36/46/Add.1 Report of the Special Rapporteur on the rights of indigenous peoples on her mission to the United States of America
Document Type: Final Report
Date: 2017 Aug
Session: 36th Regular Session (2017 Sep)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.17-13652(E)
Human Rights Council Thirty-sixth session
11-29 September 2017
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on the rights of indigenous peoples on her mission to the United States of America
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the report of
the Special Rapporteur on the rights of indigenous peoples on her visit to the United States
of America from 22 February to 3 March 2017. In the report, the Special Rapporteur
examines the human rights situation of indigenous peoples in the United States, with a
particular focus on extractive industries.
The issues surrounding energy development underscore the need for reconciliation
and improvement of the government-to-government relationship moving forward.
Significant work remains to be done to implement policies and initiatives to further the
rights of indigenous peoples to self-determination and consultation. In the current political
context, with increased incentives for fossil fuel energy development and decreased budgets
for environmental and indigenous peoples’ protection agencies, the threats facing
indigenous peoples may be further exacerbated.
United Nations A/HRC/36/46/Add.1
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Report of the Special Rapporteur on the rights of indigenous peoples on her mission to the United States of America*
Contents
Page
I. Introduction ................................................................................................................................... 3
II. Legal, institutional and policy framework..................................................................................... 3
III. Positive measures and initiatives for the implementation of the United Nations ..........................
Declaration on the Rights of Indigenous Peoples .......................................................................... 6
IV. Principal human rights concerns ................................................................................................... 6
A. Consultation and free, prior and informed consent ............................................................... 6
B. Self-determination in energy development projects ............................................................. 7
C. Economic, social, cultural and environmental impacts of energy development ................... 8
V. Emblematic case relating to the Dakota Access Pipeline .............................................................. 14
VI. Best practice .................................................................................................................................. 16
A. Self-determined energy development projects ...................................................................... 16
B. Education .............................................................................................................................. 16
VII. Conclusion and recommendations ................................................................................................. 17
A. Conclusion ............................................................................................................................ 17
B. Recommendations ................................................................................................................. 17
* Circulated in the language of submission only.
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I. Introduction
1. Pursuant to Human Rights Council resolution 33/12, the Special Rapporteur on the
rights of indigenous peoples visited the United States of America from 22 February to 3
March 2017. The Special Rapporteur expresses her gratitude to the Government of the
United States for its invitation and full cooperation.
2. The purpose of the visit was to assess the impacts of energy development projects —
including resource development through extractive industries, hydroelectric power,
geothermal exploration — and wind and solar projects on Indian tribes living both within
and outside of reservations. Special attention was paid to the Dakota Access Pipeline and its
impact on indigenous peoples, including the Standing Rock Sioux tribe and other tribes
indirectly affected by the pipeline.
3. During her 10-day visit, the Special Rapporteur visited Fort Yates, Fort Berthold and
Bismarck in North Dakota; Washington, D.C.; Albuquerque in New Mexico; Window
Rock in Arizona and Boulder in Colorado. She met with federal and regional
representatives of the federal Government in Washington, D.C., and representatives of
North Dakota, the Senate Committee on Indian Affairs and the House Subcommittee on
Indian, Insular and Alaska Native Affairs.
4. The Special Rapporteur visited several tribal communities, met with leaders from
across the Great Plains and held the first-ever virtual consultation. She also met with a wide
range of civil society and human rights organizations working on indigenous peoples’
rights.
5. Energy development is of critical concern for many reasons. First, when tribes are
able to leverage the resources on their land, they can enact economic development in a self-
determined manner, which would enable them to exercise their sovereignty. Second, the
impacts and effects of energy development occur on a much larger scale than other types of
economic development as it directly affects the lands and territories where indigenous
peoples live and which are vital to their society, spirituality and culture. Currently, nearly
20 per cent of the untapped energy resources in the United States are located on or near
Indian lands, 1 which means an even greater potential for renewable energy. Thus, a
comprehensive view of all forms and phases of energy development — including
exploration, implementation and reclamation — is necessary to understand the benefits and
risks of development for indigenous peoples in the short and long term.
II. Legal, institutional and policy framework
6. The United States has ratified international treaties relevant to the rights of
indigenous peoples, including the International Convention on the Elimination of All Forms
of Racial Discrimination, the International Covenant on Civil and Political Rights, the
Convention against Torture and Other Cruel Inhuman or Degrading Treatment or
Punishment, and has made reservations with respect to those treaties.
7. In 2014, the Committee on the Elimination of Racial Discrimination 2 noted that
indigenous peoples continued to be disproportionately affected by negative health impacts
from extractive and manufacturing industries and recommended the clean-up of any
remaining radioactive and toxic waste with particular attention to neglected indigenous
peoples. It urged the intensification of efforts to prevent and combat violence against
American Indian and Alaska Native women in particular and to ensure that all cases of
violence against women were effectively investigated, perpetrators prosecuted and
sanctioned and victims provided with appropriate remedies. It also urged that measures be
1 See Indian Energy Development hearing before the Committee on Indian Affairs, United States
Senate, 110th Congress, 1 May 2008.
2 CERD/C/USA/CO/7-9.
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taken to guarantee the right of access to justice and effective remedies for all indigenous
women victims of violence.
8. The Human Rights Committee 3 recommended that measures be adopted to
effectively protect indigenous sacred areas against desecration, contamination and
destruction and that consultations be held with a view to obtaining the free, prior and
informed consent of indigenous peoples for proposed project activities.
9. During the universal periodic review 4 in 2015, the United States accepted the
recommendations regarding the full implementation of the United Nations Declaration on
the Rights of Indigenous Peoples, continued attention to violence against indigenous
women, respect and consultation with indigenous peoples to support their rights to
traditionally owned lands and resources, adoption of measures to effectively protect sacred
areas against environmental exploitation and degradation, corrective action and
compensation relating to historical injustice and continued efforts in the education of
American Indian students.
10. The United States has recognized the sovereignty of Indian tribes under its
protection5 and 567 Indian entities with acknowledged “immunities and privileges available
to federally recognized Indian Tribes by virtue of their government-to-government
relationship with the United States”6 which are eligible to receive services from the Bureau
of Indian Affairs. The Consitution of the United States states that Congress shall have the
power to regulate commerce with the Indian tribes7 and, with respect to the apportionment
of taxes 8 and representatives 9 among States, excludes Indians who are not taxed. The
United States has a trust responsibility vis-à-vis Indians based on commitments made in
treaties and agreements that have established enduring and enforceable federal obligations,
under which Indian tribes surrendered claims to vast amounts of land to the benefit of the
people of the United States.
11. The Department of the Interior Bureau of Indian Affairs provides services directly or
through contracts, grants or compacts to approximately 1.9 million Indians and Alaska
Natives in the 567 federally recognized tribes. Given the current protection framework, the
Special Rapporteur was concerned about the drastic reduction in the Department budget by
$1.6 billion annually and in the Environmental Protection Agency budget by $2.5 million.
She recommends that the current administration strongly reconsider those budget cuts
which would greatly impact the living standards of indigenous peoples.
