BILL ANALYSIS �
AJR 42
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Date of Hearing: May 6, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AJR 42 (Williams) - As Introduced: March 24, 2014
SUBJECT : Indigenous peoples: declaration of rights
KEY ISSUE : SHOULD THE LEGISLATURE EXPRESS ITS support FOR the
principles of the United Nations Declaration on the Rights of
Indigenous Peoples (UNDRIP)?
SYNOPSIS
The United Nations General Assembly adopted the United Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP) on
September 13, 2007, establishing a new systemic standard of
recognition, respect, and protection for the rights of
indigenous peoples of the world. Three years later, in December
2010, the United States announced support for the UNDRIP. In
announcing this support, President Obama stated: "The
aspirations it affirms, including the respect for the
institutions and rich cultures of Native peoples, are ones we
must always seek to fulfill? What matters far more than any
resolution or declaration, are actions to match those words."
This non-controversial resolution expresses the Legislature's
endorsement of, and commitment to, the principles of the UNDRIP.
It is supported by the Tribal Alliance of Sovereign Indian
Nations (TASIN), which is an intergovernmental association of 10
federally recognized tribal governments in Southern California,
and it has no known opposition.
SUMMARY : Expresses the Legislature's endorsement of, and
commitment to, the principles of the United Nations Declaration
on the Rights of Indigenous Peoples. Specifically, this measure
makes the following findings:
1)The United Nations General Assembly adopted the United Nations
Declaration on the Rights of Indigenous Peoples on September
13, 2007, establishing a new systemic standard of recognition,
respect, and protection for the rights of indigenous peoples
of the world;
2)The United Nations Declaration on the Rights of Indigenous
Peoples was approved by the National Latino Congreso on
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January 31, 2010, in El Paso, Texas, and has been endorsed by
hundreds of Native American, Latino, and progressive community
organizations across this country;
3)On November 5, 2009, at a historic summit in Washington, D.C.,
hosted by President Barack Obama, Chairman Joe Kennedy from
the Timbisha Shoshone Tribe of the Western Shoshone Nation
delivered a message on behalf of the indigenous peoples and
nations of North America calling for immediate action by the
President of the United States to support the United Nations
Declaration on the Rights of Indigenous Peoples;
4)In December 2010, the United States announced support for the
United Nations Declaration on the Rights of Indigenous
Peoples. In announcing this support, President Obama stated:
"The aspirations it affirms, including the respect for the
institutions and rich cultures of Native peoples, are one we
must always seek to fulfill? What matters far more than any
resolution or declaration, are actions to match those words."
The United Nations Declaration on the Rights of Indigenous
Peoples addresses indigenous peoples' rights to maintain
culture and traditions (Article 11); to maintain religious
traditions, customs, and ceremonies (Article 12); to
participate in decision making in matters that would affect
their rights (Article 18); and to maintain spiritual
connections to traditionally owned lands (Article 25);
5)As of June 2013, the federal Advisory Council on Historic
Preservation (ACHP) approved the United Nations Declaration on
the Rights of Indigenous Peoples. ACHP will now incorporate
the United Nations Declaration on the Rights of Indigenous
Peoples in the review process of Section 106 of the National
Historic Preservation Act;
6)The "Doctrine of Discovery," emanating from the European
invasion and subsequent colonization after 1492 of the
continents later to be known as the Americas, has served as an
instrument of dehumanization and genocide of the indigenous
peoples and nations of the Americas;
7)The "Report of the Special Rapporteur of the rights of
indigenous peoples, James Anaya, Addendum," in recommending
that the states of the United States develop state policies to
promote the goals of the United Nations Declaration on the
Rights of Indigenous Peoples, states the following: "Although
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competency over indigenous affairs rests at the federal level,
states of the United States exercise authority that in various
ways affects the rights of indigenous peoples. Relevant state
authorities should become aware of the rights of indigenous
peoples affirmed in the Declaration on the Rights of
Indigenous Peoples, and develop state policies to promote the
goals of the Declaration and to ensure that the decisions of
state authorities are consistent with it"; and
8)This resolution is not intended to create, and does not
create, any rights or benefits, whether substantive or
procedural, or enforceable at law or in equity, against the
State of California or its agencies, departments, entities,
officers, employees, or any other person
FISCAL EFFECT : As currently in print this measure is keyed
non-fiscal.
