The National Employment Law Project recently released Working Without Laws, a survey of employment and labor law violations in New York City. This report exposes the reality that America’s labor and employment laws are failing to protect significant numbers of individuals in New York City. Many workers are paid less than the minimum wage and do not receive overtime. They work off the clock without compensation, and oftentimes do not receive lawful meal breaks, if they receive any. When injured, many do not receive workers compensation. Furthermore, when workers complain about unlawful workplace procedures, they are retaliated against. These violations are occurring at alarmingly high rates in New York City and demand attention.

This survey was conducted in 2008 and includes the answers of 1,432 workers in low-wage industries in New York City, a sector employing over half a million workers.

Some of the startling findings from this report are:

* 21% in this sample were paid less then the legally required minimum wage in the previous workweek.  
* Of this number, 51% were underpaid by more than $1 an hour.
* More than one-third of respondents worked more then 40 hours during the previous week. Of those, 77% did not receive the legally required overtime rate.
* Nearly 29% of the workers in this sample came in early and/or stayed late after their shift during the previous workweek. Of these workers, 69 % did not receive any pay at all for the work they performed outside of their regular shift.
* 47% of workers who were injured on the job reported that they were required to work despite their injury.
* 90% of workers worked enough consecutive hours to be entitled to meal breaks.  70% were not given their full break, or received no break at all.

Often, when workers complain about unlawful working conditions, employers respond illegally with retaliation. Employees have a right to organize to protect their rights and interests, and it is illegal for an employer to retaliate by threatening employees with termination of employment and benefits, or calling federal immigration authorities to conduct an immigration raid.

Nearly 23% of the workers in this sample reported they had made a complaint to their employer or government agency, or attempted to form a union, in the last year. Of those, 42% experienced one or more forms of illegal retaliation from their employer. For example, employers cut workers’ hours and/or pay, fired or suspended workers or threatened to call immigration authorities.

23 % of workers reported they did not make a complaint to their employer during the past 12 months, even though they had experienced a serious problem such as dangerous working conditions or not being paid the minimum wage. Of these workers, 41 % were afraid of losing their job and 40% thought it would not make a difference.

Additionally, it was found that a range of worker characteristics were correlated with higher minimum wage violations.

Foreign-born workers were more than twice as likely as their U.S.-born counterparts to have a minimum wage violation. The higher rates were concentrated among women—especially women who were unauthorized immigrants, 40 % of whom had a minimum wage violation in the previous week.

U.S.-born workers of color had minimum wage violation rates ranging from 8% to 17%, in stark contrast to U.S.-born white workers, who in this sample did not have any minimum wage violations in the previous workweek.

Addressing these issues is imperative as workplace violations lead to poverty, economic insecurity, and serve to further perpetuate violations as responsible employers are forced into unfair competition that is “setting off a race to the bottom that threatens to bring down standards throughout the labor market” (page 6). New York State must use its resources toward enforcement of labor laws and enact new legislation to strengthen enforcement abilities. Furthermore, immigrant work centers, unions, and legal service organizations need to have the resources and legal tools to organize workers and monitor workplaces to ensure compliance with labor laws. The goal of a fair workplace must be integrated into the policy agenda of New York City to ensure employees are given the wages they are legally entitled to, given breaks and compensation for overtime, and work in an environment that treats them with respect, to ensure economic opportunity and justice in our city.

Additional Reference:
Bernhardt, Anne. Polson, Diana. DeFilippis, James. Working Without Laws, National Employment Law Project. January 2010.