12. Engagement with indigenous communities in the United States in the context of
energy development and infrastructure projects are governed by various domestic statutes,
orders, regulations, policies and protocols, each of which must be consulted individually
and collectively to determine any specific procedures on how federal departments and
agencies should conduct “government-to-government” consultations with Indian tribes. The
order that provides the most direct guidance on consultation with Indian tribes is Executive
Order 13175 of 9 November 2000. It requires federal agencies to adhere to three policy-
making criteria, to the extent permitted by law, including, where possible, deferring to
Indian tribes to establish standards. There should also be “an accountable process to ensure
meaningful and timely input by tribal officials in the development of regulatory policies
that have tribal implications.”
13. Since the issuance of the order, the Government of the United States has taken a
number of steps to strengthen its consultation regime to ensure the protection of indigenous
rights. In 2009, a Presidential memorandum was issued to enhance meaningful dialogue
3 CCPR/C/USA/CO/4.
4 A/HRC/16/11 and Add.1.
5 United States of America, Executive Order 13175 on consultation and coordination with Indian tribal
governments, Federal Register, vol. 65, No. 218 (9 November 2000).
6 United States of America, Federal Register, vol. 82, No. 10 (17 January 2017), p. 4915; also 25
U.S.C., sect. 5130 (2).
7 United States of America, Constitution, art. I, sect. 8 (3).
8 Ibid., art. I, sect. 3.
9 Ibid., amendment 14 (2).
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between the federal Government and Indian tribes. All federal agencies were directed to
develop a detailed plan of action to implement the policies and directives of Executive
Order 13175.10
14. Despite those efforts, the order resulted in a disjointed framework that suffers from
loopholes, ambiguity, ad hoc application on an agency-by-agency basis and a general lack
of accountability. It has failed to ensure effective consultations with tribal governments.
The breakdown in communication and lack of timely and good faith involvement in the
review of federal and non-federal projects has left tribal governments unable to participate
in meaningful dialogue on projects affecting their lands, territories and resources. The
shortcomings of the current framework still lead to violations of the rights of indigenous
peoples, most notably the right to free, prior and informed consent.
15. The Indian Mineral Leasing Act (1938) provides that “unallotted lands within any
Indian reservation or lands owned by any tribe, group or band of Indians under Federal
jurisdiction ... may, with the approval of the Secretary of the Interior, be leased for mining
purposes”.11 Although the Act recognizes tribal sovereignty, it retains the principles of the
trust responsibility by requiring that tribal mineral leases be approved by the Secretary of
the Interior based on a determination of whether or not the lease is appropriate or in the best
interest of the tribe.
16. The Indian Mineral Development Act (1982) was intended to provide tribes with
greater autonomy in the development of natural resources on Indian lands. The Act permits
tribes to enter into joint venture agreements providing for the development or sale of
mineral resources in which the tribe owns an interest. 12 Entry into such agreements is
subject to approval by the Secretary of the Interior, based on a determination that the
agreement is in the tribe’s best interest.13
17. The Energy Policy Act (2005) permits Indian tribes to submit to the Secretary of the
Interior for approval a tribal energy resource agreement governing leases, business
agreements and rights-of-way on tribal lands. 14 The Secretary has limited discretion in
deciding whether to approve an agreement as it stipulates a time frame and conditions for
approval,15 including the determination that the Indian tribe has demonstrated its capacity to
regulate the development of energy resources on behalf of the tribe. While such agreements
provide Indian tribes with an avenue for exercising sovereignty in energy development on
their lands, the approval process still gives the federal Government the final determination
of tribal capacity and for some erosion of the federal trust responsibility in Indian mineral
resource development.
18. The Helping Expedite and Advance Responsible Tribal Home Ownership Act
(2012) created the opportunity to turn over control of the leasing of tribal lands to tribal
governments. The Act removes the requirement of lease approval by the Secretary of the
Interior, requiring instead only initial approval of a participating tribe’s own leasing
regulations. However, the Act applies to surface lands only and thus impacts the
development of renewable energy projects only.
19. The history of allotment and reservation has not diminished indigenous peoples’ ties
to their land. Indigenous peoples seek full decision-making power over the reduced lands
and resources allocated to them so that they can use their history, knowledge and expertise
to manage their resources to the benefit of their communities. Indigenous peoples assert
that their rights in the United States are not limited by the boundaries of their current
reservations, but extend to the reaches of their ancestral territories.
10 United States of America, Memorandum of 5 November 2009 on tribal consultation, Federal Register,
vol. 74, No. 215 (9 November 2009).
11 United States of America, 25 U.S.C., sect. 396 (a).
12 Ibid., sect. 2102.
13 Ibid.
14 United States of America, 25 U.S.C., sect. 3504 (e).
15 Ibid.
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20. In line with article 32 (2) of the United Nations Declaration on the Rights of
Indigenous Peoples, section 106 of the National Historic Preservation Act (1966) requires
federal agencies to take into account the effect of any federal or federally assisted
undertaking on any historic property eligible for entry in the National Register of Historic
Places.16 According to the implementing regulations, federal agencies must consult with
any Indian tribe or Native Hawaiian organization that attaches religious and cultural
significance to historic properties that may be affected by a federal or federally assisted
undertaking.17
III. Positive measures and initiatives for the implementation of the United Nations Declaration on the Rights of Indigenous Peoples
21. In December 2010, the United States of America declared its support for the United
Nations Declaration on the Rights of Indigenous Peoples. The administration at the time
took strong steps towards implementing a consultation framework by holding high-level
meetings between tribal leaders and the executive branch. Since 2012, the federal
Government had made commendable efforts to develop policies to effectively implement
the principles set forth in the Declaration, including the adoption of the Violence Against
Women Reauthorization Act (2013) and the creation of the White House Council on Native
American Affairs (2013), which brings together federal departments and agencies across
the executive branch to more effectively coordinate programmes for Indians.
22. In 2012, the Departments of Defence, the Interior and Energy, and the Advisory
Council on Historic Preservation signed a memorandum of understanding to improve the
protection of and tribal access to Indian sacred sites through enhanced and improved
interdepartmental coordination and collaboration.
23. On 1 March 2013, the Advisory Council adopted a plan to support the Declaration
by incorporating the principles set forth therein — including free, prior and informed
consent — into its programmes, policies and initiatives. It also committed to raising
awareness about the Declaration within the historic preservation community and among
other federal agencies.
24. The Special Rapporteur learned about various initiatives supporting the Declaration.
In 2014, the Environmental Protection Agency recognized in its Policy on Environmental
Justice for Working with Federally Recognized Tribes and Indigenous Peoples the
importance of the Declaration and the principles that were consistent with the mission and
authorities of the agency.
IV. Principal human rights concerns
A. Consultation and free, prior and informed consent
25. As a universal framework setting out the minimum standards of protection of
indigenous peoples’ rights, the Declaration establishes the duty of States to consult and
cooperate in good faith with indigenous peoples in order to obtain their free, prior and
informed consent before approving any project, including energy and infrastructure
projects, affecting their lands or territories and other resources. Effective implementation of
that principle would ensure that indigenous peoples have decision-making power over the
impacts of energy development on their lands.
26. The Special Rapporteur found that the situation faced by the Standing Rock Sioux
tribe was shared by many indigenous communities in the United States, as tribal
communities nationwide wrestle with the realities of living in ground zero of energy
16 United States of America, 54 U.S.C., sect. 306108.
17 United States of America, 36 C.F.R., sect. 800 (2) (c) (2) (ii).
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impact. The core objective of tribal consultation is to provide federal decision makers with
context, information and perspective to support informed decisions that protect tribal
interests. Prior to rendering federal decisions that have the potential to impact tribes, federal
agencies must consider treaty rights, federal trust responsibility to tribes and environmental
justice, along with all relevant and applicable federal statutes, regulations and policies.
