LEGAL STUDIES RESEARCH PAPER SERIES

RESEARCH PAPER 12-01

January 4, 2012

Indigenous Peoples, Human Rights, and the Environment

Lorie M. Graham
Professor of Law, Suffolk University Law School

Nicole Friederichs
Practitioner-in-Residence, Suffolk University Law School

This paper can be downloaded without charge from the Social Science Research Network:
http://ssrn.com/abstract=1979745

SUFFOLK UNIVERSITY LAW SCHOOL | BOSTON, MASSACHUSETTS

120 Tremont Street, Boston, MA 02108-4977 | www.law.suffolk.edu

Electronic copy available at: http://ssrn.com/abstract=1979745

 Indigenous Peoples, Human Rights, and the Environment
Lorie Graham & Nicole Friederichs

(Published in Yale Human Rights and Environment Dialogues Spring 2011 Report at
)

I. Introduction

This essay is taken from the authors’ remarks to a workshop on Indigenous Peoples,
International Human Rights Law, and the Environment, which was part of the New Directions in
Environmental Law conference held at Yale Law School on April 2, 2011. The goals of the
workshop were to examine whether the international human rights framework can give legal and
practical meaning to indigenous peoples’ environmental aspirations and struggles and whether
and how the indigenous peoples’ rights movement is relevant and useful to the environmental
movement. To assist in addressing these questions, the history of the indigenous peoples’ rights
movement and its relationship to the international human rights movement was explored,
followed by a discussion of three indigenous lands and natural resources cases decided within the
context of this human rights framework.

Although many indigenous lands rights cases have roots in resisting the destruction of their lands
and preventing the harmful extraction of natural resources, one stark conclusion that the
sampling of cases illustrates is that these types of cases are driven primarily by the threats to the
physical and cultural survival of indigenous peoples. As a result, the cases rely primarily on
human rights law to argue for the protection and recognition of indigenous peoples’ rights to
lands and resources.

However, a review of both international human rights law and the indigenous rights cases
decided under this framework demonstrate an inextricable link between indigenous peoples’
concerns and the environment. As one scholar noted, “whenever environmental degradation
occurs …, there is an immediate and accompanying unraveling of the social fabric of the
indigenous people, a deterioration followed by … social collapse.” 1 This essay highlights some
of these linkages and their potential impact on environmental law.

II. The International Indigenous Peoples Movement

Indigenous peoples have throughout history looked to international law and international systems
to assert their basic rights to exist as peoples. A primary example would be the hundreds of
treaties that indigenous peoples signed with countries such as the United States and Canada.
Since treaties are themselves instruments of international law, this suggests that indigenous
rights are matters of international law as well, and have been for quite some time. Yet
international bodies have not always been receptive to hearing claims by Indigenous nations.
Consider for a moment the situation of Levi Deskaheh, a leader from the Six Nations, who went
before the League of Nations in 1923 regarding what he viewed as a “nation” to “nation” dispute
with Canada over issues of land and autonomy. 2 Some nation states that were part of the League
of Nations at that time supported what they said were the rights of a “small nation to be heard.”
Yet others were successful in having the Six Nations’ issue removed from the League’s agenda.

Electronic copy available at: http://ssrn.com/abstract=1979745

In fact it would not be until after the atrocities of World War II that issues involving indigenous
peoples would be addressed at the international level. Their entry into the international legal and
political sphere thus coincided with the beginning of the international human rights movement.

The first international body to take up the cause of indigenous rights was the International Labor
Organization (“ILO”) in 1957, which drafted the first international convention relating to
indigenous communities, ILO Convention No. 107. 3 However, this treaty suffered from many of
the defects surrounding domestic policies on indigenous issues at that time: it was both
assimilative in character (focusing on the “integration of native peoples” into their respective
countries) and was drafted without input from indigenous peoples. In the 1960s, the United
Nations turned its attention to the questions of decolonization and racial discrimination. As the
international community focused its attention on these issues, a pan-indigenous movement was
taking hold in countries such as the United States and Canada. 4 When these two movements
converged in the 1970s, it created a space for indigenous voices in the international arena.

A United Nations Special Rapporteur was appointed in the 1970s to study the issue of
discrimination against indigenous populations. 5 The Special Rapporteur’s report led to the
establishment of a number of U.N. bodies focused on indigenous issues, including the Working
Group on Indigenous Populations (“Working Group”). This working group had a specific
mandate to develop international standards relating to indigenous peoples, but unlike any U.N.
processes before it, the independent experts of this group relied not just on nation states and
NGOs to draft these standards, but indigenous peoples themselves, many of whom did not have
any official “consultative” status before the U.N. 6 In 1993, the Working Group put forth a Draft
Declaration on the Rights of Indigenous Peoples. 7 This Draft was the subject of many debates
over such matters as the use of the term “self-determination” as it related to indigenous groups
and over the recognition of indigenous rights to lands and natural resources. However, unlike
the League of Nations situation, nation states could not hold back the sea of change that was
occurring internationally with respect to indigenous rights.

Thus, on September 13, 2007, the U.N. General Assembly voted overwhelmingly in support of
the U.N. Declaration on the Rights of Indigenous Peoples, 143 in favor and 4 against. 8 The four
nation states which voted against the Declaration’s adoption were the United States, Canada,
Australia and New Zealand, four countries with significant numbers of indigenous peoples
within their borders. However, since that time, all four countries have reversed their position and
endorsed the Declaration, making support for this U.N. instrument virtually universal.

III. U.N. Declaration and Human Rights Norms

While U.N. declarations are not per se legally binding, as a treaty or customary norm would be,
any declaration may “by custom become recognized as laying down Rules binding upon all
Nation States.” 9 One example would be the Universal Declaration of Human Rights adopted in
1948, with many of its provisions seen today as an accepted part of international customary law.
And this may well be the case with the U.N. Declaration on the Rights of Indigenous Peoples; 10
while the Declaration itself is new, many of the provisions embody rights that are already part of
international law, including rights that can be categorized as “environmental rights.” 11

Electronic copy available at: http://ssrn.com/abstract=1979745

The Declaration covers seven broad categories of rights: self-determination, autonomy and self-
government, cultural rights and identity, land and resource rights, education and media rights,
social and economic improvements, and treaty rights. 12 The focus of this essay is primarily on
the land and resource provisions, but there is a triangle of rights that are relevant to the broader
discussion on the intersection of indigenous rights and the environment: they are self-
determination, culture, and land. The linkages among these rights have been recognized by
various international and regional bodies, as evidenced in this statement from the Inter-American
Court of Human Rights (“Inter-American Court”):

[T]he close ties of indigenous peoples with the land must be recognized and
understood as the fundamental basis for their cultures, their spiritual life, their
integrity, and their economic survival. For indigenous communities [their
relationship with] the land is not merely a matter of possession and production but
a material and spiritual element, which they must fully enjoy […] to preserve their
cultural legacy and transmit it to future generations. 13

The remainder of this essay will explore these overlapping aspects of human rights and
how they relate specifically to indigenous peoples’ environmental concerns.

