answer question

Neuner, Matthias, ed. (2003). National Legislation Incorporating International Crimes: Approaches of Civil and Common Law Countries. Berlin: Wissenschafts- Verlag.

Sadat-Wexler, Leila (1999). “National Prosecutions for International Crimes: The French Experience.” In International Criminal Law, 2nd edition, ed. M. Cherif Bassioiuni. New York: Transnational Publishers.

Schabas, William A. (1999). “International Sentencing: From Leipzig (1923) to Arusha (1996).” In International Criminal Law, 2nd edition, ed. M. Cherif Bassioiuni. New York: Transnational Publishers.

Schabas, William A. (2004). “Addressing Impunity in Developing Countries: Lessons from Rwanda and Sierra Leone.” In La voie vers la Cour pénale internationale: tous les chemins mènent à Rome (The Highway to the International Criminal Court: All Roads Lead to Rome), ed. Hélène Dumont and Anne-Marie Boisvert. Montreal: Éditions Thémis.

Schwelb, E. (1946). “Crimes Against Humanity.” British Yearbook of International Law 178.

Tully, L. Danielle (2003). “Human Rights Compliance and the Gacaca Jurisdictions in Rwanda.” British Columbia International & Comparative Law Report 26:385.

Viout, Jean-Olivier (1999). “The Klaus Barbie Trial and Crimes Against Humanity.” Hofstra Law & Policy Symposium 3:155. New York: Hofstra University Press.

Weinschenk, Fritz, (1999). “The Murders among Them— German Justice and the Nazis.” Hofstra Law & Policy Symposium 3:137.

John McManus Matthew McManus

The views herein expressed are those of the author, and do not necessarily reflect the views of the Canadian

Department of Justice or the Government of Canada.

Native Americans The international community has not legally admon- ished the United States for genocidal acts against Native Americans, yet it is clear that examples of genocidal acts and crimes against humanity are a well-cited page in U.S. history. Notorious incidents, such as the Trail of Tears, the Sand Creek Massacre, and the massacre of the Yuki of northern California are covered in depth in separate entries in this encyclopedia. More contro- versial, however, is whether the colonies and the Unit- ed States participated in genocidal acts as an overall policy toward Native Americans. The Native-American population decrease since the arrival of Spanish explor- er Christopher Columbus alone signals the toll coloni- zation and U.S. settlement took on the native popula- tion. Scholars estimate that approximately 10 million pre-Columbian Native Americans resided in the pres- ent-day United States. That number has since fallen to approximately 2.4 million. While this population de-

crease cannot be attributed solely to the actions of the U.S. government, they certainly played a key role. In addition to population decrease, Native Americans have also experienced significant cultural and propri- etary losses as a result of U.S. governmental actions. The total effect has posed a serious threat to the sustainability of the Native-American people and cul- ture.

Ideological Motivations Two conflicting yet equally harmful ideologies signifi- cantly influenced U.S. dealings with Native Americans. The first sprang from the Enlightenment and, more specifically, John Locke’s Second Treatise of Govern- ment. Locke proposed that the individual had an exclu- sive claim to one’s person. The fruits of one’s labor, as an extension of the individual, then, become the labor- er’s property. Thus, individuals acquire property rights by removing things from the state of nature through the investment of their labor. This particular theory of property helped justify the many harmful policies against Native Americans throughout United States his- tory. European settlers falsely saw the Americas as a vast and empty wasteland that the Native Americans had failed to cultivate and, therefore, had no worthy claim to. Euro-Americans saw themselves as the torch- bearers of civilization and therefore thought they were uniquely situated to acquire the vast wilderness and de- velop it (this later developed into the idea of Manifest Destiny). To the Euro-American mind, that the Native Americans must yield to European settlement was inev- itable. This line of reasoning went so far as to result in a common nineteenth-century belief that the extinction of Native Americans was also inevitable.