Meaningful consultation has the potential to provide a solid foundation for such decisions,
but federal agencies and tribes must be willing to recognize those principles and to work
actively and cooperatively. In some cases — such as in the context of the Dakota Access
Pipeline — meaningful consultation does not occur (see paras. 63-74 below).
27. There are few examples of meaningful consultation in the context of energy
development projects in the United States. One example was the section 106 review led by
the Bureau of Land Management of Nine Mile Canyon, Utah, with an estimated 10,000
prehistoric rock panes etched along the 45-mile-long canyon. During the review, the
Advisory Council recommended expanding the consultation with Indian tribes and other
parties. As a result, a blueprint for safeguarding historic properties while allowing energy
development to proceed was created in 2010.
B. Self-determination in energy development projects
28. The previous Special Rapporteur noted that “indigenous peoples in some cases are
establishing and implementing their own enterprises to extract and develop natural
resources which … is more conducive to the exercise of indigenous peoples’ rights to self-
determination, lands and resources, culturally appropriate development and related
rights”.18 The Special Rapporteur notes that, in addition to the government-to-government
relationship that is the basis of consultation, the United States has a trust relationship with
Indian tribes and individual Indians for the resources and rights that the United States holds
in trust, as defined by Congress. She recommends that this relationship remain the legal
framework within which to build the capacity of Indian tribes to develop their own
initiatives with respect to natural resources and energy. Any framework that dispenses with
the trust responsibility would be detrimental to indigenous peoples given their unique status
as sovereign entities and members thereof.
29. The Special Rapporteur was very impressed by the remarkable and unshakeable
resolve that tribes demonstrate in finding creative ways to self-determine their energy
development. In addition to rich oil and gas deposits across Montana, North Dakota, Texas,
Oklahoma, Utah, Colorado, Alaska and New Mexico, indigenous lands have great wind and
solar potential, as well as hydroelectric and geothermal resources. A number of tribes have
made entrepreneurial efforts to create tribal utilities for the benefit of their own and
neighbouring communities, and are involved in a wide array of energy generation and
transmission as large parts of tribal lands serve as throughways for the national electrical
grid system. Indian tribes are owners and operators of new and emerging technologies,
breaking the mould of reliance on outside entities. These examples demonstrate that, by
exercising political sovereignty, indigenous peoples can approach energy resource
development in diverse ways to support economic sovereignty.
30. With a budget of $22 million for 2017, the Department of Energy Office of Indian
Energy will provide $12 million in grants for the deployment of innovative energy systems
and technologies, and $6 million in direct technical assistance; the amount has doubled
since 2013 to meet increasing demand. Between 2002 and 2016, the Department of Energy
invested $66.5 million in 217 tribal clean-energy projects valued at more than $126 million,
with an investment of $59.7 million in tribal cost shares. One example was the grant to the
Picuris Pueblo for a solar energy project in 2016 (see para. 77 below).
31. Indian tribes continue to face significant challenges in their efforts to harness the
possibility of self-determined development. In particular, tribes universally reported that the
legal, regulatory and tax structures currently in place created additional hurdles while
18 A/HRC/24/41.
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reducing the possibility of realizing important benefits. Of particular concern was the dual
taxation regime that allow State governments to tax energy revenues derived from tribal
lands without any requirement that those taxes be redeployed to serve tribal communities.
This undermines tribes’ self-determination as they cannot adequately protect their
communities against the negative impacts of development. Whether it is repaving destroyed
roads, creating adequate environmental mitigation, providing emergency response plans or
bulking up the capacity of law enforcement, energy-producing tribes find themselves
lacking adequate resources to manage the impacts of development.
32. The Special Rapporteur heard from tribes about their proactive approach in asserting
self-determination in the development of their own comprehensive energy policies. While
expecting the United States to continue to fulfil its trust responsibility to them, tribes want
to empower themselves to develop their resources for the benefit of their members.
Particularly in the areas of historic preservation, social and environmental impacts and
emergency management planning, the Special Rapporteur considers that indigenous
peoples are best placed to lead in developing energy policies that affect them.
33. The deference to be afforded to Indian tribes in the energy development context
should also be recognized by other stakeholders. The Special Rapporteur recommends that
energy developers consider and address the difficulties that may arise in interacting with
tribes and work to understand their unique perspective as the permanent inhabitants of their
lands and territories. A committed and meaningful effort towards mutual understanding by
companies should serve not only to assist them in meeting their responsibilities under the
Guiding Principles on Business and Human Rights: Implementing the United Nations
“Protect, Respect and Remedy” Framework, but also to develop a productive and
harmonious relationship between the tribes, companies and stakeholders.
C. Economic, social, cultural and environmental impacts of energy
development
1. Sacred places threatened by energy development
34. Energy development “has not only physically impacted our homelands and the
purity of our soil, air and water it has also affected the public health, the community
cohesion and the prayers and cultural practices of our people”.19 Energy and infrastructure
development on and near tribal territories have unique impacts on Indian communities that
cannot be calculated in environmental or economic terms only. Any exploration, extraction
or remediation effort must take into account the links to the health, society, culture and
spirituality of local indigenous communities.
35. While indigenous peoples have a vibrant and enduring relationship to their culture
and sacred places, forced relocation and treaty renegotiation has alienated many tribes from
their historical territories. Outside of indigenous control, many of these places have come
under threat by energy development projects. Important examples include Chaco Canyon,
Mount Taylor and Bears Ears.
36. Although designated a World Heritage Site by the United Nations Educational,
Scientific and Cultural Organization (UNESCO) owing to its vast cultural resources with
deep significance to the Pueblo and Navajo peoples, only the main complex of Chaco
Canyon is protected by UNESCO and United States national park designations, despite the
actual boundaries of the sacred place stretching miles beyond that area through sacred
pathways evidencing sophisticated astronomical knowledge and which lead to other great
houses that are part of the sacred place. The Chaco Canyon area contains one of the largest
natural gas formations with a significant amount of crude oil. While there are no oil and gas
activities within the official borders of the park, the Bureau of Land Management has
issued hundreds of drilling permits in the surrounding area and recently announced a plan
to review mineral leasing and development activity near the park. The review process was
19 Janene Yazzie (Navajo Nation), statement to the Special Rapporteur during the regional consultation
with the Navajo Nation, Window Rock, Arizona, February 2017.
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billed as a joint effort reflecting the Department of the Interior’s emphasis to work with
Indian leaders, but representatives of the Bureau walked out of the first scoping meeting.
On 25 January 2017, against the urging of the local indigenous population and with limited
meaningful consultation, an online auction was held for oil and gas drilling leases of public
lands surrounding the park. Chaco Canyon remains one of the most significant and most
threatened sacred places in North America.
37. Mount Taylor is one of six Navajo sacred mountains, a site revered by the Navajo,
Acoma, Laguna and Zuni Pueblos and the Hopi. Prior to its listing on the New Mexico
State Register of Cultural Properties, Mount Taylor was mined extensively for uranium-
vanadium between 1979 and 1990. Since then, its mine shafts have filled with water
contaminated by uranium and radium. Although the site has become permanently
designated as traditional cultural property, the land is still governed by the 1872 Mining
Act, which permits mining regardless of impacts on cultural or natural resources, if deemed
to be in the public interest.
