, especially around the Pebble project.”

"The Declaration makes an important statement about the rights of indigenous people,” says Alaska State Senator Hollis French. “I hope that every thinking Alaskan takes the time to read it."

John Bolton, former UN Ambassador under President Bush, apposed President Obama’s decision to reverse his stance on the Declaration and sign it.

"It's a kind of feel-good document that has so many unclear phrases in it that nobody's really sure what it means when you agree to it," he told FoxNews.com. "Hopefully most judges will say it's not binding," Bolton added. "But there are enough judges who couldn't care less about strictly applying the law."

The story of the Declaration’s relationship with Alaska began long before President Obama’s , even before the U.N. General Assembly passed it in 2007. Around the world, Indigenous leaders have been circulating drafts since the 1970s.

Andrea Carmen, U.N. Special Rapporteur on the Rights of Indigenous Peoples, has been attending U.N. conferences and negotiating sessions from Geneva to New York City advocating for international legal recognition of the rights of Indigenous peoples since 1986. She lives in Palmer, serving as the Executive Director of the International Indian Treaty Council.

“In 1996, most of the Indigenous delegates ‘walked out’ of the negotiations in protest at being relegated to the position of ‘observers’ in the debate over our own survival, rights and dignity,” Carmen wrote in a collection of essays on the nearly 40 years of negotiations, called Making the Declaration Work.

“As a result of the walk-out, for which we received considerable international and UN attention, we achieved a groundbreaking and confidence-building victory, ensuring that Indigenous peoples would be equal participants in reaching consensus on the Text,” Carmen wrote.

Decades of debate over differences of a few words, or even letters, between proposed drafts of the Declaration, tested the resolve of each negotiator.

“I’m sure you heard about the fight over the ‘s’ in ‘peoples’ all those years,” Carmen says. “The United States came up with proposals not just to use the word ‘people,’ but also ‘populations.’ One of the last ones that I was there to hear, as an alternative, was a proposal that we use the term in the U.N. declaration, ‘persons belonging to Indigenous groups.’”

“All of that was an attempt to avoid the recognition for Indigenous peoples of rights that the U.S. and most of the other countries in the world had already recognized as applying to all peoples,” Carmen says.

By holding out for the term “Indigenous peoples,” Carmen and other negotiators successfully tied the Declaration to the defined use of “peoples” in Article I of the U.N. International Covenant on Civil and Political Rights, which was ratified by the U.S. Senate, and thus has legal standing in U.S. courts. This tie created a potential path to legal standing for the Declaration in the U.S. without Senate ratification.

“The hunger strike came about during a dark moment in the declaration work,” Carmen remembers. “It just seemed like we were not making any progress at all; Indigenous peoples in the caucus had begun to divide. Some were saying we are willing to settle for a little bit less, others were adamant—we can’t and we won’t.”

Six Indigenous representatives, including Carmen, organized a four-day hunger strike and spiritual fast in November and December of 2004.

“The hunger strike was designed to do a couple of things,” Carmen says. “One was to express how adamant we were to retain the core principles on land rights and on peoples’ self determination—those in particular are the points are the ones we felt were under assault.”

The Chairmen of the Working Group on the Draft Declaration, Luis Enrique Chavez, denied requests by the U.S. and the Russian delegations to have the hunger strikers removed by force as protestors from where they sat on a white blanket in the back of the U.N. Chamber in Geneva, where negotiations were taking place.

The hunger strike was also designed to “point out to the world that there were proposals being put forth by countries like the U.S. that were openly discriminatory,” Carmen says. “[The hunger strike] had a really strong effect even on the chair, spiritually and politically I think, in terms of a statement we were making.”

While hearing Carmen tell stories of the fight for the Declaration, the stark emotional sincerity in her voice is hard to deny.

“If all people have the right to self determination, how can Indigenous peoples just have the right to something called internal self determination—what is that?” Carmen asks. “You can’t create special rights, different rights, lesser rights, minimized rights for certain people. That’s racial discrimination, right on its face.

The final part of the strategy behind the hunger strike was to get the information on what was happening in the U.N. with the Declaration and how important Carmen and her allies feel it is to their the day to day survival out to Indigenous peoples around the world.

Hunger strikers received more than 700 emails, telegrams and faxes from around the world.

“The way you have to do it is to do something that can call attention to what’s going on. Not just another speech or statement—we were putting those out all the time,” Carmen says.

Hunger strikes in support of the passage of the Declaration—without compromises—took place simultaneously in Canada, Mexico and the United States, among other countries.

“Another thing [the hunger strike] did was it helped the countries in the room to actually recognize how important this was to us, that we are not talking about just words on a piece of paper, or a word game,” Carmen says. “We were talking about our survival, our subsistence, our land, our sacred sites, our political identity as peoples and our right to define what that is.”

Article XIX of the Declaration lays the groundwork for many of these protections. In full it reads: “States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

Carmen and her allies wanted to take the struggle for the Declaration out of this UN diplomatic exchange of words and out into the real world in a cultural way that Indigenous people could understand and support.

