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674. It is not the practice of the Federal Bureau of Prisons (BOP) or of most state corrections departments to restrict corrections officers to work only with inmates of the same sex. The BOP’s position on cross-gender supervision is that the qualifications of the correctional worker, not the sex of the worker, determine the assignment of work. However, same sex supervision is required for visual inspection of body surfaces and body cavities (except where circumstances are such that delay would mean the likely loss of contraband) , digital searches, and urine surveillance. Because requiring female officers always to be present during male officers’ access to women’s quarters would be extremely burdensome on limited prison resources, appropriate measures are taken to protect female prisoners. The privacy interests of female inmates are accommodated when it does not significantly affect either security or employment rights by taking measures such as staffing each work shift with at least one male and one female on duty at institutions where there are both male and female inmate populations. BOP staff members are trained to respect inmates’ safety, dignity, and privacy, and procedures exist for investigation of complaints and disciplinary action, including criminal prosecution, against staff who violate applicable laws and regulations. Upon hiring, BOP staff members are trained on the Standards of Employee Conduct and the Prevention and Intervention of Sexual Abuse of Inmates. Refresher training is mandatory on an annual basis. All staff members assigned to work at female institutions are also required to complete the training course, Managing Female Offenders. Upon arrival at the institution, all federal inmates are also trained on BOP’s zero-tolerance policy on sexual abuse and the complaint procedures.

675. As noted in this report, considerable attention is being given to the issue of sexual abuse in confinement. The 2003 Prison Rape Elimination Act (PREA) established a national clearinghouse for information on this issue, provided for improved training of corrections staff on sexual abuse in confinement and how to prevent it, created the National Prison Rape Elimination Commission to develop recommended standards for correctional facilities nationwide, and instructed the Attorney General to review the Commission’s proposals and promulgate regulations accordingly. After the Commission issued its final report, the Department of Justice reviewed the recommended standards and issued a Proposed Rule seeking public comment on the Department’s proposed regulations. The Department is now reviewing the comments and making revisions as warranted for the publication of the Final Rule, which will include the final regulations. PREA training is mandatory within the BOP’s annual training curriculum for all staff, new supervisors and special investigative lieutenants.

676. With regard to shackling of pregnant women (which is described in the discussion under Article 3 in this report), this is an issue that has been raised by some members of civil society as an issue of particular concern. A 2008 BJS study found that 4% of state and 3% of female federal inmates reported they were pregnant when they were admitted. (Source: Bureau of Justice Statistics, Medical Problems of Prisoners, http://www.bjs.gov/content/pub/pdf/mpp.pdf). In 2008, BOP revised its policy for shackling pregnant inmates for federal institutions. The new policy, put in place in October of 2008, bars such activity, except in the most extreme circumstances. See Program Statement 5538.05, Escorted Trips, Section 9, page 10, http://www.bop.gov/policy/progstat/5538_005.pdf. Some states also restrict the shackling of pregnant female prisoners, including California, Colorado, Illinois, New Mexico, New York, Pennsylvania, Texas, Vermont, Washington, and West Virginia. The U.S. Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE) has also adopted policies substantially limiting the use of restraints on pregnant women.

677. In paragraph 34 of its Concluding Observations, the Committee recommended that the United States should ensure that no child offender is sentenced to life imprisonment without parole, and should adopt all appropriate measures to review the situation of persons already serving such sentences.

678. This is an issue that has been raised by civil society in the United States as an issue of particular concern. Under a May 17, 2010, Supreme Court decision, persons under the age of 18 at the time of the crime may not be sentenced to life in prison without the possibility of parole in the United States unless they have been convicted of homicide offenses. The Court held that sentencing juveniles to life without parole for a non-homicide offense violates the bar on cruel and unusual punishment in the Eighth and Fourteenth Amendments. Graham v. Florida, 130 S.Ct. 2011 (2010). In this case, Graham had been sentenced to life without the possibility of parole for participating in a home invasion robbery when he was 17 and on probation for armed burglary and another crime.

