Subsistence is an Alaskan Issue!
Why does this United Nations Treaty signed in 1994, where Senators Ted Stevens and Frank Murkowski Voted FOR ratification guarantee a "rural subsistence priority"?
Why does the UN have the federal government make laws which effect Alaska only?Click here to see where the rural subsistence preference is mandated by this treaty.
The Entire Treaty is Reproduced here for your review. It takes a long time to download, so please bear with your computer!
Covenant, Initial report of State parties due in 1993, Addendum,
United States of America, U.N. Doc. CCPR/C/81/Add.4 (1994)
UNITED NATIONS
Distr. GENERAL
CCPR/C/81/Add.4
24 August 1994
Original: ENGLISH
CONSIDERATION OF REPORTS SUBMITTED BY STATE PARTIES UNDER ARTICLE
40 OF THE COVENANT, INITIAL REPORT OF STATE PARTIES DUE IN 1993,
ADDENDUM,
UNITED STATES OF AMERICA
[24 August 1994]
Introduction
IMPLEMENTATION OF SPECIFIC PROVISIONS OF THE COVENANT
Article 1 - Self determination
Article 2 - Equal protection of rights in the Covenant
Article 3 - Equal rights of men and women
Article 4 - States of emergency
Article 5 - Non-derogable nature of fundamental rights
Article 6 - Right to life
Article 7 - Freedom from torture or cruel, inhuman or degrading
treatment or punishment
Article 8 - Prohibition of slavery
Article 9 - Liberty and security of person
Article 10 - Treatment of persons deprived of their liberty
Article 11 - Freedom from imprisonment for breach of contractual
obligation
Article 12 - Freedom of movement
Article 13 - Expulsion of aliens
Article 14 - Right to fair trial
Article 15 - Prohibition of ex post facto laws
Article 16 - Recognition as a person under the law
Article 17 - Freedom from arbitrary interference with privacy,
family, home
Article 18 - Freedom of thought, conscience and religion
Article 19 - Freedom of opinion and expression
Article 20 - Prohibition of propaganda relating to war or
racial, national or religious hatred
Article 21 - Freedom of assembly
Article 22 - Freedom of association
Article 23 - Protection of the family
Article 24 - Protection of children
Article 25 - Access to the political system
Article 26 - Equality before the law
Article 27 - The rights of minorities to culture, religion
and language
Annexes
I. Abbreviations
II. Glossary
III. Ratification of the Covenant by the U.S. Senate
Introduction
1. The U.S. Constitution is the central instrument of American government and the supreme law of the land. For over 200 years it has guided the evolution of governmental institutions and has provided the basis for political stability, individual freedom, economic growth and social progress. It contains specific guarantees of the most important rights and freedoms necessary to a democratic society. These rights are principally found in the Bill of Rights, which consists of the first 10 amendments to the Constitution, adopted in 1791, only 2 years after the Constitution itself was approved. They include, among others, freedom of religion, speech, press, and assembly, the right to trial by jury, and a prohibition on unreasonable searches and seizures. Other significant protections have been added by subsequent amendments. Many of these rights parallel those addressed in the International Covenant on Civil and Political Rights. While originally formulated as limitations on the authority of the federal government, these protections have to a great extent been interpreted over time to apply against all forms of government action, including the governments and officials of the 50 constituent states and subordinate governmental entities. The Constitution thus provides binding and effective standards of human rights protection against actions of all levels of government throughout the nation.
2. The Constitution was designed to protect the people against the abuse of authority by distributing the power of the federal government among three separate but co-equal branches (the executive, the legislative and the judicial). Each branch was given specific responsibilities and prerogatives as well as a certain ability to limit or counter the authority of the other two branches. This system of "checks and balances" serves as a guarantee against potential excesses by any one branch.
3. Moreover, the federal government established by the Constitution is a government of limited authority and responsibility. Those powers not delegated to the federal government were specifically reserved to the states and the people. The resulting division of authority, which characterizes the federal system in the United States means that state and local governments exercise significant responsibilities in many areas, including matters such as education, public health, business organization, work conditions, marriage and divorce, the care of children and exercise of the ordinary police power. The prerogatives of the states in this regard are so well established that even two neighbouring states frequently have widely varying laws and practices on the same subjects. Some areas covered by the Covenant fall into this category.
4. For this reason, and because article 50 expressly extends the provisions of the Covenant to all parts of federal states, the United States included in its instrument of ratification an understanding to the effect that the U.S. will carry out its obligations thereunder in a manner consistent with the federal nature of its form of government. More precisely, the understanding states:
"That the United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfilment of the Covenant."
This provision is not a reservation and does not modify or limit the international obligations of the United States under the Covenant. Rather, it addresses the essentially domestic issue of how the Covenant will be implemented within the U.S. federal system. It serves to emphasize domestically that there was no intent to alter the constitutional balance of authority between the federal government on the one hand and the state and local governments on the other, or to use the provisions of the Covenant to federalize matters now within the competence of the states. It also serves to notify other States Parties that the United States will implement its obligations under the Covenant by appropriate legislative, executive and judicial means, federal or state, and that the federal government will remove any federal inhibition to the abilities of the constituent states to meet their obligations in this regard.
5. Although there is a growing body of federal criminal law and procedure, criminal law is still largely a matter of state competence, and the precise rules, procedures and punishments vary from state to state. In all states, however, as well as at the federal level, criminal law and procedure must meet the minimum standards provided by the U.S. Constitution, and those standards apply to all individuals regardless of nationality or citizenship.
6. State constitutions and laws also limit the actions of state and local governmental units and officials in order to secure individual rights. State and local officials must always meet the basic federal constitutional standards. In addition, they must comply with the applicable state and local law, which in many instances provides even greater protection to the individual. Because of the large number of such provisions, this report emphasizes the common federal standards with occasional reference to some state and local provisions.
7. The rights protected by the Covenant are, for the most part, guaranteed by the U.S. Constitution and federal statutes. The U.S. Constitution applies to the actions of officials at all levels of government. Some federal laws control only the actions of federal officials and agencies; others apply generally to federal, state and local officials. The differences will be noted where relevant to the discussion of specific articles.
8. In ratifying the Covenant, the United States declared "[T]he provisions of Articles 1 through 27 are not self-executing". This declaration did not limit the international obligations of the United States under the Covenant. Rather, it means that, as a matter of domestic law, the Covenant does not, by itself, create private rights directly enforceable in U.S. courts. As indicated throughout this report, however, the fundamental rights and freedoms protected by the Covenant are already guaranteed as a matter of U.S. law, either by virtue of constitutional protections or enacted statutes, and can be effectively asserted and enforced by individuals in the judicial system on those bases. For this reason it was not considered necessary to adopt special implementing legislation to give effect to the Covenant's provisions in domestic law. In some cases, it was considered necessary to take a substantive reservation to specific provisions of the Covenant, or to clarify the interpretation given to a provision through adoption of an understanding. These reservations and understandings are discussed in the following text under the articles to which they refer.
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IMPLEMENTATION OF SPECIFIC PROVISIONS OF THE COVENANT
Article 1 - Self-determination
9. The basic principle of self-determination is at the core of American political life, as the nation was born in a struggle against the colonial regime of the British during the eighteenth century. The right to self-determination, set forth in article 1 of the Covenant, is reflected in Article IV, Section 4 of the U.S. Constitution, which obliges the federal government to guarantee to every State a "Republican Form of Government". Implicitly, this article ensures that every state will be governed by popularly elected officials. Similarly, Articles I and II of the Constitution, as amended by the Twelfth, Seventeenth, Twentieth, Twenty-second, and Twenty-third Amendments to the Constitution, and the second clause of the Fourteenth Amendment, describe in detail the manner by which the national government is to be elected. The right to vote in federal, state, and local elections is also implicit, for it is the "essence of a democratic society". Reynolds v. Sims, 377 U.S. 533, 555 (1964). The states are permitted to set the qualifications for voting, but the states are limited by the Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments from restricting the franchise on the basis of race, colour, previous condition of servitude, sex, failure to pay a poll tax, or for being under any age except 18 years. Hence, the people of the United States are free in law and in practice to determine their "political status" within the structure of the Constitution, and to change the Constitution itself through amendment. There have been 27 such amendments since the founding of the Republic, beginning with the Bill of Rights (Amendments I-X) in 1791.
10. The right to pursue economic and cultural development is not mentioned, in such terms, in the U.S. Constitution, yet it is among the most fundamental principles that define American society. The essential civil and political rights guaranteed by the Constitution and the Covenant, and a free market economy, provide the basis for free and liberal pursuit of economic or cultural development, with virtually no restraint save for those necessary to protect public safety and welfare.
11. Property rights are specifically protected by the Fifth and Fourteenth Amendments, which guarantee that neither the states nor the federal government may deprive one of property without due process or take property for public use without fair compensation. The Constitution does not, however, protect persons or corporations from reasonable economic regulation by both the states and the federal government. Cultural life, on the other hand, is generally protected by the First Amendment guarantees of freedom of speech and association which are very broadly construed, as discussed below in connection with Articles 18, 19, 21 and 22.
The Insular Areas
12. The United States includes a number of Insular Areas, each of which is unique and constitutes an integral part of the U.S. political family. Persons born in these areas are U.S. citizens (U.S. nationals in the case of American Samoa). Local residents, including U.S. citizens born elsewhere who have moved to these areas, elect their own local governments and make and are ruled by their own local laws. They are free to move to other parts of the United States and enjoy the protections for individual liberty that the Bill of Rights guarantees to all Americans. Guam, the Virgin Islands, American Samoa and Puerto Rico each are represented in the U.S. House of Representatives by an elected delegate. Other than the right to vote on the final passage of a bill or resolution, the delegate from each Insular Area enjoys the same privileges and exercises the same powers as a member of Congress from one of the states.
13. The United States considers Guam, the U.S. Virgin Islands, and American Samoa as still "non-self-governing" for purposes of Article 73 of the Charter of the United Nations. Although these areas are in fact self-governing at the local level, as described below, they have not yet completed the process of achieving self-determination. By contrast, the States of Alaska and Hawaii, as well as the Commonwealth of Puerto Rico, all of which used to be "non-self-governing" for purposes of Article 73, have completed acts of self-determination through which they have resolved the terms of their respective relationships with the rest of the United States. Similarly, the Commonwealth of the Northern Mariana Islands, the Federated States of Micronesia and the Republic of the Marshall Islands, all of which were once part of the Trust Territory of the Pacific Islands, have completed the process of self-determination.
14. The Commonwealth of Puerto Rico. The largest and most populous of the U.S. Insular Areas, Puerto Rico was acquired by the United States in 1899 after the Spanish-American War. Between 1900 and 1950, Congress provided for the governance of Puerto Rico through Organic Acts. In 1950, Congress enacted legislation which authorized Puerto Rico to organize its own government and adopt a constitution. Puerto Rico did so, and its constitution became effective on 25 July 1952, at which time Puerto Rico achieved the status of a Commonwealth of the United States. Since then, the question of Puerto Rico's relationship to the United States has continued to be a matter of public debate and discussion. Most recently, the people of Puerto Rico expressed their views in a public referendum in November 1993; continuation of the current commonwealth arrangement received the greatest support, although nearly as many votes were cast in favour of statehood. By contrast, a small minority of some 5 per cent chose independence.