A. Self-Determination

As noted earlier, two of the most contested aspects of the Declaration were over the use of the
term “self-determination” and over the provisions on lands and resource rights. On the issue of
self-determination, Article 3 of the Declaration mirrors the language found in major human
rights treaties, such as the International Covenant on Civil and Political Rights (“ICCPR”) and
International Covenant on Economic, Social and Cultural Rights (“ICESCR”): “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.” 14 This
provision stands for the proposition that indigenous peoples have the right to live and develop as
culturally distinct groups, in control of their own destinies, and under conditions of equality.
Despite the fact that the language found in the U.N. Declaration merely tracks established human
rights law, however, it proved to be controversial in the context of indigenous peoples.

The debates in the U.N. focused on two questions: who are the “peoples” entitled to this legal
right of self-determination and how far does this right extend. 15 For a long time nation states
argued that the “peoples” entitled to self-determination did not include sub-national groups, only
larger, sovereign territories who were entitled to recognition by the U.N. 16 Today, both regional
and international bodies agree that the term “peoples” include sub-national groups and further
that indigenous peoples fit the definition of a sub-national group, which focuses on: (1) having a
common “cultural” (ethnic, linguistic, religious, etc.) history; (2) having some claim to territory
or land, and (3) having a shared sense of political, social, and economic goals. 17

But another major controversy was over the meaning of “self-determination” itself. Some nation
states sought to equate this term with independent statehood, but again this is not the
contemporary meaning of this term; under both major human rights treaties, self-determination is

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linked to notions of cultural survival, economic development, political freedoms and other basic
human rights. 18 So why did countries such as the United States oppose the use of this term in the
drafting of the Declaration, especially since notions of tribal sovereignty and self-determination
are an established part of U.S. domestic Indian policy? 19 As has been argued elsewhere, 20 it may
well have to do with the land and resource rights articulated in the Declaration, which are far-
reaching and embody the principle of self-determination in practice. The next two sections
highlight this concept of self-determination in practice, starting with the right to cultural
integrity, followed by a discussion of specific land and resource rights. A more detailed analysis
of what these human rights might offer in terms of environmental practices is provided through a
series of case analysis in the final sections of this essay.

B. Cultural Integrity

As earlier noted, indigenous peoples’ struggle for cultural integrity are linked to their claims to
self-determination. Indeed these concepts are indivisible. 21 As the late Vine Deloria, Jr. once
noted “to the degree that a nation loses its sense of cultural identity, . . . it suffers a loss of
sovereignty.” 22 Thus it comes as no surprise that there are multiple aspects of this concept of
cultural integrity articulated and promoted in the U.N. Declaration, and which relate back to
international norms on cultural rights. These norms include the right of peoples to practice and
transmit their customs, traditions, languages and belief systems to future generations; as well as
the right to maintain the dignity and diversity of their cultures. 23

In terms of specific provisions in the Declaration, the fundamental goal of cultural survival
underscores the prohibition of ethnocide against indigenous peoples (Article 8); the prohibition
of forced removal and relocation (Article 10); the right to practice and revitalize their cultural
traditions and customs (Article 11); the right to practice, develop and teach their spiritual and
religious traditions and ceremonies (Article 12); the right to obtain a culturally relevant
education (Article 14); and the right to use, develop and transmit to future generations their
languages and oral traditions (Article 13). 24 Two key international treaty provisions supporting
the Declaration’s rights to culture are: (1) Article 27 of the International Covenant on Civil and
Political Rights, which recognizes a right of persons belonging to “ethnic, religious or linguistic
minorities . . ., in community with other members of their group, to enjoy their own culture, to
profess and practice their own religion, [and] to use their own language” 25 and (2) Article 15 of
the International Covenant on Economic, Social and Cultural Rights, which recognizes the right
of persons “to take part in cultural life,” 26 and which is in turn connected to an indigenous
group’s right to cultural diversity. 27

However, equally important to the effective protection and promotion of indigenous cultures is
the safeguarding of land and resources. As the poet Joy Harjo describes it: “Land is a being, an
entity, a repository of meaning. There is an ongoing relationship with the land. It is the keeper of
our bones, stories and songs.” 28 These basic human rights to culture and land are in turn
connected to environmental and development concerns, as recognized in a host of international
and regional decisions involving indigenous peoples. 29 Consider for a moment a decision from
the U.N. Human Rights Committee (“Committee”) involving oil and gas exploration by Canada
on the aboriginal lands of the Lubicon Lake Band of Cree Indians. 30 In that case, the Committee
reaffirmed “that the Covenant recognizes and protects in most resolute terms a people's right of

4
self-determination and its right to dispose of its natural resources, as an essential condition for
the effective guarantee and observance of . . . human rights and for the promotion and
strengthening of those rights.” 31 The Committee highlighted the importance of promoting
cultural rights under Article 27 of the ICCPR as a means of ensuring against indigenous
communal annihilation either by a nation state or its subsidiaries, noting that “certain . . .
developments [on the part of the State] threaten the way of life and culture of the Lubicon Lake
Band, and constitute a violation of article 27 so long as they continue.” 32

Understanding these linkages to the environment, as well as to the larger question of sustainable
development was central to two recent decisions by the African Commission on Human and
Peoples Rights (“African Commission”). The first involved allegations against Nigeria for,
among other things, failing to respect and protect the resource rights of the Ogoni Peoples. 33 The
African Commission noted that under internationally accepted principles of law, including the
ICESCR, States are obligated to “respect the free use of resources” belonging to a “collective
group” for “the purpose of rights-related needs.” 34 It further held that in order for these collective
rights to be advanced, individuals must be given “meaningful opportunities . . . to be heard and
to participate in the development decisions affecting their communities.” 35 The African
Commission reaffirmed the multiple dimensions of the right to culture and its connection to the
environment in a case involving the Endorois peoples of Kenya, which is explored in detail
below. 36

C. Land and Resource Rights

As the previous discussion suggests, there are a myriad of provisions that speak to the right to
culture both in the U.N. Declaration and in international law generally, and this right has in turn
been linked to the principle of self-determination, and more specifically to the promotion and
protection of land and resource rights. However, the Declaration itself contains many important
land and resource provisions, 37 which include: the prohibition against removal of indigenous
peoples from their lands and territories, without their free, prior and informed consent (Article
10); the right to maintain and strengthen their “distinctive spiritual relationships” with their lands
and other resources (Article 25); the right to legal recognition and continued use of lands,
territories, and resources that they currently possess or traditionally owned, occupied or
otherwise used (Article 26); and the right of redress for claims to lands and resources that have
been previously lost (Articles 27 and 28). In terms of direct environmental provisions, the
Declaration recognizes indigenous peoples’ rights to the conservation and protection of their
environment, including the right to have States take “effective measures” to ensure that no
hazardous materials are disposed of or stored on their lands without their free, prior and informed
consent (Article 29). Additionally, there is a prohibition against military activities on indigenous
peoples’ lands without some form of effective consultation (Article 30). And finally there is the
recognition of the right of indigenous peoples to develop their own strategies regarding how they
are going to use their lands and resources, which includes a requirement of free, prior and
informed consent prior to nation states developing or exploiting natural resources that are located
on those lands (Article 32). 38

