The Shadow Knows: Begin Preparing Reports on US Racial Discrimination for UN Agency

Gale Courey Toensing
12/13/11

Tribal nations, organizations and individuals will have the opportunity next year to call attention to cases of racial discrimination by the United States government for the United Nations watchdog group that monitors global racism.

The Committee on the Elimination of Racial Discrimination (CERD) will be accepting “shadow reports” from indigenous nations, organizations and individuals for its next review in late 2012 or early 2014 of the U.S. government’s efforts to eliminating racism in the country. CERD’s last review took place in 2008. Andrea Carmen, the executive director of the International Indian Treaty Council which coordinated a filing form, urged indigenous tribes and organizations to participate in the process. “This will be an important opportunity for Indigenous Peoples to make their own submissions, or ‘shadow reports,’ providing updates on current conditions, threats and violations. These submissions can also include information about the status of implementation by the U.S, of the CERD’s previous recommendations.”

CERD is the group assigned to monitor the implementation of the International Convention on the Elimination of Racial Discrimination (ICERD). The Convention went into effect on January 4, 1969 and is one of nine major human rights treaties adopted by the U.N. Like all conventions, it’s legally binding to all U.N. members. All states are required to submit regular reports on how they perceive that they are implementing the Convention and the CERD examines the reports and makes recommendations. The best part, though, is that the CERD doesn’t rely completely on the state’s self-reporting. It also reviews alternative or “shadow reports” from “civil society actors.” Guidelines for filing are on CERD’s website.

CERD’s last report issued in February 2008 found racial discrimination alive and thriving in 26 areas where the U.S. government fell short on its obligations, beginning with its definition of “racial discrimination,” which was cited in an earlier report. The U.S. government’s definition of racial discrimination in federal and state legislation and in court practice does not line up with the Convention’s definition, the report says. The Convention requires states parties to prohibit and eliminate racial discrimination “in all its forms, including practices and legislation that may not be discriminatory on purpose, but in effect,” the report says.

The CERD report also noted that there is no independent national human rights institution to deal with racial discrimination and other human rights violations, and recommended creating one. Human rights issues currently are dealt with by the State Department where they are not immune to political manipulation.

In addition to expressions of concern about general issues of racial discrimination, such as racial profiling, the overrepresentation of people of color living in poverty and imprisoned; the use of the courts and referenda to block affirmative action; segregated schools; and the prevalence of hate speech, the report also included these observations and recommendations about indigenous people in the U.S.:

  • “The Committee remains deeply concerned about the incidence of rape and sexual violence …. particularly with regard to American Indian and Alaska Native women and female migrant workers”
  • “The Committee further recommends that the State party recognize the right of Native Americans to participate in decisions affecting them, and consult and cooperate in good faith with the Indigenous Peoples concerned before adopting and implementing any activity in areas of spiritual and cultural significance to Native Americans.”
  • “The Committee encourages the State party to take appropriate legislative and administrative measures to prevent acts of transnational corporations registered in the State party which negatively impact on the enjoyment of rights of Indigenous Peoples in territories outside the United States.”
  • “The Committee recommends that the State party take all appropriate measures – in consultation with Indigenous Peoples concerned and their representatives chosen in accordance with their own procedures – to ensure that activities carried out in areas of spiritual and cultural significance to Native Americans do not have a negative impact on the enjoyment of their rights under the Convention.”

While the last CERD report was issued before President Obama announced the government’s “support” of the U.N. Declaration on the Rights of Indigenous Peoples on December 15, 2010, it nevertheless recommended abiding by the Declaration’s provisions. “While noting the position of the State party with regard to the United Nations Declaration on the Rights of Indigenous Peoples,” the report said, “the Committee finally recommends that the declaration be used as a guide to interpret the State party’s obligations under the Convention relating to Indigenous Peoples.”

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