Apartheid: What the US doesn't want the world to know

The following is a segment of the Consolidated Indigenous Shadow Report to be presented to the United Nations Committee on the Elimination of Racism by the International Indian Treaty Council:


III. Indian Reservation Apartheid
“Apartheid” is a strong word. And certainly, there are recognized Tribes in the US that are now achieving certain levels of relative prosperity primarily due to federal law allowing them to operate casinos, But the data contained in this section as well as others in this report (see, e.g., Violence Against Women, The Right to the Highest Attainable Standard of Health) reflect what can only be describe as a system of Apartheid on many Indian Reservations, where Indigenous people are warehoused in poverty and neglect. By purpose or effect, their only option is forced assimilation, the abandonment of their lands, families, languages and cultures in search of a better life.

The US Periodic Report and generally accurate is data on the dire poverty, illness and the educational and economic marginalization of Indigenous Peoples including Native Americans living in urban areas. These are indigenous persons, families that have left their ancestral lands to seek what the UN Declaration on Human Rights describes as “an economic existence worthy of human dignity,” by force of law (e.g., the “Termination and Relocation” policy of the 1950s) or by force of their own despair.

But even this data does not do justice to those deplorable conditions as the data on Indigenous Peoples living on the reservation, on their ancestral lands is not described in the Periodic Report. The Periodic Report states that, “The 2004 American Community Survey showed poverty rates of 24.7 percent for the AIAN population and 18.1 percent for the NHPI group, compared to 13.3 percent overall.[5] But the grim reality is for those who remain on tribal lands, in 10% of federally recognized reservations, 50% or more of their population live below the poverty level. Several, like the Cedarville Rancheria and Roaring Creek Rancherias in California, the rate is 100%; Lakota (Sioux) Reservations in South Dakota as a whole are over 70% below the poverty level; the vast majority of Indian reservations fell between 25% and 50% of persons living below the poverty level.[6]

Education, touted by the United States as a path out of poverty has not been a solution available for Indigenous Peoples on the reservation. Indigenous persons living within tribal areas had even lower educational attainment than Indigenous persons living outside tribal areas: 24.4% of the general population and 11.5% of Indigenous Persons living off the reservations have bachelor’s degrees or more, while only 8.1% of Indigenous persons living in tribal areas have this attainment; and only 4% of Alaska Natives living in their Native Villages have bachelor’s degrees or more.[7]

It is no wonder that fully 2/3 (64.1%) of American Indian and Alaska Native populations live outside their reservations or Native Villages.[8] United States racist policy and practice toward Indians has only driven people from their lands and homes. Such policies amount to a forced assimilation: 71.1% of American Indians, on or off the reservation, and 70.6% of Alaska Natives living on or off their Native Villages speak only English at home.[9]
A. Life Expectancy on the Indian Reservation

Mortality rates and life expectancy on the reservation are not reported by the US in their Periodic Report. Neither is comprehensive data collected for Indians on Reservations. The grossly disproportionate poverty that Indigenous Peoples experience in the United States is accompanied by disturbingly low life expectancy as demonstrated by the few scattered statistics available. Recent research on diverse racial-geographic population groupings in the United States has shown “disparities in mortality experiences” to be “enormous.”[10] Among those found to be most disadvantaged in this major national study were American Indians who live on or near reservation lands.

The six-county region in southwestern South Dakota that is home to both the Pine Ridge and Rosebud Reservations has the lowest life expectancy in the United States. Those who live in this predominantly-Indigenous area “can expect to live 66.6 years, well short of the 79 years for low-income rural white people in the Northern Plains.”[11] If this region of South Dakota was compared with all of the countries in the Western Hemisphere, it would rank ahead of only Bolivia and Haiti in terms of its residents’ longevity. By themselves, American Indian males in these South Dakota counties had a life expectancy of a mere 58 years in the period 1997-2001.[12]

Though these are the most extreme numbers on AIAN life expectancy, they are not an aberration. Indeed, the “high rates of infant mortality, cancer, diabetes and heart disease” among American Indians in South Dakota, along with their difficulty in accessing hospitals and clinics[13] are circumstances that are shared with other Indigenous Peoples on or near reservations throughout the country. The report mentions “extremely high rates of mortality from alcohol-related diseases and diabetes” among Indigenous Peoples living on the reservations it examined in general.[14] The role of alcoholism can, of course, be traced to depression and psychological hardships resulting from poverty, unemployment, and the inability to care for one’s family.
B. Unemployment and Poverty in Employment

Comprehensive data on unemployment rates on the Reservation are also not included in the US Periodic Report. Such nationally comprehensive data is apparently not kept but must be examined on a State by State basis. According to the Bureau of Indian Affairs “calculations” Reservation Tribes in the State of Montana face a 66% rate of unemployment; of those employed, 36% still fell below the poverty guideline.[15]