COMMENTS : This resolution seeks to urge the California
Legislature to support the principles of the United Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP). In
support, the author notes that:
The United Nations Declaration on the Rights of
Indigenous Peoples was adopted by the United Nations (UN)
General Assembly in 2007. It urges nation-states to
acknowledge potential inadequacies in their existing laws
and policies that inherently undermine indigenous
populations with respect to economic and social
development. Further, it sets out a framework of
principles upon which changes should be based.
The central goal of the Declaration is to encourage
countries to work alongside indigenous peoples to solve
issues like development, multicultural democracy, and
decentralization with an emphasis on protecting cultural
heritage and traditions.
California is home to over 100 federally recognized
Native American tribes, the largest population of Native
Americans in the fifty states. Their diverse cultures
and customs are an integral part of the state's history
and vibrant ethnic fabric. These cultures have persisted
for centuries in the face of many challenges and changes.
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The indigenous peoples of California are a vital part of
the state's past, present, and future. Currently, the
state and tribal governments have a dialogue based on
mutual respect. Grounded in fundamental human rights
values, the UN Declaration on the Rights of Indigenous
Peoples is an important tool to reference in improving
upon existing measures that address the concerns of
indigenous peoples.
UNDRIP was passed by the UN General Assembly by a vote of 144-4,
with the United States among the few votes against, specifying
principles by which indigenous populations ought to be
protected, including the right of a people to decide their
political status and government, culture and language, education
and health, housing, land, resources and environment, and
indigenous law. In 2010, President Obama declared that the
United States will sign the declaration. However, as the United
Nations does not currently have a system to enforce it or track
which countries have begun to implement it, it is unclear to
what extent UNDRIP has led to results in the United States. The
Committee is unable to verify whether UNDRIP was actually
signed.
UNDRIP's Profound Moral And Political Influence : The State
Department stated in the announcement of United States support
for UNDRIP that the declaration has moral and political force,
and "[i]t expresses both the aspirations of indigenous peoples
around the world and those of States in seeking to improve their
relations with indigenous peoples." While UNDRIP is not a
legally binding instrument under international law, it serves to
represent a commitment to legal norms that recognize the rights
of indigenous peoples everywhere.
Consistent with UNDRIP, the United States has undertaken
numerous steps to promote the economic wellbeing of indigenous
peoples. However, while 152 notices of decisions to repatriate
human remains and cultural items were published in the Federal
Register in 2010, the only commitment made to California and its
100 Native American tribes was technical assistance given by the
Department of Education's Office for Civil Rights. The Cherokee
Nation signed its own resolution on March 10, 2014, encouraging
the United Nations to adopt UNDRIP so as to allow for
enforcement and implementation, with the United States in mind.
Therefore, with the lack of federal action, California has an
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opportunity to not only promote, but reinforce the values
enshrined in the declaration.
California's Extraordinary Tribal Population : According to the
Judicial Council, California has the largest tribal population
in the country of American Indians and Alaskan Natives (AI/AN)
alone (362,801) and with more than 720,000 AI/AN citizens (alone
or in combination with another race) making up 2 percent of
California's total population. Nationally and in our state,
discrepancies can be identified in the areas of education and
household income. The percentage of individuals with at least a
high school diploma is lower for the AI/AN-alone population than
for the California population as a whole (68 percent and 74
percent, respectively) as is the percentage of those with a
Bachelor's (or higher) degree (11 percent, compared to 27
percent of California as a whole). Additionally, thirty-four
percent of AI/AN households have an income of less than $20,000.
Of those, roughly half (17 percent) have an income of less than
$10,000. About 62 percent of all AI/AN households fall below
the U.S. median household income level. While this resolution
would not address the issues that the state's tribal population
faces, it would provide guiding principles to approach these
issues.