15. Guam. Guam was acquired by the United States in 1899 after the Spanish-American War and, with the exception of the period of occupation during the Second World War, was administered by the Navy until 1950. In 1950, Congress enacted the Guam Organic Act, providing for the civil government of Guam. 48 U.S.C. sections 1421-1425. It includes a Bill of Rights that parallels the guarantees of individual liberty in the Constitution and it grants U.S. citizenship to the people of Guam. Since 1968, the executive branch of Guam's Government, consisting of the Governor and the Lieutenant Governor, have been popularly elected. Legislative authority is exercised by a unicameral legislature of 21 members elected every two years. Judicial power is vested in local Guamanian courts and in the U.S. District Court for Guam.
16. The U.S. Virgin Islands. The U.S. States Virgin Islands were purchased from Denmark in 1916. They are governed in accordance with an Organic Act that Congress enacted in 1936 and revised in 1954. Both the Organic Act and the revised Organic Act included a Bill of Rights paralleling U.S. constitutional protections for individual rights. The people of the Virgin Islands have been U.S. citizens since 1927. Since 1968, the Governor and the Lieutenant Governor have been popularly elected. Legislative power is vested in a unicameral legislature composed of 15 senators elected every 2 years. Judicial power is vested in a local court system and in the U.S. District Court for the Virgin Islands.
17. American Samoa. The United States acquired American Samoa through Deeds of Cession executed by its Chiefs in 1900 and 1904 and ratified by Congress in 1929. Unlike the situation with Guam and the Virgin Islands, Congress has not enacted an Organic Act for American Samoa. Instead, it provided for the delegation of executive authority to the Secretary of the Interior. In 1967, the Secretary approved the constitution of American Samoa, which provides for the functioning of its local government. A subsequent federal statute, 48 U.S.C. section 1662a, prohibits any amendments or modification to the constitution without the consent of Congress. The constitution of American Samoa includes a Bill of Rights that substantially parallels the Bill of Rights in the U.S. Constitution.
18. Residents of American Samoa are U.S. nationals. A "national of the United States" is (1) a citizen of the United States or (2) "a person, who though not a citizen of the United States owes permanent allegiance to the United States". Immigration and Naturalization Act, section 101 (a)(22), 8 U.S.C. section 1101 (a)(22). Only the inhabitants of American Samoa and Swains Island are non-citizen nationals. A U.S. national is not an alien. "The term 'alien' means any person not a citizen or national of the United States." INA section 101 (a)(3), 8 U.S.C. section 1101 (a)(3). A non-citizen national who becomes a resident of any state and is otherwise eligible may become a citizen. INA section 325, 8 U.S.C. section 1436.
19. The Governor and Lieutenant Governor of American Samoa have been popularly elected since 1978. Legislative powers of the American Samoa are vested in a bicameral body known as the Fono. The judiciary consists of a system of local courts and of the High Court of American Samoa. The Chief Justice and Associate Justice of the High Court are appointed by the Secretary of the Interior. There is no federal court with general jurisdiction over American Samoa. American Samoa has tended to oppose the establishment of a federal court due to concern that it could have a negative impact on certain aspects of traditional Samoan culture, known as Fa'a Samoa, such as communal land ownership patterns.
20. The Commonwealth of the Northern Mariana Islands. At one time a component of the Trust Territory of the Pacific Islands, the Commonwealth of the Northern Mariana Islands (CNMI) elected to become part of the United States political family through a Covenant enacted in 1976. In accordance with the Covenant, the CNMI adopted a constitution which became effective in 1978. The Covenant and the constitution incorporate the protections of the U.S. Bill of Rights and guarantee U.S. citizenship for residents of the CNMI.
21. Under its constitution, the CNMI is governed by a popularly elected Governor, Lieutenant Governor, and bicameral legislature. Judicial power is vested in the CNMI's local court system and in the U.S. District Court for the Northern Mariana Islands. The CNMI is represented in Washington, D.C. by a popularly elected Resident Representative to the United States. The Resident Representative serves a four-year term but is not a member of Congress.
22. The Trust Territory of the Pacific Islands. In 1947, following the Second World War, the United States entered into a Trusteeship Agreement with the United Nations Security Council under which the United States was designated trustee of more than 2,100 islands in the Western Pacific formerly subject to the Japanese mandate. Over time, the Trust Territory of the Pacific Islands (TTPI) was divided into four geographically distinct areas: the Northern Mariana Islands, the Marshall Islands, the Federated States of Micronesia, and Palau.
23. As discussed above, the Northern Mariana Islands chose in 1976 to become a Commonwealth of the United States. The Marshall Islands and the Federated States of Micronesia each chose to become independent, sovereign nations in a relationship of free association with the United States. In December 1990, they became States Members of the United Nations. Thus, the sole remaining entity of the Trust Territory is the Republic of Palau.
24. Palau is still subject to the United Nations Trusteeship Agreement, and accordingly, it continues to be governed under the authority of the Secretary of the Interior of the United States. Under the constitution of Palau and pursuant to the Secretary's Order No. 3142 of 15 October 1990, the Secretary has delegated executive, legislative, and judicial authority to the local government of Palau. The United States recognized the constitution and government of Palau in 1980. The government consists of a popularly elected President and Vice President, a bicameral legislature known as the OEK, and a local judicial system. A body known as the Council of Chiefs advises the President on matters concerning traditional law and custom. Palau is composed of 16 states, each of which has its own local government and constitution.
25. In 1986, the government of Palau and the Government of the United States signed a Compact of Free Association, which was enacted into law by the U.S. Congress in the same year. The Compact was ratified by the people of Palau in a plebiscite in November 1993, which should soon lead to the termination of the Trusteeship and independence for Palau.
Native Americans
26. Introduction. The United States is home to a wide variety of indigenous people or groups who, despite their ethnic, cultural and linguistic diversity, are generally referred to as Native Americans. Many are organized as tribes, some of which have obtained official recognition by the federal government while others have not. For purposes of this report, the term also includes special status groups such as Alaska Natives and native Hawaiians. The term "Alaska Natives" includes Inuits (sometimes referred to as Eskimos), Indians, and Aleuts. Native Hawaiians are not a federally recognized Indian tribe or group. The lifestyles of Native Americans vary widely, from those in which traditional culture is still largely practised (over 100,000 Native Americans still speak their native languages) to those who have been largely or completely assimilated into urban modernity.
27. In the 1990 census, 1.9 million individuals, or less than 1 per cent of the population, identified themselves as Native Americans. The largest tribes or ethnic groups among these self-identified Native Americans were the Cherokee, Navajo, native Hawaiians, Chippewa and Sioux. The states with the largest Native American populations include Oklahoma, California, Arizona, Hawaii and New Mexico. The highest proportion of Native Americans to the rest of the population occurs in Alaska (15.6 per cent). Approximately half of the total Native American population lives on or near a reservation. The largest land-holding tribes are the Navajo (whose land is located in Arizona, New Mexico and Utah and covers an area larger than 9 of the 50 states), Tohono O'odham, Pine Ridge, Cheyenne River, and San Carlos. In total, Native American tribes and individuals own between 50 and 60 million acres of land. In addition, Alaskan natives own another 44 million acres of land as a result of the Alaska Native Claims Settlement Act.
28. Of all Native American tribes, 542 are federally recognized, including 223 Alaska villages and regional tribes. The term "tribe" here refers to the political and institutional mechanisms of tribal authorities which exercise jurisdiction over reservation or other tribal lands. The members of a tribe, as individuals, are U.S. citizens with the same rights as other U.S. citizens and may live where they choose. Within the area of tribal jurisdiction, however, the tribe itself generally is the governing authority and not a state or other local government. Tribes enjoy considerable autonomy even with respect to the federal government. Federally recognized tribes are eligible to participate in specified programmes funded and administered by the Bureau of Indian Affairs (BIA) in the Department of the Interior. Since 1978, 150 groups have notified the BIA of the intention to seek federal recognition. As of mid-1994, 73 groups had submitted letters of intent to petition; 26 petitions were incomplete; 9 petitions were under active consideration; 5 were ready for active consideration; 7 required legislation; and 30 had been resolved (9 acknowledged as tribes; 13 denied; 5 legislatively determined; and 3 otherwise addressed).
29. The Alaska Native Claims Settlement Act identified 44 million Alaskan acres as Native controlled and owned, and extinguished Natives' claims to most of the rest of Alaska. Native Hawaiians have sought ownership and control over land and acknowledgement of Native American status for some time but without success.
30. Under U.S. law, Native American tribes are distinct, independent political communities, which retain all aspects of their sovereignty not withdrawn by treaty or statute or by implication as a result of their status. See United States v. Wheeler, 435 U.S. 313 (1978); Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980). Perhaps the most fundamental principle of the law governing the relationship between the United States and Native American tribes is the principle that the powers vested in Native American tribes are inherent powers of a limited sovereignty which has never been extinguished. They are not, in general, delegated powers granted by acts of Congress.
31. Although Native American tribes are currently accorded a substantial measure of autonomy and self-governance, there are still many areas of difficulty and controversy in their relationships with federal and state governments. Despite some improvements, Native Americans are far more likely to live in poverty and suffer high rates of disease, suicide and homicide than the majority of U.S. citizens. According to the 1990 census, 31 per cent of Native Americans lived below the poverty level. In 1991 the unemployment rate for Native Americans was 45 per cent. Native Americans experience disproportionately high rates of mortality from tuberculosis, alcoholism, accidents, diabetes, homicide, suicide, pneumonia and influenza.
32. Historical background. Some scholars have estimated the Native American population of the United States to have been as high as 10 million persons at the time of initial European contact. The basis of indigenous social and political organization was tribal. Tribes ranged from small semi-nomadic bands to large, highly organized and sophisticated communities. Tribes were self-governing entities with clearly understood socio-political rankings or hierarchies. They had systems of social and political control to perform or regulate subsistence and economic activity (including trading with other tribes), distribute wealth, recognize land boundaries, conduct war and regulate domestic and other aspects of intragroup relations.
33. The organizers of government of the United States recognized the self-governance of Indian groups. The Constitution vests in the federal government the exclusive authority to regulate commerce with Native American tribes. Art. 1, section 8, cl. 3. The First Congress acted promptly to exercise this authority, enacting the Indian Trade and Intercourse Act of 1790, 1 Stat. 137. Further, President Washington and the First Congress reached agreement that the treaty-making power of the federal government extended to treaties with Native American tribes, establishing the precedent that Native American treaties - like those with foreign nations - needed Senate approval before they could take effect.
34. As the largely European immigrant population of the United States increased and moved westward, there was increasing tension and violence between settlers and Native Americans. Opting to resolve the situation by accommodating the settlers, the federal government between 1815 and 1845 sought to remove eastern tribes from their tribal homelands. However, with the continued westward push of immigrant settlement, further removal became impossible. In the 1850s, the federal government adopted a new policy of assignment of tribes to permanent reservations. Reservations were intended to be for the exclusive use of Native Americans, providing a fixed and permanent home under the superintendence of a tribal agent. Comm'r of Indian Affairs Annual Rept., S. Exec. Doc. No. 1, 33d Cong., 2d Sess. 225 (1854). Confinement to reservations was often strenuously opposed by tribes, leading to a series of military conflicts that extended through the 1870s.
35. By 1880, there were serious doubts about the reservation policy. Economically and socially, most reservations were not successful. There was widespread destitution in tribal country and significant corruption in the administration of the federal Native American service. Political reformers came to favour allotment of land to individual Indians as a response to these problems and as the vehicle to assimilate Indians into mainstream society. Economic interests in the western states supported allotment because it promised to open additional land to settlement.
36. In 1887, the General Allotment Act authorized the Secretary of the Interior to allot tracts of reservation land to individual Native Americans - 80 acres (approximately 32.3 hectares) to an individual and 160 acres (64.7 hectares) to a family. The allotted land was to be held in trust by the United States for a period of 25 years; thereafter a fee patent was to be issued. Consistent with the philosophy underlying the allotment policy, legislative and administrative policies accompanying allotment strongly discouraged tribal self-government and traditional cultural and religious practices.