The second ideological motivation behind U.S. treatment of Native Americans was the policy of assimi- lation. Its origins are manifested in president Thomas Jefferson’s idea of the yeoman farmer. Jefferson envi- sioned a land populated by industrious and autono- mous yeoman farmers. Native Americans stood in the way of this vision by their communal occupation of vast quantities of land. The best solution, then, would be for Native Americans to assimilate to Euro- American ways. Thus, the Native Americans would re- quire less land and the remainder would be available to white settlers. Under this ideological view of Native Americans’ role in the new world, there was no place for Native-American culture as it existed before coloni- zation. It was a useless stump in fertile land that had to be extracted. Assimilation of Native Americans and the intentional destruction of Native-American culture remained overt policies into modern times and were often tied to many religious groups’ interactions with Native Americans.

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Colonies and States

One of the lesser known facts in U.S. history is that the Virginia and Carolina colonies were heavily engaged in the slave trade of Native Americans. In the Carolinas, the proprietors of the colonies favored cultivating Na- tive-American ties for the lucrative fur trade. Settlers, some from Barbados where slavery was already estab- lished, however, raided Native-American tribes and ex- ploited long-standing native rivalries in order to cap- ture and sell Native Americans on the slave market. Historian Thomas R. Berger notes that a South Carolin- ian, James Moore, abducted and enslaved 325 Native Americans in the Florida region in 1704 and also launched a lucrative attack against the North Carolin- ian Tuscarora tribe in 1713, killing 200 and capturing 392. The end result of such campaigns was to displace many of the eastern seaboard tribes. The majority of Native Americans in this region were enslaved domesti- cally, sold abroad, or forced to flee into the interior. Such displacement necessarily also destroyed these tribes’ cultural unity. These acts of intentional enslave- ment and displacement would qualify as genocidal acts under the United Nations (UN) definition of genocide. While slavery is not specifically mentioned in the UN Genocide Convention’s definition of genocide, it fits the spirit of the convention. These acts deliberately caused bodily and mental harm and imposed condi- tions on the eastern tribes that made life near the colo- nized settlements precarious to the point of becoming impossible.

Relations between the northeastern tribes and col- onists were also precarious and often hinged on per- ceived threat, land conflicts, and trade relations. The Puritans of New England recognized native land title only if the land was being cultivated and had a persis- tent practice of enslaving Native Americans. What har- mony existed was often disturbed by conflicts over new settlements and further encroachment on native land. The Pequot War of 1637 illustrates this tension. The Pequot had faired the influx of Western disease better than other tribes and had the strength to resist settle- ments rather than acquiesce to them. When settlers moved into the Connecticut Valley, the Pequot did just that. In response, a group of settlers launched an attack against the Pequot stronghold at night, surrounding and setting fire to it. The result was the killing of more than five hundre Pequot and the enslavement of the survivors. The desire to eliminate a threat also motivat- ed a similar policy of extermination in Virginia follow- ing the Indian massacres of 1622 and 1644.

The western states did not fair much better with their relations with Native Americans. The Sand Creek Massacre in Colorado (1864) and the massacre of the

A mass burial in the aftermath of the Wounded Knee massacre, 1890.[CORBIS]

Yuki of northern California (1856–1860) demonstrate that the competition for land and other resources was not fixed in time, but enduring throughout the United States’ westward expansion. Both the desire to elimi- nate a threat and competition for resources, usually land, led many colonies and states to actions that would probably be considered war crimes or crimes against humanity under the Rome Statute.

Federal Government

Much of the federal government’s dealings with Native Americans were fueled by states’ and individuals’ desire for land. After the French and Indian War (1754–1763), the English strongly opposed encroach- ment on native lands for fear that it would provoke na- tive retaliation and the destruction of beneficial mili- tary and trade alliances. King George’s Proclamation of 1763 forbade settlement beyond the eastern mountain ranges and granted the Crown the exclusive right to purchase Native-American land. This law frustrated many colonists and land speculators, including Virgin- ia statesman George Washington, who wished to pur- chase native lands. Under the Proclamation, native lands could be acquired from the Crown, but at a much higher price. The restriction on settlement of certain portions of land also greatly hindered the expansion that many colonists saw as desirable and inevitable. The Crown’s interference with settlers’ desire for cheap, arable land contributed to many colonists’ support and justification for the Revolutionary War. This property system, whereby Native Americans had occupancy rights but because the Europeans “discovered” the con- tinent the Crown had exclusive purchasing rights, was later absorbed into U.S. federal law in the seminal case