679. Under U.S. law, the imposition of the sentence of life in prison without parole is accompanied by important safeguards. Following the Supreme Court’s decision in Graham, a person under the age of 18 at the time of the crime who has been sentenced to life in prison without parole will have been tried and convicted, pursuant to law and procedures ensuring due process of law, of a homicide offense, and determined through formally constituted judicial proceedings to be an extreme danger to society. Whether a juvenile offender is prosecuted as an adult depends on a number of factors that are weighed by a court, such as, inter alia, the age or background of the juvenile, the type and seriousness of the alleged offense, the juvenile’s role in committing the crime, and the juvenile’s prior record/past treatment records. Courts look at these factors to determine whether the juvenile is amenable to the treatment and rehabilitative nature of juvenile justice systems. Sentencing patterns at the state level vary, but generally once a juvenile who has been tried as an adult has been found guilty of a serious crime punishable by life in prison without parole, a sentencing court may impose a term of imprisonment similar to other adult defendants. Juvenile offenders are separated from adult prisoners to the extent possible, taking into account factors such as the security risk that they pose to other prisoners, the risk of harm to themselves, their need for medical and/or mental health treatment options, and the danger they pose to others and to the community. For additional information on this issue, see the discussion under Article 9, Liberty and security of person.

680. In paragraph 35 of its Concluding Observations, the Committee recommended that the United States should adopt appropriate measures to ensure that states restore voting rights to citizens who have fully served their sentences and those who have been released on parole. The Committee also recommended that the United States review regulations relating to deprivation of votes for felony conviction to ensure that they always meet the reasonableness test of article 25. The Committee further recommended that the United States assess the extent to which such regulations disproportionately impact on the rights of minority groups and provide the Committee detailed information in this regard.

681. Recent developments concerning felony disenfranchisement are reported in the discussion under article 25 of this report.

682. In paragraph 36 of its Concluding Observations, the Committee recommended that the United States should ensure the right of residents of the District of Columbia to take part in the conduct of public affairs, directly or through freely chosen representatives, in particular with regard to the House of Representatives.

683. This issue is the subject of debate in the United States, and legislation addressing the issue is pending in the United States Congress. It is discussed in more detail in this report under Article 25, Access to the Political System.

684. In paragraph 37 of its Concluding Observations, the Committee recommended that the United States should review its policy towards indigenous peoples as regards the extinguishment of aboriginal rights on the basis of the plenary power of Congress, and grant them the same degree of judicial protection that is available to the non-indigenous population. The Committee further recommended that the United States should take steps to secure the rights of all indigenous peoples, under articles 1 and 27 of the Covenant, so as to give them greater influence in decision-making affecting their natural environment and their means of subsistence as well as their own culture.

685. In the past, some indigenous and civil society representatives have expressed concern about the U.S. position on the U.N. Declaration of the Rights of Indigenous Peoples. During President Obama’s first year in office, tribal leaders encouraged the United States to reexamine its position on this Declaration. In April 2010 the United States Ambassador to the United Nations announced that the United States had decided to review its position regarding that Declaration, noting that for many around the world, this Declaration provides a framework for addressing indigenous issues. After a formal interagency review, which included substantial consultations with tribal leaders and outreach to other stakeholders, President Obama announced on December 16, 2010, U.S. support for the Declaration. He also noted the release of a more detailed statement about U.S. support for the Declaration and the Administration’s ongoing work in Indian Country (available at http://www.state.gov/documents/organization/153223.pdf).

686. During its first hundred years of existence, the United States dealt with Indian tribes concerning land occupancy and property rights through federal treaties and legislation. Although treaty making between the federal government and the Indian tribes ended in 1871, many treaties retain their full force and effect today and have the force of federal law. Further, unlike treaties with foreign governments, treaties with Indian tribes are subject to special canons of construction that tend to favor Indian interests. Notably, Indian treaties are interpreted, to the extent that such original intention is relevant, as they would have been understood by the Indians at the time of their signing, as opposed to by the federal authors of the treaties; and where the treaty is ambiguous as to its interpretation, courts will interpret it to favor the Indians specifically because it was not written by them or in their language. Tulee v. Washington, 315 U.S. 681 (1942); Carpenter v. Shaw, 280 U.S. 363 (1930). Importantly, in the United States, indigenous individuals are United States citizens who live freely within the borders of the United States. Indigenous individuals have recourse to domestic institutions for the resolution of disputes, including domestic judicial and political processes. Indian tribes can also bring claims to protect tribal property rights as against third parties and, in certain circumstances, against the United States.

687. Historically, the U.S. recognized Indian tribes as holding their land in “aboriginal title,” which consisted of a right of use and occupancy. Over time, Congress and the Executive Branch have acted to recognize tribal property rights through treaties, statutes, and executive orders. Today, the more than 560 federally recognized tribes hold virtually all their land in fee simple or in trust (with the United States as trustee holding legal title and the tribe exercising all rights to occupation or use). In either case, such tribal holdings of land are fully protected by law.