It is true that MLK was a religious preacher and a nonviolent civil rights leader who had aimed for gradual shifts in political empowerment towards American equality. This narrative has worked brilliantly for those in power longing to project MLK’s legacy as one of peaceful reconciliation with power structure. He has been heralded as an intense pacifist preaching moral values of peace, and as an idealist whose dream must globally aspire for racial harmony. A revered clergyman choosing dialogue over struggle; a nationalist for the country than a revolutionary for the oppressed; a believer in scriptures than a rabble-rouser; a composed champion of civil rights, not a class war agitator. Dr King has been labelled as the facilitator for Obama’s White House glory – an example that must end questions on racial and class inequities. A dreamer whose dreams have been fulfilled. A Congressional Gold Medal. A National Holiday. Several hundreds streets and avenues. A quintessential patriotic American.

The American power finds this moralist preacher unfailing – an inimitable icon that must eclipse his own evolution into an internationalist. What is left untold about MLK’s life is his story of imperfections, of his constant progressive evolutions, of his critical reflections as an astute revolutionary. Of his victimization as a recipient of ruling class narratives of equality and justice. And despite that, of his profound love and humane eagerness making allowance for endless possibilities. And most importantly, his eventual rejection of fundamental approaches bequeathed to him; of his experiments with truths that started with hopeful pacifications only to end with call for political-economic revolutions.

A celebration around Dr. King's death is evident on this 1956 Montgomery Bus Boycott mugshot, held with Alabama Police.

More than anyone else, Dr King was acutely aware of the possibility of a retaliation at his call not for domestic reform, but for international revolution. Therefore, he addressed the system on April 4, 1967 in New York: “Over the past two years, as I have moved to break the betrayal of my own silences and to speak from the burnings of my own heart, as I have called for radical departures from the destruction of Vietnam, many persons have questioned me about the wisdom of my path. At the heart of their concerns, this query has often loomed large and loud: ‘Why are you speaking about the war, Dr. King?’ ‘Why are you joining the voices of dissent?’ ‘Peace and civil rights do not mix,’ they say. ‘Are you not hurting the cause of your people?’ they ask. And when I hear them, though I often understand the source of their concern, I am nevertheless greatly saddened, for such questions mean that the inquirers have not really known me, my commitment, or my calling.”

Dr King’s commitments were indeed not understood, nay, refused to be understood. The ruling power was more keen in establishing him as a mediator, than admit him as an agitator. He had to be christened a believer in peaceful progression, not recognized as an organizer in quest of radical replacement. MLK cleared the air in 1967, just few months before he was assassinated: “The white liberal must rid himself of the notion that there can be a tensionless transition from the old order of injustice to the new order to justice…It is important for the liberal to see that the oppressed person who agitates for his rights is not the creator of tension…We did not cause the cancer; we merely exposed it.”

Revolution is never tensionless, Dr King warned the white power. And the American crisis was not simply race, it was capitalism, he concluded – a declaration that is still considered too dangerous to be taught through history textbooks. Dr King thundered: “…(we) demand a restructuring of the architecture of American society…When you look at it, (integrating public places) did not cost the nation one penny. It didn’t cost businessmen one penny. In fact, it helped businessmen out. Even the right to vote didn’t cost the nation anything to guarantee…Now what I want you to see is that we are now making demands that will cost the nation something. You can’t talk about solving economic problem of the Negro without talking about billions of dollars. You can’t talk about ending slums without first saying profit must be taken out of slums. You are really tampering and getting on dangerous ground because you are messing with folks then. You are messing Wall Street. You are messing with captains of industry..in other words, we are dealing with class issues….something is wrong with the economic system of our nation…It means that something is wrong with capitalism.”

Dr King not only had dreams. He also had revolutionary economic plans to fulfill them. And his plans certainly did not include presiding over capitalism from inside the White House.

Avoiding a potentially long and drawn-out public trial, NASCAR has settled a $225 million lawsuit with former Nationwide Series official Mauricia Grant. The former technical inspector filed suit against NASCAR in June of 2008, alleging she was subjected to racial discrimination and sexual harassment while serving as an official.

Settled in mediation in New York on December 3, terms of the settlement remain confidential.