37. The General Allotment Act and subsequent allotment legislation resulted in a significant diminution of Native American land holdings. Of 40 million acres allotted to individuals, some 27 million acres were lost by sale or foreclosure between 1887 and 1934. An additional 60 million acres were sold to non-Native American homesteaders or corporations as "surplus" or were ceded outright. In total, Native American land holdings declined from 138 million acres in 1887 to 48 million acres in 1934.
38. In 1934, the policies of assimilation and allotment were rejected with the enactment by Congress of the Indian Reorganization Act (IRA). See 25 U.S.C. sections 461-479. The overriding purpose of the Act was to establish "machinery whereby Indian tribes would be able to assume greater self-government, both politically and economically". Morton v. Mancari, 417 U.S. 535, 542 (1974). The IRA took a community-based approach to preservation of a tribal land base and reorganization of tribal governments. The Act stopped allotment and contained provisions to stabilize tribal land holdings and for the acquisition in trust of additional trust lands for Native American reservations. It provided that tribes could organize for their common welfare, adopt constitutions and by-laws, and form tribal corporations, with the power to own, hold, manage, and operate property and businesses.
39. However, in the late 1940s, federal policy shifted again, with congressional and executive reports proposing renewed policies of assimilation. In 1953, House Concurrent Resolution 108 declared as congressional policy the termination of federal control and supervision over Native American tribes and the freeing of tribes and their members "from all disabilities and limitations specially applicable to Indians". The Indian Reorganization Act was not repealed, but individual acts were passed to implement the new policy for individual tribes or groups of tribes. Specific arrangements varied from tribe to tribe, but these acts typically required tribal approval before the sale or encumbrance of tribal land. For most purposes, the federal trust relationship was ended for terminated tribes, and tribes and their individual members were made subject to state jurisdiction. Eligibility for special federal services for tribes and tribal members was ended.
40. The impact of termination on these tribes was devastating. Tribes often went from prosperity to poverty. Many terminated tribes saw their land sold. The termination act stripped tribes of their exemption from taxation, and tribal leaders were forced to begin to sell ancestral tribal land to pay the taxes. By the 1960s, many tribes faced the loss of their land, tribal identity, and culture.
41. By 1970, however, national policy had shifted once again, this time toward a goal of tribal self-determination. The new policy was first articulated in a 1970 message to Congress by President Nixon. The message called for rejection of the extremes of both termination and excessive tribal dependence on the federal government. The message said that the "time has come to break decisively with the past and to create the conditions for a new era in which the Indian future is determined by Indian acts and Indian decisions" and proposed a new policy of self-determination "to strengthen the Indian's sense of autonomy without threatening his sense of community". H.Doc. 91-363, 91st Cong., 2d Sess. 1-3 (1970). This new policy found expression in the Indian Self-Determination Act, discussed below.
42. Current policy. Current policy continues and builds upon this policy of tribal "self-determination" as expressed by President Clinton on 29 April 1994, in a meeting with tribal leaders. The President signed two memoranda: one instructing all government agencies to cooperate wherever possible in meeting the need for eagle feathers in the traditional practices of Native Americans, and the other directing federal agencies to ensure that they interact with tribes on a government-to-government basis.
43. In terms of legal status, Native American tribes are recognized as "unique aggregations possessing attributes of sovereignty over both their members and their territory". United States v. Mazurie, 419 U.S. 544, 557 (1974). "The sovereignty that Indian tribes retain is of a unique and limited character ... . In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status (i.e., by virtue of their being within and part of the United States)." United States v. Wheeler, 435 U.S. 313, 323 (1977).
44. In recent decisions, the U.S. Supreme Court has recognized the inherent right of tribes to tax non-Native Americans doing business within their territories, Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982), and the immunity of Native Americans and their property from state taxation, McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 (1973), and Bryan v. Itasca County, 426 U.S. 373 (1976). The Supreme Court has also upheld the right of tribal courts to make the initial determinations as to the scope of their own jurisdiction. National Farmers Union Insurance Companies v. Crow Tribe of Indians, 471 U.S. 845 (1985).
45. The Supreme Court has recognized that, as a general rule, states lack authority to exercise their civil, regulatory laws on Native American territory. California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). A tribe's authority to regulate land use within the boundaries of its territories has been found to vary depending on the character of the territory. Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408 (1989); South Dakota v. Bourland, 113 S.Ct. 2309 (1993). As a guiding principle for these decisions, the Supreme Court has stated that the "exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation". Montana v. United States, 450 U.S. 544, 564 (1981).
46. The Supreme Court has held that tribal courts are the proper forum for the adjudication of civil disputes involving Native Americans and non-Native Americans arising on a reservation. Fisher v. District Court, 424 U.S. 382 (1976). "Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty", and, as a result, "[c]ivil jurisdiction over such activities presumptively lies in the tribal courts, unless affirmatively limited by a specific treaty provision or federal statute". Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987).
47. In the area of criminal jurisdiction, Congress during the 1950s gave several of the states authority to exercise concurrent jurisdiction on Indian reservations. 18 U.S.C. section 1162; 28 U.S.C. section 1360. In 1968 Congress limited the tribal exercise of criminal jurisdiction to misdemeanours. 25 U.S.C. section 1302(7). The Supreme Court subsequently concluded that tribes do not have criminal jurisdiction over non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). It also concluded that tribes do not have criminal jurisdiction over non-member Indians. Duro v. Reina, 495 U.S. 676 (1990). In 1990, however, Congress effectively reversed the Duro decision, recognizing the unique nature of the Indian communities. See Act of 5 November 1990, 104 Stat. 1893; Act of 9 October 1991, 105 Stat 616; Act of 28 October 1991, 105 Stat. 646.
48. Indian Self-Determination Act. In the 1970 message on Indian policy mentioned above, then-President Nixon called for legislation to allow tribes to take over control and operation of federally funded and administered Indian programmes from the Department of the Interior and what is now the Department of Health and Human Services. In 1975, Congress enacted the Indian Self-Determination and Education Assistance Act (ISDEA), 25 U.S.C. sections 450, et seq. The Act declares it to be the policy of the United States to assure "maximum Indian participation in the direction of educational as well as other federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities". 25 U.S.C. section 450a(a).
49. The ISDA directs the Secretaries of the Interior and Health and Human Services to enter into contracts or grants with Indian tribes and organizations to plan, conduct, or administer programmes that the Secretaries are authorized to administer for the benefit of Indians. Contracts designated as mature contracts may be for an indefinite term, and reporting requirements are minimal. The Act specifically provides that it neither affects the sovereign immunity of Indian tribes nor requires the termination of any existing trust responsibility of the United States with respect to Indian people. In 1991, the Bureau of Indian Affairs within the Department of the Interior (BIA) distributed $481,228,608 to 414 Indian tribal contractors under the provisions of the ISDA.
50. Self-Governance Demonstration Project. In 1988 amendments to the ISDA, Congress established a Self-Governance Research and Demonstration Project involving 20 Indian tribes. Title III, Pub. L. No. 100-472, 102 Stat. 2296 (1988). The purpose of the Self-Governance Project is to allow tribes greater flexibility in administering their own programmes and services with minimal federal governmental involvement. The participant tribes sign a self-governance compact with the government and are allowed to redesign BIA programmes and redistribute funding according to tribal priorities. The tribes in the demonstration programme operate BIA programmes with only limited requirements to adhere to federal regulations and record-keeping requirements. In December 1991, Congress increased to 30 the number of tribes eligible to participate in the Self-Governance Project and extended the demonstration period from 1993 to 1996. Pub. L. No. 102-184, 105 Stat. 1278 (1991). Congress is currently considering legislation to make the project permanent.
51. Recognition of tribes. After the abandonment of the termination policy in the 1960s and 1970s, the federal relationship with many of the "terminated" tribes was restored, beginning with the Menominee Tribe in 1973. Menominee Restoration Act, 25 U.S.C. section 903-903f. During the same period, there was a growing awareness of, and interest among, other groups of Indian descendants not formally recognized as tribes by the federal government in asserting their tribal status, tribal treaty rights, or tribal land claims. Many groups of these Indian descendants sought recognition from the federal government.
52. In 1978, the Department of the Interior established a programme within the Bureau of Indian Affairs to standardize the recognition process and provide substantive criteria for determining whether a group of Indian descendants existed as an Indian tribe. Previously, such determinations had been made on an ad hoc basis. The programme included an effort to identify all groups interested in petitioning to establish their tribal status. The effort ultimately identified 150 groups of Indian descendants with an interest in establishing tribal status.
53. The acknowledgement process requires documentation of specific criteria including that the group has been viewed as Indian since historical times, lives in community, and exercises political authority over its members. Thus far, the status of 30 groups has been resolved either by the Department of the Interior or through special legislation.
54. Indian natural resources. Indian tribes retain considerable control over natural resources and wealth, with some added protection by the federal government through the establishment of a trust. The federal trust responsibility to the Indian tribes has its roots in the assertion by the federal government that it has the power to control the sale of Indian land to non-Indians. The policy was first asserted by Great Britain in the Royal Proclamation of 1763, which stated that only the Crown could take lands from the Indians. The policy continued after independence in the Indian Trade and Intercourse Act, passed by the First Congress in 1790 and is now codified in 25 U.S.C. section 177. The courts have held that along with the power to control the disposition of the land comes the responsibility to manage the land for the benefit of the Indian owners and with the same care and skill that a person of ordinary prudence would exercise in dealing with his or her own property. United States v. Mason, 412 U.S. 391, 398 (1973).
55. The United States also has a more general trust relationship with the Indian people, United States v. Mitchell, 463 U.S. 206, 225 (1983) (Mitchell II), and that relationship creates an overriding duty to deal fairly with all Indians. Morton v. Ruiz, 415 U.S. 199, 236 (1974). The trust obligation is a strict fiduciary standard that applies to all departments of the government that deal with Indians, not just the departments specifically charged with responsibility for Indian affairs. If Indians believe the government is not acting in accordance with its trust responsibilities, they may seek injunctive relief from the courts to compel the government to perform its duties or, if damage has already occurred, they may obtain damages through a breach of trust action. Mitchell II, 463 U.S. at 226-28.
56. Land. According to a 1990 Bureau of Indian Affairs report, tribes and individual Native Americans own between 50 and 60 million acres of trust or restricted land. This represents 2.34 per cent of the total land base in the United States. Federal law specifically prohibits the alienation of tribal trust lands absent the consent of the federal government. 25 U.S.C. section 177. It is the intent of the statutory restraint on alienation of Native American lands to insulate such lands from the full impact of market forces, preserving the land base for the furtherance of Native American values. Inherent in this federal policy is the view that preservation of a substantial land base is essential to the existence of tribal society and culture.
57. Prior to the 1930s, federal policies had the effect of diminishing the Native American land base. As indicated above, between 1887 and 1934 Native American land holdings declined from 138 million acres to 48 million acres. However, the 1934 Indian Reorganization Act contained provisions to stabilize the Indian land base. More recently, the Congress enacted the Indian Land Consolidation Act of 1983 to assist tribes in addressing the allotment policy. 25 U.S.C. sections 2201-11. The Act authorizes tribes to establish land consolidation areas where tribes are assisted in acquiring and exchanging land in order to consolidate their holdings. The Act also provided that especially small fractionated interests in allotted land owned by individuals do not pass to the owners' heirs, but return to the tribe upon the death of those individuals. This latter provision of the Act was found to violate the constitutional rights of Native American landowners in Hodel v. Irving, 481 U.S. 704 (1987). The Act has been amended to address this decision, but constitutional challenges to the amended Act are currently pending in the courts.