“Many people feel that it was a turning point in the negations,” Carmen says. “After that things seemed to change a little bit in terms of states will to come over on a wide variety of issues to the positions of Indigenous peoples.”

One of the hardest fought articles, according to Carmen, was Article III. Because it allows Indigenous people to reform or change their forms of self-governance. In many cases current systems of Indigenous self-governance were not freely consented to by Indigenous peoples. For example, having their nations and lands organized through a system of reservations.

In its entirety it reads: “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

“I felt really good and really strong emotionally and spiritually [during the hunger strike]. It felt really good to be doing something that was different,” Carmen says. “You can only think of so many ways to say the same thing… we need recognition of our rights to our land that we have traditionally used, not just whatever reserves they say belong to us now. In many countries Indigenous peoples do not have any recognized land rights at all.”

Article XXV of the Declaration makes sweeping assertions on Indigenous land rights. The complete text reads:

“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.”

“I think [the Declaration] is a very strong tool we can use to defend our rights. And it is something we have left and are leaving to the children and the grandchildren that will stand up to fight in the future. Something that we didn’t have when we first started,” Carmen says. “So I felt all of that [during the hunger strike]. I felt very connected to those who started this work, some of whom I knew very personally, who were my teachers in this work and who passed on.”

“Thousands of Indigenous people played a part in the process, and now millions will play a part in implementing the Declaration and using it, because it’s only as strong as how we use it,” Carmen says.

As knowledge about the Declaration spreads, more instances of people and communities working to apply it are emerging.

The state of Alaska questioned the role of Native elders in teaching the Ahtna Athabaskan language in Copper Center public schools without teaching credentials, and in some cases without formal educational credentials.

Citing article XIV of the Declaration in negotiations with the state of Alaska, before the president signed it, tribal leaders in Copper Center made their case for teaching the Ahtna language. The Article grants Indigenous peoples the right to “education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.”

“Evidently, the state of Alaska said, ‘well, alright then,’ and put a program in place to allow traditional elders to come in and teach the language,” Carmen says.

Chief Gary Harrison, of the Chickaloon Village Traditional Council, participated in many of the U.N. negotiating sessions during the Declaration’s development. As a tribal leader, he was present in Washington, D.C. when the president signed the Declaration.

“It is about time the U.S. took this step after opposing the Declaration for so many years,” Harrison says. “Now they need to take measures to ensure that it’s more than just an aspirational document for the American Indian, Alaska and Hawaiian Native nations.”

Last July the DNR extended exploration permits for Usibelli Coal’s proposed open-pit mine at Wishbone Hill. Development of the mine would likely mostly affect the communities of Sutton and Chickaloon.

The Chickaloon Village Traditional Council and the Castle Mountain Coalition appealed the ruling. The final answer to the appeal came in an October 14 letter from DNR Commissioner Tom Irwin.

“Each of you disagreed with the appeal procedure described in my August 19, 2010 letter, and each of you chose not to request a hearing,” Irwin wrote. “Accordingly, these appeals are now closed.”

“Since Chickaloon Village is currently facing threats of unwanted coal mining in our traditional homelands, the rights in the Declaration to free prior and informed consent, self-determination, subsistence, land and resource rights are especially important to us,” Harrison says.

Carmen believes the U.N. Declaration applies to many Alaskan land use conflicts.

“We really strongly encourage the folks fighting the Pebble mine to use the U.N. Declaration,” Carmen says. “The judge does have to apply it now.”

Vicki Clark is the Legal Director for Trustees for Alaska, and is lead counsel representing Nunamta Aulukestai and Bella Hammond in their case against the DNR and the Pebble Partnership.

“I think [the Declaration] is definitely a tool,” Clark says. “It certainly gives a judge something to use for a rationale in making a decision.”

Judge Eric Aarseth knows that the Pebble Partnership wants to begin exploratory drilling again in April, according to Clark. She hopes that Aarseth will hand down a verdict in March, before drilling can begin.

With the state of Alaska silent on its interpretation of the Declaration, a path to implementation remains to be found. Yet, one potential route is clear.

“To actually set precedent in Alaska, we would have to get the Alaska Supreme Court to make reference to the Declaration in their decision—and I think this case will go to the Alaska Supreme Court,” Clark says.

“Our children and our grandchildren, we want to leave them with a tool that wasn’t there before, something that they can use to defend their rights,” Carmen says. “And now we are seeing that in Alaska around the mining situation and subsistence and education. There is a tool we did not have before and that is the U.N. Declaration on the Rights of Indigenous Peoples. It’s not the only tool—it’s not the ceiling, it’s a floor, and it’s a floor we did not have to stand on before.”

Here is the original link to the article http://www.anchoragepress.com/news/a-new-tool---since-president-obama-signed-the/article_71b9b507-215d-5e5b-93de-b5cdf3eb7832.html

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