“We’re glad to have the case settled on mutually acceptable terms,” NASCAR spokesman Ramsey Poston explained in a statement. “NASCAR remains dedicated to maintaining a professional work environment for all employees at all times, and we wish Ms. Grant well in her future endeavors.”

The African-American woman filed suit in June of this year alleging 23 specific accounts of sexual harrassment and 34 incidents of racial and gender discrimination. Claiming she was called ?Nappy Headed Mo? and ?Queen Sheba? by her fellow officials, Grant believed she was threatened by an official who specifically made references to the Ku Klux Klan.

Grant also claimed in the suit she was the victim of sexual advances by some officials. Taking those advances even further, Grant described that two of her fellow officials went as far as exposing themselves to her.

NASCAR took action after the complaint was filed, conducting twenty-seven interviews in Kentucky in June. Out of those twenty-seven testimonies, two officials ? Tom Knox and Bud Moore ? were ultimatly fired for the incident.

Throughout this entire ordeal, NASCAR has fought to maintain its integrity, claiming every employee has the opportunity to file a complaint about any form of discrimination or harassment. Grant claims she attempted to file a complaint, but when Nationwide Series director Joe Balash failed to listen to her complaints.

The former official claims two weeks after bringing the issue up with Balash, she was reprimanded for her actions by NASCAR?s human resources director and that she was fired not long after.

With the annoucnement of the resolution, both parties are now able to pick up their pieces and move on.

By Samantha Mc Lane

Equal Pay Day is a movement that aims for the benefit of all working women in the United States without exception. However, as incredible as it is that gender inequity still persists in this century, inequity and differences remain between races, national origin and legal status. The statistics say it: Latinas earn 52 cents for every dollar paid to white men and even less than Latin men, falling in the most underpaid group.

Why? Besides living under cultural stereotypes, people underestimating our capabilities and intelligence, difficulties in accessing benefits programs for ourselves and our family, and fear of deportation in case of illegal immigrant women. Even if we are lucky enough to get a job, why should we be receiving less salary than anybody else?

We Latinas are at the bottom of the ladder but there is the possibility to go up. We can begin by taking interest because our work, time, personal and professional projects and our lives are worthwhile. If we don´t care, no one else will.

It is a fact that to achieve the goal not only is it necessary to deconstruct cultural and systemic ideologies about women’s condition, social institutions, to question authority and the use of power, but also to take advantage of these kinds of opportunities in the legal field to strengthen equal pay laws including the Lilly Ledbetter Equal Pay Act, the Paycheck Fairness Act and the Equal Pay Act. It is an excellent opportunity to use the regulations that this country provides, thanks to the efforts of many women that have fought before, and to keep reminding and raising social awareness of this situation.

We have a voice, let´s use it to be recognized. Get informed about the actions to be done, get in contact with other women, people and groups interested in the subject, be active and demand equal payment because we have the right.

The EEOC’s lawsuit, filed in 2005, alleges that Charles Dyer of Silver Spring was not hired for the position of sales manager or finance manager in 2004 because of his race. Additionally, the suit alleges Phillip Kennedy of Landover was fired from his position as finance manager in 2004 because of his race.

In the settlement, Toyota of Bowie admits no wrongdoing but will pay $100,000 in compensatory damages and $1,000 in attorney fees each to both Dyer and Kennedy.

Toyota’s attorney, Steven Nemeroff, said no record of Dyer’s application was on file with the company and Kennedy had been fired within 30 days of his hire for poor performance.

‘‘The personnel records at Toyota of Bowie demonstrate that at least 50 percent of their finance managers in 2004 were black and 57 percent of their sales managers and general sales managers were black,” said Nemeroff in an issued statement. ‘‘During this same time period, Toyota of Bowie routinely hired black sales representatives and promoted black sales representatives to sales managers.”

The company has never been sued for racial discrimination before and decided to settle to avoid the time and expense of continued litigation, Nemeroff said.

