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(Indigenous) Language As a Human Right

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University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 2020 (Indigenous) Language as a Human Right Kristen Carpenter University of Colorado Law School Alexey Tsykarev Center for Support of Indigenous Peoples and Civic Diplomacy «Young Karelia» Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Human Rights Law Commons, Indian and Aboriginal Law Commons, and the Law and Race Commons Citation Information Kristen Carpenter and Alexey Tsykarev, (Indigenous) Language as a Human Right, 24 UCLA J. INT'L L. & FOREIGN AFF. 49 (2020), available at https://scholar.law.colorado.edu/articles/1297. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. DATE DOWNLOADED: Fri Sep 18 14:15:58 2020 SOURCE: Content Downloaded from HeinOnline Citations: Bluebook 21st ed. Kristen Carpenter & Alexey Tsykarev, (Indigenous) Language as a Human Right, 24 UCLA J. INT'l L. FOREIGN AFF. 49 (2020). ALWD 6th ed. Carpenter, K.; Tsykarev, A. ., (indigenous) language as a human right, 24(1) UCLA J. Int'l L. Foreign Aff. 49 (2020). APA 7th ed. Carpenter, K., & Tsykarev, A. (2020). (indigenous) language as human right. UCLA Journal of International Law and Foreign Affairs, 24(1), 49-132. Chicago 7th ed. Kristen Carpenter; Alexey Tsykarev, "(Indigenous) Language as a Human Right," UCLA Journal of International Law and Foreign Affairs 24, no. 1 (Spring 2020): 49-132 McGill Guide 9th ed. Kristen Carpenter & Alexey Tsykarev, "(Indigenous) Language as a Human Right" (2020) 24:1 UCLA J Intl L & Foreign Aff 49. MLA 8th ed. Carpenter, Kristen, and Alexey Tsykarev. "(Indigenous) Language as a Human Right." UCLA Journal of International Law and Foreign Affairs, vol. 24, no. 1, Spring 2020, p. 49-132. HeinOnline. OSCOLA 4th ed. Kristen Carpenter and Alexey Tsykarev, '(Indigenous) Language as a Human Right' (2020) 24 UCLA J Int'l L Foreign Aff 49 Provided by: William A. Wise Law Library -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your license, please use: Copyright Information (INDIGENOUS) LANGUAGE AS A HUMAN RIGHT Kristen Carpenter and Alexey Tsykarev* ABSTRACT The United Nations General Assembly has proclaimed 2022-2032 as the International Decade of Indigenous Languages. Building on les- sons of the International Year of Indigenous Languages of 2019, the Decade will "draw attention to the critical loss of indigenous languag- es and the urgent need to preserve, revitalize and promote indigenous languages." These actions are necessary, in part, because existing laws and policies have proven inadequate to redress the legacy of state suppression of indigenous languages or ensure nondiscrimination in contemporary usage. In light of the International Year and Decade, this Article explores the rights of indigenous peoples to "use, revitalize, and transmit their languages,"as recognized in the UN Declaration on the Rights of Indigenous Peoples and other human rights instruments. The Article considers how a better understanding of the human rights dimensions of the problem-and especially a more thoughtful approach to the "implementation" of human rights in both law and society-could Kristen Carpenter is the Council Tree Professor and Director of the American Indian Law Program at the University of Colorado Law School, in Boulder, CO, USA. She is also Chair of the United Nations Expert Mechanism on the Rights of Indigenous Peoples. Alexey Tsykarev serves as Chair of the Center for Support of Indigenous Peoples and Civic Diplomacy <Young Karelia>> in Karelia, Russia. He served on the UN Expert Mechanism on the Rights of Indigenous Peoples from 2013 to 2019, and joined the UN Permanent Forum on Indigenous Issues in 2020. The authors would like to thank Jim Anaya, Greg Bigler, Andy Cowell, Barbara Duncan, Ruslan Garipov, Angela Riley, Yoney Spencer, Pirjo Virtanen, Shannon Bischoff, and John Standingdeer for helpful comments and discussions on this topic, as well as the University of California, Los Angeles; University of Colorado; University of Purdue Fort Wayne; and Muscogee (Creek) Nation for opportunities to pres- ent this Article as a work-in-progress. 24 UCLA J. INT'L L. & FOR. AFF. (2020) help to advance remedial and ongoing measures toward the realization of indigenous peoples language rights going forward. TABLE OF CONTENTS INTRODUCTION ............................................................................................. 