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Kiowa- Apache

P a c i f i c O c e a n

Pojoaque Santa Clara

Makah Samish

Umatilla Twana

Pawnee

Ponca

Arikara

Mandan Northern Cheyenne

Hidatsa

Lakota

Southern Cheyenne

Kiowa

Comanche

Lipan

MansoChiricahua Mogollon

Tompiro Mimbreno Apache Mescalero

Sandia Mimbreno Tano

Ysleta de Sur Isleta

Piro Acoma Keres

Tiwa

Laguna San Felipe Pecos Santa Ana Santo Domingo Towa

Zia Tesuque Nambe San Ildefonso

Tewa San Juan TaosJemez

Pueblo Jicarilla

Zuñi

Anasazi

Ute

Navajo Cochiti

San Carlos

Tonto

Arapaho

Eastern Shoshone

Northern Shoshone

Bannock

Crow

Nakota

Gros VentreSalish

Flathead

PieganShoalwater Skagit Sauk-Suiattle

KalispelSnohomish Tenino SpokanQuileute Snoqualmie

Lake WallawallaQuinault Duwamish Klallam

Skokomish Puyallup Sanpoil Chelan Colville

Kootenai

Coeur d´AlenePalouseWenatcheeNisqually

Squaxin Island Chehalis Saanich

SteilacoomCoast Salish Wishram

Swinomish

Klikitat Yakima

Lummi

Cow Creek Band Umpqua

K al

ap uy

a

Hoh

ChinookStillaguamish Cowlitz Nez Percé

CayuseMuckleshoot Clatsop Nooksack Kwalhioqua

Tillamook Siletz

Wasco

Yaquina Alsea

Kuitsh

Klamath

Siuslaw Coos

Latgawa

Coquille Upper Umpqua Tututni Tolowa

Takelma

Chastacosta

Shasta Northern Paiute

Nongatl Wiyot Yana

Yurok Whilkut Modoc Karok Huchnom Achumawi

AtsugewiChilula Hupa Lassik Bear River Wintun Wailaki Chimariko

Western Shoshone

GoshuteYuki Cahto Maidu Mattole WashoeSinkyone

Pomo

Patwin Wappo Miwok

Yahi Kawaiisu

Esselen Costanoan

Salinan Mono Owens Valley Paiute

Yokuts Nomlaki

Tubatulabal

Chumash Serrano Gabrieliño

Southern Paiute

Chemehuevi

Kitanemuk Karankawa

Tataviam

Luiseño Cupeño

Halchidhoma

Cocopa

Mohave

Yuma

Kumeyaay

Hopi Havasupai

Apache

Yavapai White Mountain

Pima

Walapai

Maricopa Aravaipa

Tohono O’odham

Sobaipuri

Picuris

Hopi-Tewa

Hohokam

Cahuilla

Columbia

Map showing location of Native-American tribes throughout the United States prior to their annihilation and forced relocation westward in the nineteenth century.