The agreement also requires Toyota of Bowie to provide a minimum of four hours training on employment discrimination laws to its vice president, general manager and all other employees responsible for the hiring and firing of sales managers and finance managers.

‘‘It is unfortunate that 44 years after the passage of Title VII of the Civil Rights Act, employers continue to make unlawful employment decisions based on race,” said attorney for the EEOC Jacqueline McNair.

To view the PSAs, go to: http://www.eeoc.gov/psa/marsalis.html

Both 30-second PSAs feature Marsalis and focus on the value of diversity in the workplace and the dangers of discrimination. The PSAs were produced in cooperation with Jazz at Lincoln Center (JALC) and shot at JALC’s New York facility in October. The EEOC plans an aggressive push to air the PSAs on television and cable stations, on web sites and on radio. The spots are close-captioned for the hearing-impaired.

The announcements should help heighten awareness of race and color discrimination as the EEOC advances its national initiative to bring a fresh, 21st century approach to combating racism, which remains the most frequent claim filed with the agency. E-RACE (Eradicating Racism And Colorism from Employment) is an outreach, education, and enforcement campaign to advance the statutory right to a workplace free of race and color discrimination.

“The EEOC is proud to partner with Wynton Marsalis to convey this information,” EEOC Chair Naomi C. Earp said. “His participation enhances our message and ensures that a broad audience will be apprised of the importance of equal employment opportunity.”

In the spots, Marsalis speaks the following lines:

PSA 1

WHETHER IT’S BEETHOVEN OR BASIE, MUSIC BLENDS DIFFERENT NOTES AND DIFFERENT PEOPLE INTO SOMETHING VERY SPECIAL. IF WE ALL PLAYED THE SAME NOTES, THE MUSIC WOULD BE BORING. IT’S THE SAME WAY IN THE WORKPLACE. PEOPLE COME FROM DIFFERENT CULTURES AND BACKGROUNDS, BUT TO SUCCEED, THEY NEED TO WORK TOGETHER AS A TEAM. IT’S ABOUT EQUAL OPPORTUNITY.

PSA 2

WHEN WE CHOOSE MUSICIANS TO PLAY A PIECE OF MUSIC, WE DON’T CARE WHAT THEY LOOK LIKE; WE CARE HOW WELL THEY PLAY. THAT’S THE WAY EVERY JOB SHOULD BE, BUT IT ISN’T ALWAYS. SOME PEOPLE PLAY A CACOPHONOUS TUNE CALLED DISCRIMINATION. IT’S NOT JUST UNFAIR, MEAN-SPIRITED, AND COUNTERPRODUCTIVE; IT’S ALSO ILLEGAL. IT’S REALLY ALL ABOUT EQUAL OPPORTUNITY.

Marsalis, artistic director of Jazz at Lincoln Center, has won nine Grammy Awards, and is the only artist ever to win Grammy Awards for both jazz and classical records — an accomplishment he repeated in consecutive years. His radio and television series were awarded the prestigious George Foster Peabody Award. In 1996, Time magazine celebrated Marsalis as one of America’s 25 Most Influential People. In 1997, Marsalis became the first jazz musician ever to win the Pulitzer Prize for Music for his epic oratorio Blood on the Fields.

Peter Lattman posts on Wall Street Journal Blog several quotes from MLK. Collected from “Yale Book of Quotations” by Yale Law librarian Fred Shapiro:

Government action is not the whole answer to the present crisis, but it is an important partial answer. Morals cannot be legislated, but behavior can be regulated. The law cannot make an employer love me, but it can keep him from refusing to hire me because of the color of my skin.

– Stride Toward Freedom: The Montgomery Story, ch. II (1958)

Judicial decrees may not change the heart; but they can restrain the heartless.

– Speech, Nashville, Tenn., 27 Dec. 1962

Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.

