Tag Archives: USA

Three articles on indigenous land rights issues

by Rhodri C. Williams

Its November 25 and I find myself in the center of what was once the Powhatan Confederation, commemorating the humanitarian impulses of the Wampanoag tribe further north by eating an improbably huge bird in the community of my large, wonderful and distinctly non-Native American family. Not a bad time to reflect on the ongoing struggles of indigenous groups worldwide to maintain the autonomy and connections to their land they long since lost on the East Coast of the USA. To that end, a few interesting recent articles:

– The New York Times ran a long piece the week before last on ‘Bushmen’ in Botswana. At the heart of the piece – and the controversy there – is whether continued adherence to an authentically indigenous lifestyle is an appropriate condition to impose for allowing indigenous groups to remain on traditional lands envisioned as nature reserves. In Botswana, the government has pushed Bushmen off such a reserve based on the allegation that they have given up traditional sustainable livelihoods and are damaging the ecosystem (and optics) of the park as a result. Are such conditions compatible with the right of indigenous groups to determine their own development path? Is this right to be interpreted more narrowly in areas deemed nature reserves? All questions for a future decision by the African Commission (or Court!) of Human and Peoples’ Rights, no doubt…

– Well outside the purview of the ACHPR, the Minority Rights Group blog describes use of land confiscation and ‘mega-plantations’ by the Indonesian authorities to allegedly alter the ethnic balance in West Papua by importing workers from elsewhere. In the words of an indigenous activist, “Indonesia doesn’t want our people, they just want our land.” More on displacement in West Papua in a recent update by IDMC.

And finally, on a far more hopeful note, OpenDemocracy carries the story of the Anishinabe (more colloquially known as the Ojibwe or Chippewa) in Wisconsin. In the 1980s, the Anishinabe began asserting their usufructuary rights to land ceded under long-forgotten treaties by resuming traditional spear-fishing on ponds. By the time I went to college in Minnesota in the early 1990s, the result was an extremely tense standoff with a hardcore group of sport fishermen (more colloquially known as rednecks), in which both sides were refusing to back down. In the above-cited piece, Tom H. Hastings describes how the persistence of the Anishinabe eventually prevailed.

Happy Thanksgiving.

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Week in links – Week 46/2010

– The New York Times reports on extensive destruction of booby-trapped houses and damage to agricultural land through the construction of new military roads by NATO troops in Afghanistan. Compensation programs appear to be up and running but the verdict of one district governor is a little chilling: “We had to destroy them to make them safe.”

UNHCR reports to the Third Committee of the UN General Assembly. The ReliefWeb headline says it all: “Voluntary Refugee Returns Worst in Two Decades; World Faces Quasi-Permanent Refugee Situations in Areas of Never-Ending Conflict, Third Committee Told.”

– In the latest twist in the protracted real estate crisis in the US, the New York Times reports on a new wave of adverse possession. By taking open possession of abandoned foreclosed homes, repairing them and even renting them out, private individuals are hoping to eventually meet the statutory requirements to receive title, with both positive and negative local impacts.

– On desertification and pastoralism in the Sahel, we have a bullish take from the EU-Africa Partnership and a more apocalyptic one on climate conflicts from Yale’s E360 publication.

– ASIL has made available an interesting introductory note to a recent property decision by the European Court of Human Rights – in this case, the Court confirmed that the definition of possessions under the European Convention includes final and enforceable arbitration decisions.

Refugees International urges African Union member-states to ratify last year’s groundbreaking Kampala Convention on the rights of IDPs. IDMC has a dedicated webpage on the Convention.

– Indonesia gets serious about climate change adaptation with the announcement of new guidelines on permanent relocations of populations from disaster areas too dangerous to allow return.

– UN Habitat issued its technical assessment of housing reconstruction needs after the Pakistan floods.

– FAO launched a new report and website on ‘climate-smart agriculture’, highlighting a mixture of traditional and high-tech approaches that raise yield and reduce carbon emissions.

– Finally, an interesting example of the International Court of Justice (ICJ) taking up ‘HLP’ issues in a case in which Georgia accuses Russia of violating its obligations under the Convention on the Elimination of Racial Discrimination (CERD) by virtue of its failure to allow ethnic Georgians to return to the breakaway regions of Abkhazia and South Ossetia, where Russia is alleged to exercise effective control. A recent blog piece on this by the Harvard Program on Humanitarian Policy and Conflict Research provides some background and reminds of an interesting October 2008 interim measure in which the Court ordered the parties, among other things, to:

do all in their power, whenever and wherever possible, to ensure, without distinction as to national or ethnic origin,
(i) security of persons ;
(ii) the right of persons to freedom of movement and residence within the border of the State ;
(iii) the protection of the property of displaced persons and of refugees …

The week in links – week 41/2010

This week’s food for thought:

– Continuing the nervous drumbeat on the upcoming Southern Sudan referendum, here is Open Democracy on the apparent new delay to the Abyei referendum, and a good news-then-bad news analysis by Phillipe De Pontet at the Carnegie Endowment for International Peace.