38. In December 2016, the United States Government designated Bears Ears National
Monument as sacred lands, providing indigenous peoples from the Colorado Plateau a place
of subsistence, spirituality, healing and contemplation. Through its unprecedented model of
co-management with local and regional tribes, the land use model allows its continued use
for cultural practices for future generations utilizing indigenous traditional knowledge to
protect a unique cultural and ecological landscape, including for public use. The Special
Rapporteur considers that Bears Ears should serve as a model for protection and
management of sacred places and was alarmed to learn that the Secretary of the Department
of the Interior had recommended to President Tump to “revise the existing boundaries” of
the monument in response to the executive order to review 27 national monuments across
the country.
2. Health and environmental impacts
39. The Special Rapporteur noted the 30-year history of water settlement negotiations
favoured by the Government and highly appreciated by indigenous peoples. In a letter to
the Trump administration in January 2017, the Western States Water Council and the
Native American Rights Fund urged the administration to continue to “make tribal water
right settlements a priority” and committed to working with the administration to resolve
issues surrounding tribal water negotiations. Over the last 30 years, the Department
completed 36 water rights settlements, four of which were approved by Congress in 2016
for the Blackfeet, Pechanga, Chickasaw/Choctaw and San Luis Rey Nations.
40. For indigenous peoples, water provides lifeways and subsistence and is of
undeniable spiritual significance. In Lakota, they express this belief as Mni Wiconi: water is
life. Water stands at the forefront of environmental impacts resulting from energy
development on indigenous lands. In the arid west, where a large number of extractive
projects are undertaken, the substantial volumes of water used in drilling operations cause
stress on surface water and groundwater supplies.
41. Contamination of underground and surface water is also a concern, with many
projects threatening vital resources in water-scarce regions. Activities that compromise
indigenous peoples’ water supply violate their right to the enjoyment of the highest
attainable standard of health, as set forth in article 24 of the Declaration. A recent study by
the Environmental Protection Agency 20 found scientific evidence that activities in the
hydraulic fracturing water cycle can impact drinking water resources through spills, faulty
well construction, discharge into surface water or disposal into underground injection wells.
42. The Kayenta Mine located on Hopi and Navajo reservation lands threatens the Black
Mesa aquifer, the primary source of drinking water for the two reservations. Contracts since
the 1960s between the federal Government and the mining company allow the company to
20 United States Environmental Protection Agency, Hydraulic Fracturing for Oil and Gas: Impacts from
the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States, Final
report, EPA/600/R-16/236F, 2016.
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withdraw more than 4,000 acre-feet of water from the aquifer annually to transport coal to a
processing plant through an underground slurry line. Reports indicate that significant
depletion and possible contamination is present in the Black Mesa water table and that the
aquifer is showing signs of continuing deterioration owing to decades of pumping.
43. One of the most emblematic cases of environmental destruction bearing on
indigenous access to water was the Gold King Mine waste water spill near Silverton,
Colorado, in 2015. While the Environmental Protection Agency was conducting an
investigation, 3 million gallons of water contaminated with arsenic and cadmium were
inadvertently released into Cement Creek and travelled down the Animas and San Juan
rivers through New Mexico and across the Navajo Nation to Lake Powell in Utah. The spill
caused severe damage to crops and livestock and threatened the livelihoods of farmers and
ranchers. The long-term environmental and health impacts of the spill are unknown. The
fact that the mine had not been operational for nearly a century underscores the dangers of
present-day extractive activities on future generations of indigenous peoples. Duane
Yazzie, President of the Shiprock Chapter of the Navajo Nation stated, “We are torn, we
need water, but we must also preserve farms for coming generations; farming is our life,
water is our life, this is our culture, our spiritual way, it’s who we are.”
44. Another effect of energy development that has been borne by indigenous peoples is
the dramatic increase in the flaring of natural gas in the Bakken Formation in North Dakota.
Because of the lack of sufficient natural gas pipeline infrastructure in the relatively new
production area, many wells in the area have been forced to flare the natural gas product as
a method of disposal. The various hazardous air pollutants emitted during the combustion
of the gas flare, including methane, have been associated with a variety of adverse health
impacts, including cancer, lung damage and other neurological defects. These impacts are
being felt by the Mandan, Hidatsa and Arikara Nation and surrounding communities. The
Special Rapporteur heard testimonies from indigenous peoples that, despite the possible
negative health impacts from gas flares, they would not even consider leaving their
ancestral lands.
45. Uranium mining continues to have a dark legacy of environmental impacts on Indian
tribes, particularly their water supply. Fuelled by the Cold War, uranium production
boomed in the 1960s particularly in the southwestern United States and impacts of decades-
old unreclaimed mines still linger in the form of severe water pollution. According to the
Uranium Mine Location data of the Environmental Protection Agency, to date,
approximately 15,000 uranium mines exist in the United States, about 4,000 of which are
currently active. According to the 2012 census, 13 of the states with the highest percentage
of Indian populations are in the western United States; over 161,000 abandoned hardrock
mines can be found in 12 western states, 2110,000 of which mined uranium. Although
reservations cover only 5.6 per cent of the western United States, one in five uranium mines
is located within 10 km of an American Indian reservation, with more than 75 per cent
(over 3,200 of 4,600) being within 80 kilometres.
46. Through its Superfund programme established as the Comprehensive Environmental
Response, Compensation and Liability Act (1980) to fund the clean-up of sites
contaminated by hazardous substances and pollutants, the Environmental Protection
Agency has performed remediation work on more than 500 abandoned uranium mines on
the Navajo Nation; 30 million tons of uranium ore had been extracted during the Cold War
on or adjacent to Navajo lands.
47. The Special Rapporteur was pleased to note that each federal agency has been
ordered to “make achieving environmental justice part of its mission by identifying and
addressing as appropriate, disproportionately high and adverse human health or
environmental effects of its programs, policies and activities on minority populations … in
the United States and its territories and possessions”.22
21 United States of America, General Accounting Office, 2014.
22 United States of America, Executive Order 12898, Federal Register, vol. 59, No. 32. 7629 (16
February 1994).
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48. When resources are extracted from indigenous territories, the people living in those
territories experience attendant health impacts. In the 1900s, private companies employing
Navajo workers ignored or failed to communicate the known health risks of exposure to
uranium. Workers, women and children living near the mines still suffer from high rates of
lung disease and cancer. In January 2017, the United States and the Navajo Nation entered
into an historic settlement agreement to clean up 94 abandoned uranium mines on the
Navajo Nation. Under the settlement, which was valued at over $600 million, Freeport-
McMoRan’s subsidiaries would perform the work and the United States would contribute
approximately half the cost. In total, $1.7 billion is now available to begin the Superfund
clean-up process at over 200 of the 523 abandoned uranium mines on or near the Navajo
Nation. Health impacts were also addressed with the adoption in 2008 of a five-year plan to
clean up uranium contamination on the Navajo Nation.23 In addition to uranium mining, oil
development can also impose health impacts on human populations. Mounting evidence of
the negative effects of oil development on health includes a study by the Colorado School
of Public Health, which found that babies born of women living in the area with the highest
density of wells were twice as likely to have neural tube defects and a 38-per-cent increased
risk of congenital heart defects.24
49. Despite the known environmental and health risks associated with active and
abandoned uranium mines with remediation lifetimes of 200 to 1,000 years, with regard to
control for disposal sites and uranium tailings sites, respectively,25 permits have been issued
for new uranium projects near the Grand Canyon. In addition to the risks of environmental
degradation, the mine poses environmental risks to the Navajo owing to the inevitable
transport of uranium across Navajo lands. Despite the 2005 Navajo Nation ban on uranium
mining and milling, under United States law the tribe cannot legally prevent the
transportation of this hazardous material through their reservation. Areas such as the Diné
community (Navajo) of Cameron continue to face high rates of cancer and poisoned
drinking water from abandoned mines.