– “Letter from Birmingham Jail,” 16 Apr. 1963

I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

– “Letter from Birmingham Jail,” 16, Apr. 1963

Officials say Texas is a major destination for victims of human trafficking.

“Human trafficking is taking place everywhere in the United States,” said Walter Nguyen, executive director of Mosaic Family Services, based in Dallas. “However, Texas — and North Texas in particular — has had a disproportionate share of these cases.”

Human trafficking is defined as the enslavement of a person by another through force, fraud, coercion and abuse. The U.S. Department of State estimates that 14,500 to 17,500 people are trafficked into the country each year.

Since 2001, more than 20 percent of the identified human trafficking cases in the U.S. were located in the state of Texas, according to the Office of Refugee Resettlement.

Officials estimate that Texas is one of four states in the nation that lead the nation in human trafficking. The others states are New York, California and Florida.

The reason for the high number of known victims in Texas may be due to the state’s location and the successful law enforcement investigations of these cases, said Mr. Nguyen.

Many victims are identified as a result of raids or investigations into businesses that work with people involved in human trafficking. A number of the victims are arrested as prostitutes or illegal workers.

There is also a high rate number of domestic violence among immigrants. Some immigrant women may feel helpless because they lack communication skills, or their husbands may hold their passports.

“Domestic violence takes place in all communities, regardless of economic or social status, but those in newly arrived communities are more reluctant to report this crime for many reasons. Our outreach to these groups hopes to make people aware that they can get help,” said Mr. Nguyen.

Mosaic Family Services is a nonprofit organization dedicated to giving hope and power to immigrant survivors of domestic violence and human trafficking through legal case management, counseling and housing services.

But before this organization can help these survivors, it needs the community’s help. he needs your help.

To that end, Ebby Halliday and Mosaic Family Services will hold a 2008 Night of Hope Kickoff at 6 p.m. Jan. 26 2008 at the Idle Rich Pub, 2614 McKinney Ave. in Dallas.

This event begins the annual fundraising drive for Mosaic Family Services Inc. Tickets for the kickoff event are $50, which will be deducted from the purchase of a $150 ticket to the Night of Hope gala. The annual gala will be April 26 held at the Richardson Hotel on April 26, 2008.

For more information about the Jan. 26 kickoff or the April 26 gala, please visit www.mosaicservices.org or call Mosaic Family Services at 214-821-5383.

The keynote speaker at the Night of Hope gala in April will be Mildred Muohammad, who was once married to John Allen Muohammad, who is perhaps better known as the D.C. sniper. In 2002, John Mohammad Mr. Muhammad killed 17 allegedly killed as many as 17 people in the Washington, D.C., area and beyond in what is believed to have been a part of a plan to murder Mildred.

in what she believes was part of a plan to murder her. She will speak about her own terrifying experiences as her ex-husband’s massacre killing spree played out in the media across the nation. CHANGES OKd BY TINA. hp

“Her case is an excellent example of how extremely dangerous domestic violence abusers can be when a woman decides to leave,” Mr. Nguyen said.

“Every day in the United States, four women are murdered by their abusers. Mildred survived and has become an advocate for this issue.”

Mr. Nguyen’s organization serves between 200 and 250??conflicts w. figure below?? survivors of domestic violence from refugee and immigrant communities each year.

According to the executive director:

North Texas has one of the largest metropolitan concentrations of immigrant communities in the nation, according to DFW International, and compared to other metropolitan areas, the North Texas area lags behind in support services for these populations.

The U.S. Census reports that 1 in 5 residents of Dallas County and 1 in 6 residents of Collin County are foreign-born. The number of foreign-born residents has increased by 509% in Collin County and 152% in Dallas County between 1990 and 2003. The Asian population increased by 600% in Collin County and by 90% in Dallas County.

Domestic violence within immigrant and refugee groups is as prevalent as in the majority community, where more than 40,000 family violence reports were made in Dallas, Collin, Denton, Tarrant and Rockwall Counties in 2005.