58. Enforcement of land rights against third parties. Federal law has attempted to protect tribal possessory rights against intrusion by third parties by restraining and punishing various types of trespass. Ordinary trespass remedies are available to Native American tribes to prevent trespasses upon their land and to recover damages for injuries arising out of such trespasses. Accordingly, actions may be maintained for ejectment, for injunctions against intrusions and to recover damages for trespass on, or injury to, tribal lands. See Oneida County v. Oneida Indian Nation, 470 U.S. 226 (1985).
59. Possessory suits or damage actions involving tribal possessory rights may be commenced either by the tribe itself or by the federal government acting on behalf of the tribe. Basically these claims allege that (i) the affected tribe has a superior property interest in the subject land (i.e. aboriginal or recognized title), (ii) the Non-intercourse Act provides that no transfer of tribal lands is valid unless approved by the federal government, (iii) subsequent to the Act certain tribal lands were conveyed to third parties without specific governmental approval, (iv) these conveyances are in violation of the Act and thus, invalid, and (v) the affected tribe is now entitled, despite the passage of time, to return of the land and/or to damages for trespasses committed by those who wrongfully occupied the land. Oneida County, supra.
60. In instances where the federal government has been requested but has been unwilling to take action on behalf of the tribe, the courts have been willing to order the commencement of a possessory action on the theory that the federal trusteeship over Native American lands created by the statutory restraints on alienation imposes an affirmative obligation to protect Indian possessory rights. In tribal possessory actions commenced directly by the tribe, the tribe may assert any and all positions, claims, and defences that would have been available had the suit been commenced by the federal government. Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975).
61. Indian land rights claims against the United States. The great bulk of aboriginal Native American land in what is now the United States passed out of indigenous ownership before 1890 by cession pursuant to treaty or taking by the federal government. The right of Native Americans to obtain compensation for or recovery of this land differs from their rights against third parties.
62. Aboriginal Indian interest in land derives from the fact that the various tribes occupied and exercised sovereignty over lands at the time of occupation by white people. This interest does not depend upon formal recognition of the aboriginal title, and gives the tribes the right to occupy and possess the land. Aboriginal title gives a tribe the right to possess land as against third parties until and unless Congress specifically extinguishes the right.
63. Congress may recognize or extinguish aboriginal rights. Once aboriginal rights are recognized by Congress, then the tribe has title that cannot be extinguished without a clear and specific action by Congress in a treaty, statute or executive order, and compensation for the extinguishment of the right. Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974); United States ex rel. Hualapai Indians v. Santa Fe Pacific Railroad, 314 U.S. 339 (1941). However, by law, Congress is not obligated to pay compensation to the tribes when it extinguishes aboriginal Indian rights that have not been recognized by Congress. See Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823).
64. Despite this legal doctrine, compensation has in fact been paid by the United States for many Indian land cessions at the time they were made, although the compensation often has been less than adequate. In this century, additional provision has been made for cases in which no or inadequate compensation was paid. In the first half of the twentieth century, special jurisdictional statutes gave some tribes the right to sue in the Court of Claims for compensation for land taking. In 1946, Congress adopted the Indian Claims Commission Act, 25 U.S.C. sections 70, et seq., which provided for a quasi-judicial body, the Indian Claims Commission (ICC), to open up unresolved Indian claims against the United States, a large portion of which involved claims for taken lands. The Act authorized claims "arising from the taking by the United States, whether as a result of a Treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant", as well as claims "not recognized by any existing rule of law or equity" based on general principles of fair and honourable dealings. 25 U.S.C. section 70a.
65. The ICC provided a forum for suits against the United States Government that would otherwise have been barred by time and sovereign immunity, and in some respects provided Indians with special benefits that would not ordinarily have been available under regular court rules and procedures. Recovery of compensation did not depend on proof of recognized title; compensation was available even if a tribe's property interest was aboriginal only. Further, compensation was available if a tribe's interest in land was found to have been taken for less than adequate compensation. However, the wording of the Act and its legislative history made clear that only financial compensation was contemplated by Congress; the ICC had no authority to restore land rights that had been extinguished. Osage Nation v. United States, 1 Indian Claims Commission 54 (1948), reversed on other grounds, 119 Ct.Cl. 592, cert. denied, 342 U.S. 896 (1951).
66. Water. Generally, Indian water rights are based on the federal or Indian reserved rights legal doctrine first enunciated by the U.S. Supreme Court in Winters v. United States, 207 U.S. 564 (1908). Winters held that the establishment of an Indian reservation includes an implicit reservation of water necessary to provide a permanent home for Indians. The holding followed the recognized rule that treaties are not grants of rights to Indians, but grants of rights from them and a reservation of those rights not granted. United States v. Winans, 198 U.S. 371, 381 (1905). In Winters, the Supreme Court recognized that in establishing reservations, not only did the United States reserve water for Indians, but the Indians themselves also reserved their aboriginal right to "command of the lands and water". 207 U.S. at 576.
67. Indian reserved water rights differ from water rights held by non-Indians under state law in a number of key respects. For example, Indian water rights are not based on the amount of water a tribe has historically put to use or "appropriated". Rather, the quantity of water that a tribe is entitled to is an amount sufficient to carry out the purpose of making the reservation a permanent home base for Indian people. Included within this measure is water for domestic, commercial, industrial, recreational, hunting and fishing, and agricultural purposes. The water right is broad enough "to satisfy the future as well as the present needs of the Indian[s]". Arizona v. California, 373 U.S. 546, 600 (1963). Another unique aspect of an Indian reserved water right is that it is not forfeited through non-use, so that a tribe's water rights are protected from usurpation by its non-Indian neighbours during those periods of time when the tribe is unable, because of economic or other constraints, to use its water.
68. Hunting and fishing rights. Through international treaties and domestic legislation, Congress and the executive branch have sought to ensure conservation of wildlife yet recognize the essential rights of Indians to hunt and fish to maintain their culture. In the contiguous 48 states where Indian tribes had reserved hunting and fishing rights in treaties, litigation in federal court provided the primary means of protecting Indian hunting and fishing rights. In the early 1970s, the United States initiated litigation against the states of Washington, Oregon, and Michigan to define and protect from state regulation the treaty fishing rights of many tribes. The cases have recognized legitimate conservation needs but, at the same time, by protecting the tribes' right to regulate the fishery free of state controls, the litigation has done a great deal to preserve and enhance fundamental tribal rights.
69. In addition to U.S. Government participation in hunting and fishing rights litigation on behalf of the tribes, the BIA has provided tribes with funding to support the tribes' own litigation and funding to develop their own fish and game management capabilities and resources. Congress has enacted legislation to make the income derived from treaty fishing tax exempt thereby providing some measure of economic protection to preserve the cultural activity of treaty fishing.
70. In Alaska, although aboriginal hunting and fishing rights were extinguished, certain statutory provisions exempt Alaska Natives from many wildlife management statutes and mandate a subsistence priority for rural Alaskans.
(AIP NOTE: THE FONT CHANGE HERE IS MADE BY THE AIP FOR EMPHASIS ONLY)
71. Minerals. Decisions of the U.S. Supreme Court in the 1930s established that the minerals in, on, or under Indian-owned land were constituent elements of the land and thus owned by the Indians who own the land. United States v. Shoshone Tribe, 304 U.S. 111, 116 (1938); British-American Oil Prod. Co. v. Board of Equalization, 299 U.S. 159, 164-65 (1936). Minerals currently being produced are primarily oil, gas, and coal. Other minerals known to exist on Indian lands include shale, gilsonite, uranium, gypsum, helium, copper, iron, zinc, lead, phosphate, asbestos, and bentonite. Mineral resources in, on, or under lands owned by any individual Indian or Alaska Native or any Indian tribe, the title to which is held in trust by the United States or subject to a restraint on alienation imposed by the United States, are subject to development and disposition under statutes and regulations of the United States. These statutes and regulations provide that while the individual Indian or Indian tribe is the lessor, the Secretary of the Interior must approve the lease or other minerals agreement before it is effective. Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 372 (1968); Quantum Exploration, Inc. v. Clark, 780 F.2d 1457, 1459 (9th Cir. 1986). The regulations are detailed and cover items such as durational requirements, rental and royalty rates, acreage restrictions, environmental requirements, and operating requirements. See 25 C.F.R. Part 211 (Leasing of Tribal Lands for Mining); 25 C.F.R. Part 212 (Leasing of Allotted Lands for Mining). Under this comprehensive system of statutes and regulations applicable to Indian mineral resources, the United States has a fiduciary obligation toward Indians with respect to management of Indian mineral resources. Pawnee v. United States, 830 F.2d 187, 190 (Fed. Cir. 1987), cert. denied, 486 U.S. 1032 (1987); Assiniboine and Sioux Tribes v. Board of Oil and Gas Conservation, 792 F.2d 782, 794 (9th Cir. 1986).
72. Indian mineral resources can be developed under two different statutory schemes. The first is a leasing system where the individual Indian or Indian tribe may lease its mineral resource to a developer. 25 U.S.C. sections 396-396g. The second statutory scheme was established in 1982 with the enactment of the Indian Mineral Development Act, codified at 25 U.S.C. sections 2101-08. The purpose of that Act was to allow Indian tribes to enter into various kinds of agreements for the development of their mineral resources. Tribes wishing to have greater responsibility, oversight, and flexibility in the control and development of their own mineral resources can negotiate innovative, flexible business arrangements under the Act. The tribes are not limited to the leases and the restrictions on leasing that are present under the 1938 leasing statute.
73. Under either statutory scheme, Indian lands are not treated as federal public lands for purposes of mineral regulation. The principal goal of the Department of the Interior in Indian mineral resource management is not to further federal energy policies, but rather to assist Indian landowners in deriving maximum economic benefit from their resources consistent with sound conservation, environmental, and cultural practices.
74. Timber. Indian tribes have full equitable ownership in timber located on tribal reservation lands. United States v. Algoma Lumber Co., 305 U.S. 415, 420 (1939). The question of tribal ownership of timber resources was unresolved until the 1938 decision of the U.S. Supreme Court in United States v. Shoshone Tribe, 304 U.S. 111, 116 (1938), which held that timber was a constituent element of the land and owned by the tribe unless the treaty with the tribe specified otherwise.
75. Individual Indians and Indian tribes generally may not sell the timber on their land without the approval of the Secretary of the Interior. The U.S. Congress authorized the sale of standing timber in 1910. 25 U.S.C. sections 406, 407. Under these statutes, timber may be sold in accordance with regulations promulgated by the Secretary of the Interior found at 25 C.F.R. Part 163. The regulations state that the objectives with respect to management of Indian forest lands are to preserve commercial forest lands in a perpetually productive state, develop a sales programme supported by written tribal objectives and a long-range multiple use plan, develop resources for jobs and income, regulate water runoff and soil erosion, and preserve wildlife, recreational, cultural, aesthetic, and traditional values. 25 C.F.R. section 163.3. In Mitchell v. United States, 463 U.S. 206 (1983), these statutes and regulations were held to create a fiduciary relationship between the government and Indian timber owners.