688. Once Congress has acted to recognize Indian property rights, such as through treaty or statute, any impairment of such rights may be compensable under the Fifth Amendment of the U.S. Constitution. Although the Supreme Court long ago held that Congress had authority to alter treaty obligations of the United States, including with Indian tribes, see Chinese Exclusion Case, 130 U.S. 581 (1889) (international treaties); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) (Indian treaties), alterations that affect property rights may give rise to a Fifth Amendment claim for compensation. United States v. Sioux Nation, 448 U.S. 571 (1980). It should also be noted that, even where the occupancy right based on aboriginal title has been found to be not compensable, compensation in fact has often been paid by the United States for many Indian land cessions. One particularly notable measure of this type is the Alaska Native Claims Settlement Act of 1971, which provided a comprehensive mechanism for resolving the claims of Alaska Natives based on aboriginal title. Congress continues the practice of enacting legislation to compensate Indians and Indian tribes for past wrongs or inequities to the present. See, e.g., Cheyenne River Sioux Equitable Compensation Act, P. L. 106-511, 114 Stat. 2365 (2000) (providing additional compensation for tribe for taking of lands for flood control purposes in the 1950s). Indian tribes can also purchase land in fee for consolidation with other lands.

689. In 1946, Congress adopted the Indian Claims Commission Act, which provided for a quasi-judicial body, the Indian Claims Commission (ICC), to consider unresolved Indian claims that had accrued against the United States, a large portion of which involved historical (pre-1946) claims for compensation for taken lands. The act authorized claims to be brought on behalf of “any Indian tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska” (which was not yet a state) with respect to “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. . . .” Moreover, in addition to claims sounding in law or equity, the Act permitted claims asserting lack of “fair and honorable dealings” by the United States, even if such claims were “not recognized by any existing rule of law or equity.” Under the Act, recovery of compensation did not depend on proof of recognized title; compensation was available even if a tribe’s property interest was aboriginal only. The ICC represented the exclusive remedy for tribes in suits against the United States, which ordinarily would have been barred by statutes of limitations and sovereign immunity laws. The ICC also recognized lower burdens of proof on claimants, more favorable rules of evidence, and broad, equitable bases of relief in order to help American Indians and Alaska Natives establish their historic claims, including claims involving loss of aboriginal lands or other rights. Thus, the ICC provided to Indian claimants more favorable claimant procedures than would have been available to other claimants under regular court rules. The remedy provided for by the ICC was monetary damages. In certain other circumstances, the Congress specially authorizes tribes to bring claims against the United States that might otherwise be barred by legal impediments, such as the expiration of limitations periods. In still other cases, including ones for which compensation might not be available in court, Congress has enacted legislation to compensate tribes for past wrongs or claims.

690. In the context of employment, Indian tribes and their members enjoy special privileges not available to others. Consistent with Title VII, Indian tribes and tribally-owned businesses may prefer indigenous people in hiring. Other businesses operating on or near Indian reservations may also give preferential treatment in hiring to Indians living on or near a reservation. Finally, the Indian Preference Act of 1934 requires the federal government to prefer Indians in hiring for vacancies that concern “the administration of functions or services affecting any Indian Tribe.” 25 U.S.C. 472 (a).

691. With regard to the issue of participation and influence in decision-making, the United States provides for consultation with Indian tribes in numerous areas. Several executive orders direct federal agencies to consult with tribes regarding certain federal actions that are likely to have a direct effect on tribes. For example, Executive Order 13175 requires federal agencies to have a process for meaningful input from tribes in the development of certain policies that have tribal implications. On November 5, 2009, during the first White House Tribal Nations Conference, President Obama issued a memorandum to all federal agency heads directing them to prepare detailed plans of actions that the agencies will take to implement the policies and directives of Executive Order 13175. Other examples include executive orders requiring consultation on protecting Indian sacred sites and on tribal colleges and universities. Additionally, there are numerous federal statutes that require consultation with tribal governments and Native Hawaiian organizations, such as the Native American Graves Protection and Repatriation Act, the National Historic Preservation Act, and the American Indian Religious Freedom Act.

692. Moreover, legislation entitled the Native Hawaiian Government Reorganization Act has been introduced in both houses of the U.S. Congress. This legislation is designed to provide a process for the formation and recognition of a Native Hawaiian governing entity that would have a government-to-government relationship with the United States.

693. Under United States law, the U.S. Government recognizes Indian tribes as political entities with inherent powers of self-government. The federal government therefore has a government-to-government relationship with Indian tribes. In this domestic context, this means promoting tribal self-government over a broad range of internal and local affairs, including determination of membership, culture, language, religion, education, information, social welfare, maintenance of community safety, family relations, economic activities, lands and resources management, environment and entry by non-members, as well as ways and means of financing these autonomous functions.