The Texas Health and Human Services Commission reports that in 2006, 636 victims were denied family violence services due to lack of space, and 7,474 victims accessed services in the Dallas area.

According to Jennifer Perry, development associate at Mosaic, residents served by the agency at Mosaic House are primarily immigrants from Asia, Eastern Europe, Africa, Latin America and the Middle East.

Of the women and children served by the agency in 2007, In 2007, the program served 171 women and children — of whom 32 percent were African, 31 percent Hispanic, 21 percent Asian, 15 percent European/Caucasian and 1 percent Middle Eastern.

Seven of these residents were victims of human trafficking.

“The number of residents increased by 17 percent in the past year,” according to Mr. Nguyen, “and more community support is needed to meet the demand for our services.”

“Most [but not all] of the human trafficking cases in this region have involved people from either Asia or Central America,” said Mr. Nguyen.

There is no substantive reason for this, other than the victims that have been found in the area just happen to be from those regions.

However, Mr. Nguyen said there is currently a great deal of research being conducted in an attempt to learn from which countries trafficking is taking place, and the reasons for this.

“The cases that have been prosecuted thus far are not sufficient to give a clear indication of this,” said Mr. Nguyen.

“In general, those who have been trafficked are from many different areas. Mosaic is working closely with federal and local law enforcement agencies in these trafficking cases.”

By STEVEN GREENHOUSE
A federal judge has approved a $6.2 million settlement for black and Hispanic sheet metal workers in a 37-year-old lawsuit against a union that critics have called one of the city’s most notorious for racial discrimination, the Equal Employment Opportunity Commission announced on Tuesday.

Judge Robert L. Carter of Federal District Court in Manhattan approved the settlement last week in a lawsuit that charged Local 28 of the Sheet Metal Workers with failing to provide equal employment opportunities.

The settlement is a major step toward ending the suit, in which the federal court had found Local 28 in contempt on four occasions over two decades for repeatedly failing to comply with orders to end discriminatory practices.

“This lawsuit has lasted 37 years because for a very long time the union’s old guard resisted change and would not bring itself into compliance with the court order,” said Jyotin Hamid, a partner with Debevoise & Plimpton, which, with the Lawyers’ Committee for Civil Rights Under Law, represents the black and Hispanic workers in the case.

Local 28 represents 3,000 sheet metal workers in New York City and on Long Island. The workers often install metal ducts in new buildings.

The E.E.O.C. first filed the lawsuit in 1971, and the current settlement compensates 156 black and Hispanic sheet metal workers for lost wages for the years 1984 to 1991. Some workers who faced discrimination in the years before 1984 had previously received lost pay, and the E.E.O.C. is still pursuing claims of lost wages for sheet metal workers who a court expert found were discriminated against in the dozen years after 1991.

Riccardo Iaccarino, a lawyer for Local 28, said the union’s new leaders, who were elected in 2006, had decided to resolve the suit instead of fighting it, as the previous leadership had done for decades.

“This is a historic moment for the union,” Mr. Iaccarino said. “The union’s new business manager, Michael Belluzzi, has decided to work for the betterment of the union for all its members, minority and nonminority.”

The union also agreed to make significant changes in its job-referral system and to create a monitoring system that would help give its members equal access to job opportunities.

“We hope that these developments are an indication that, with the recent change in leadership, the union has decided, after many years of costly litigation, to work with the court and the plaintiffs in obeying the court orders,” said Spencer Lewis, the district director of the E.E.O.C.’s New York office.

The state and the City of New York were also involved in the case.

Until the late 1940s, Local 28 had a provision in its constitution that excluded nonwhites. Even after that provision was removed, according to federal officials, the union continued to discriminate. In 1974, the officials said, minority workers made up 3 percent of the union’s membership.

In 2004, a court expert still saw problems, finding “statistically significant disparity between the hours worked by white and nonwhite members of Local 28.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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