Several of the Articles mentioned above (e.g., Articles 10, 29 and 32) speak to the dual aims of
consultation and consent. This duty to consult is an important development in international law

5
for indigenous peoples and for the protection of the environment generally, since nation states
must work with indigenous peoples, and in some cases actually obtain their consent, before they
undertake any development projects that may have adverse environmental consequences. While
the finer details of this duty are still being worked out under international law, there are a number
of important decisions and documents that can be looked to for guidance on the current contours
of these rights. 39 As summarized in the International Law Association’s Interim Report on the
Rights of Indigenous Peoples:

It has become clear that all consultations should be undertaken with the objective
of obtaining indigenous peoples’ free, prior, and informed consent and that,
especially in cases of large-scale development or investment projects that would
have a major impact on indigenous peoples’ territories, consent is necessary.
Moreover, consultation must be undertaken in good faith, with the participation of
indigenous representatives, and the State must provide all relevant information
well in advance of the decision-making. 40

As is the case with the right to cultural integrity and self-determination, indigenous peoples’ land
and resource rights are integral parts of international law. Support for these rights can be found
both as a matter of conventional law, for instance within the context of the ILO Convention No.
169, and as a matter of customary law, as articulated in a host of regional and international
decisions. 41 The contours of these rights, and their connection to the promotion of indigenous
peoples’ environmental concerns, are perhaps more widely articulated in the context of lands that
indigenous peoples continue to possess and control, than in the context of lands that they
traditionally owned, occupied or otherwise used, but no longer possess. However, “an equitable
interpretative approach to international human rights law” suggests that a “robust interpretation
be given to all indigenous peoples’ rights to lands, territories, and resources,” regardless of their
current status. 42

Finally, as also noted in the ILA Interim Report, there is no set legal framework in the
Declaration for delineating what constitutes indigenous peoples’ “lands, or territories or
resources.” 43 The trend in international and regional law is to use the legal framework of
“property” as a foundation for indigenous claims to land. 44 In fact, the U.N. Declaration itself
talks of “ownership, control and possession,” all property concepts. However, none of these
“legal” concepts necessarily capture completely indigenous peoples’ worldviews of land, seen by
many indigenous peoples as sacred ground. 45 The property terms that are in the Declaration are
there for “pragmatic” reasons, to have some legally recognizable framework from which to build
consensus and understanding among indigenous peoples and nation states, but it is not
necessarily an indigenous framework. 46 And some regional and international bodies have taken
note of this potential disconnect, expanding notions of “property” to include not only ownership
rights, but also protection of the environment as a whole, as a means of advancing indigenous
peoples’ rights to their lands and cultures. 47 Much like the duty of consultation and consent, this
expanded notion of “property” under international law may be an important development in
international law for indigenous peoples and environmental advocates alike.

This analysis of the international human rights framework suggests that the newly emerged (and
emerging) international legal framework in the context of indigenous peoples could potentially

6
advance two important causes simultaneously. Some of the potential linkages between the
indigenous peoples and environmental movement identified thus far include:

(1) “Ownership” of Natural Resources: In the indigenous peoples rights context it is not solely
about who “owns” the resource or land, but rather who occupies the space where the
development is occurring and who would be negatively impacted by that development. Such a
framework could be useful to those seeking to ensure that resource development occurs in a
manner consistent with identifiably relevant environmental goals, such as clean air and water.

(2) “Property” Rights: Related to this expanded notion of “ownership,” is the legal realization
that “property” intersects with a host of other important human rights norms, from cultural
integrity rights to economic and political survival. It also includes broader formulations of
“property” than mere ownership would suggest. These two advances in the human rights of
indigenous peoples, allow for the establishment of a legal framework that is more
environmentally centered than is the case under a traditional property law framework.

(3) “Consultation” and “Consent”: This is another area where there are important changes in the
law that may be beneficial on the environmental front. This right of consultation and consent
goes beyond well-established rights to information-providing and gathering (as articulated in
such human rights norms as the right to information), to include a broader right to consultation,
negotiation and in some cases consent. While the interests of indigenous peoples and
environmental groups may not always be aligned, having indigenous peoples at the negotiating
table with a right of protection to lands, resources, and cultures, will open additional avenues for
exploring and advancing important environmental concerns. 48

As this next section highlights, there are a number of important decisions from a wide array of
international and regional bodies that affirm these basic principles as part of international law.
From a jurisprudential standpoint, the cases demonstrate some of the natural linkages between
the environmental movement and indigenous peoples concerns.

IV. Indigenous Peoples Rights Cases

After failed efforts in domestic courts, indigenous peoples have turned to regional and
international human rights bodies to have their claims heard. A sampling of these cases follow,
including the Maya and Saramaka communities’ petitions to the Inter-American human rights
system, the Western Shoshone Nation’s request to the U.N. Committee on the Elimination of
Racial Discrimination (“CERD”), and the Endorois community’s communication to the African
Commission. 49 Each of these indigenous communities has utilized other human rights systems
and mechanisms different from those listed, but in an attempt to keep this essay concise, only
one mechanism is examined in detail. Since these mechanisms are human rights mechanisms, a
petition or complaint brought before them must articulate violations of human rights under that
body’s applicable treaty. However, as the following indigenous land rights cases demonstrate,
environmental abuses are likely to be part of those claims so long as the “abuse[s]… can be
shown to violate a human right in one of the legal instruments it defends.” 50

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 A. The Maya of Belize, the Saramaka Peoples of Suriname, and the Inter-
American Human Rights System

Government-issued logging concessions spurred the Maya of Belize’s advocacy efforts. Without
any consultations and without the Maya’s consent, the Government of Belize in 1993 granted a
concession to the foreign-owned company to conduct logging on lands the Maya currently
inhabited and had inhabited since before the arrival of Europeans. The Belizean government was
of the perspective that the Maya did not own the lands and therefore it was free to grant such
concessions. The Maya’s advocacy efforts began in the domestic sphere, but their case was never
heard by the courts. Instead they sought relief before the Inter-American Commission on Human
Rights (“Inter-American Commission”), which issued a favorable report in 2004 on the Maya’s
petition. In this case, the applicable human rights document was the American Declaration on the
Rights and Duties of Man (“American Declaration”), a human rights instrument adopted by the
Organization of American States in 1948.