Report Of The Special Rapporteur On The Rights Of Indigenous
Peoples : In August of 2012, the Human Rights Council of the
United Nations released a report by the Special Rapporteur on
the situation of indigenous people in the United States. The
Special Rapporteur, James Anaya, concluded that although these
populations constituted diverse and vibrant communities, they
still face "significant challenges that are related to
widespread historical wrongs, including broken treaties and acts
of oppression, and misguided government policies, that today
manifest themselves in various indicators of disadvantage and
impediments to the exercise of their individual and collective
rights."
According to the report, Native Americans persisted through
broken treaties and federal programs of assimilation and
acculturation as recently as the 1950s. The tone of federal
policy finally changed in the 1970s with the Indian
Self-Determination and Education Assistance Act of 1975, the
Indian Child Welfare Act of 1978, the American Indian Religious
Freedom Act of 1978, the Native American Graves Protection and
Repatriation Act of 1990, the Native American Languages Act of
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1990, as well as numerous other laws, executive directives and
programs:
United States laws and policies in the last few decades
undoubtedly have contributed to halting the erosion of
indigenous identities, and have weighed in favour of
placing indigenous peoples on a path toward greater
self-determination, as well as economic and social
health. Nonetheless, the conditions of disadvantage
persist with the continuing effects of a long history of
wrongs and past, misguided policies.
As far as UNDRIP is concerned, the report notes that although
the Declaration is not legally binding "it is nonetheless an
extension of the commitment assumed by United Nations Member
States - including the United States - to promote and respect
human rights." The report goes on to note that although
competency over indigenous affairs is a federal issue, the
states should be made aware of the rights of Native Americans
affirmed in the Declaration and "develop state policies to
promote the goals of the Declaration and to ensure that the
decisions of state authorities are consistent with it."
As President Obama has recognized in his statement on UNDRIP in
2010, the indigenous peoples of North America have "invaluable
cultural knowledge and rich traditions, which continue to thrive
in Native American communities across our country. The many
facets of Native American cultures - including their religions,
languages, traditions and arts - need to be protected, as
reflected in multiple provisions of the Declaration."
California has an opportunity to declare its support for these
principles, and for these reasons, the author seeks to affirm
the state's commitment to these issues.
ARGUMENTS IN SUPPORT : Writing in support of this AJR, the
Tribal Alliance of Sovereign Indian Nations (TASIN), which is an
intergovernmental association of 10 federally recognized tribal
governments in Southern California, states:
UNDRIP? expresses both the aspirations of indigenous
peoples around the world and those of States in seeking
to improve their relations with indigenous peoples. Most
importantly, it expresses aspirations of the United
States, aspirations that this country seeks to achieve
within the structure of the U.S. Constitution, laws, and
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international obligations, while also seeking, where
appropriate, to improve our laws and policies. U.S.
support for the Declaration goes hand in hand with the
U.S. commitment to address the consequences of a history
in which, as President Obama recognized, "few have been
more marginalized and ignored by Washington for as long
as Native Americans-our First Americans."?Accordingly, we
believe it would be appropriate for the California State
Legislature to endorse the United Nations Declaration on
the Rights of Indigenous Peoples as a demonstration of
respect for California's indigenous peoples.
PRIOR RELATED LEGISLATION : ACR 35 (Alejo, 2013) Res. Ch. 107 -
Recognizes September, annually, as California Native American
Heritage Month.
ACR 72 (Alejo, 2011) Res. Ch. 111 - Recognizes November 2011 as
Native American Heritage Month.
AB 2272 (Dymally, 2004) died in G.O. - Would have established a
state recognized Indian reservation for the Gabrielino-Tongva
Tribe, a non-federally recognized Indian tribe.
AB 978 (Steinberg, 2001) Ch. 818 - Requires all state agencies
and museums that receive state funding and that have collections
of human remains or cultural items to complete an inventory by a
specified date. Also provides a process for the repatriation of
these items to the appropriate tribes and establishes the
Repatriation Oversight Commission.
REGISTERED SUPPORT / OPPOSITION :
Support
Santa Ynez Band of Chumash Indians (sponsor)
California Nations Indian Gaming Association (CNIGA)
Tribal Alliance of Sovereign Indian Nations (TASIN)
Opposition
None on file
Analysis Prepared by : Drew Liebert and Vignesh Ganapathy / JUD.
/ (916) 319-2334
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