Native Americans

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A t l a n t i c O c e a n

G u l f o f

M e x i c o

Nansemond

Stockbridge

Tuscarora

Abenaki

Penobscot

Pennacook

Mohawk

Onondaga ManhattanOneida

Iroquois Mohegan

Nipmuk

Delaware

Massachuset

Nanticoke

Cayuga

Seneca

M un

se e

M ah

ic an

W ap

pi ng

er

Narraganset Pequot

Podunk Wampanoag

Montauk ShinnecockPaugussett

Brothertown

Unami

Susquehanna

Po ta

w at

om i

Erie

Adena

Menominee

Piscataway

Mattaponi Monacan Pamunkey

Powhatan Chickahominy

HopewellMiami

Shawnee

Tutelo

Koasati

Cherokee

Saponi Rappahannock

MeherrinLumbee

Catawba

Cheraw

Pamlico

Waccamaw Coharie

Edisto

Yuchi

Guale

Cusabo

Pedee Santee

Yazoo

Apalachee

Yamasee

Apalachicola

Seminole

Timucua

Calusa

Chickasaw

Miccosukee

Hitchiti

Creek

Etowah

Coushatta

Alabama Mobile

Choctaw

Chitimacha

Houma Biloxi

Tunica

Natchez Kichai

Hasinai

Quapaw

Caddo

Missouri

Kaskaskia

Cahokia

Peoria

Fox

Mississippian

Osage

IllinoisIowa

WinnebagoKickapoo

Sauk

Dakota

Oto

Omaha

Wichita

Kaw (Kansa)

Tonkawa

Tawakoni Waco

Schaghticoke

Johnson v. McIntosh in 1823. Despite this paternalistic relationship between the federal government and the native tribes in the post-revolutionary United States, settlers continued to attempt to acquire native lands through direct purchase and coercion. The promise of

economic gain at Native Americans’ expense by taking native land was a cornerstone of the voting Euro- American population’s interaction with Native Ameri- cans and heavily influenced U.S. Native-American poli- cy.

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The War of 1812 marked a turning point from the policy of Native-American assimilation and partial re- tention of native land to the policy of outright removal of native tribes to the West of the Mississippi. The forced removal or tribes also resulted in a total relin- quishment of traditional native land. After many largely unsuccessful attempts to convince the five relatively prosperous and assimilated tribes of the Southeast (Cherokee, Choctaw, Chickasaw, Seminole, and Creek) to voluntarily move westward, the federal gov- ernment acquiesced to state pressure and passed the In- dian Removal Act of 1830. It offered a trade of land in the East for land in the West. The particularly coercive aspect of the act was that those who refused the ex- change would no longer be protected under federal law and would be subject to hostile state regulation. The re- moval policies of the federal government resulted in the humanitarian disaster referred to by the Cherokee as the Trail of Tears.

Approximately four thousand Cherokee perished on this forced walk to western lands. Removal, howev- er, was a larger policy than this one famed act. It oc- curred both before and after 1830 and represented the belief that American Indians were not capable of exist- ing with nor desired to coexist with white settlers. There were conflicting motivations behind the policy. For some, it was a thinly veiled method of evicting Na- tive Americans from land that was desired by white set- tlers. For others, it was based on the belief that Native Americans were members of an inferior civilization that could not survive in the civilized world and therefore needed to be removed for their own sake. Either way, some scholars reference the federal removal policy as a genocidal act due to the death and proprietary loss in- curred to Native Americans as well as the destruction of their traditional way of life.

A second and particularly destructive policy was that of assimilation. Behind assimilation policies lies the desire to remove all that is “Indian” from the Native Americans. A particularly poignant historical example of how this policy was also tied to the continued desire for more land is the General Allotment Act of 1887 (the Dawes Act). This act terminated communal land hold- ings on the reservations and redistributed land to indi- vidual Native Americans by a trust system. After twen- ty-five years, they would own the land individually and become U.S. citizens. Any “surplus” land would be taken for sale to settlers. It was an attempt to assimilate Native-American traditions of communal land holdings to the Euro-American system of private ownership. Thereby, it was thought, Native Americans would join mainstream society and, at the same time, require less land. This act had disastrous effects on traditional Na-

tive-American life and reduced their land holdings by two-thirds.