In their petition to the Inter-American Commission, the Maya argued that the failure of the
Government to recognize and protect Maya rights to lands based on customary land use and
occupancy violated their right to property, but also that the concessions “impacted negatively on
the natural environment upon which the Maya people depend for subsistence [and] have
jeopardized the Maya people and their culture, and threaten to cause further damage in the
future.” 51 Although the legal crux of the Maya’s case is the right to property based on their
longstanding use and occupancy of their lands and natural resources, the petition also relied
heavily on the substantial environmental harm caused by the logging and oil concessions to
argue that their rights to life, religious freedom, family, culture and consultation were violated.
For example, the Maya explained that the logging concessions “have adverse health
consequences” due to soil and water contamination and undermining food sources. 52 With
regards to the oil exploration concessions, the petition relied on a 1997 Inter-American
Commission report highlighting the “devastating impact on the health of individuals and the
wildlife and plant resources upon which they depend, as well as adverse social impacts caused by
the influx of non-indigenous workers and settlers who move onto their lands in connection with
the oil development activities.” 53

The Inter-American Commission agreed with the Maya’s arguments. In its report on the merits
of the case, it concluded that not only had Belize violated the Maya’s right to property, but the
logging concessions “have caused environmental damage” 54 affecting the Maya peoples. The
Inter-American Commission recommended that Belize consult with the Maya to title and
demarcate their lands, but also to “[r]epair the environmental damage resulting from the logging
concessions….” 55 The Commission also devoted a portion of its analysis to the requirements of
consultations and informed consent, despite the fact no such explicit requirement exists in the
American Declaration. Although the Inter-American Commission noted the Maya’s contention”
that the duty to conduct meaningful consultations is implicit in the principle of self-
determination, it interpreted the right to property enshrined in the American Declaration as
including a duty to consult, calling it a “fundamental component of the State’s obligations….” 56

As mentioned above, the right to self-determination is linked to other rights, such as the right to
property and culture. This is because the right to self-determination for indigenous peoples is

8
about “hav[ing] choices about their way of life” and being able to “live well and humanly in their
own ways.” 57 Or as the Maya explained, self-determination “at its core means that human
beings, individually and collectively, have a right to be in control of their own destinies….” 58
Therefore at a minimum, indigenous peoples must be consulted on such activities that will
impact how they live so they can be active participants in their own destinies.

The failure of the Government of Belize to consult with the Maya constituted a violation of their
right to property, but broadly defined to include environmental concerns. According to the Inter-
American Commission, this failure to protect the Maya’s property rights “result[ed] in
environmental damage … to the detriment of the Maya people,” 59 suggesting that if Belize had
fulfilled its obligations to consult with the Maya and seek their consent prior to granting logging
concessions, it is likely that the environmental damage to Maya lands would have been
prevented. As earlier discussed, this duty to consult is an integral part of international human
rights law and a “core issue” for indigenous peoples throughout the world. 60

The Maya Indigenous Communities case is just one of several cases within the Inter-American
human rights system which has addressed consultation and consent within the context of lands
and naturals resources. 61 The Inter-American Court’s most recent decision in this area of law is
Saramaka Peoples v. Suriname. Similar to Maya Indigenous Communities, one of the issues
before the Court in Saramaka were government-issued logging and mining concessions on the
Saramaka’s traditional lands. In its decision, the Inter-American Court balanced the interests and
rights of the Saramaka peoples in their lands and natural resources, with that of the State, which
under its own domestic law retains rights to the natural resources, in particular subsurface
resources, even if it does not have title to the surface lands. The Court approached this balancing
act by first establishing that the State may only restrict the Saramaka’s right to property, focusing
here on their natural resources, if the “issuance of concessions … does not amount to a denial of
their survival as a tribal people….” 62 To the Court, survival includes both physical and cultural
survival and if an activity taking place on indigenous peoples’ lands will deny that survival, the
State cannot move ahead. The Inter-American Court then provided three safeguards to
“guarantee that restrictions to the property rights of the members of the Saramaka people” does
not threaten their survival: (1) consultation and consent, (2) benefit sharing, and (3) prior
environmental and social impact assessment. 63

The most relevant aspects of the Inter-American Court’s interpretation of the duty to consult and
free, prior and informed consent include:

• Consultations must ensure that indigenous peoples are “aware of possible risks, including
environmental and health risks, in order that the proposed development or investment plan is
accepted knowingly and voluntarily.” 64
• The consent of indigenous peoples is required when a large-scale project would have a major
impact within their territory.

Applying these rules to the particulars of the Saramaka peoples’ case, the Inter-American Court
held that the logging and mining concessions violated the right to property because Suriname had
failed to implement the safeguards.

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In addition to underscoring the importance that consultations and consent play in the
simultaneous protection of indigenous peoples’ rights and the environment, the Saramaka and
Maya Indigenous Communities cases also address the expanded notion of ownership discussed in
the previous section. In Saramaka, the fact that the Saramaka peoples may not own all of the
natural resources within their territory did not prevent the Inter-American Court from
recognizing the harmful impact extracting those resources may have on them and from placing
obligations on the nation state to protect the Saramaka peoples’ rights through consultation and
consent. For instance, the Inter-American Court discussed the impact that logging would have on
the subsistence resources, such as animals and fruits, and the impact mining would have on
water. 65 Similarly, the Inter-American Commission’s conclusions on the Maya’s rights to
property and culture again reiterate how environmental abuses can constitute violations of those
rights.

Additionally, the Maya case shows how advancements in international law can impact domestic
law and policy. After the Inter-American Commission’s report, the Maya and the Government
entered into negotiations leading to an agreement. However, it became clear that Belize was not
implementing the agreement and the Maya returned to domestic court. In 2007, just weeks after
member states of the United Nations adopted the Declaration, Belize’s lower court issued a
favorable decision for the Maya, relying on the Inter-American Commission’s report for
persuasive support. The domestic judicial decision relied primarily on Belize’s Constitution, but
also international law, to conclude that the Maya’s customary land tenure system is a form of
property which must be recognized. 66 Even though a second and related case is on appeal, from a
policy standpoint, Belize is currently consulting with the Maya on a variety of issues, and the
government-issued concessions and harmful environmental activities have slowed.

B. The Western Shoshone Nation and the U.N. Committee on the Elimination of
Racial Discrimination

The Western Shoshone Nation is made up of several loosely connected bands covering at one
point much of Nevada, parts of southern California, and a portion of southern Idaho. They signed
a treaty of peace and friendship with the United States, the Treaty of Ruby Valley, in 1863,
which recognized the Shoshone’s rights to land and autonomy within those lands. Unfortunately,
that treaty was largely ignored by the U.S. government, which continued to allow intrusions onto
Western Shoshone lands by settlers, railroads, and mining operations.

The Western Shoshone’s history of advocacy for their rights is a long one. 67 It began in 1951
with the Indian Claims Commission (“ICC”), which was a domestic body established in the
United States to settle Indians’ claims with finality. Over a decade later, the ICC deemed that the
Western Shoshone lost rights to their ancestral lands by “gradual encroachment,” despite the fact
that they still occupied or used much of those lands. After losing domestically, the Shoshone
sought relief before the Inter-American Commission on Human Rights, which found that the
domestic ICC proceedings were flawed in terms of protecting the property and due process rights
of the Western Shoshone. However, the United States continued to maintain that the ICC
decision was final and that the Shoshone were entitled to no additional relief.