Of the 51% of the entire available workforce of federally-recognized AIAN groups living on or near the reservation that is employed, 32 percent earn wages below the 2003 poverty guidelines established by the U.S. Department of Health and Human Services.[16]

In South Dakota, 84% (55,115 of 65,821) of the available workforce of federally-recognized Tribes on or near reservations was unemployed. Half (5,195 of 10,706) of those who were employed had an income below the federal government’s national poverty guidelines. Selected statistics by tribe in South Dakota:

· Oglala Sioux Tribe of Pine Ridge – 87% (24,304 of 27,778) unemployed
· Rosebud Sioux Tribe – 80% (9472 of 11,796) unemployed; 78% of the 2324 employed earn below the poverty level
· Cheyenne River Sioux Tribe – 88% (9392 of 10,704) unemployed; all 1312 of those employed were reported as earning under the poverty level
· Yankton Sioux Tribe – 71% (1733 of 2435) unemployed
· Standing Rock Sioux Tribe (note that this includes those in South and North Dakota) – 72% (5325 of 7364)

Recognized Alaska Natives do not fare well either. While “only” 43% of their populations’ available workforce was unemployed, 41% (17,672 of 43,085) of those employed had earnings under the poverty level.

The St. Regis Band of Mohawk Indians of the State of New York: 85% (7,388 of 8,696) of available workforce on or near the reservation unemployed. In the opposite part of the State of New York, the Seneca Nation reported 0% unemployment, but that 2,205 of the 2,496 (88%) of its employed members living on or near the reservation had an income below the poverty level.

Eastern Oklahoma’s Seminole Nation had an unemployment rate of 77% on or near the reservation. Navajo had an unemployment rate of 54% of those living on or near reservations in their three-state region; this equals 28,535 unemployed people of the 52,782 in their available workforce. The Shoshone-Bannock Tribes of Fort Hall (State of Idaho) has an unemployment rate of 81% (8089 of 9973).

Confederated Tribes of the Colville (State of Washington) – only 28 of 6630 members of the workforce living on or near reservations are employed; all of those earn an income under the poverty wage, The combined Northern Arapaho Tribe and Eastern Shoshone Tribe of the Wind River Reservation have a 73% (5421 of 7401) unemployment rate.

The Wind River Indian Reservation (WRIR) was the site of a study in 1998 that suggests the prevalence of significant local employment discrimination. It found that 80.2% of non-Indians who lived in the immediate area of the WRIR and had at least “some college” education were employed, while barely over half (56.9%) of American Indians with this same level of education were employed.[17] One of the researchers involved in this study has since written that employment opportunities in the vicinity of the reservation “are insufficient to accommodate all qualified job seekers—not only those with basic skills but those with significant education.”[18]

On the question of job availability, according to 1999 figures, “Nationally, 45.6 percent of all jobs held by Native American residents on reservations are with a local, tribal, state or federal government.”[19]

Federal US policy has not changed over the centuries. By purpose or effect, Indigenous Peoples of the United States continue to face economic and socially discriminatory treatment leading to an economically coerced removal from their ancestral lands and to assimilation by the dominant culture.
C. Disproportionate Victimization, Incarceration and Sentencing

Disproportionate Victimization: The US Department of Justice (DOJ) recently reported that the rate of violent crime reported by American Indians and Native Alaskans was “well above that of other U.S. racial or ethnic groups and is more than twice the national average. This disparity in the rates of exposure to violence affecting American Indians occurs across age groups, housing locations and by gender.”[20] Calling these facts “a disturbing picture,” the DOJ reported, among other things, that:

· American Indians experienced a per capita rate of violence twice that of the U.S. resident population.
· From 1976 to 2001 an estimated 3,738 American Indians were murdered.
· The violent crime rate in every age group below age 35 was significantly higher for American Indians than for all persons. Among American Indians age 25 to 34, the rate of violent crime victimizations was more than 2½ times the rate for all persons the same age.
· Rates of violent victimization for both males and females were higher for American Indians than for all races.
· The rate of violent victimization among American Indian women was more than double that among all women.