50. San Ildefonso Pueblo faces risks of water contamination from the bordering Los
Alamos National Laboratory, the birthplace of the atomic bomb. For nearly two decades in
the 1900s, the facility flushed contaminated water into the nearby Sandia Canyon. The
runoff has created a mile-long flow of contaminated groundwater extending downward and
outward from a specific source and migrating towards the reservation, threatening a major
aquifer that is the tribe’s main water supply. The project has already caused environmental
damage to sacred places outside of present-day reservation boundaries.
51. Environmental impacts on Indian tribes are not restricted to extractive energy
projects. Initiatives to increase the production of hydroelectric power have also had
irreversible consequences for tribes. One of the most destructive impacts was the 1944
Pick-Sloan project to construct and operate several dams to control flooding. The dams
constructed on the Missouri River submerged over 356,000 acres of Indian lands and
devastated precious resources. Displaced indigenous peoples relocated to barren lands as
their fertile soils, timber supplies and abundant wildlife were destroyed by the flooding.
52. Lake Oahe, one of the reservoirs created by the Pick-Sloan project, has been
prominent in the Dakota Access Pipeline controversy. A portion of the pipeline route passes
approximately 100 feet beneath the bottom of Lake Oahe, which is a major source of
drinking water for residents of the Standing Rock Sioux Reservation. They claim that they
and other affected tribes were not properly consulted about the environmental impacts of a
potential spill.
23 United States Environmental Protection Agency, “Health and environmental impacts of uranium
contamination in the Navajo Nation”, Five-year plan, 2008.
24 See http://naturalsociety.com/proximity-natural-gas-wells-ups-risk-birth-defects-says-
study/#ixzz43O4VYskH.
25 United States Environmental Protection Agency, Technical Report on Technologically Enhanced
Naturally Occurring Radioactive Materials from Uranium Mining, Vol. 1: Mining and reclamation
background, 2008. Available at https://www.epa.gov/sites/production/files/2015-05/documents/402-r-
08-005-v1.pdf.
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12
53. The proposed Keystone XL pipeline project also threatens harmful environmental
conditions on tribal lands, despite procedural requirements for assessments of
environmental impacts. Pursuant to the National Environmental Policy Act (1970), the
Department of State Bureau of Oceans and International Environmental and Scientific
Affairs issued an environmental impact statement identifying the Cheyenne River Indian
Reservation and the Rosebud Indian Reservation as areas that stood to be affected by the
project. The Special Rapporteur is concerned about the potential impacts to indigenous
peoples that may result from the Presidential memorandum of 24 January 2017 inviting
TransCanada to resubmit its construction and operation permit application to the
Department of State and directing the Secretary of State to expedite the review process. She
fears that tribal interests are even more likely to be ignored in the expedited review process.
3. Sexual and gender-based violence
54. The Special Rapporteur was pleased to learn about the progress made in the
implementation of the Violence Against Women Reauthorization Act (2013), adopted
following the visit of the previous Special Rapporteur in 2012.26 The Act was intended to
address flaws in the jurisdictional framework in Indian country which left acts of domestic
and dating violence perpetrated by non-indigenous persons unprosecuted. The Act enables
tribes to exercise “special domestic violence criminal jurisdiction” over non-Indian
perpetrators who commit crimes of domestic or dating violence or violation of certain
protection orders in the Indian country of the participating tribe. As a result, in 2016, the
Department of Justice Office of Violence Against Women received its first appropriation of
$2.5 million to implement the grant programme which enabled seven tribes to exercise the
new special domestic violence criminal jurisdiction. Additional policy tools under the Act
increased the number of federal prosecutions of 122 defendants in 2015 and, in that year
also, prosecutors obtained 20 convictions out 28 cases filed against defendants in Indian
country under the domestic assault by a habitual offender statute.
55. The strength of indigenous peoples in the United States is in large part measured by
the vitality of their communities. Indigenous communities are at their strongest when
women and girls have full and free access to social, cultural, spiritual and political
institutions. As the Special Rapporteur noted in her thematic report on the rights of
indigenous women and girls, 27 the history and pattern of violence against indigenous
women and girls have long hindered their ability to fully realize their rights in all domains
for several reasons. First, the history of colonization and, in the United States, the history of
establishing Indian communities in extremely rural and under-resourced areas, has in many
respects allowed violence against indigenous women to occur without adequate response,
ability to report or access to effective redress. Second, indigenous women often experience
multiple and intersecting forms of discrimination and marginalization based on their
gender, class, ethnic origin and socioeconomic circumstances.
56. Taking into account the principles set forth in the United Nations Declaration on the
Rights of Indigenous Peoples, the rights of women and girls must be specifically considered
in the context of energy development and resource extraction because of their importance
as the backbone of indigenous societies, as well as their increased risk of experiencing
poverty, abuse, historical trauma and lack of access to education.28 While there is a long
history of exploitation of Native women and girls that goes hand in hand with resource
development on Indian lands in the United States, the Special Rapporteur’s comments in
the present report refer specifically to situations ocurring during periods of rapid
development.
57. The Fort Berthold Indian Reservation, home to the Mandan, Hidatsa and Arikara
Nation, sits on the Bakken Formation, one of the most productive development regions in
recent years. Rapid development of the Bakken Formation since 2011 has attracted
thousands of oil workers to North Dakota. One of the effects of the influx of oil and gas
26 A/HRC/21/47/Add.1.
27 A/HRC/30/41.
28 United Nations Declaration on the Rights of Indigenous Peoples, arts. 21-22.
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13
workers to the area has been a dramatic increase in violent crime, generally, and a notable
increase in trafficking of Native women and children.
58. Unfortunately, due to the complex legal regime applied to criminal jurisdiction on
Indian lands, the Mandan, Hidatsa and Arikara Nation, like the majority of tribes in the
United States, has limited ability to prosecute non-Indian perpetrators of crimes on their
lands. In addition, the rapid pace of development quickly and critically overwhelmed the
tribe’s existing infrastructure, which was unable to provide law enforcement, victim support
and social services to keep pace with the increase in crime on the almost one-million acre
reservation. Many residents reported that they felt unsafe in their own homes. At the most
basic level, development took place without consideration of the unique communities at
Fort Berthold and created an unsafe and unstable environment for families on the
reservation.
59. Sadly, this is a pattern that is being repeated in other indigenous communities. With
the launch of oil and gas exploration on their territories and evidence of trafficking of
Navajo women in and out of their communities, members of the Navajo Nation are deeply
concerned about the increase in sexual violence in their territories.