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Still seeking recognition of their land rights, but also in response to continued threats to their
surrounding environment, the Western Shoshone advocacy efforts did not stop with these
proceedings. 68 The Western Shoshone next focused their advocacy efforts at the international
human rights level, before the U.N. Committee on the Elimination of Racial Discrimination.

CERD is the treaty body for the Convention for the Elimination of All Forms of Racial
Discrimination. In 1993, the committee adopted the Early Warning and Urgent Action
Procedure, a mechanism to seek the prevention of “existing problems from escalating into
conflicts” and “to respond to problems requiring immediate attention to prevent or limit the scale
or number of serious violations of the Convention.” 69 It is under this procedure that the Western
Shoshone filed a petition in 2005. 70 In its initial request to CERD, the Western Shoshone raised
several human rights, including self-determination, equal protection under the laws, and
property. In particular, they focused on the loss of their lands, the ICC proceedings and the
continued breach of the Treaty of Ruby Valley. The initial request also relied on threats to the
Western Shoshone’s surrounding environment to support their allegations of human rights’
violations. Specifically, it highlighted the environmental impact of mining activities:

“Current mining projects in Western Shoshone territory, operating under color of

permits from the BLM, involve extremely damaging industrial processes,
including cavernous, large-scale excavations, massive extraction of ground water,
and cyanide heap leaching … causing serious and increasing damage to Western
Shoshone territory and way of life….” 71

Including environmental threats and damage to illustrate human rights violations continued in the
Western Shoshone’s subsequent updates to CERD. For example, in its August 2006 update, the
Western Shoshone listed plans by the U.S. to store nuclear waste at Yucca Mountain, a site
which is of spiritual significance to the Shoshone people. Other related and proposed activities
included expanded mining activities, geothermal energy development, oil and gas leasing, and an
appropriation of underground water aquifers to satisfy the needs of southern Nevada.

Citing many of these activities, CERD’s 2006 decision expressed concern for the Western
Shoshone’s right to own, develop, control and use lands, as well as their rights to health and
culture. It specifically called on the United States to “pay particular attention to the right to
health and cultural rights of the Western Shoshone people, which may be infringed upon by
activities threatening their environment and/or disregarding the spiritual and cultural significance
they give their ancestral lands.” 72 CERD then urged the United States to “[f[reeze any plan to
privatize Western Shoshone ancestral lands for transfer to multinational extractive industries and
energy developers” and “[d]esist from all activities planned and/or conducted on the ancestral
lands of Western Shoshone or in relation to their natural resources, which are being carried out
without consultation with and despite protests of the Western Shoshone peoples.” 73

Unlike the Maya in Belize, five years after the CERD decision, the gold mining and plans to
expand it continue on lands claimed by the Western Shoshone. Although the United States
conducts some consultations with the Western Shoshone, it does not, in large measure, address
the significant and harmful projects described above. The primary reason for this is because the
United States regards the lands on which these activities take place as not belonging to the

11
Western Shoshone. However, as outlined in the previous section, international human rights law
requires that a nation state conduct meaningful consultations with indigenous peoples even when
an indigenous community does not have recognized domestic “legal” title to the lands or natural
resources. 74 The Western Shoshone clearly feel the impact of the extensive mining and other
activities on their way of life, illustrating why the duty to consult in good faith is necessary to
protect the rights of indigenous peoples and their surrounding environment.

The Western Shoshone case is also a good example of a case where recognition of property
rights of indigenous peoples would inhibit or prevent significant harm to the environment.
Without recognition by the United States of the Western Shoshone’s continued use and
ownership of their traditional lands, the Western Shoshone’s ability to prevent the adverse
impact to their environment is severely weakened. While the United States has yet to implement
the recommendations of CERD, its decision and the decision of the Inter-American Commission
have helped to broaden the legal debate on indigenous rights to include the adverse
environmental consequences that flow from violations of these rights.

C. Endorois of Kenya and the African Commission on Human and Peoples

Rights

The case of Endorois peoples raises an issue which the others do not, namely the coexistence of
peoples and the creation of conservation areas. It focuses on the forced removal from their lands
and the damaging environmental activities that are occurring on those lands. The case relies on
many of the same rights raised by the other two indigenous communities, namely the rights to
property and culture, in addition to the rights to natural resources and development, which are all
found in the African Charter on Human and Peoples Rights.

After unsuccessful lawsuits filed in Kenyan courts, a Kenyan NGO submitted a communication
to the African Commission on Human and Peoples Rights in 2003 on behalf of the Endorois
peoples of the Rift Valley. The Endorois are a community of approximately 60,000 indigenous
nomadic pastoralists who have lived on the shores of Lake Bogoria for centuries. The Kenyan
government began evicting the Endorois from their lands in the mid-1970s to make room for a
game reserve. In addition to losing access to their lands and natural resources, preventing them
from practicing their culture and religion, the Endorois did not receive any compensation for the
loss nor did they benefit from the income generated from the game reserve.

One of the Endorois’ first appeals to the African Commission dealt with ruby mining occurring
on their traditional lands and its environmental impact on a water source near Lake Bogoria. The
mining was polluting the waters with heavy metals and chemicals, but was halted in 2006 when
the African Commission issued an Urgent Appeal to the Government of Kenya to stop all
activities pending the case. 75

Neither the Endorois’ subsequent submissions nor the African Commission’s final decision
concentrated heavily on environmental damage caused by the State’s actions, except that the
African Commission adopted the Inter-American Court’s analysis in Saramaka on the extraction
of natural resources. It concluded that Kenya “has a duty to evaluate whether a restriction of
these private property rights is necessary to preserve the survival of the Endorois community.” 76

12
Instead, the focus of the African Commission’s decision lay with their right to property and the
impact of the conservation area on the Endorois’ rights to culture and religion.

The Endorois argued that in addition to their forced removal, the Kenyan Government’s
restriction on the Endorois’ access to their lands for “cultural rites and celebrations” amounts to a
violation of their right to culture. 77 As they noted, the game reserve’s purpose of conservation is
not incompatible with the exercise of cultural practices by the Endorois because they “pose no
harm to the ecosystem of the Reserve….” 78 For support, the Endorois cited the Dana Declaration
on Mobile Peoples and Conservation (“Dana Declaration”):

Conservation of biodiversity and natural resources within areas inhabited or used

by mobile peoples requires the application of adaptive management approaches.
Such approaches should build on traditional/existing cultural models and
incorporate mobile peoples’ worldviews, aspirations and customary law. They
should work towards the physical and cultural survival of mobile peoples and the
long-term conservation of biodiversity. 79

This declaration was adopted by the World Park Congress in 2003 and is the result of a 2002
international meeting of social and natural scientists and NGOs. The preamble recognizes that
“through their traditional resource use practices and culture-based respect for nature, many
mobile peoples are still making a significant contribution to the maintenance of the earth’s
ecosystems, species and genetic diversity.” 80 Specifically, it calls for conservation approaches to
recognize the rights of indigenous peoples including their rights to culture, lands, natural
resources and participation. 81

The African Commission essentially adopts this perspective by recognizing that the Endorois’
cultural activities and their pastoralist way of life do not interfere with the conservation goals of
the game reserve. 82 Because it prevented the Endorois from accessing their traditional lands, the
African Commission concludes that Kenya violated the community’s right to culture. The
African Commission applies the same analysis to the right to religion, noting that “allowing the
Endorois to use the land to practice their religion would not detract from the goal of conservation
or developing the area for economic reasons.” 83 In the end, the African Commission found
violations of each of the rights raised by the Endorois and called on Kenya to recognize their
property and other related rights and consult with Endorois to implement the recommendations.

