50 Children’s Legal Rights Journal [Vol. 36: 1 2016]
sectors of society and are determined to preserve, develop and transmit to future
generations their ancestral territories, and their ethnic identity, as the basis of their
continued existence as peoples, in accordance with their own cultural patterns,
social institutions and legal systems. This historical continuity may consist of the
continuation, for an extended period reaching into the present of one of or more of
the following factors:
(a) Occupation of ancestral lands, or at least part of them;
(b) Common ancestry with the original occupants of these lands;
(c) Culture in general, or in specific manifestations (such as religion, living
under a tribal system, membership of an Indigenous community, dress,
means of livelihood, lifestyle, etc.);
(d) Language (whether used as the only language, as the mother tongue, as
the habitual means of communication at home or in the family, or as the
main, preferred, habitual, general or normal language);
(e) Residence in certain parts of the country, or in certain regions of the
(f) Other relevant factors.
While the United States has existing Indigenous cultures, Native Americans only make up
two percent of the U.S. population. Some scholars suggest they might be seen as a less important
minority group and might not be considered “at the table” in discussions about race relations.
Thus, discussions about minorities currently appear to focus primarily on African American and
33 This is likely due to population variances in the United States, and the fact that
indigenous populations are relatively small, while Hispanics and African Americans are the two
biggest minority groups in the United States.
34 Yet race, culture, and Indigeneity are relevant to all
youth justice considerations where racial disparities are viewed as a defining characteristic of the
American youth justice system.
31Martinez-Cobo supra note 23, at Add. 1-4.
32Morgon Godfrey, The US Can Learn a Lot from New Zealand on How to Embrace Indigenous Cultures, THE
GUARDIAN (Oct. 13, 2014), http://www.theguardian.com/world/2014/oct/13/-sp-new-zealand-teach-us-race-sport-
33See, e.g., The Personal News Cycle: A Focus on African American and Hispanic News Consumers, AM. PRESS INST.
(Sept., 2014), http://www.americanpressinstitute.org/publications/reports/survey-research/african-american-hispanic-news-consumers/ (describing the prevalence of these ethnic groups in the United States, and describing them as
America’s largest ethnic groups).
34Karen R. Humes et al., Overview of Race and Hispanic Origin: 2010 (2011),
http://www.census.gov/prod/cen2010/briefs/c2010br-02.pdf (providing data on racial and ethnic groups in the United
States and showing that the indigenous populations are much smaller than African American or Hispanic Populations).
35See e.g, Van Jones, ARE Blacks A Criminal Race? Surprising Statistics, HUFFINGTON POST,
http://www.huffingtonpost.com/van-jones/are-blacks-a-criminal-rac_b_8398.html (last updated May 25, 2011)
(addressing “the false debate” about a criminal race and the deeper issue of whether or not African Americans
contribute disproportionately to the crime rate, highlighting “media coverage, conviction rates . . . . [that] suggest that
Blacks commit crimes at a rate disproportionate to our numbers in society”; also explaining a conservative approach
and call for “tougher laws” based on the data); The Sentencing Project, Reducing Racial Disparity in the Criminal
Justice System: A Manual for Practitioners and Policymakers, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY
PREVENTION (2008), http://www.sentencingproject.org/doc/publications/rd_reducingracialdisparity.pdf (discussing
racial disparity and explaining that it exists “when the proportion of a racial or ethnic group within the control of the
system is greater than the proportion of such groups in the general population”); Elizabeth Bartholet, The Racial