60. While the trafficking of indigenous women and children is hardly a new
phenomenon, there is little recognition by public and private stakeholders about affirmative
actions that they can take to protect women in communities where energy development
catalyzes an increase in sexual violence. According to the preliminary findings of a study
funded by Department of Justice29 that examined the spike in oil development in North
Dakota and Montana in relation to domestic and dating violence, sexual assault and
stalking, cities near the epicentre of the oil boom showed an increase in the average number
of domestic violence victims, with the Bakken region evidencing certain officially reported
offences at a rate that was significantly outpaced by population growth. Factors relating to
the oil industry that have contributed to the increase in sexual and gender-based violence
include the scarcity of affordable housing, the intensity of working hours followed by time
off for oil workers who often do not relocate with their families — which leads to
separation anxiety for the workers, their partners and the communities —, increased
availability of illicit drugs and increased demand for social services that are often unmet by
supply.
61. The Special Rapporteur was informed by several interlocutors that oil and gas
leasing approvals issued by the Bureau of Indian Affairs do not adequately consider the
safety and welfare impacts of extractive industry projects on indigenous women and
children. A few minimum steps that corporations should take to ensure the safety of
communities in which they are operating would be to ensure that all their employees
comply with sex offender registration rules, to provide their workers with adequate housing
so as not to create “man camps” that are heavily associated with sex trafficking and illegal
prostitution, to provide verifiable addresses to law enforcement and emergency services and
to work with the tribes concerned to ensure that local capacity will not be unduly taxed by
the short-term influx of workers to the area. Taking these small steps would not only give
companies true social licence to operate, but would ultimately establish their conformity
with the Guiding Principles on Business and Human Rights.
62. The establishment of mechanisms to adequately consider the social values and
socioeconomic status of indigenous communities, including the situation of women and
girls, would go a long way to increasing their long-term health and well-being. Even a
short-term spike in violence against women cuts against the strength and vitality of
indigenous communities. That, in turn, exacerbates the experience of historical trauma
within families cumulated in part as a result of the largely discriminatory policies of the
Government towards indigenous peoples since the first contact, and which, today, still
results in distrust of government initiatives. The federal Government and private companies
should recognize these patterns and integrate existing frameworks to consider the social
29 Dheeshana S. Jayasundara and others, “Exploratory research on the impact of the growing oil industry
in North Dakota and Montana on domestic violence, dating violence, sexual assault, and stalking: a
final overview”, University of North Dakota, November 2016.
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impacts of development as well as spur tribally self-determined energy projects that operate
within beneficial community standards.
V. Emblematic case relating to the Dakota Access Pipeline30
63. The Special Rapporteur closely reviewed the situation around the Dakota Access
Pipeline, which highlights the shortcomings in the United States’ policy on consultation.
The 1,168-mile-long pipeline intersects the treaty reservation and traditional territories of
the Great Sioux Nation, running near the Missouri River, upstream of the water supply of
numerous tribal nations. A portion of the pipeline runs 100 feet under Lake Oahe, half a
mile north of the Standing Rock Sioux Reservation and 70 miles north of the tribe’s water
supply intake.
64. As prescribed by the National Environmental Policy Act, the Army Corps of
Engineers drafted an environmental assessment of the project, which failed to identify or
address the concerns of the Indian tribes located directly downstream of the pipeline. Maps
in the draft assessment initially omitted the reservation or the fact that the pipeline would
cross the historic treaty lands of a number of tribal nations. During its meeting with the
Special Rapporteur, the Army Corps confirmed that it had held numerous consultations
between October 2014 and July 2016 and between September 2016 and February 2017 but,
despite attempts to contact affected Indian tribes, it was unable to hold the required
consultations with them. On the other hand, affected Indian tribes, including the Standing
Rock Sioux, explained that, in their view, the attempted contacts were not made sufficiently
early in the process but rather after the decisions regarding various aspects of the pipeline
had been made, including its route, with limited consideration for sacred sites or the
potential impact to their drinking water.
65. It was claimed that the Army Corps did not respond to a request by the Standing
Rock Sioux tribe for an archaeological survey to be carried out by tribal archaeologists. The
Corps stated that, given the limits of its jurisdiction, it lacked the authority to require the
project proponent to conduct an archaeological survey of the pipeline route. The Advisory
Council on Historic Preservation had alerted the Army Corps to the reservations expressed
by the affected tribes and requested that the Army Corps consider under its section 106
considerations not only the 209 various water crossings under its responsibility for
licencing obligations, but the entire pipeline project.
66. In its consultation policy dated 1 November 2012, the Army Corps stated that, “to
the extent practicable and permitted by law, consultation works toward mutual consensus
and begins at the earliest planning stages before decisions are made and actions are
taken”.31 The Army Corps explained to the Special Rapporteur that only 3 per cent of the
pipeline route was under the jurisdiction of federal authority. It claimed that the impacts on
the 200 wetlands and water crossings were temporary and insignificant therefore no
environmental impact statement was needed to grant the easement. The Army Corps also
pointed out that, following the Standing Rock Sioux’s request to Energy Transfer Partners,
the company took steps to address the pipeline safety control concerns of the tribe by
adding 36 additional terms and conditions to the project. This information, which is now
public, was recently made available to the tribes.
67. While the issue galvanized many people across the globe in support of the affected
tribes, including a proliferation of self-interested native and non-native groups, violence
escalated as a result of clashes between local, private security forces and protestors. The
Chairman of the Standing Rock Sioux Reservation, David Archambault II, noted blockades
on the northbound highway 1806, hindering the passage of emergency vehicles to local
hospitals and delaying medical care to injured people. The blockade also hindered access to
the casino, which negatively impacted that source of income for the Standing Rock Sioux.
30 See A/HRC/34/75, communications sent: USA 14/2016 and USA 7/2016, available from
http://www.ohchr.org/EN/HRBodies/SP/Pages/CommunicationsreportsSP.aspx.
31 See http://www.spk.usace.army.mil/Portals/12/documents/tribal_program/USACE%20Native
%20American%20Policy%20brochure%202013.pdf.
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15
68. While many of the circumstances surrounding the protest constitute examples of
poor practices, there were also a number of positive developments. The Chairman of the
Standing Rock Sioux Reservation stated that the protest brought together all seven bands of
the Great Sioux Nation for the first time in the last 150 years and galvanized indigenous
peoples nationally and from around the globe, who came by the thousands to show their
support for the Standing Rock Sioux and other affected tribes.
69. Another positive development was the series of consultations held by the federal
Government with Indian tribes to better integrate tribal views on infrastructure decisions.
The consultations32 sought to better inform federal agencies about tribal involvement in
decision-making that implicates their rights and resources. In December 2016, the Army
Corps announced that it would conduct a full environmental review of the pipeline’s
impacts to determine the basis on which to grant the final easement needed to complete the
pipeline.
70. These positive steps were overshadowed when newly-elected President Donald
Trump issued a memorandum which called for the expedited review and approval of the
Dakota Access Pipeline, circumventing the ongoing environmental review. The Army
Corps executed the President’s directive, cancelled the environmental impact statement and
granted the last easement necessary to begin construction of the pipeline under Lake Oahe.
On 1 June 2017, the pipeline became fully operational, transporting oil through traditional
tribal lands and underneath the water supply of the Sioux tribes.
71. The tribes continued to battle for the protection of their rights in domestic courts and
in June 2017, a United States Federal Court agreed with the Standing Rock Sioux that the
Army Corps had not adequately considered environmental justice issues nor the risk of oil
spill, which could have impacts on treaty reserved hunting and fishing rights. The Special
Rapporteur will continue to monitor the situation and expresses concern that issues raised
by the tribes remain unresolved.