It is too soon to know whether the Endorois’ advocacy efforts before the African Commission
will follow the promising road of the Maya in Belize, or that of the Western Shoshone, which is
faced with a government that not only refuses to implement the recommendations of CERD and
the Inter-American Commission, but is also unwilling to revisit its past treatment of Western
Shoshone under current human rights norms. Since the Decision’s release in early 2010, Kenya
adopted a new constitution which recognizes the land rights of minorities, a change from the past
constitution. 84 Additionally, the local Kenyan authorities have “allowed the Endorois to access
the game reserve for purposes of grazing and watering their animals, especially during the last
dry season,” a “positive accommodation in the light of past experience” according to one of the
lead attorneys on the case. 85 The Endorois’ decision builds upon the human rights jurisprudence
on indigenous peoples rights with regards to property and resource extraction activities, as well

13
as tackling the compatibility of these rights with state conservation measures, concluding that the
two aims can coexist from a factual as well as a legal standpoint.

V. Conclusion

Given the relationship indigenous peoples have with their lands and natural resources, these land
rights cases illustrate particularly well how human rights law is relevant to the protection of the
environment. Harmful environmental activities are featured in each of the cases as examples of
human rights violations and, in each, the reviewing human rights body called on the State to halt
the activity. The lessons of these cases broadly summarized are:

• Protecting the basic human rights of indigenous peoples can achieve the related aims of
creating, protecting and promoting environmental rights within a human rights framework.
• And more specifically, securing the land rights of indigenous peoples, respecting their right to
culture and imposing the duties of consultation and consult mean greater protection of the
environment and fewer destructive activities.

Although the cases suggest that protecting the lands and cultural rights of indigenous peoples
also means promoting environmental aims, environmentalists nevertheless may be concerned
that demarcating and titling indigenous peoples’ lands could lead to development activities
which may cause environmental damage. Once indigenous peoples have recognized ownership
of their lands, what prevents them from engaging in harmful environmental activities? This
question raises the right to self-determination, which as explained above, is linked to decisions
about and control over development of lands and natural resources. The right to self-
determination, along with rights to lands and natural resources, ensure that indigenous peoples
are able to sustain themselves in a manner that they see fit. So, is there cause for concern? The
cases and the law suggest several reasons why there may be little need for such concern.

First, the land rights cases indicate that environmental health is a necessary component of
indigenous peoples’ human rights advocacy. The driving force behind the Western Shoshone,
Saramaka, Maya and Endorois’ advocacy efforts is not to gain control over lands and natural
resources in order to conduct environmentally harmful development projects. The human rights
raised in these cases (culture, religion, health, etc.) all necessitate a surrounding environment
which is intact. As one scholar notes, “[d]estruction of [indigenous peoples’] land and the
environment on which their existence as indigenous peoples depends is not in the long-term
interests of indigenous and tribal peoples.” 86

Second, control or ownership of lands and natural resources, which in many of these types of
cases means demarcating and titling lands, provides another layer of protection not only for
indigenous peoples, but also the environment. As illustrated by the cases, indigenous peoples
regard themselves as the rightful caretakers of their surrounding lands under their own systems
of ownership and use. The titling of lands is a government’s form of recognition of this right,
which includes protecting those lands and natural resources from outsiders who may not be
directly invested in ensuring against destructive environmental behavior, since they are not
dependent on those lands and resources for their physical, spiritual, and economic survival.

14
Finally, with rights come obligations. As one scholar has suggested “where rights are recognized
and enforced at an international level, the indigenous peoples assume obligations to live within
the legal boundaries of that international sphere” 87 and thus the “rights of indigenous peoples
must inevitably be limited by the very holistic view of the environment they so often
recognize.” 88 This essay shifts the focus from limitations on indigenous rights, to the promotion
of those rights as a means of advancing environmental concerns.