76. In 1990, the U.S. Congress declared that the United States has a trust responsibility toward Indian forest lands when it passed the National Indian Forest Resources Management Act. 25 U.S.C. section 3101-20. The Act reaffirmed the existing Native American forest land management objectives and established some new programme directions. The purposes of the Act are to allow both the Department of the Interior and the Native Americans to participate in the management of Indian forest lands in a manner consistent with the Secretary's trust responsibility and with the objectives of the Indian owners; to provide educational and training opportunities to increase the number of Indians working in forestry programmes on Indian lands; and to authorize the necessary appropriations to carry out the protection, conservation, utilization, management, and enhancement of Indian forest lands objectives of the Act.
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Article 2 - Equal protection of rights in the Covenant
77. As a general principle, all individuals within the United States are afforded the enjoyment of the rights enumerated in the International Covenant on Civil and Political Rights as a matter of law without regard to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Judicial interpretation of the guarantees in the U.S. Constitution has led to the development of an extensive body of decisional law covering a broad spectrum of governmental activity according to a number of well-accepted canons. The right of individuals to challenge governmental actions in court, and the power of the judiciary to invalidate those actions that fail to meet the constitutional standards, provides an effective method for ensuring equal protection of the law in practice. In addition, a number of significant anti-discrimination statutes provide additional protection for the civil and political rights of persons within the United States. While the remainder of this section of the report addresses domestic law regarding the principle of equal protection, the United States is none the less committed to the international principle of equal protection and is actively moving toward ratification of the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women.
78. Equal protection. Most of the substantive rights enumerated in the Covenant have exact or nearly exact analogues in the U.S. Constitution, as is discussed more fully in those portions of this report dealing with each of the 26 articles. In addition, and of particular relevance to article 2, the Constitution guarantees "equal protection" to all. This principle derives from the Fourteenth Amendment's guarantee that no state may "deny to any person within its jurisdiction the equal protection of the laws", and the Fifth Amendment's guarantee that "no person shall be deprived of life, liberty, or property, without due process of law", which has been read to incorporate an "equal protection" component. Bolling v. Sharpe, 347 U.S. 497 (1954). These constitutional provisions limit the power of government with respect to all persons subject to U.S. jurisdiction. As interpreted and applied by the U.S. Supreme Court, the doctrine of equal protection applies not only with respect to the rights protected by the Covenant, but also to the provision of government services and benefits such as education, employment and housing.
79. The substantive guarantees of the Constitution are often implemented without reference to equal protection. For example, the Supreme Court recently held that a local government could not constitutionally prohibit animal sacrifices that are part of a religious ritual, although the government could pass neutral laws to protect animals from torture, or to protect public health. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S.Ct. 2217 (1993). While the group that practises the sacrifices may be identifiable racially and ethnically, the case was decided squarely under the First Amendment protection of religious freedom. The Court did not discuss the issues in terms of ethnic non-discrimination and equal protection.
80. Classifications. Under the doctrine of equal protection, it has long been recognized that the government must treat persons who are "similarly situated" on an equal basis, but can treat persons in different situations or classes in different ways with respect to a permissible state purpose. The general rule is that legislative classifications are presumed valid if they bear some reasonable relation to a legitimate governmental purpose. McGowan v. Maryland, 366 U.S. 420, 425-36 (1961). The most obvious example is economic regulation. Both state and federal governments are able to apply different rules to different types of economic activities, and the courts will review such regulation under a very deferential standard. See, e.g. Williamson v. Lee Optical Co., 348 U.S. 483 (1955). Similarly, the way in which a state government chooses to allocate its financial resources among categories of needy people will be reviewed under a very deferential standard. Dandridge v. Williams, 397 U.S. 471 (1970).
81. Suspect classifications. On the other hand, certain distinctions or classifications have been recognized as inherently invidious and therefore have been subjected to more exacting scrutiny and judged against more stringent requirements. For example, classification on the basis of racial distinctions is automatically "suspect" and must be justified as necessary to a compelling governmental purpose. Korematsu v. United States, 323 U.S. 214 (1944); Brown v. Board of Education, 347 U.S. 483 (1954); McLaughlin v. Florida, 379 U.S. 184 (1961); Loving v. Virginia, 388 U.S. 1 (1967). Laws which purposely discriminate against racial minorities, whether in the fields of housing, voting, employment, education or other areas, have rarely been upheld under this higher standard. When intentional discrimination on the basis of race or national origin can be inferred from a legislative scheme or discerned in legislative history, it is as forbidden as overt use of a racial classification. Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977); Takahashi v. Fish and Game Comm'n, 334 U.S. 410 (1948). Unlawful intentional discrimination has sometimes been inferred simply from the impact of a law. For example, in Yick Wo v. Hopkins, 118 U.S. 356 (1886), the Supreme Court found impermissible discrimination where all of some 200 Chinese applicants were denied permits to operate laundries while virtually all non-Chinese applicants were granted permits under the same statute.
82. In addition to distinctions based on race, colour and national origin, distinctions based on gender, illegitimacy and alienage have all been accorded special status under the Equal Protection clauses, though legislative classifications of the last three types are typically less difficult to justify than classifications by race, colour, or national origin. For example, in Craig v. Boren, 429 U.S. 190 (1976), the Court stated that classifications by gender must "substantially further important government objectives", and struck down a state statute setting a higher drinking age for men than women. In Levy v. Louisiana, 391 U.S. 68 (1968), the Court held that a state statute that did not permit illegitimate children to sue for wrongful death was "invidiously" discriminatory because there was no link between the children's illegitimacy and the alleged wrong to their mother. And in Graham v. Richardson, 403 U.S. 365 (1971), the Court struck down state statutes denying welfare benefits to resident aliens and to aliens who had not resided in the state for 15 years.
83. By contrast, the courts have not read the Constitution's Equal Protection clauses to require compelling justifications for classifications based on property or economic status, San Antonio School District v. Rodriguez, 411 U.S. 1 (1973); age, Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976); or disability, Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985). Thus, distinctions based on such characteristics will be assessed against less stringent standards but may still be found to violate the equal protection doctrine when not rationally related to a legitimate governmental purpose. Disability and age discrimination have also been addressed by statute, as discussed below.
84. Fundamental interest. Where a so-called "fundamental interest" is at stake, the Supreme Court has subjected legislative classifications to "strict scrutiny" despite the absence of a suspect classification. This explains why, in the cases involving the right to vote (including fair apportionment) and the due process cases (right to counsel, etc.), the Court has found invidious discrimination even though the basis for that discrimination is not race, national origin, sex, or any other suspect class. What makes a right "fundamental" is not always clear. The fundamental rights are not necessarily those found in other provisions of the Constitution; indeed, those other rights can be protected without reference to equal protection. More likely, the rights are the ones not found in the Constitution except by inference, such as the right to procreation. See Skinner v. Oklahoma, 316 U.S. 535 (1942) (sterilization of persons convicted of grand larceny but not embezzlers).
85. Corrective or affirmative action. In recent years, the question has frequently arisen whether legislation may classify by race for purposes of compensating for past racial discrimination. The general rule that has evolved is that because race is a "suspect classification", in this context as in all others, it will be subject to "strict scrutiny" by the courts. City of Richmond v. Croson, 488 U.S. 469 (1989). However, where an employer or other entity has engaged in racial discrimination in the past, it will generally be permitted (and may sometimes be required) to accord narrowly tailored racial preferences for a limited period of time, to correct the effects of its past conduct. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986). Greater latitude for racially based remedies has been permitted when Congress has acted under the enabling clause of the Fourteenth Amendment than when states or political subdivisions have given a racial preference. See, e.g. Fullilove v. Klutznick, 448 U.S. 448 (1980) (upholding congressionally mandated set-aside of percentage of federal grant to be spent through minority contractors).
86. Specific issues. Although, as noted above, issues of discrimination involving rights protected by the Covenant are often addressed through suits to vindicate a constitutional right other than equal protection, equal protection has sometimes been invoked directly in connection with certain guarantees specified in the Covenant, such as the following:
(a) Poverty and due process. The Fifth and Fourteenth Amendments assure "due process of law" as well as "equal protection of the law". Obviously, economic status can affect the right to a fair trial and a reasonably effective appeal. In this area, courts have weighed the essentiality of certain elements of the justice system and, on occasion, found it a denial of equal protection for the state to fail to pay for the necessary assistance - e.g., to provide counsel, Douglas v. California, 372 U.S. 353 (1963); Gideon v. Wainwright, 372 U.S. 335 (1963); and transcripts Griffin v. Illinois, 351 U.S. 12 (1956). Similarly, the Supreme Court has held that a person's probation cannot be revoked merely because he is unable to pay restitution, Bearden v. Georgia, 461 U.S. 660 (1983). All states and the federal government have mechanisms for providing legal counsel to indigent defendants in the criminal process;
(b) Race and due process. Even in the nineteenth century it was clear that racial discrimination in jury selection affected the due process rights of African Americans, Strauder v. West Virginia, 100 U.S. 303 (1879). Reading the Equal Protection clauses in conjunction with the constitutional guarantee of Due Process, the Supreme Court has repeatedly held that it is a violation to discriminate in preparation of jury lists on the basis of race or national origin, Neal v. Delaware, 103 U.S. 370 (1880); Hernandez v. Texas, 347 U.S. 475 (1954). That prohibition has been extended to the exercise of peremptory challenges in petit jury selection, Batson v. Kentucky, 476 U.S. 79 (1986), and, most recently, to peremptory challenges on the basis of sex, J.E.B. v. Alabama Ex Rel. T.B., 62 U.S.L.W. 4219 (April 19, 1994). While that prohibition has not been extended to encompass other statuses (e.g. low-income), a separate line of cases has interpreted the Sixth Amendment right to a fair trial and a jury of one's peers to encompass a right to be tried by a jury drawn from a venire from which no "identifiable group" has been systematically excluded. Williams v. Florida, 399 U.S. 78 (1970); Duncan v. Louisiana, 391 U.S. 145 (1968). Moreover, the Court has recognized that the potential jurors also have a cognizable right not to be discriminated against. Carter v. Jury Comm'n of Greene County, 39 U.S. 320 (1970); Georgia v. McCollum, 112 S.Ct. 2348 (1992);
(c) Race and the death penalty. Legal attacks on the death penalty have generally been based on the Eighth Amendment's prohibition of cruel and unusual punishment. In recent years, however, there have been efforts to demonstrate that in operation, the death penalty is unequally applied on the basis of race. Numerous defendants have attempted, so far without success, to show that the discretionary elements in the process of sentencing a defendant to death have had the effect of discrimination by race of defendant or race of victim. See McCleskey v. Kemp, 481 U.S. 279 (1987) (where petitioner could not demonstrate that he personally had been discriminated against, statistics suggesting systemic inequities could not be used to overturn death sentence). This issue is also the subject of considerable public debate and political consideration and is currently under study in the U.S. Congress;
(d) Race and the right to form families. The Supreme Court has relied upon the Equal Protection Clause to invalidate state bans on intermarriage, Loving v. Virginia, 388 U.S. 1 (1967), and to prevent courts dealing in child custody from implementing societal prejudices, Palmore v. Sidoti, 466 U.S. 429 (1984).
87. State action. Operating alone, the constitutional Equal Protection clauses protect one only against discriminatory treatment by a government entity, or by persons acting "under colour of law". Thus, the doctrine does not reach purely private conduct in which there is no governmental involvement. Whether or not in any particular situation there is sufficient "state action" to bring a discriminatory practice under the constitutional Equal Protection clauses represents a complicated jurisprudence in its own right. See, e.g. Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972).