72. As is well-documented, the controversy surrounding the Dakota Access Pipeline
drew thousands of people to the boundaries of the Standing Rock Sioux Reservation as they
sought to protect their land and water and uphold tribal sovereignty. While the actions that
took place were mostly non-violent and peaceful, there has been a militarized, at times
violent, escalation of force by local law enforcement and private security forces. The
previous Special Rapporteur noted that indigenous peoples had the right to oppose
extractive activities that impacted their land and resources, free from reprisals, acts of
violence or undue pressure to accept or enter into consultations about extractive projects.33
73. The Special Rapporteur noted with particular concern the aggressive manner in
which peaceful demonstrations were met by local, state, private and national guards. She
heard testimonies of war-like conditions and cases of blunt force trauma and hypothermia
as a result of battery with batons, attack dogs and water cannons blasting individuals at
freezing temperatures. She was concerned about protestors being strip searched and placed
in kennels as temporary holding cells during various and frequent mass raids by local, state
and federal enforcement officials, sometimes in the middle of a spiritual and cultural energy
cleansing ritual. According to information received, over 700 indigenous and non-
indigenous people were arrested during the protests, some of whom remain in custody.
74. Given the impacts of the Dakota Access Pipeline on indigenous peoples, the Special
Rapporteur remains deeply concerned by the Presidential memorandum of 24 January
2017, which resulted in the granting of the last easement necessary to begin construction of
the Dakota Access Pipeline under Lake Oahe and the Notice of Termination of the Intent to
Prepare an Environmental Impact Statement.
32 Unites States of America, Departments of the Interior, the Army and Justice, Improving Tribal
Consultation and Tribal Involvement in Federal Infrastructure Decisions, January 2017. Available at
https://www.bia.gov/cs/groups/public/documents/document/idc2-060030.pdf..
33 A/HRC/24/41.
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VI. Best practice
A. Self-determined energy development projects
75. Notwithstanding legislation curtailing self-determined development by Indian tribes,
a number of companies, owned and operated by indigenous peoples have thrived and
continue to thrive in the current environment.
76. Indigenous communities want more control over their energy resources as a part of
their overall desire for self-determination. The tribes rely on income generated from natural
resources not only to support critical government programmes, but also to reconcile the
protection of their lands, waters and sacred places with the benefit of revenue and jobs. To
that end, tribes are committed to balancing different sets of concerns through their own
approaches to energy development, including renewable energy resource development as a
viable alternative to extractive industry development.
77. The Picuris Pueblo, a federally recognized tribe in New Mexico has engaged in a
collaborative venture with intertribal authorities and the federal Government to build a one-
megawatt solar panel. Under the auspices of the Department of Energy Office of Indian
Energy, teams of technical experts provided customized legal, financial and technical
support, working directly with the tribal team and ensuring respect for tribal sovereignty
while building the capacity of tribal members. The solar project will make the Picuris
Pueblo the first 100-per-cent-solar-powered tribe in the United States and will save them
almost $6.5 million over the 25-year lifespan of the project.
78. Similarly, the Oceti Sakowin Power Authority is a cooperative venture of seven
Sioux tribes in the Great Plains, comprising the Cheyenne River, Crow Creek, Flandreau
Santee, Oglala, Rosebud, Standing Rock and Yankton tribes, which will produce up to 2
gigawatts of electricity generated by wind power. It will be one of the largest wind power
developments in the country. The tribes battle extreme poverty and many of them face 80
per cent or higher unemployment rates on their reservations. They aim not only to increase
access to electricity and funding for infrastructure projects, but to create job opportunities
and assist in community development.
79. The Mandan, Hidatsa and Arikara Nation formed Missouri River Resources, a
wholly-owned tribal company that generates economic benefits for the tribal community
through responsible oil development. Missouri River Resources employs tribal members
and industry experts, with the majority of its employees from the Fort Berthold
Reservation. This is one example of an indigenous company operating within reservation
lands and employing members of its own tribe, which is less likely to engage in unlawful
disposal of energy by-products in close proximity to homes in order reduce driving time
and fuel costs to reach remote areas.
80. Since 1992, the Red Willow Production Company, a $2-billion company owned and
managed by the Southern Ute Tribe, has been generating revenue through oil and gas
development on their reservation for the benefit of tribal members. Utilizing changes in the
domestic oil and gas law, in 1995, Red Willow took over the operation of 54 wells on tribal
land that were previously operated by non-indigenous companies.
B. Education
81. Indian tribes are committed to maintaining and improving healthy and vibrant
indigenous communities in line with their sacred duty to protect their children. Successful
and self-determined economic development can be a key driver to achieving those goals.
The Special Rapporteur visited Sitting Bull Tribal College on the Standing Rock Sioux
Reservation and the United Tribes Technical College in Bismarck, North Dakota, two of
many tribal colleges that have partnered with state and federal stakeholders to create spaces
not only for academic excellence and learning, but for cultural revitalization. Students at
Sitting Bull College testified that the unique and supportive space provided by the college
community allowed them to explore their indigenous identity as a foundation for their
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17
careers. Tribal colleges across the country are vital centres of cultural identification and
many include language nest programmes that provide children with language and cultural
immersion opportunities. Their indigenous identity thus becomes a strong foundation for
generations to come.
82. A crucial aspect of self-determined development is the ability to build tribal capacity
to manage lands, territories and resources. Tribal colleges provide individuals with the
resources to gain technical skills in fields such as environmental sciences and to ensure
access by indigenous youth to education and careers while maintaining indigenous values at
the forefront. The Special Rapporteur notes that if one can change the landscape of
education and increase cultural learning, it would go far in improving tribal communities.
Government support toward these valuable resources needs to be ensured.
VII. Conclusion and recommendations
A. Conclusion
83. The issues surrounding energy development in the United States of America
underscore the need for reconciliation between the federal Government and
indigenous peoples. Tribal leaders and representatives indicate that they are
interested in engaging in a programme of reconciliation to remedy the harms they
have faced and to improve the government-to-government relationship moving
forward. Such a programme would acknowledge the historical wrongs inflicted upon
the indigenous peoples of the United States and confront systemic barriers that
prevent the full realization of indigenous peoples’ rights.
84. Encouraging steps are being taken by federal agencies to implement the United
Nations Declaration on the Rights of Indigenous Peoples in consultation policies. For
example, the Advisory Council on Historic Preservation issued guidance to federal
agencies on how to incorporate the principles set forth in the Declaration when
carrying out the Section 106 review under the National Historic Preservation Act,
including developing working knowledge of the Declaration and its articles, reviewing
and updating agency policies to reflect the principles contained in Declaration and
considering the Declaration as a policy reference in the Section 106 process and
beyond.
85. However, despite the recommendations made by the previous Special
Rapporteur following his visit to the United States in 2012,34 significant work still
needs to be done to implement policies and initiatives to further the rights of
indigenous peoples in that country. Many of the recommendations made by the
previous Special Rapporteur, especially those dealing with the right of indigenous
peoples to self-determination and consultation on matters that directly concern them
have yet to be realized.