– The International Law Observer notes that the Human Right to Water and Sanitation is now official – a recent decision by the Human Rights Council brings the number of states that have gone on the record to 178.

– Meanwhile, the FAO Right to Food people are about to release a guideline on responsible land tenure management and the right to food (it is available now in Spanish).

– Lyric Thompson reports in Open Democracy on the whiff of UN politics behind the anticlimactic tenth birthday party in the UN Security Council for Resolution 1325.

– In case anyone forgot the link between land and identity, here is a comment in the Jerusalem Post on what the construction ban and its absence is seen to signify by some in the Middle East. In the meantime, the NYT reports on the resumption of construction plans in East Jerusalem, and Open Democracy has news of a possible response, with the Arab League apparently considering whether to “appeal directly to the UN to recognise the state of Palestine.”

– From the US, Paul Krugman reports on the ongoing fallout of the mortgage crisis and the fact that it now appears that the USA, one of the world’s great proponents of rule of law and the sanctity of property, is witnessing foreclosures by banks that are unable to actually document the mortgage agreements they are enforcing.

– And in the unremarked on but terrifying land violence category, IRIN reports on inter-clan skirmishes over land in northeastern Kenya that displaced 600 families.

– Finally, the ECFR has issued a new short comment and report on the ‘spectre of a multipolar Europe with a fairly provocative set of findings:

  • The post-Cold War order is unravelling. Rather than uniting under a single system, Europe’s big powers are moving apart. Tensions between them have made security systems dysfunctional: they failed to prevent war in Kosovo and Georgia, instability in Kyrgyzstan, disruption to Europe’s gas supplies, and solve frozen conflicts.
  • The EU has spent much of the last decade defending a European order that no longer functions. Russia and Turkey may complain more, but the EU has the most to lose from the current peaceful disorder.
  • A frustrated Turkey still wants to join the EU, but it is increasingly pursuing an independent foreign policy and looking for a larger role as a regional power. In the words of foreign minister Davutoglu, Turkey is now an ‘actor not an issue’. Its accession negotiations to the EU should be speeded up, and it must also be engaged as an important regional power.
  • Russia never accepted the post-Cold War order. Moscow is now strong enough to openly challenge it, but its Westpolitik strategy also means that it is open to engagement – that is why Dmitri Medvedev suggested a new European security treaty a couple of years ago.
  • Obama’s non-appearance at the 20th anniversary of the fall of the Berlin Wall was the latest sign that the US is no longer focused on Europe’s internal security. Washington has its hands full dealing with Afghanistan, Iran and China and is no longer a European power.

Restitution comes to Hamtramck, Michigan

by Rhodri C. Williams

Yesterday’s New York Times reports on a case of restitution in response to a discriminatory pattern of wrongful evictions carried out beginning in the 1950s and 60s. Lake Bogoria, Kenya? Northern Iraq? Nope. Hamtramck (“pronounced ham-TRAM-eck”), Michigan, just outside Detroit.

By the Times’ account, Hamtramck is a rather independent little place that refused incorporation with the metropolis that now fully surrounds it. It is also a former Polish enclave, which now, despite having become one of the most diverse neighborhoods in the Detroit area, is still busy counting down to this year’s “Paczki Day”, featuring “polka music from Misty Blues, traditional Polish dancers, the Paczki Toss, the “Paczki Express” Historic Bus Tour, a visit from the Detroit Tigers’ mascot, Paws, and much more.”

Finally, it is also one of many American cities that used urban renewal and highway construction as a means of obliterating black neighborhoods in the 1950s and 1960s, atomizing communities, fueling the cynical practice of racial “block-busting” and ultimately driving white flight to the suburbs.

In Cincinnati, Ohio, another mid-western burgh, I grew up in the safety of the ‘burbs without ever considering the strangeness of the fact that the poor black neighborhood north of downtown went by the distinctly teutonic moniker of “Over the Rhine” or questioning why the entire western quadrant of central Cincinnati had been given over to a monstrous tangle of freeways.

It was only later, in college, when I bent my newly minted skills as an urban geography major to analysis of my hometown that I realized the design behind these seemingly random phenomena. The freeways had replaced the West End, a thriving mixed-income black neighborhood, whose uprooted residents were scattered as promised replacement housing fell far short of needs. The arrival of black families into neighborhoods like Over the Rhine was, in turn, used by real estate brokers to put greater urgency into the migration of fourth and fifth generation German immigrants and other whites to the suburban sprawl at the edge of town.