1
Annecoos Wiersema, Sharing Common Ground: A Cautionary Tale on the Rights of Indigenous Peoples and the
Protection of Biological Diversity, in LINKING HUMAN RIGHTS AND THE ENVIRONMENT, 161, 162 (Romina Picolotti
et al. eds. 2003) (hereinafter “Wiersema”).
2
Ronald Niezen, Recognizing Indigenism: Canadian Unity and the International Movement of Indigenous Peoples,
42 Society for Comparative Study of Society and History 119, 122-125 (2000), found at
http://journals.cambridge.org/production/action/cjoGetFulltext?fulltextid=54942.
3
International Labour Organization Convention No. 107, Concerning the Protection and Integration of Indigenous
and Other Tribal and Semi-Tribal Populations in Independent Countries, June 26, 1957, 328 U.N.T.S. 247 (entered
into force June 2, 1959). This treaty was later replaced in 1989 with ILO Convention No. 169 on Indigenous and
Tribal Peoples, and represented a major departure from Convention No. 107 with respect to the issues of integration
and assimilation.
4
See, e.g., Henry Minde, “The International Movement of Indigenous Peoples: an Historical Perspective,” at
http://www.sami.uit.no/girji/n02/en/003minde.html.
5
U.N. Econ. & Soc. Council Res. B (XXIV) (August 10, 1971); see also José Martinez Cobo, Study of the problem
of discrimination against indigenous populations, U.N. Commission on Human Rights, 36th Sess., Provisional
Agenda Item 11, U.N. Doc. Nos. E/CN.4/Sub.2/1983/21/Add.3 and E/CN.4/Sub2/19986/7/Add.4 (June 28, 1983).
6
For a detailed chronology of the U.N. Declaration on the Rights of Indigenous Peoples, see generally Sub-
Commission on the Promotion and Protection of Human Rights, Working Group on Indigenous Populations, 18th
Sess., U.N. Doc. E/CN.4/Sub.2/AC.4/2000/1/Add.1. See also ERICA-IRENE A. DAES, INDIGENOUS PEOPLES,
KEEPERS OF OUR PAST – CUSTODIANS OF OUR FUTURE (Copenhagen 2008).
7
Draft United Nations Declaration on the Rights of Indigenous Peoples, Report of the Working Group on
Indigenous Populations on its eleventh session, U.N. Commission on Human Rights, Sub-Commission on the
Prevention of Discrimination and Protection of Minorities, 45th Sess., Annex I, Agenda Item 14, at 50-51, U.N.
Doc. E/CN.4/Sub.2/1993/29 (1993).
8
United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, Annex, U.N. Doc.
A/RES/61/295 (Sept. 13, 2007) (hereinafter “U.N. Declaration” or “Declaration”).
9
See Report of the Commission on Human Rights, U.N. Doc. E/3616/Rev. 1, para. 105, 18th session, Economic
and Social Council, 19 March- 14 April 1962, United Nations, New York.
10
See International Law Association, Committee on The Rights of Indigenous Peoples, Interim Report (2010), at
http://www.ila-hq.org/en/committees/draft-committee-reports-the-hague-2010.cfm (this report explores the
provisions of the Declaration and assesses whether they are an established part of conventional or customary
international law or are an emerging part of law) (hereinafter “ILA Interim Report).
11
See, e.g., U.N. Declaration, supra note 8, Articles 29-32.
12
These are the categories of rights that have been identified by the ILA Committee on the Rights of Indigenous
Peoples, see ILA Interim Report (2010), supra note 10.
13
See Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Inter-Am. Ct. Hum. Rts. (Ser. C) Case No. 79, para
149 (Judgment of Aug. 31, 2001) (hereinafter “Awas Tingni”).
14
See U.N. Declaration, supra note 8, Article 3. See also International Covenant on Civil and Political Rights, Dec.
16, 1966, 999 U.N.T.S. 171, 6 I.L.M 368 (1967), (G.A. Res. 2200, 21 GAOR, Supp. 16 U.N. Doc. A/6316 at 52)
(entered into force March 23, 1976), Article 1; International Covenant on Economic Social and Cultural Rights,
Dec. 16, 1966, 993 UN.T.S. 3, 6 I.L.M. 360 (1976) (Annex to G.A. Res. 2200, 21 GAOR Supp. 16, U.N. Doc.
A/6316 at 490 (entered into force Jan. 3, 1976), Article 1.
15
See S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 49-72 (2d ed. 2004) (hereinafter “ANAYA”);
Lorie M. Graham, “Resolving Indigenous Claims to Self-Determination,” 10 INT’L & COMP. L. 385-420 (2004)
(hereinafter “Graham, Resolving”); Lorie M. Graham, Self-Determination for Indigenous Peoples After Kosovo:
Translating Self-Determination ‘Into Practice’ and ‘Into Peace,’” 6 INT’L & COMP. L., 455-466 (2000) (hereinafter

15
“Graham, Kosovo”); Siegfried Wiessner, “Indigenous Sovereignty: A Reassessment in Light of the U.N. Declaration
on the Rights of Indigenous Peoples, 41 VAND. J. TRANSNAT’L L. 1141 (2008).
16
NATO’s involvement in Kosovo in support of its autonomy movement under the auspices of the right to self-
determination may well have put this argument to rest. See Graham, Kosovo, supra note 15.
17
See, e.g., Reference re: Secession of Quebec, [1998] 37 I.L.M. 1340, 1373; Report of the Human Rights
Committee, U.N. GAOR, 47th Sess., Supp. No. 40, at 52, U.N. Doc. A/47/40 (1992).
18
See supra note 14, Articles 1 of the ICCPR and ICESCR.
19
See, e.g., The Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C.A. §§ 450a-450n. It is
worth noting that indigenous peoples themselves generally do not aspire to statehood, so use of the term in the
indigenous peoples’ context makes sense under the law as it stands today.
20
See, e.g., Graham, Resolving, supra, note 15.
21
See, e.g., KIRKE KICKINGBIRD ET AL., INDIAN SOVEREIGNTY 2 (1977) (“sovereignty cannot be separated from a
people or their culture”).
22
Vine Deloria, Jr., Self-Determination and the Concept of Sovereignty, in NATIVE AMERICAN SOVEREIGNTY 118
(John R. Wunder ed., 1996).
23
For a detailed discussion of this norm, see ANAYA, supra note 15, 49-72. To learn more about in the context of
indigenous media, see Lorie Graham, A Right To Media?, 41 Colum Hum. Rts. L. Rev. 429 (2009); Lorie Graham,
Reconciling the Collective with the Individual: Indigenous Education and International Human Rights Law, UCLA
INT’L L. & FOREIGN Law AFF. (forthcoming 2011).
24
See ILA Interim Report, supra note 10, 16-28.
25
See ICCPR, supra note 14, Article 27.
26
See ICESCR, supra note 14, Article 15.
27
U.N. Doc. E/C.12/40/12, Day of General Discussion: Right to take part in cultural life under article 15(1)(a) of
the Covenant, 9 May 2008, comments submitted by the International Labor Organization, para. 2, found at
http://www2.ohchr.org/english/bodies/cescr/docs/discussion/ILO.pdf.
28
Joy Harjo, Preface, 1 Indigenous Peoples’ Journal of Law, Culture and Resistance ii-iii (2004).
29
See, e.g., Awas Tingni supra note 13; Saramaka People v. Suriname, Interpretation of the Judgment on
Preliminary Objections, Merits, Reparations and Costs, 2008 Inter-Am. Ct. H.R., Judgment of August 12, 2008, Ser.
C No. 185, para. 134 (hereinafter “Saramaka”); Social and Economic Rights Action Center/Center for Economic
and Social Rights v. Nigeria, Communication 155/96 (2001-02) (African Commission on Human and Peoples
Rights (2001-02) (hereinafter “Ogoni”); Centre for Minority Rights Development (Kenya) and Minority Rights
Group Int’l on behalf of Endorois Welfare Council v. Kenya, 276/2003, African Commission on Human and
Peoples’ Rights, paras. 214, 218 (Feb. 2010), available at
http://www.unhcr.org/refworld/category,LEGAL,ACHPR,CASELAW,,4b8275a12,0.html (hereinafter “Endorois”);
Human Rights Committee, Lubicon Lake Band v. Canada, Communication No. 167/184, U.N. Doc. Supp. No. 40
(A/45/40) at 1 (1990) (hereinafter “Lubicon”).
30
See Lubicon, supra note 29.
31
See id. at para. 13.3.
32
See id. at paras. 13.4 and 33.
33
See Ogoni, supra note 29.
34
Id. at 45.
35
Id. at 53.
36
See Endorois, supra note 29, para. 241.
37
See ILA Interim Report supra note 10, 20-25 (exploring the land and resource provisions of the Declaration and
assessing whether they are an established part of conventional or customary international law or are an emerging
part of that law).
38
Id.
39
See, e.g., Saramaka, supra note 29; Endorois, supra note 29; Report of the Special Rapporteur on the situation of
human rights and fundamental freedoms of indigenous peoples, U.N. Doc. A/HRC/12/34 (July 15, 2009) (“Special
Rapporteur Report”); U.N. Permanent Forum on Indigenous Issues, Report of the International Workshop on
Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples, U.N. Doc. E/C.19/2005/3 (Jan.
19, 2005); U.N. Human Rights Council, Draft Report of the Working Group on the Universal Periodic Review: New
Zealand, U.N. Doc. A/HRC/WG.6/5/L.7 (May 11, 2009).
40
See ILA Interim Report, supra note 10, 24.
41
See cases and documents supra note 39.

