Published: Oct. 6, 2022

UN CERD Review of U.S. August 2022The UN Committee on the Elimination of Racial Discrimination (UN CERD) gave a formal review of the United States in Geneva from August 9 to 13 – the first review of its kind since 2014. Among a litany of areas where the U.S. has fallen short in its obligation to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), concluding observations drew unprecedented attention to the challenges faced by Indigenous Peoples in the U.S.

Among concerns, the UN CERD discussed the U.S.’s overarching failure to implement free, prior, and informed consent (FPIC) and the disproportionate impact of extractive industry and infrastructure projects on Indigenous communities.

Prior to the review, the UN CERD had twice elevated Anishinaabe concerns about escalating impacts from the Enbridge Line 3 pipeline, and three-times raised Gwich’in concerns about the U.S.’s mandated oil and gas drilling on sacred land in Arctic National Wildlife Refuge. With support from First Peoples Worldwide and the American Indian Law Clinic at the University of Boulder, Gwich’in and Anishinaabe advocacy groups submitted Early Warning and Urgent Action Procedures in 2019 and 2020 respectively, which noted how neither peoples provided their FPIC to these projects, and that the failure to solicit consent was a violation of human rights and treaty rights.

Through a Joint Alternative Report, submitted by members of the SIRGE Coalition, including First Peoples Worldwide, these and several other concerns by Indigenous Peoples were raised in the context of rights violations that are currently taking place and will continue to occur in the rush to mine the materials needed for the transition to a clean energy economy. 

The UN CERD reflected most of these concerns in its formal observations, including specific references to the Gwich’in, Anishinaabe, Western Shoshone, and Native Hawaiians. However, the Committee did not specifically reference how development projects cause harm to Indigenous Peoples’ ability to practice their cultures and religions, which was raised by both the Gwich’in and the Anishinaabe. 

Among other Indigenous rights concerns, the UN CERD elevated:

  • The many disproportionate incidences of violence against women, i.e. the Missing and Murdered Indigenous Women (MMIW) crisis in the U.S., noting the legal and sociopolitical consequences of the 2022 Supreme Court decision in Oklahoma v. Castro-Huerta decision, which could heighten systemic barriers that Indigenous women face for accessing justice and obtaining reparations;
  • The U.S.’s failure to honor treaties and ensure meaningful consultation in treaty implementation despite steps to do so, such as the Executive Office’s Memorandum on Tribal  Consultation and Strengthening Nation-to-Nation Relationships;
  • The need for the U.S. to redress for the horrific legacies of the U.S.’s displacement of Native Americans and enslavement of Africans, as well as the lingering legacy of colonialism that beset these groups today; and
  • Concern about increased legislation in the U.S. that expressly prohibits public school instruction about racism and oppression, recommending that the U.S. adopt all necessary measures to ensure that education on the history of Indigenous Peoples, their cultures and languages, as well as the history of racism, colonialism, and slavery, are part of the education curriculum at all school levels, with federal national standards or guidelines adopted in this regard. 

In addition, the UN CERD recommended the U.S take action on issues involving voting access, community health, violence and hate speech, the environment, and migrant-specific issues, all of which affect the lives of Indigenous Peoples in the U.S. 

In its conclusion, UN CERD recommended reparative policies that effectively protect the rights of Indigenous Peoples, including: honoring  treaties, eliminating undue obstacles, guaranteeing FPIC, and taking additional measures and  providing adequate funding for policies and plans that address the MMIW crisis. The Committee also recommended that the U.S. take all necessary measures to protect the right to peaceful assembly for human rights defenders, specifically for those working on the rights of Indigenous Peoples, minorities, and non-citizens.

Recommendations suggested in the Joint Alternate Report, which was submitted to the UN CERD by Indigenous leaders working to protect Indigenous rights in the global demand for clean energy and transition minerals mining, were more explicit:

  • Respect, protect, and fulfill Indigenous Peoples’ rights to participate fully in the political, economic, social, and cultural life of the State and secure their right to Free, Prior and Informed Consent.
  • Reform policies and proposed legislation that incentivizes the green economy to incorporate Indigenous Peoples’ rights under the International Convention on the Elimination of All Forms of Discrimination, the [UN] Declaration [on the Rights of Indigenous Peoples], and treaties between the U.S. and Indigenous Tribes. 
  • Require that the consultation process and government-to-government relationship between the U.S. and Indigenous Peoples incorporate the right to Free, Prior and Informed Consent. 
  • Require that corporations and companies that develop on or near Indigenous lands and territories, both ancestral and presently occupied, obtain the Free, Prior and Informed Consent of Indigenous Peoples. 
  • Recognize that the U.S., consistent with the commitments that it has made under the Committee to End Racial Discrimination and the Declaration, recognize the denial of rights to Indigenous Peoples as a human rights issue and begin to take action to rectify the above-described human rights abuses.

The influence of Indigenous Peoples during the review is remarkable. The UN CERD devoted a significant amount of time to hearing about violations of Indigenous Peoples’ rights during the process and adopted most of the concerns that were raised by the Gwich'in, Anishinaabe and other Indigenous Peoples. The UN CERD’s focus on Indigenous Peoples reflects an unprecedented level of support for remedying historic and contemporary discrimination that persists in U.S. law and policy. With comprehensive and immediate implementation of these recommendations, the U.S. can begin to address past inequities and avoid similar harms and rights violations from occurring in future development, whether in traditional extractive projects or in the global transition to clean energy.

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Image via the U.S. Mission to International Organizations in Geneva.