The cynicism and waste of it all was a revelation, as was the fact that my formative years had been spent in the midst of the resulting tensions and contradictions without me – or any of my peers that I can recall – having ever really questioned them. It was the late eighties then and we were still a few years shy of the great international bloom of what would eventually come to be known as transitional justice initiatives, but my experience with Over the Rhine helped to shape my own sense of the subtle but tenacious grip the past has on the present.

But back to Hamtramck: a remedy for black families displaced under the guise of urban renewal was ordered by a federal court in 1971. Despite a finding that the city had followed a clear strategy to remove blacks, the decision itself became the object of further politicking over the next two decades, according to an AP article published in January:

In 1971, after a three-week trial, a federal judge said Hamtramck had a clear strategy when it demolished housing in poor neighborhoods. Blacks were 14.5 percent of Hamtramck’s population in 1960, but only 8.5 percent six years later, noted Damon Keith, now a judge on the 6th U.S. Circuit Court of Appeals.It took until 1980 for all sides to agree to a solution: Two hundred family housing units, as well as 150 units for senior citizens, would be offered at below-market rates to black plaintiffs in the lawsuit. It didn’t take long to build the senior housing, but construction on the rest didn’t start until 2004.

“Attitudes, funds and skills were the three missing ingredients,” said Michael Barnhart, attorney for the victims. “The city was still fighting it. Secondly, they didn’t have the money. Hamtramck was in and out of state receivership.”

The city’s current lawyer, James Allen Sr., agreed.

“This litigation was used as a political wedge issue. The us-versus-them mentality kept people in political office,” he said.

That changed when Gary Zych became mayor in the late 1990s. He said resolving the discrimination case was a moral issue as well as a practical one. Hamtramck couldn’t develop vacant land for other purposes until it built the subsidized housing.

It has been a long time coming, but restitution is currently well underway in the teeth of the financial crisis, with 100 homes completed for rental or sale and the rest slated for completion within the year. The remedial program also follows a lot of what would elsewhere be called transitional justice best practices. For instance, where direct victims have died since the case was brought, their children and grand-children are entitled to move into the new housing in their stead. Implementation of the program has also been assisted through consultative processes brokered by civil society actors including fair housing advocates and local clergy. And, perhaps most important, delivery of the houses has been accompanied by genuine acknowledgment of the harm that was originally done through the clearances. As reported in the Times:

Just weeks ago, [displaced former resident] Ms. Sanders moved into a new ranch-style house on the same street where her family once lived, and Gov. Jennifer M. Granholm personally handed over the keys. As a young lawyer, Ms. Granholm was a clerk to Judge Keith [who issued the 1971 decision] in the late 1980s.

“We went full circle, and it’s pretty wonderful,” said Ms. Sanders, whose parents, now dead, were among the 250 plaintiffs who sued the city. “To acknowledge that, O.K., they were wrong, that gives me a little satisfaction because my parents were mistreated so. I just wish they were here to see it.”

Restitution in Hamtramck stands out both for the fact that it happened at all and for its isolation. Urban renewal and highway extensions were commonly used to clear black neighborhoods in the decades after World War II, but Hamtramck appears to represent the only judicial challenge to this practice that was brought to fruition. If it were to be taken as a nationwide precedent, the implications for municipal governments across a broad swathe of the midwest from Cincinnati to Syracuse would be significant (to say the least). From a legal perspective, the statutes of limitation for such suits have surely long since run, whatever arguments one might make about the capacity of the victim to bring suits at the time of the violations. Again, from the Times:

The home building is also what experts call a bittersweet finale to one of the longest-running housing discrimination suits to weave its way through court, having begun in the civil rights era. Beyond its age, the case is also distinctive in that it happened at all. While Hamtramck may be an extreme example, experts said housing discrimination against blacks in the mid-1900s was common, but class-action lawsuits were rare because of their expense and complexity.

However, from a social perspective, the Hamtramck decision, along with its belated acceptance and implementation, stand as another reminder of the fact that Americans, even in the age of Obama, still do not benefit from a completely level playing field. The opportunities of my white suburban classmates were shaped by the mobility their ancestors had enjoyed to move out of neighborhoods like Over the Rhine to suburban areas with well-funded schools and subsidized highways. Meanwhile, the opportunities of many black teenagers of my generation were crimped by policy decisions and commercial practices that destroyed the viable neighborhoods built by their grandparents and barred them access to better ones.

Given the American allergy to being described by the human rights concepts we were instrumental in developing, it wouldn’t do much good to talk about transitional justice. And anyone who turned up in Hamtramck with a copy of the Pinheiro Restitution Principles would probably end up at the wrong end of the annual Paczki Toss. So, in more American terms, it is at least satisfying to see justice done in Hamtramck and know that even if the settlement there will bring no material benefit to the thousands of families uprooted in other mid-western cities two generations ago, it may at least bring a degree of acknowledgment.