Among its findings, the Department of Justice reported that although violent crime against white and black victims was primarily intra-racial, committed by a person of the same race, American Indian victims were more likely to report the offender was from a different race, compared to blacks and white victims: “In 66% of the violent crimes in which the race of the offender was reported, …nearly 4 in 5 American Indian victims of rape/sexual assault described the offender as white. About 3 in 5 American Indian victims of robbery (57%), aggravated assault (58%), and simple assault (55%) described the offender as white.” [21]

Disproportionate Incarceration: Recalling that the US Census reports the American Indian/Alaska Native Population at 1.6% of the population of the United States, this same Justice Department Study reported that, “[a]bout 5,881 violent offenders entered Federal prison during fiscal year 2001. American Indians were 16% (913) of all offenders entering Federal prison for violent crimes. The American Indian proportion of all violent offenders entering Federal prison has remained stable since 1996 — about 15%.”[22]

With regard to the States’ prison system there is no aggregated data on the numbers of American Indians within the 50 State prison systems. Nationally, about the same numbers of American Indians are incarcerated in proportion to their numbers in national population. But in those States with relatively large Indian populations, they are incarcerated disproportionately to their numbers in these States. As stated in the National Consolidated Shadow Report to the Committee:

“Native Americans are not counted separately from whites in the Department of Justice statistics but statistics from states with higher percentages of Native populations show that they are also overrepresented in the jail and prison population. For example, in Montana, according to the 2000 U.S. Census, Native Americans, the state's largest non-white group, comprise just 6.2 percent of Montana's population but 20 percent of those in correctional institutions. Nineteen percent of the 3,704 Montana men and boys being held in correctional institutions are Native American. Nearly one-third of the 429 women in correctional institutions are Native American.”[23]

In the National Consolidated Shadow Report to the CERD Committee on the juvenile justice system in the United States, the following was reported with regard to American Indian Youth:[24]

“In addition, in some areas, Native American youth in urban areas may not be identified as Native American in the juvenile or criminal justice system. Although 1% of the U.S. youth population in 2003, identified Native youth made up a full 2% of the cases referred to juvenile courts. This is the single greatest increase among any racial group in the U.S. Similarly, in 2003, Native American youth had a higher percentage of petitioned cases waived to adult criminal court, at 1.2% of all Native American cases formally processed, than any other racial group in the U.S. When the numbers are disaggregated by offense categories, Native American youth have the highest percentage of cases in every category except drug crimes. Also in 2003, Native American youth had the highest percentage of adjudicated cases that resulted in a placement out of the home (33%), which is the most serious sentence a juvenile court judge can impose, and they had the lowest percentage of adjudicated cases that resulted in probation (56%). In some states, the disparities are even worse. In 2002, Native American youth in North Dakota were incarcerated in adult correctional centers at a rate of 16.7 for every 100,000 youth. By contrast, no other group experienced enough youth admitted to adult corrections to register at over 0 per 100,000. This data indicates an alarming level of racial discrimination against Native American youth in the juvenile justice system.”

Disproportionately Higher Sentences: Due to the criminal jurisdictional scheme in Indian country discussed below in greater detail, Indian offenders of major crimes are prosecuted in federal court, under the Major Crimes Act, and subject to the Federal Sentencing Guidelines. If non-Indian offenders commit the same crime they are typically subject to prosecution and sentencing by the state authorities in state court. This differing sentencing scheme for Indians versus non-Indians has a disparate impact on Native American defendants, as state criminal sentences are typically lower than federal criminal sentences.[25]

In 2002, the United States Sentencing Commission created an Ad Hoc Advisory Group on Native American Sentencing Issues in response to concerns that Federal Sentencing Guidelines had a discriminatory impact on Indian offenders in Indian country. The Advisory Group noted that “there is a significant negative disparity in sentencing of Native American people ….”[26] For example, the Advisory Group found that for sex offenders prosecuted in New Mexico state courts, the average sentence is 43 months, compared to 86 months in federal court.[27] For crimes of assault, the average sentence in New Mexico state court is 6 months, compare to 54 months in federal court.[28]

