Commissioners: Felipe González, Rose-Marie Belle Antoine, and Rosa María Ortiz

Petitioners: Navajo Nation, Laguna Pueblo, San Carlos Apache Nation, Inter-Tribal Council of Arizona Inc.

State: United States

Petitioners before the Inter-American Commission on Human Rights requested this thematic hearing because the United States has failed to protect sacred land from extractive industries. The petitioners called on the United States to implement three recommendations: implement appropriate mechanisms by which indigenous peoples are consulted in a meaningful way, comply with domestic and international law when making decisions concerning sacred land, and enact necessary judicial and administrative mechanisms in consultation with indigenous peoples to protect indigenous sacred land.

At the October 23 hearing, the representative from the Navajo Nation discussed how the Arizona Snowbowl ski resort destroys the Navajo’s sacred land in the San Francisco Peaks through the creation of artificial snow from reclaimed sewage water. This project was approved by the city of Flagtaff without free and informed consent of the indigenous population. The Navajo representative emphasized the spiritual importance of the land, noting that it is a significant life force and component of everyday life and prayers. While the issue had been litigated in domestic courts, the United States Supreme Court refused to review the case. An individual petition has been filed with the IACHR in addition to discussing this issue during the thematic hearing.

Second, the representative from the Apache Nation discussed the cultural significance of the Oak Flat area in southeastern Arizona for indigenous peoples in the area. The area is threatened due to copper mining, specifically an area that is to become the largest copper mine in North America. This extractive industry will destroy the irreplaceable spiritual area and deplete water resources. Finally, the representative of the Laguna Pueblo discussed the threat to Mount Taylor, a sacred place that is the home of deities and resources for the community. This area is part of the Pueblo’s identity. While it has been designated as a traditional cultural property under state law, which gives some protections, the state of New Mexico has not interpreted this designation as a right to halt further development.

 In submissions from the United States, the representative of the United States to the Organization of American States acknowledged that the land of indigenous peoples constitutes sovereign nations with their own property rights. While noting that the petitioners have discussed specific issues, the representative reminded the Commission that this hearing was thematic, and the United States was not in a position to discuss specific issues. The representative from the United States Department of Interior thanked the Commission for the opportunity to speak on behalf of the United States and listed several initiatives the federal government has undertaken to protect indigenous lands and involve indigenous peoples in decision making, such as the National Historic Preservation Act, the American Indian Religious Freedom Act, and a Presidential Memorandum on consultation with indigenous peoples. President Obama has also set aside certain lands as National Monuments for protection. At least seven of the National Monuments were designated as such based on the spiritual and cultural practices of indigenous peoples.

 Commissioner González acknowledged the complexities of land rights in the United States regarding indigenous peoples. He was particularly concerned with how indigenous peoples participated in discussions and decisions that were relevant to them. Commissioner Antoine emphasized that there has been a failure to acknowledge the deep spiritual connection to the sites discussed by the petitioners and that domestic law has been interpreted in a literal and restrictive way. Moreover, Commissioner Antoine noted that the lack of protection for indigenous rights has placed a greater emphasis on the interests of big business, taking away the voice of indigenous peoples. In particular, she suggested that the creation of a ski resort affecting a sacred site of the Navajo Nation, rather than extractive industries, makes a greater mockery of indigenous rights.

In response to Commissioner González’s question, all of the Petitioners emphasized that their communities are continuously given the opportunity to comment only after the fact rather than having meaningful participation and consultation in land development projects in earlier planning stages. The United States expressed its desire to make consultations more effective and reiterated the complexities of land rights in making decisions to develop the land or not.

 Author’s Legal Analysis

In 2013, the United Nations Special Rapporteur on the Rights of Indigenous Peoples released a report on extractive industries and indigenous peoples, noting the worldwide devastating effects on indigenous communities from extractive industries. The United Nations Declaration on the Rights of Indigenous Peoples emphasizes consulting with indigenous peoples in good faith, something that the Petitioners indicated was lacking in their communications with government agencies. The report from the Special Rapporteur suggests measures such as independent facilitators and standardized procedures to rectify the power imbalances that are often felt by indigenous communities during these processes. While President Obama has endorsed the United Nations Declaration, he noted that meaningful consultation does not necessarily include agreement or consensus with indigenous communities.

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