Thursday, September 24, 2020

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Lindsay Glauner

 

excerpted from: Lindsay Glauner, The Need for Accountability and Reparation: 1830-1976 the United States Government's Role in the Promotion, Implementation, and Execution of the Crime of Genocide Against Native Americans , 51 DePaul Law Review 911-961, 911-917 (Spring 2002)(349 Footnotes)

 

The opposite of love is not hate; it's indifference.

The opposite of art is not ugliness; it's indifference.

The opposite of faith is not heresy; it's indifference.

The opposite of life is not death; it's indifference.

Because of indifference, one dies before one actually dies.

Elie Wiesel.

 

On September 8, 2000, the head of the Bureau of Indian Affairs (BIA) formally apologized for the agency's participation in the "ethnic cleansing" of Western tribes. From the forced relocation and assimilation of the "sauvage" to the white man's way of life to the forced sterilization of Native Americans, the BIA set out to "destroy all things Indian." Through the exploration of the United States' Federal Indian policy, it is evident that this policy intended to "destroy, in whole or in part," the Native American population. The extreme disparity in the number of Native American people living within the United States' borders at the time Columbus arrived, approximately ten million compared to the approximate 2.4 million Indians and Eskimos alive in the United States today, is but one factor that illustrates the success of the government's plan of "Manifest Destiny."

No longer can we remain indifferent and justify these acts of genocide committed by the United States government, its agencies, and its personnel against Native Americans as a result of colonization or the need to establish a prosperous union. Instead, the United States government, its agencies, and those involved with carrying out the measures designed to inflict genocidal acts against the Native American population must be held in violation of customary international law, as well as conventional international law, as proscribed in the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).

The term "genocide" was coined by Raphael Lemkin in 1944 and was derived from the Greek word genos, which means tribe or race, and the Latin word cide, which is commonly found in words such as homicide, infanticide, and fratricide. In his first enunciation of "genocide," Lemkin defined the term in two different ways: (1) "the practice of extermination of nations and ethnic groups as carried out by invaders" and (2) "[the] destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor." Currently, "genocide" is commonly defined as "acts committed with intent to destroy in whole or in part a national, ethnical, racial or religious group."

The crime of "genocide" is recognized as one of the most heinous international crimes under customary international law. A practice is proscribed as a crime under customary international law through the existence of the following: (1) uniformity of state practice, (2) generality of state practice, and (3) the opinion that state practice is required by law. Customary international law also recognizes any crime that is universally condemned by the international community as a jus cogens international crime, which gives rise to obligations erga omnes. In accordance with customary international law, an obligation erga omnes requires a state party to extradite or prosecute perpetrators of these crimes found within its territory. Because the international community has universally condemned genocide, as evidenced in part by the ratification of the Genocide Convention, it has risen to the level of a jus cogens international crime. As a result, any individuals, agencies, or states that commit genocide must be held accountable.

On December 9, 1948, the United Nations General Assembly approved a draft of the Genocide Convention on the Prevention and Punishment of Genocide, and since then 135 states have ratified the Convention, including the United States. According to the Vienna Convention on the Laws of Treaties, conventions are binding and enforceable against all states that have signed and ratified the specific convention. Therefore, in accordance to Article IV of the Genocide Convention, which requires all parties to prosecute those charged with genocide, conspiracy to commit genocide, direct andpublic incitement to commit genocide, attempt to commit genocide, and complicity in genocide, regardless of their capacity as a ruler or public official, in a competent tribunal within the State where the crime took place or in a competent international tribunal that has proper jurisdiction over the case, any persons or agencies that commit acts of genocide within the territory of the United States must be held accountable for their crimes.

Even though the crime of genocide remains universally condemned by the international community, the United States government, its agencies, and its personnel have been effectively granted de facto immunity. The time has come to hold the perpetrators of these acts of genocide accountable and to formulate a system of reparation for the victims of these heinous international crimes, in order for the world, as well as the victims, to realize that justice does prevail in the international community.

This Comment will address the demise of Native Americans' livelihood, reproductive rights, and identity at the hands of the United States government, its agencies, and its personnel. Because the United States had a direct role in perpetrating genocidal acts against Native Americans, it must be held accountable for these acts. The international community must hold these agencies and persons responsible, and an apology and reparations must be awarded to Native Americans for their grave losses. While the need for reparations is clear, the method used to provide these reparations remains at issue.

Part II of this Comment will explore the evolution of the crime of genocide as proscribed under both customary and conventional international law.

Part II will also address how international law is applied in the United States, specifically the Convention on the Prevention and Prohibition of Genocide and customary international law.

Part III will explore the demise of Native Americans at the hands of the United States.

Part IV will analyze how the United States government, its agencies, and its personnel committed acts of genocide against Native Americans.

Part V will explore the implications of these acts of genocide on Native Americans today and the appropriate method of reparation.

In conclusion, Part VI will address the role of truth and justice in aiding the victims' healing process.

 

*As a Native American and being of twenty-five percent Native American blood, the stories of my ancestors inspired me to research the atrocities committed by the United States Government, its agencies, and its personnel against western Native Americans.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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