These incarceration and sentencing disparities violate Indian defendants “right to equal treatment before the tribunals and all other organs administering justice of the laws”, pursuant to Article 5(a) of the Convention, because Indian defendants typically receive longer sentences under the Federal Sentencing Guidelines than a non-Indian would receive in state court for the same crimes. Although the Advisory Group acknowledged this disparity, it concluded that this negative disparity in sentencing of Native Americans was a jurisdictional matter, not necessarily a racial matter.[29] However, a jurisdictional scheme that makes distinctions based on the race of the defendant is in fact a form of racial discrimination, as defined by Article 1(1) of the Convention.
[1] U.N. Doc. A/52/18, annex V at 122 (1997) at para. 6.
[2] See, e.g., US Periodic Report para. 339 and its reference to the “special rights” of recognized tribes.
[3] Periodic Report, Section 10, pg. 9.
[4] The Human Rights Committee, for example, has determined in their General Comment 23 on Article 27 of the International Covenant on Civil and Political Rights, that Indigenous Peoples in particular require the use and control of land and natural resources to practice their culture. As the Periodic Report indicates, aboriginal title does not exist in the United States and was extinguished long ago. US Periodic Report, para. 336.
[5] Periodic Report, Section 24, page 11.
[6] U.S. Census Bureau, American Indian Reservation and Trust Lands, http://www.census.gov/geo/www/ezstate/airpov.pdf, visited October 15, 2007.
[7] Id, at page 8.
[8] U.S. Census Bureau, “We the People: American Indians and Alaska Natives in the United States,” Stella U. Ogunwole, Census 2000 Special Reports, page 14, issued February 2006.
[9] Id, at page 7. “Native American languages are not disappearing because they are obsolete. They are disappearing because of a US government policy to specifically terminate American Indian language. Under this program, which lasted until the 1950s, children were taken from their homes and forced into boarding schools where they were children were beaten and had their mouths washed out with blistering lye soap for speaking their language. With that background of brutality they did not speak their language in their homes as adults, so their children never learned it—the chain was broken.” Richard Grounds, Euchee, Director, Euchee Language Project, a language reclamation project in which Euchee-speaking elders teach Euchee to community leaders and youth.
http://www.culturalsurvival.org/programs/euchee.cfm, visited 13 November 2007.
[10] Christopher J.L. Murray, et al, “Eight Americas: Investigating Mortality Disparities across Races, Counties, and Race-Counties in the United States,” PLoS Medicine, Vol. 3, No. 9 (September 2006) at 1521.
[11] The Northern Plains refers to the region of the United States where South Dakota is located. This quote is from a news story reporting on the study by Murray, et al, cited above. See Chet Brokaw (Associated Press), “Life expectancy sags on S.D. reservations,” Rapid City Journal, September 12, 2006.
[12] The counties in question are Bennett, Jackson, Mellette, Shannon, Todd, and Washabaugh. Murray, et al, “Eight Americas: Investigating Mortality Disparities across Races, Counties, and Race-Counties in the United States,” at 1514.
[13] Brokaw, “Life expectancy sags on S.D. reservations.”
[14] Murray, Christopher J.L., Sandeep Kulkarni, and Majid Ezzati, “Eight Americas: New Perspectives on U.S. Health Disparities,” American Journal of Preventive Medicine, Vol. 29 (2005) at 6. The survey studied mostly reservations in North Dakota, South Dakota, Colorado, Utah, New Mexico, and Arizona.
[15] Bureau of Indian Affairs, Calculation of Unemployment Rates for Montana Indian Reservations. Included in the survey are the Fort Peck Assiniboine and Sioux Tribes, the Blackfeet Tribe, the Confederated Salish and Kootenai, the Crow Tribe of Montana, the Fort Belknap Indian Community, the Northern Cheyenne Tribe, and Rocky Boy’s Chippewa Cree Tribe.
[16] Unless otherwise cited, the information on unemployment on the reservation is from American Indian Population and Labor Force Report 2003, produced by the U.S. Department of the Interior’s Bureau of Indian Affairs, www.doi.gov/bia/laborforce/2003LaborForceReportFinalAll.pdf, visited November 13, 2007.

[17] Garth Massey and Audie Blevins, “Employment and Unemployment on the Wind River Indian Reservation,” October 6, 1999, accessible at: http://doe.state.wy.us/lmi/1199/a2.htm.
[18] Garth Massey, “Making Sense of Work on the Wind River Indian Reservation,” American Indian Quarterly, Vol. 28, No. 3&4 (Summer/Fall 2004) at 801.
[19] Garth Massey and Audie Blevins, “Employment and Unemployment on the Wind River Indian Reservation,” October 6, 1999, accessible at: http://doe.state.wy.us/lmi/1199/a2.htm.
[20] American Indians and Crime, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, By Steven W. Perry, BJS Statistician December 2004, NCJ 203097
[21] Id, Among the white victims of violence, 70% of the offenders were white, and among black victims, 80% were black.
[22] Id, American Indians and Crime, page 21.
[23] Prison Working Group, Violations of Articles 1, 2 and 5 of the International Convention on the Elimination of all forms of Racial Discrimination in U.S. Prisons: A Response to the Periodic Report of the United States of America April 2007. October 2007.
[24] Shadow Report on Discrimination in Juvenile Justice Working Group, CHILDREN IN CONFLICT WITH THE LAW: JUVENILE JUSTICE & THE U.S. FAILURE TO COMPLY WITH OBLIGATIONS UNDER THE CONVENTION FOR THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION, submitted as part of the National Consolidated report to the CERD Committee, page 6.
[25] United States v. Jerry Paul, 929 F. Supp. 1406, 1407-1408 (D.N.M. 1996).
[26] Ad Hoc Advisory Group on Native American Sentencing Issues, US Sentencing Commission, Report of the Native American Advisory Group ,p. 17 (Nov. 4, 2003).
[27] 27 Hamline L. Rev. 483, 487, citing Advisory Group Report at 16-17.
[28] Id. at note 7, p. 487, citing Advisory Group Report at 27.
[29] 27 Hamline L. Rev. 483, 485.