B. Recommendations
Federal law and policy
86. The federal Government should:
(a) Adopt policies to acknowledge and encourage the adherence of its treaty
obligations and establish a national body for oversight of international treaty
obligations with full and effective participation of indigenous peoples on issues
relevant to them;
(b) Bring policies in line with, and ensure that, human rights
pronouncements made at the federal level are implemented at the local level;
34 A/HRC/21/47/Add.1.
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18
(c) Seriously reconsider proposed budget cuts to the Environmental
Protection Agency and the Department of the Interior, which would greatly impact
the living standards of indigenous peoples in the United States of America;
(d) Incorporate the United Nations Declaration on the Rights of Indigenous
Peoples into domestic law through statutes and regulations;
(e) Educate federal agencies and state and local Governments on the
Declaration;
(f) Allow tribes to obtain funding directly from the federal Government
rather than through regional offices.
Self-determination, the duty to consult and free, prior and informed consent
87. Consent, not consultation, should be the policy to allow for the government-to-
government relationship necessary to fulfil the principles set forth in the Declaration.
As such, the federal Government should:
(a) At the minimum, identify requirements for meaningful consultation with
indigenous peoples with a view to implementing a consistent system across all federal
agencies, in consultation with indigenous peoples, on issues that could affect their
rights as self-determined sovereign nations;
(b) Approach tribes as individual sovereign nations and give tribes a seat at
the table with equal authority and equal rights;
(c) Undertake consultations between high-level decision makers in both
federal and tribal Governments to ensure the scope necessary to identify social,
cultural and environmental impacts;
(d) Continue to improve upon policies to develop stronger government-to-
government relations with tribes. At a minimum, federal agencies should adhere to
the consultation policy set forth in Executive Order 13175;
(e) Take steps to consider fully and implement the proposals in the 2017
report, Improving Tribal Consultation and Tribal Involvement in Federal Infrastructure
Decisions;
(f) While honouring the treaty obligations to tribes and trust obligations to
tribes and individual Indians with respect to resources and rights held in trust for
them, continue to support tribes in developing their capacity and resources towards
attaining self-determination in all areas, including energy development and law
enforcement.
Environmental impacts
88. The federal Government should:
(a) Conduct a thorough assessment of environmental impacts of
infrastructure projects, taking into account impacts on indigenous peoples;
(b) Require a full environmental impact statement on all extractive industry
projects affecting indigenous peoples, regardless of the status of the land;
(c) Duly provide protocols for sharing confidential and proprietary
information necessary for indigenous peoples to fully assess the proposed project,
including all relevant impacts on them, on and off reservation lands;
(d) Initiate consultations at the outset of all projects so as to include tribes in
the planning process, with proper identification and notification of all potentially
affected indigenous peoples as soon as the federal agency becomes aware of a project
requiring federal approval. Detailed information about the potential scope, purpose
and location of the entire project should be duly provided for potentially affected
indigenous peoples to evaluate and determine whether they have an interest in seeking
formal consultation with the federal agency. Federal agencies should take proper steps
to discuss, at the concept stage of energy projects, measures to mitigate impacts on
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19
tribes. Provide technical assistance and adequate access to funding to indigenous
peoples to ensure their meaningful participation in evaluating the extent to which a
project could significantly affect them and to support them in their substantive
preparation for consultations. Continue to work with indigenous peoples to
understand their relationship with the land and indigenous knowledge of their
ecosystem.
(e) Ensure indigenous peoples have full access to redress for violations
perpetrated on and against their lands and territories, including access to judicial
forums to dispute claims and to concrete and timely assistance to mitigate adverse
impacts on environmental and cultural resources. Adopt policies to ensure that
mechanisms for future redress and remediation are clearly articulated during the
initial consultation period between tribal, state and federal government actors;
(f) Take appropriate measures to encourage consideration of the Guiding
Principles on Business and Human Rights: Implementing the United Nations “Protect,
Respect and Remedy” Framework by all actors in any project that impacts indigenous
peoples in the United States. Equally, take measures to encourage private
corporations working on tribal lands to follow the Guiding Principles, including
adequate consideration and provision of remediation in advance of project
commencement;
(g) Reinstate the Environmental Impact Statement process for the Dakota
Access Pipeline, in close cooperation with tribes, to fully consider the environmental,
economic, social and cultural impacts to indigenous peoples, particularly in the light
of the 14 June 2017 ruling by a federal court that federal permits authorizing the
pipeline to cross the Missouri River just upstream of the Standing Rock Sioux
Reservation violated critical aspects of the law;
(h) Continue to address the effects of uranium mining and abandoned
uranium mines near reservation lands and provide proper compensation to those
indigenous peoples affected by environmental disasters, including from the Gold King
Mine spill in August 2015;
(i) In the light of issues relating to climate change, provide more support for
the development of renewable energy projects and programmes with the full
participation of indigenous peoples;
(j) Consider adopting legislation to enforce consultation for all projects that
impact the traditional territories of local indigenous communities, in particular
energy and infrastructure projects undertaken within indigenous peoples’ traditional
territories and on lands not currently owned by them;
(k) Enact legislation to ensure that Tribal Historic Preservation Officers
have the ability to provide early and continual input into project proposals to
ascertain the advancement of healthy indigenous communities and the completion of
beneficial energy projects.
Places of cultural, religious and historical significance
89. The federal Government should adopt legislation to amend existing laws
governing the protection of sacred and cultural places beyond present-day reservation
boundaries so as to further protect the religious freedoms of indigenous peoples. The
policies should reflect the vision of indigenous peoples’ definition of sacredness as an
interconnected landscape with unique relationships to the practice of religions,
strengthening of community, livelihoods, subsistence and gathering of traditional
medicines and resources.
Violence against women
90. The Special Rapporteur commends the Government on the adoption of the
Violence Against Women Reauthorization Act (2013) and encourages it to continue its
efforts, including by strengthening legislation, to empower indigenous peoples to
assert their own jurisdiction to adequately protect their members by providing them
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20
with additional funding to courts and law enforcement. In that regard, she also urges
the Government to seriously consider mandating sexual assault protocols.
Health impacts of energy development
91. The federal Government should continue to support indigenous peoples in
developing their capacity to address the health impacts of energy projects and provide
them with additional services for the treatment of mental health, alcoholism and drug
addiction, including drug rehabilitation services and hospitals.
Education
92. The federal Government should continue to support tribal colleges with
adequate tax incentives, education grants and financial resources to empower
indigenous peoples to realize their self-determined economic development goals in line
with the United Nations Sustainable Development Goals.
Criminalization of indigenous dissent
93. The federal Government should develop and provide anti-oppression and anti-
racism training to federal and state law enforcement agents; collect disaggregated
data to reflect the rate of incarceration of indigenous peoples at both the federal and
state levels; mandate the Department of Justice to open an investigation into the
excessive use of force and militarized response to the water protectors at the Standing
Rock Sioux Reservation, including the use of non-lethal weapons; consider granting
clemency to Leonard Peltier.
94. The state Governments should prohibit state taxation of lands held in trust for
the benefit of indigenous peoples. Where states impose taxes on Indian lands, such tax
revenues should be re-invested into tribal lands to provide infrastructure and services.
95. Indigenous peoples should continue to develop policies to take control of
renewable and non-renewable energy development and guidelines for doing business
to facilitate tribal development. They should work with other indigenous peoples in
other parts of the world on issues of common concern; go beyond formal engagements
with members of the federal Government and develop personal relationships with
them; and negotiate agreements for energy development on their own terms.