Yet another assimilation policy was the forced re- moval of Native-American children from their parental homes to boarding schools for “civilized” education. The Northwest Ordinance of 1787 established an invol- untary boarding-school system where children were typically forbidden to speak their native language and were stripped of all outward native characteristics. The Carlisle Indian Industrial School was one of these schools and incorporated an “outing system” whereby children were placed with white families in order to learn American customs and values. While having the good intention to provide education to Native- American children, this system of indoctrination was also aimed at “killing the Indian and saving the man” (Glauner, 2002, p. 10) as Richard Pratt of the Carlisle School said. In the twenty-first century, this policy would be considered both a potential violation of the UN Genocide Convention’s prohibition on transferring children from one group to another, and a blatant in- tention to cleanse the Indian population of their native language and cultural values through the re-education of their children.

A clearer example of a federal genocidal act against Native Americans was the involuntary sterilization of approximately seventy thousand Native-American women. The federally funded Indian Health Services carried out these sterilizations between 1930 and the mid-1970s. They were often done without informed consent, covertly, or under a fraudulent diagnosis of medical necessity. This directly contravenes the UN Genocide Convention. Destroying a group’s ability to reproduce is an obvious and crude method of ensuring the inability of the group’s survival.

Whether government actions such as the Trail of Tears and assimilation policies qualify as genocidal acts or as crimes against humanity continues to be a subject of much disagreement and debate. The UN Genocide Convention requires that a state actor have “intent to destroy” a group to satisfy the definition of genocide. As previously outlined, many of the actions taken by the federal, state, and colonial governments fell short of actual intent to destroy the Native Americans. Schol- ars Frank Chalk and Kurt Jonassohn maintain that the closest cases are the massacres at Sand Creek and of the Yuki of Round Valley (a modern example would be the sterilization programs). In both instances, govern- ment officials played key roles in facilitating the pur- poseful killing of Native Americans. The circumstances under which the United States committed genocide against Native Americans tended to be when other methods failed to clear a path to settlement, or other

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notions of progress. “Ethnocide was the principal Unit- ed States policy toward American Indians in the nine- teenth century . . . the federal government stood ready to engage in genocide as a means of coercing tribes when they resisted ethnocide or resorted to armed re- sistance” (Chalk and Jonassohn, 1990, p. 203).

The U.S. government was more often guilty of acts of “advertent omission” (that is, without intent to com- mit genocide, failing to act to prevent private acts that have genocidal effects or failing to perform obligations that prevent genocidal effects). There is a debate as to whether such acts should be incorporated into the defi- nition of genocide, although they currently are not a part of the UN definition. Continually turning a blind eye to aggressive settlers’ illegal consumption of native land and to other private acts of intimidation are exam- ples. On the plains, the U.S. government did not pre- vent the destruction of tribes’ primary food source and government officials often spoke in approval of it. From 1883 to 1910, the buffalo, upon which tribes in that area were dependent, were killed in such great quantities that the number fell from 60 million to 10 buffalo. Without their traditional food source and with the pressure exerted by settlers mounting, the plains Indians experienced famine or were forced to relocate to reservations. Further, the United States often failed to uphold treaty obligations to provide protection, food, and blankets to Native Americans. The failure of the U.S. government to protect Native Americans and, in some cases, to follow through on its own obligations, left Native Americans with few options and contributed to their destruction.

The third possibility is to categorize U.S. actions as crimes against humanity under Section 7 of the Rome Statute of the International Criminal Court. Murder, extermination, and deportation or forcible transfer of population fall under this statute when done “as part of a widespread or systematic attack directed against any civilian population. . . .” Because many of the acts of removal were coercive, they could qualify as crimes against humanity.

Conclusions The aforementioned allegations of genocidal acts against American Indians occurred before the United States ratified the UN Genocide Convention in 1948 (as of 2004, the United States has not ratified the Rome Statutes). Most treaties in international law are not re- troactive. Legal reprisal under the UN Genocide Con- vention, then, is not likely. An argument may be made, however, that the involuntary sterilization of Native- American women occurred after the United States signed the UN Genocide Convention (although before

ratification) and that the United States violated its obli- gation not to act against the object and purpose of the treaty.

Perhaps more important than formal legal sanc- tions, however, is the recognition of the colonies’, the United States’, and individuals’ role in the devastation of Native-American population and culture. As the de- scription of state policies and actions attest, the de- struction of Native-American communities and culture was neither by chance nor mandated by fate. It was di- rectly connected to government policies and actions.