88. Federal statutes. Congress has supplemented the constitutional guarantees of equal protection to encompass certain private actions by exercising its powers under the "commerce clause" and under the "enabling" clauses of the Thirteenth, Fourteenth, and Fifteenth Amendments. After the Civil War, Congress implemented the Thirteenth Amendment by passing laws prohibiting private racial discrimination in property and contractual relationships. 42 U.S.C. sections 1981 and 1982. Most of the federal civil rights laws were passed in and after 1964 on the basis of the commerce clause as well as the post-Civil War amendments. These statutes prohibit discrimination in areas beyond those covered by the Covenant, including privately owned public accommodations, private and federal, state or local governmental employment, federally assisted programmes, and private and public housing. Where the statutes cover ground already protected by the Constitution, they add remedies that did not exist before. Moreover, these statutes prohibit discrimination on the basis of statuses other than, and in addition to, the ones protected under the Equal Protection clauses of the Constitution. Thus, in addition to race, colour, national origin, and sex (in most instances), these statutes include religion (but not in federally assisted programmes), age, familial status (housing only) and disability.
89. Virtually every federal agency is involved in promoting or enforcing equal protection guarantees. Although the federal civil rights statutes and implementing regulations are too numerous to provide an exhaustive list, some of the principal statutes are described below. Because these statutes were passed at different times to address different problems, no two cover precisely the same ground. For example, Title II of the Civil Rights Act of 1964, prohibiting discrimination in places of public accommodation and amusement (hotels, restaurants, cinemas) does not mention "sex" as a protected category. Title II, moreover, does not protect against discrimination by race in ordinary retail stores. On the other hand, the Americans with Disabilities Act, passed in 1990, requires that retail stores as well as places of public amusement be accessible to persons with disabilities. Some of the gaps in coverage are filled in by state and local constitutions, laws, and ordinances.
90. Title VI of the Civil Rights Act of 1964, 42 U.S.C. sections 2000d et seq., prohibits discrimination on the basis of race, colour, or national origin in programmes or activities receiving federal financial assistance. Title IX of the Education Amendments of 1972, 20 U.S.C. sections 1681 et seq., and implementing regulations at 34 C.F.R. Part 106, prohibits discrimination on the basis of sex in federally funded education programmes or activities. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. section 794, prohibits discrimination on the basis of disability in programmes or activities receiving federal financial assistance. The Age Discrimination Act of 1975, 42 U.S.C. sections 6101-7, prohibits discrimination on the basis of age in programmes or activities receiving federal financial assistance.
91. Title VII of the Civil Rights Act of 1964, 42 U.S.C. sections 2000e et seq., prohibits public and private employers (with certain exceptions including the federal government and small private businesses) from discriminating on the basis of race, colour, religion, sex or national origin in their employment practices. The Age Discrimination in Employment Act of 1967, 29 U.S.C. sections 621 et seq., similarly bars discrimination in employment on the basis of age.
92. Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. section 793, requires employers with federal contracts or subcontracts of more than $10,000 to take affirmative action to employ and advance in employment qualified individuals with disabilities. Executive Order 11246, as amended, prohibits most federal contractors and subcontractors and federally assisted contractors and subcontractors from discriminating in employment decisions on the basis of race, colour, sex, religion or national origin. The Vietnam-Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. section 4212, requires that employers with federal contracts or subcontracts of $10,000 or more provide equal opportunity and affirmative action for Vietnam-era veterans and certain disabled veterans of all wars. The Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. sections 12101 et seq., bars discrimination in employment practices by employers (with exceptions similar to those under Title VII, supra) against qualified individuals with disabilities. The ADA also requires that steps be taken to make "public entities" such as public transit, and "public accommodations", which includes many private commercial establishments, accessible to disabled individuals.
93. The Fair Housing Act, 42 U.S.C. section 3601 et seq., and implementing regulations at 24 C.F.R. Parts 100-125, prohibits discrimination based on race, colour, religion, sex, national origin, handicap and familial status in activities relating to the sale, rental, financing and advertising of housing and in the provision of services and facilities in connection with housing. The Act applies both to public and private housing and defines "familial status" to include one or more persons under the age of 18 being domiciled with a parent or other person having legal custody of such individual or individuals.
94. Additionally, many federal agencies administer programmes designed to enhance opportunities for women, minorities, and other groups. For example, the U.S. Department of Education administers grant programmes designed to encourage and assist the participation of minorities and women in elementary, secondary and higher education programmes. These include bilingual education programmes, magnet schools, desegregation assistance centres, women's educational equity programmes, financial aid for students who are minorities or women, and grants to strengthen historically African-American colleges and universities. The U.S. Department of Labor monitors and enforces compliance with the non-discrimination provisions applicable to federal contractors and apprenticeship programmes, including affirmative action programmes for women and minorities, and promotes the placement of Native Americans with federal contractors.
95. Aliens. Under U.S. immigration law, an alien is "any person not a citizen or national of the United States". See 8 U.S.C. section 1101(a)(3). Aliens living in the United States, even though not U.S. citizens, generally enjoy the constitutional and Covenant rights and protections of citizens, including the right to life; freedom from torture or cruel, inhuman or degrading treatment or punishment; prohibition of slavery; the right to liberty and security of person; the right to humane treatment for persons deprived of their liberty; freedom from imprisonment for breach of contractual obligation; freedom of movement; the right to fair trial; prohibition of ex post facto laws; recognition as a person under the law; freedom from arbitrary interference with privacy, family and home in the United States; freedom of thought, conscience and religion; freedom of opinion and expression; freedom of assembly; and freedom of association. "Aliens, even aliens whose presence in this country is unlawful, have long been recognized as 'persons' guaranteed due process of law by the Fifth and Fourteenth Amendments", Plyer v. Doe, 457 U.S. 202, 210 (1982); see also Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953) (resident aliens are persons within the protection of the Fifth Amendment and may not be deprived of life, liberty or property without due process); Wong Wing v. United States, 163 U.S. 228, 238 (1896) (aliens accused of a crime are entitled to Fifth and Sixth Amendment rights).
96. Aliens enjoy equal protection rights as well, but distinctions between illegal aliens and others do not require as strong justifications as distinctions between citizens and aliens lawfully in the United States. Distinctions between resident aliens and citizens require more justification, but not the compelling state interests required for distinctions based on race. The longer an alien has been in the United States and the more legitimate the alien's immigration status, the more equivalent the alien's equal protection rights are to those of a U.S. citizen. Consistent with article 25 of the Covenant, aliens are generally precluded from voting or holding federal elective office. A number of federal statutes, some of which are discussed above, prohibit national origin discrimination in various contexts.
97. State Constitutions. Roughly 27 states currently have "equal protection clauses" in their constitutions. Unlike the Fourteenth Amendment to the United States Constitution, the state equal protection guarantees often incorporate other rights by reference. For example, the Connecticut clause (constitution, art. I, sect. 20) provides: "No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, colour, ancestry, national origin, or sex". Whether the "civil or political rights" are restricted, under this kind of clause, to rights enumerated elsewhere in the state constitution, depends upon the state judiciary's interpretation. As a practical matter, the Fourteenth Amendment provides a minimum below which no state can go in according equal protection. The states can extend but not contract what the federal Constitution demands.
98. Remedies. U.S. law provides extensive remedies and avenues for seeking compensation and redress for alleged discrimination and denial of constitutional and related statutory rights, including:
(a) A person claiming to have been denied a constitutional or, in some instances, a statutory right, may bring a civil action in federal court under 42 U.S.C. section 1983, which states:"Every person who, under colour of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress..."
Only "state actions" or actions "under colour of state law" are subject to section 1983. These include actions by federal, state and local officials. Some officials, however, are subject to absolute or qualified immunity. Judges, for example, enjoy absolute immunity. Bradley v. Fisher, 80 U.S. 335 (1872). Other officials enjoy qualified immunity, which is designed to protect the discretion of officials in the exercise of their official functions. Qualified immunity will not be afforded, however, if the officials violated clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800 (1982). While prosecutors enjoy absolute immunity from suit for their involvement in the judicial phase of the criminal process, they are afforded only qualified immunity for law enforcement functions. Burns v. Reed, 500 U.S. 478 (1991). The Fourteenth Amendment's Due Process and Equal Protection clauses, as well as other constitutional rights, are enforced under section 1983 in hundreds of federal suits every year. The most common relief under section 1983 is damages, subject only to rules about official immunity. Injunctive relief is also available and widely used as relief under this provision. All states have judicial procedures by which official action may be challenged, though the procedure may go by various names (such as "petition for review");
(b) Federal officials may be sued directly under provisions of the Constitution, subject only to doctrines of immunity. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); Davis v. Passman, 442 U.S. 228 (1979);
(c) Conspiracies to deny civil rights, apart from being subject to criminal prosecution, may be attacked civilly under 42 U.S.C. section 1985. However, where the right is one enumerated in the Constitution as being secured only from "state action", there must be official actors in the conspiracy, or it cannot be reached under that statute. Brotherhood of Carpenters and Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825 (1983);
(d) Section 2 of the Voting Rights Act of 1965, as amended, may be enforced by a private suit to vindicate denials of Fifteenth Amendment rights, i.e. intentional denials or limitations on the right to vote or to exercise an effective vote. (See the discussion under art. 25.);
(e) Where Congress has so provided, the federal government, through the Attorney General, may bring civil actions to enjoin acts or patterns of conduct that violate some constitutional rights. Thus, as indicated below, the Attorney General can sue under the Civil Rights of Institutionalized Persons Act to vindicate the rights of persons involuntarily committed to prisons, jails, hospitals, and institutions for the mentally retarded. Similarly, section 2 of the Voting Rights Act of 1965, as amended, authorizes the Attorney General to bring suit to vindicate the right to vote without discrimination based on race;
(f) A person whose alleged injury resembles one actionable at common law (such as the deprivation of life addressed by art. 6) may sue the United States for damages under the Federal Tort Claims Act (FTCA), 28 U.S.C. section 1346(b), 2671 et seq., or sue the states under analogous state statutes. The FTCA waives the sovereign immunity of the United States with respect to certain torts. "Discretionary" acts, and many "intentional" torts are not included, but the Act does waive the sovereign immunity of the United States with respect to claims arising out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution based on the acts or omissions of "investigative or law enforcement officers" of the U.S. Government. The Act defines "investigative or law enforcement officer" as an officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of federal law; this definition may include Department of Defense personnel being used in a law enforcement capacity;
(g) Any person prosecuted under a statute or in conjunction with a governmental scheme (such as jury selection) which he or she believes to be unconstitutional may challenge that statute as part of the defence. This may be done in the context of federal or state prosecutions. Even in civil actions, the defendant may pose a constitutional challenge to the statute that forms the basis of the suit. Any court, from the lowest to the United States Supreme Court, may consider such a claim of unconstitutionality, though normally it must be raised at the earliest opportunity to be considered at all. The United States Supreme Court has the discretion to review nearly all cases coming from the lower federal courts or from the states' highest courts;
(h) Detention pursuant to a statute believed to be unconstitutional or as a result of a procedure that allegedly violated a constitutional right may be challenged by a writ of habeas corpus in state and/or federal court. To a limited degree, post-conviction relief is also available by state and federal writs of habeas corpus or, in the case of federal convictions, by a motion for relief from a sentence (see 28 U.S.C. section 2241-55). All states have similar remedies as part of their criminal procedure;
(i) The federal government may prosecute criminally the violations of some civil rights. Section 241 of Title 18, U.S. Code, prohibits conspiracies to interfere with rights secured to all inhabitants of the United States by the Constitution, by federal laws, and by federal court decisions interpreting both of them. Section 242 of Title 18 prohibits any act "under colour of law" that interferes with a protected right. Abuse of police power, denying rights guaranteed by the Bill of Rights but most often denials of due process, can be reached under these statutes, subject to doctrines of immunity. The government may also bring criminal prosecutions for use of force or threat of force to violate a person's rights under the 1964 Civil Rights Act. 18 U.S.C. section 245;
(j) In addition to the remedies discussed above, federal, state and local officials, as well as private persons, who violate the rights of others may be subject to prosecution under a host of generic federal and state criminal statutes (see, for example, the discussion under art. 6). U.S. Department of Defense personnel may also be subject to criminal prosecution under the Uniform Code of Military Justice (10 U.S.C. section 801-946) of the U.S. Code.