16
42
See ILA Interim Report, supra note 10, 21.
43
Id., at 20.
44
See, e.g., Awas Tingni, supra note 13.
45
ILA Interim Report, supra note 10, 2, discussing A. REGINO MONTES AND G. TORRES CISNEROS, The United
Nations Declaration on the Rights of Indigenous Peoples: the Foundation of a New Relationship between
Indigenous Peoples, State and Societies, in MAKING THE DECLARATION WORK: THE DECLARATION ON THE RIGHTS
OF INDIGENOUS PEOPLES, 138, 161. (C. CHARTERS AND R. STAVENHAGEN eds., IWGIA 2009).
46
ILA Interim Report, supra note 10, 20.
47
See, e.g., Saramaka, supra note 29; Endorois, supra note 29.
48
One example would be a recent alliance between environmental groups and Indigenous Peoples in addressing the
human rights implications of global climate change. See, e.g, Hari M. Osofsky, Inuit Petition as a Bridge –Beyond
Dialectics of Climate Change and Indigenous Peoples, 31 Am. Indian L. Rev. 675 (2006-2007).
49
One of the authors, Nicole Friederichs, has worked on these cases at different stages alongside a team of lawyers.
50
Jorge Daniel Taillant, Environmental Advocacy and the Inter-American Human Rights System, 118, 146, in
LINKING HUMAN RIGHTS AND THE ENVIRONMENT (Romina Picolotti et al. eds. 2003).
51
Maya Indigenous Communities v. Belize, Case 12.053, Inter-Am. Comm’n H.R. Report No. 40/04, para. 2 (2004)
(hereinafter “Maya Indigenous Communities”).
52
Id. at para. 54.
53
Id. at para. 36 citing IACHR, Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96, Doc 10
rev. 1, April 24, 1997 at 77-117; see also id. at paras 27-36, 46-57 (addressing logging and oil concessions and their
impact on natural environment).
54
Id. at para. 147.
55
Maya Indigenous Communities, supra note 51, para. 197(3).
56
Id. at para. 155.
57
See Dr. Erica-Irene A. Daes, The Concepts of Self-Determination and Autonomy of Indigenous Peoples in the
Draft United Nations Declaration on the Rights of Indigenous Peoples, 14 ST. THOMAS L. REV. 259, 264 (2001)
(Susan J. Ferrell keynote address).
58
Maya Indigenous Communities, supra note 51, para. 55.
59
Id. at para. 153; see also paras. 142-144.
60
Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous
people, James Anaya, Human Rights Council, 12th Sess., Agenda Item 3, U.N. Doc. A/HRC/12/34, paras. 2 (July
14, 2009) (hereinafter “Special Rapporteur Report”) (noting that the duty to consult is a “core issue” which the
Special Rappoteur faces in his work with indigenous peoples)
61
See, e.g., Awas Tingni, supra note 13; Sawhoyamaxa Indigenous Community v. Paraguay, Merits, Reparations
and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 146 (Mar. 29, 2006); Yakye Axa Indigenous Community v.
Paraguay, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 125 (June 17, 2005); Moiwana
Community v. Suriname, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser.
C) No. 124 (June 15, 2005).
62
Saramaka, supra note 29, para. 129.
63
Id.
64
Id. at para. 133.
65
Id. at para. 126.
66
Cal (on behalf of the Maya Village of Santa Cruz) and Others & Coy (on behalf of the Maya Village of Conejo)
and Others v. Attorney-General of Belize and Minister of Natural Resources and Environment Claims Nos. 171 and
172 of 2007, Supreme Court of Belize, Judgment of 18 October 2007.
67
Both the Inter-American Commission’s report and the Ninth Circuit’s decision provide a more detailed
description of the ICC proceedings. See Dann v. United States, Case 11.140, Inter-Am. Comm’n H.R., Report No.
75/02, OEA/Ser.L/V/II.117, doc. 1 rev. 1, paras. 141-143 (2002); United States v. Dann, 706 F.2d 919, 924 (1982).
For more information on the entire Western Shoshone matter visit the Western Shoshone Defense Project, with links
to all relevant legal documents. http://www.wsdp.org/
68
See, e.g., United States v. Dann, 470 U.S. 39 (1985); Te-Moak Bands of Western Shoshone Indians v. United
States, 948 F.2d 1258 (1993); Western Shoshone Nat'l Council v. Molini, 951 F.2d 200 (1991); United States v.
Dann, 706 F.2d 919 (1982); Western Shoshone Legal Defense & Education Asso. v. United States, 209 Ct. Cl. 43
(1976).

17
69
See Committee on the Elimination of Racial Discrimination - Early-Warning Measures and Urgent Procedures:
found at http://www2.ohchr.org/english/bodies/cerd/early-warning.htm#about (last visited June 17, 2011).
70
Three individual Western Shoshone tribes filed a request around 2000 resulting in Concluding Observations from
CERD.
71
Request for Early Warning Measures and Urgent Procedures to the United Nations Committee on the Elimination
of Racial Discrimination, Submitted by The Western Shoshone National Council in Relation to The United States of
America, para. 13 (July 25, 2005) (on file with author).
72
Decision 1(68) (United States of America), U.N. ESCOR, CERD, 68th Sess., U.N. Doc. CERD/C/USA/DEC/1,
para. 8 (Apr. 11, 2006) (emphasis added).
73
Id. at para. 10.
74
Special Rapporteur Report, supra note 60, para. 44.
75
Korir Sing’Oei A, The Endorois’ Legal Case and its Impact on State and Corporate Conduct in Africa, 8 (2011)
(hereinafter “Sing’Oei”) found at
http://www.natureandpoverty.net/find/docshow/sing_oei_2011_endorois_legal_case_africapdf/ (last visited June 19,
2011). Sing’Oei was one of the lead attorneys on the Endorois case.
76
Endorois, supra note 29, para 267.
77
Submission of the Merits, Centre for Minority Rights Dev.(Kenya) and Minority Rights Group Int’l on behalf of
Endorois Welfare Council v. Kenya, 276/2003 African Commission on Human and Peoples’ Rights, para. 202 (on
file with author).
78
Id. at para. 210.
79
Id. at para. 197 citing Principle 4, Adaptive Management, Dana Declaration on Mobile Peoples and Conservation
found at http://www.danadeclaration.org/main_declarationenglish.shtml (last visited June 22, 2011) (hereinafter
“Dana Declaration”).
80
Dana Declaration, Preamble.
81
Id., Principle 1.
82
Endorois, supra note 29, paras. 249, 251.
83
Id. at para. 173.
84
See Sing’Oei, supra note 75, 26.
85
Id. at 27-28.
86
Wiersema, supra note 1, 176.
87
Id.
88
Id. at 176.

18