50 I. REALITIES AND RIGHTS ...................................................................... 59 A. The Situation of Indigenous Languages .................................... 59 B. The Human Rights Fmmework ............................................... 64 II. LANGUAGE RIGHTS IN PRACTICE: CASE STUDIES ................................... 71 A . U nited States ............................................................................. 72 1. Legal History and Current Situation .................................... 73 a. Federal Indian Policy and the Suppression of American Indian Languages 1800s-1960s ...................................... 73 b. Self-Determination in Federal Indian Language Policy ...... 75 2. The Right to Revitalize, Use, Develop and Transmit .......... 80 3. Implementing Human Rights ............................................... 93 B . R u ssia .......................................................................................... 103 1. Legal History and Current Situation ...................................... 103 a. Language Policy in Tsarist Russia and the Soviet Union: Russification and Other Concerns ..................................... 103 b. Controversies of Linguistic Policy in the Post-Soviet Era 107 2. The Right to Revitalize, Use, Develop and Transmit ............. 118 3. Implementing Human Rights ................................................. 126 C ONCLU SION ................................................................................................... 129 INTRODUCTION In some of the world's most wealthy and powerful countries, indigenous people are dying over language rights. Jakelin Caal Maquin was seven years old in late 2018 when she and her father crossed into the United States from Mexico.' After they were taken into custody by Customs and Border Protection Security, Jakelin's father signed a form attesting to his daughter's good health 2 but the form was not translat- ed into Kekchi, the Maya language that they spoke.3 In reality, Jakelin 1. Amanda Covarrubias, Guatemalan Girl Likely Died of 'Septic Shock' After Crossing Border,Hospital Officials Said, NBCNEwS (Dec. 17, 2018), https://www.nbcnews. com/news/us -news/guatemalan-girl -died-sepsis -shock -hospit al -officials -said -n948666 [https://perma.cc/QM7V-EVJQ]. 2. David Taylor, Why Did a Little Guatemalan Girl Die?, GUARDIAN (Dec. 17,2018), https://www.theguardian.com/us-news/2018/dec/17/guatemalan-girl-jakelin-caal-maquin- death-crossing-us-border [https://perma.cc/9WFD -ENLL]. 3. See Geoff Nunberg, Migrant Girl's Death Reveals a Need for More Interpreters Along the Border, NPR (Jan. 3, 2019), https://www.npr.org/2019/01/03/681942831/opinion- migrant-girls-death-reveals-a-need-for-more-interpreters-along-the-borde [https://perma. (Indigenous)Language as a Human Right was critically ill, with a high fever and infection, but her father could not communicate this in English or Spanish.4 By the time authorities realized her condition, it was too late, and Jakelin died in U.S. custody.' The United States denied responsibility6 and sent Jakelin's body home to her indigenous community in Guatemala.' Nine months later, across the world in Russia, Albert Razin, a scholar and speaker of the Udmurt language, set himself on fire pro- testing a new law diminishing opportunities for indigenous language instruction in schools.8 He carried a sign with a quote from the Avar cc/ZMK7-L4BT] ("Seven-year-old Jakelin Caal died in U.S. custody in December. Lin- guist Geoff Nunberg says her death might have been prevented had border agents spoken the Mayan language Q'eqchi'"); Aaron Montes, Family of Migrant Girl Disputes Official Version of Her Death, L.A. TIMES (Dec. 15, 2018), https://www.latimes.com/nation/la-na- guatemala-mexico-migrant-girl-20181215-story.html [https://perma.cc/KCE6-QMKF] ("Caal and his daughter came to the U.S. looking to seek asylum, but once in Customs and Border Protection custody, he quickly ran into a language barrier with the agents, the law- yers said. His first language is Q'eqch and Spanish is his second, but all the forms he was asked to sign were in English, the statement read. 'It is unacceptable for any government agency to have persons in custody sign documents in a language that they clearly do not understand,' it said."). 4. For other stories of immigrants to the US facing
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