99. Publicity and education. People in the United States are very aware of their rights. As discussed in Part I, the text of the Covenant, as well as its legislative history in the United States and numerous commentaries, are available to any interested person through libraries, congressional and other publications and computer databases. Throughout the United States, students at all levels receive extensive instruction in fundamental civil and political rights. The federal government has sent copies of the Covenant to the attorneys general of each state and constituent unit in the United States, with the request that they be further distributed to all relevant officials, and U.S. government officials have participated in a number of public presentations highlighting the significance of U.S. ratification. This report will be widely distributed by the U.S. Government, bar associations, and human rights organizations.
100. U.S. understandings. Despite the strength and breadth of the equal protection guarantees afforded all individuals under the Constitution and the various federal and state statutory schemes, the prohibitions against non-discrimination in U.S. law are not open-ended. Discrimination is prohibited only for specific statuses, and there are exceptions which allow for distinctions. For example, even under the generally protective Age Discrimination Act of 1975, 42 U.S.C. section 6101-07, age may be taken into account in certain circumstances. In addition, U.S. law permits additional distinctions, such as between citizens and non-citizens and between different categories of non-citizens, especially in the context of the immigration laws. Noting that the Human Rights Committee itself has acknowledged, in General Comment 18, that not all differentiation of treatment constitutes discrimination, the United States felt it appropriate to state clearly, through an understanding included in its instrument of ratification:
"That the Constitution and laws of the United States guarantee all persons equal protection of the law and provide extensive protections against discrimination. The United States understands distinctions based upon race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status - as those terms are used in Article 2, paragraph 1 and Article 26 - to be permitted when such distinctions are, at minimum, rationally related to a legitimate governmental objective."
In addition, the United States stated its understanding that the prohibition in paragraph 1 of article 4 upon discrimination in time of emergency based "solely" on status of race, colour, sex, language, religion or social origin does not prohibit distinctions that may have a disproportionate effect upon persons of a particular status.
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Article 3 - Equal rights of men and women
101. Constitutional protections. The rights enumerated in the Covenant and provided by U.S. law are guaranteed equally to men and women in the United States. With the adoption in 1920 of the Nineteenth Amendment, which guaranteed women the right to vote, the principal constitutional impediment to the equality of men and women was eliminated. Over the past 30 years, women in the United States have made significant strides at gaining social and economic equality with men, although further progress needs to be made.
102. As discussed under article 2, the U.S. Constitution explicitly guarantees men and women equality before the law through the Equal Protection and Due Process clauses of the Fourteenth and Fifth Amendments. As interpreted by the U.S. Supreme Court, these provisions prohibit both the federal government and the states from arbitrarily or irrationally discriminating on the basis of gender. For example, the Supreme Court has declared unconstitutional a state law giving preference to males over females in the appointment of administrators for the estates of individuals who have died intestate. Reed v. Reed, 404 U.S. 71 (1971). The Court found that the preference constituted the "very kind of arbitrary choice forbidden in the Equal Protection Clause". Id. at 76.
103. The legal standard by which the U.S. Supreme Court has judged gender distinctions has evolved over time. One year after the Reed decision, the court ruled that denying benefits for the husbands of women in the military, while providing them to the wives of similarly situated men in the military, violated the Fifth Amendment. Frontiero v. Richardson, 411 U.S. 677 (1973). The following year, however, the Court upheld a sex-based distinction in a law that provided a benefit - a property tax exemption - for widows but not for similarly situated widowers. Kahn v. Shevin, 416 U.S. 351 (1974). The Court found that the distinction was permissible because it was "reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden". Id. at 355.
104. In Craig v. Boren, 429 U.S. 190 (1976), the Court articulated the standard which has governed the field of gender distinctions ever since: "To withstand constitutional challenge ... classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives". 429 U.S. at 197. See also, Taylor v. Louisiana, 419 U.S. 522 (1975); Califano v. Goldfarb, 430 U.S. 199 (1977).
105. It is virtually certain that the Supreme Court would strike down any significant distinction between men and women in the enjoyment of the civil and political rights secured by the Covenant, either under the substantive right involved or as a matter of equal protection.
106. Equal Rights Amendment (ERA). An amendment to the U.S. Constitution to introduce a separate Equal Protection clause specifically addressing gender equality was first proposed in 1923 and thereafter in subsequent Congresses. In 1972, the Equal Rights Amendment (ERA) passed the U.S. Congress. However, in the succeeding 10 years, an insufficient number of states ratified the measure, and it accordingly expired in 1982. None the less, to date 16 states have adopted the ERA as part of their state constitutions. Most of the state ERA's provide simply that "[e]quality of rights under the law shall not be denied or abridged by the state on account of sex". See, e.g. Colorado, article II, section 29; Hawaii, article I, section 3; Illinois, article I, section 18; Maryland, DR 46; New Mexico, article II, section 18. Other states have added the ERA provision to their broader constitutional equal protection clauses. For example, the Alaska Constitution provides that "[n]o person is to be denied the enjoyment of any civil or political right because of race, colour, creed, sex, or national origin". Alaska article I, section 3. See also, Connecticut, article I, section 20 and Massachusetts, article LVI.
107. Federal statutes and programmes. Many federal civil rights statutes and programmes including those discussed under article 2 address discrimination on the basis of sex.
108. Justice Department review. Beginning in 1976, the U.S. Department of Justice conducted a review of federal statutes and regulations and of the policies, practices and procedures of federal agencies in order to identify provisions that discriminated on the basis of gender. See Final Report of the Attorney General to the President and Domestic Policy Council Pursuant to E.O. 12336 (April 1986). Most of the statutory provisions identified were not substantively discriminatory, and the majority of the others had little practical impact. For example, 14 U.S.C. sections 371-73 provided that only "male citizens" could be designated as aviation cadets in the U.S. Coast Guard. Although the statute was technically in effect, the aviation cadet programme to which it applied was no longer operated. The few statutes that did have significant sex-based distinctions were subject to challenge on constitutional grounds as discussed above. See, e.g. Califano v. Goldfarb, 430 U.S. 199 (1977).
109. Family law. Family law, discussed in detail with respect to articles 23 and 24, is an area which currently invites substantial debate over gender equality. In that field, women have historically been discriminated against in terms of the inequity which has persisted in the marital relationship and in divorce and custody settlements. Women still bear the majority of responsibility for child-rearing both within and outside of the marriage setting, and often are unable to enforce child-support orders or alimony awards, resulting in poverty or extreme hardship. However, the 1970s ushered in a movement of sweeping reforms, resulting in far more equitable marital property, alimony, and child custody laws. These reforms are further discussed under articles 23 and 24.
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Article 4 - States of emergency
110. Unlike many countries, the United States does not have a constitutional or legal regime either for declaring "states of emergency" or otherwise for imposing emergency rule by the executive branch. The U.S. military does not exercise criminal jurisdiction over civilian persons within the United States.
111. Federal level. The U.S. Constitution and implementing federal statutes do authorize the President in limited and clearly defined circumstances to use federal troops to control domestic violence, suppress insurrections and enforce federal law. These laws do not, however, authorize the executive branch to suspend or interfere with the normal operations of the other branches of the national government (the Congress and the judiciary) or to permit derogations from fundamental rights. Indeed, with only one limited exception (the right of habeas corpus, which Congress may temporarily suspend when public safety so requires), constitutional rights remain in effect at all times.
112. Article IV, section 4 of the Constitution imposes on the federal government the obligation to protect a state "on Application of the [State] Legislature, or of the [State] Executive (when the Legislature cannot be convened) against domestic Violence". Article I, section 8 authorizes the Congress "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasion". This is the basis for intervention by federal troops or marshals in civil disorders occurring within the states.
113. The Constitution also provides, in article II, section 3, that the President "shall take Care that the Laws be faithfully executed". This provision has been interpreted to grant the President authority to enforce federal laws through extraordinary means if the President determines that unlawful obstructions or rebellion make it impracticable to enforce the laws of the United States by the ordinary course of judicial proceedings.
114. Chapter 15 of Title 10, U.S. Code, defines the scope of the constitutional grants of emergency powers. Pursuant to the President's authority under article IV, section 4 of the Constitution, section 331 of Title 10 provides authority to the President to dispatch troops on request of the state's governor or legislature. The sending of troops is not, however, automatically triggered by the request of a state pursuant to this section. The President must use his own judgement as to whether the situation warrants the use of armed forces. Traditionally, three conditions have existed before troops have been sent: (i) the actual existence of domestic violence, (ii) a statement that the violence is beyond the control of the state authorities, and (iii) a proper request from the state governor or legislature.
115. Sections 332 and 333 of Title 10 provide authority for the President to dispatch troops without state request in order to enforce federal law, prevent obstruction of the execution of federal law, carry out federal court orders or protect civil rights. These provisions overlap to some extent, but both are aimed at violence or insurrection obstructing or interfering with the enforcement of federal laws within a state. Section 332 is aimed generally at resistance to the carrying out of federal laws; section 333 is concerned with the forcible interference with the civil rights of individuals and with violence aimed at preventing the enforcement of court orders. These provisions were invoked by the President to enforce racial desegregation orders in certain states during the 1950s and 1960s.
116. Section 334 of Title 10 requires that, in all cases in which the President deems it necessary to use armed forces pursuant to his authority under Title 10, the President must issue a proclamation ordering the insurgents to disperse. Such proclamations are followed by an executive order directing the appropriate use of the armed forces to suppress the violence. They are also subject to Congressional oversight.
117. In addition to the President's Title 10 authority, there are further statutory grants of emergency powers to the President. The National Emergencies Act, 50 U.S.C. sections 1601 et seq., confers upon the President the authority to declare national emergencies and establishes procedures to be followed by the President in exercising emergency power. 50 U.S.C. sections 1601 et seq. Most importantly, the Act requires the President to report to Congress on actions taken and funds expended pursuant to a declaration of national emergency. The Act further allows Congress to terminate such states of emergency by enacting into law a joint resolution. This Act has typically been used in conjunction with the International Emergency Economic Powers Act (IEEPA, described in the next paragraph) to impose economic sanctions against other nations, rather than to deal with domestic or national security emergencies.
118. IEEPA, 50 U.S.C. sections 1701 et seq., allows the President, upon determination that an unusual and extraordinary threat exists, to issue executive orders investigating, regulating or prohibiting certain international transactions. In addition, the President may issue executive orders investigating, regulating, and otherwise affecting a wide variety of transactions in which foreign interests are implicated. In practice, the use of IEEPA has been primarily limited to the implementation of economic sanctions (often mandated by the United Nations) on the territory of the United States. IEEPA also imposes congressional reporting requirements upon the President. The Congress may terminate an IEEPA emergency power granted to the President by passing a joint resolution pursuant to certain provisions of the National Emergencies Act.