SEE ALSO Cheyenne; Forcible Transfer; Indigenous Peoples; Pequots; Racism; Sand Creek Massacre; Trail of Tears; Wounded Knee; Yuki of Northern California

BIBLIOGRAPHY

Axtell, James (1981). The European and the Indian: Essays in the Ethnohistory of Colonial North America. New York: Oxford University Press.

Berger, Thomas R. (1999). A Long and Terrible Shadow: White Values, Native Rights in the Americas since 1492. Seattle: University of Washington Press.

Berkhofer, Robert F., Jr. (1965). Salvation and the Savage: An Analysis of Protestant Missions and American Indian Response, 1787–1862. Lexington: University of Kentucky Press.

Chalk, Frank, and Kurt Jonassohn (1990). The History and Sociology of Genocide: Analyses and Case Studies. New Haven, Conn.: Yale University Press.

Churchill, Ward (1997). A Little Matter of Genocide: Holocaust and Denial in the Americas, 1492 to the Present. San Francisco: City Lights Books.

Dippie, Brian W. (1982). The Vanishing American: White Attitudes and U.S. Indian Policy. Middletown, Conn.: Wesleyan University Press.

Glauner, Lindsay (2002). “Comment: The Need for Accountability and Reparation: 1830–1976 The United States Government’s Role in the Promotion, Implementation, and Execution of the Crime of Genocide Against Native Americans.” DePaul Law Review 51:911.

Hagan, William T. (1979). American Indians. Chicago: University of Chicago Press.

Horsman, Reginald (1970). The Origins of Indian Removal 1815–1824. East Lansing: Michigan State University Press.

Lynden, Fremont J., and Lyman H. Legters, eds. (1992). Native Americans and Public Policy. Pittsburgh: University of Pittsburgh Press.

Sheehan, Bernard W. (1973). Seeds of Extinction: Jeffersonian Philanthropy and the American Indian. New York: W.W. Norton.

Wilkins, David E. (2002). American Indian Politics and the American Political System. New York: Rowman & Littlefield.

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Williams, Robert A. Jr. (1990). The American Indian in Western Legal Thought: The Discourses of Conquest. New York: Oxford University Press.

Stacie E. Martin

Nongovernmental Organizations There is a vast diversity among nongovernmental orga- nizations (NGOs) in respect to composition, methods of working, membership, and purpose. If there is a common denominator to be found, it is less in what NGOs are but rather in what they are not. As Deborah Spar and James Dail have noted, NGOs are not “states or firms; not elected or appointed” (2002, p. 173). Some have argued that this creates a “democratic defi- cit,” meaning NGOs are self-appointed representative agencies that may not be accountable to those they rep- resent. NGOs differ in size, focus, wealth, and working methods, as do their clientele and target groups. NGOs may be local (working within a single state), regional (working across national borders), or international. They range from one-person operations to organiza- tions with large numbers of workers and with offices

The secretary general of Amnesty International, Pierre Sane (second from right), discusses the organization’s 1996 China campaign, March 15, 1996. [AP/WIDE WORLD PHOTOS]

in numerous countries. Some, like Amnesty Interna- tional, are membership-driven and supported largely by donations from its constituent members. Others, such as Human Rights Watch, rely primarily on foun- dations or single donors for the funds needed to pay operating costs. The degree to which an organization’s membership base is drawn from civil society provides some clue as to what extent the organization suffers from the “democratic deficit” attributed to these “un- elected” bodies.

Definitions Given the rather fluid nature of the composition of the NGO community, it can be difficult to provide a precise definition of this type of organization. The Encyclopedia of Public International Law defines NGOs as:

private organizations (associations, federations, unions, institutes, groups) not established by a government or by an international agreement, which are capable of playing a role in interna- tional affairs by virtue of their activities, and whose members enjoy independent voting

Nongovernmental Organizations

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