119. Most of the President's other congressionally mandated emergency powers, particularly in the case of natural disasters, are delegated to the Federal Emergency Management Agency (FEMA). These powers include, among others, his authority under the Disaster Relief and Emergency Assistance Act, 42 U.S.C. sections 5121 et seq.; the Fire Prevention and Control Act, 15 U.S.C. sections 2201 et seq.; the Flood Disaster Protection Act, 50 U.S.C. sections 4001 et seq.; the Federal Civil Defense Act, 50 U.S.C. sections 2251 et seq.; and the Earthquake Hazards Reduction Act, 42 U.S.C. sections 7701 et seq. FEMA acts as the focal point for all planning, preparedness, mitigation, response and recovery actions for such catastrophic domestic emergencies. FEMA has no authority to suspend or infringe constitutional rights in the exercise of its duties. The Agency's purpose is to coordinate emergency activities at the national, state, and local levels, fund emergency programmes and provide technical guidance and training.
120. The Posse Comitatus Act, 18 U.S.C. section 1385, forbids the President to use the armed forces to "execute" the laws except where authorized by the Constitution or by another act of Congress. 18 U.S.C. section 1385. Under the Act, prohibited actions include interdiction of vehicles, vessels, and aircraft; searches and seizures; arrests and "stop and frisk" actions; surveillance or pursuit of individuals; investigation; and interrogation. Thus, in a disaster relief situation, absent any other legislation, federal troops must avoid a direct law enforcement role. They may, however, render humanitarian assistance, including the provision of emergency medical care to civilians and the destruction of explosives found in civilian communities.
121. State and local levels. At the state and local levels, a wide variety of emergency authorities permit the state executive branches (state governors, city mayors, county executives) to take emergency actions. These authorities are based on the general police power that is reserved to the states under the U.S. Constitution. In an emergency situation, a state may take reasonable actions necessary to preserve public health, safety and welfare, even if those actions incidentally infringe on otherwise protected rights. For example, states may impose curfews in situations of civil unrest or to prevent sabotage and espionage in times of war, establish quarantines during an epidemic, restrict water usage during a severe drought, and even regulate interest rates during times of economic emergency. These various state-imposed regimes may not, however, limit constitutional rights or infringe on the non-derogable rights specified in article 4 of the Covenant.
122. Judicial review. The federal courts have the power to review the exercise of emergency powers by the federal or state authorities, and have exercised considerable judicial scrutiny in this area. Judicial review has included examination of both substantive authority and procedural issues. As a general rule, cases in which the exercise of emergency power has resulted in the restriction of individual rights have been subjected to careful judicial review. See, e.g. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1886) (voiding a presidential order suspending habeas corpus); Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952) (invalidating the seizure of steel mills pursuant to Presidential order during the Korean War); Dames & Moore v. Regan, 453 U.S. 654 (1981) (judicial review of constitutionality of President's orders regarding disposition of blocked Iranian assets under IEEPA).
123. Emergency powers in practice. Two recent examples of the use of federal emergency powers include the 1992 Los Angeles riots and the aftermath of Hurricane Andrew in 1992. In response to the riots and after receiving a request from the Governor of California, the President, pursuant to the authority vested in him by the Constitution and laws of the United States, including 10 U.S.C., chapter 15, issued a proclamation ordering all persons engaged in acts of violence to cease and desist. Immediately following the proclamation, the President issued an executive order directing federal law enforcement officers and the armed forces, including elements of the National Guard, to suppress the violence.
124. Throughout the emergency, the Department of Justice remained the lead federal agency, coordinating the response of all other federal agencies involved, including the Department of Defense (DOD). Although military forces had the authority to engage in direct law enforcement activities, for the most part they did not do so. Because the worst rioting had ended prior to the arrival of federal troops and because military commanders preferred not to involve soldiers in searches, arrests, pursuits, and other direct law enforcement activities, the military's principal role was to increase the security of the area, thereby deterring further rioting. Civilian agencies continued to perform the majority of law enforcement activities.
125. In response to the devastation of Hurricane Andrew in August 1992, the President declared a major disaster under the Stafford Disaster Relief Act (42 U.S.C. sections 5121-5203) for certain counties in southern Florida. When it became apparent that significant federal assistance would be needed in the disaster area and following a request from the Governor of Florida, the President authorized DOD to deploy a significant force to the disaster area to provide humanitarian relief.
126. Pursuant to the Stafford Act and the Federal Response Plan, the Federal Emergency Management Agency (FEMA) was the lead federal agency and had the authority to coordinate the activities of all federal agencies, including DOD. FEMA tasked DOD to provide assistance requested by state officials, and the joint task force had no authority to engage in relief activities other than as directed by FEMA. Unlike the Los Angeles deployment, the federal troops in Florida were not authorized to engage in law enforcement activities.
127. U.S. understanding. In keeping with its general understanding of the requirements of equal protection, as discussed in connection with article 2, the United States submitted the following understanding with respect to paragraph 1 of article 4 of the Covenant:
"The United States further understands the prohibition in paragraph 1 of Article 4 upon discrimination, in time of public emergency, based 'solely' on the status of race, colour, sex, language, religion or social origin not to bar distinctions that may have a disproportionate effect upon persons of a particular status."
In other words, distinctions having a "disproportionate effect" upon persons of a particular status, but not in fact based on that status at all, are not necessarily prohibited. Thus, for example, a curfew could be imposed as appropriate in view of safety requirements even if, due to patterns of residence, this affected certain groups more than others.
Article 5 - Non-derogable nature of fundamental rights
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128. The United States was founded on basic principles of human rights from which it cannot deviate. In particular, the rights guaranteed in the U.S. Constitution, which substantially reflect the principles embodied in the Covenant, are the supreme law of the land. These guarantees represent a foundation that can never be broken. Congress and the states may protect rights to a greater extent, but never to a lesser extent than the Constitution provides. In some instances, that foundation already provides greater protection than the Covenant. Therefore, the United States could never restrict fundamental human rights on the pretext that the Covenant does not recognize such rights or recognizes them to a lesser extent.
129. Furthermore, as the Covenant has been declared non-self-executing for purposes of U.S. laws, it could never be invoked in any judicial context to limit existing rights. More specifically, with respect to actions taken by the executive branch and the Congress, the United States declared in ratifying the Covenant:
"It is the view of the United States that States Party to the Covenant should wherever possible refrain from imposing any restrictions or limitations on the exercise of the rights recognized and protected by the Covenant, even when such restrictions and limitations are permissible under the terms of the Covenant. For the United States, Article 5, paragraph 2, which provides that fundamental human rights existing in any State Party may not be diminished on the pretext that the Covenant recognizes them to a lesser extent, has particular relevance to Article 19, paragraph 3, which would permit certain restrictions on the freedom of expression. The United States declares that it will continue to adhere to the requirements and constraints of its Constitution in respect to all such restrictions and limitations."
130. The United States conditioned its ratification on this declaration to emphasize that it will continue to adhere to the constraints of its Constitution in respect to all restrictions and limitations of civil and political rights. Furthermore, the United States also made this declaration to indicate as clearly as possible its belief that as a general rule States Party should resort to such restrictions only under the most unusual and compelling circumstances.
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Article 6 - Right to life
131. Right to life, freedom from arbitrary deprivation. This right is protected by the federal and state constitutions and law. The Fifth Amendment to the U.S. Constitution provides that "no person shall ... be deprived of life, liberty, or property, without due process of law". The Fourteenth Amendment provides that "no State shall ... deprive any person of life, liberty, or property, without due process of law". These provisions incorporate the constitutional recognition of every human's inherent right to life and the doctrine that this right shall be protected by law. The Fifth and Fourteenth Amendments also make unconstitutional the state-engineered disappearance of individuals.
132. The value of human life is further protected by the criminal codes of the U.S. Government, the 50 states, the several U.S. territories, and other constituent jurisdictions which all criminalize the arbitrary and unjustified deprivation of life. Each jurisdiction has statutes that penalize murder and impose the most severe criminal penalties for homicide that is accompanied by specific aggravating factors.
133. The federal statutes protecting life and penalizing the deprivation of life with sentences of either capital punishment or life imprisonment include the following:
First degree murder (18 U.S.C. section 1111);
Killing a witness (18 U.S.C. section 1512(a));
Assassination of the President, President-elect, Vice-President, or one of a limited group of other persons under the statute (18 U.S.C. section 1751);
Murder by any person engaged in a continuing criminal drug enterprise or the murder of a law enforcement official during the commission of a drug felony (21 U.S.C. section 848(e));
Wilful destruction of an aircraft or motor vehicle with the intent to endanger the safety of any person on board, which has resulted in the death of any person (18 U.S.C. section 34);
Wilfully derailing, disabling, exploding, or causing a train wreck, that results in death (18 U.S.C. section 1992);
Offences involving the transportation of explosive material with the knowledge that it will be used to kill, injure or intimidate (18 U.S.C. section 844(d));
Destruction of U.S. Government property by fire or through the use of explosives that results in death (18 U.S.C. section 844(f));
The mailing of injurious articles with intent to kill or injure and that results in death (18 U.S.C. section 1716);
Genocide (18 U.S.C. section 1091(b)), which includes killing, seriously wounding, or inflicting other specified types of destruction upon members of a national, ethnic, racial, or religious group with the specific intent to destroy that group completely or in substantial part;
Terrorism (18 U.S.C. section 2331), which consists of killing a U.S. national outside the United States, or while outside the United States, attempting to kill or engaging in a conspiracy to kill a U.S. national; the statute requires a written certification by a high-ranking official of the Department of Justice "that, in the judgment of the certifying official, such offence was intended to coerce, intimidate, or retaliate against a government or a civilian population" (18 U.S.C. section 2332(d));
Conspiracy to cause the death of another (18 U.S.C. section 1117);
Killing or attempting to kill an "internationally protected person" (18 U.S.C. section 1116), including but not limited to heads of state and foreign ministers and accompanying members of their families if in a country other than their own; and representatives, officers, agents, and employees of the United States or a foreign government, or international organization, entitled under international law to protection. The alleged offender must be present within the United States. His or her nationality is irrelevant;
Treason, under a statute that provides that "[w]hoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere" (18 U.S.C. section 2381);
Espionage (18 U.S.C. section 794); and
Air piracy where death results (49 U.S.C. section 1472(i), (n)).
The Uniform Code of Military Justice also proscribes capital punishment for certain offences. 10 U.S.C. sections 801 et seq.
134. The U.S. Code also proscribes attempted murder, which is punishable by a term of 20 years' imprisonment (18 U.S.C. section 1113), and manslaughter, defined as the unlawful killing of a human being without malice (18 U.S.C. section 1112). Voluntary manslaughter is a killing that occurs during a sudden quarrel or in the heat of passion; involuntary manslaughter occurs during the commission of an unlawful act not amounting to a felony, a lawful act in an unlawful manner, or a lawful act that, without due caution and circumspection, might produce death.
135. Other crimes, such as arson and kidnapping, carry severe penalties that are augmented when they jeopardize human life and even more severe penalties when a death results. For example, arson carries a federal penalty of five years' imprisonment, but an arson that places a life in jeopardy is punishable by 20 years' imprisonment. See 18 U.S.C. section 81. Similarly, the penalties for assaults are increased from 3 years' to 10 years' imprisonment when the assault is committed by the use of a deadly or dangerous weapon. The punishment for certain serious drug offences also is enhanced when the offender uses a firearm. 18 U.S.C. section 924(c)(1).
136. Every state also criminalizes deliberate acts that result in death or serious threat to life. However, offences may vary in detail from state to state. State criminal laws concerning murder, manslaughter, and conspiracy are essentially similar to the federal law; the most severe punishments are allocated to the acts committed with the most particular intent to cause death. At present, the statutes of 37 states provide the death penalty for murder and, in a few of these states, for other offences, almost all for offences resulting in death.
137. The issue of race and the death penalty is discussed under article 2; death-row conditions are discussed under article 7.
138. Official use of force. The protection of the right to life is also imp