Mayan League comments on HHS Proposed Rule on Unaccompanied Children Program Foundational Rule

International Mayan League 1201 K St. NW Washington, D.C. 20005

Phone: (202) 827-6673 Email: info@mayanleague.org www.mayanleague.org

December 4, 2023 | 13 Ajpu Submitted via: https://www.regulations.gov Toby Biswas Director of Policy, Unaccompanied Children Program Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services 330 C Street, S.W., Washington, D.C. 20201 Re: Comment on the Proposed Rule by the Department of Health and Human Services, Administration for Children and Families on Unaccompanied Children Program Foundational Rule 45 CFR Part 410 RIN 0970–AC93 Dear Mr. Biswas, The International Mayan League, the only Maya woman and youth-led organization in the United States (U.S.) submits these comments1 in response to the proposed Unaccompanied Children Program Foundational Rule published on 10/04/2023. Though we are encouraged that the Office of Refugee and Resettlement (ORR) believes that “the unique needs and backgrounds of each unaccompanied child” 2 are integral to the placement, care, and services provided, this language falls short of underscoring the unique rights of Indigenous children in the entire U.S. immigration system. We are concerned that the full scope of human rights violations experienced by unaccompanied Indigenous children who are placed in ORR custody have not been or are currently adequately documented. Because of the existing knowledge gap specific to unaccompanied Indigenous children, the proposed rule does not address the needs and rights of unaccompanied Indigenous children. Furthermore, the lack of proper recognition of Indigenous Peoples’ human rights and needs will hinder the quality of services provided to unaccompanied Indigenous children

by ORR Care facilities, grantees, and contractors.

Indigenous Peoples, including Indigenous children, as members of distinct Tribes and Nations are entitled to all human rights, including rights afforded to migrants, refugees, and asylum seekers. 3 Per the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration), “Indigenous individuals are entitled without discrimination to all human rights recognized in international law, and that Indigenous peoples possess collective rights which are indispensable for their existence, well-being, and integral development as peoples.”4 The current proposed rule indicates that the rights of Indigenous children will continue to be violated because the comprehensive set of rights that our peoples are entitled to are not understood or recognized by current U.S. immigration policies and practices.

In a continued effort to advocate for our rights, we note the limitations in the proposed rule drafting process.

Indigenous Peoples would be more effectively engaged in the development of substantive processes, policies, and practices, rather than offering edits or comments on their human rights, if the various agencies 1

Researched and Authored by Eli Vargas; Juanita Cabrera Lopez (Maya Mam) and Lorena Brady. Vargas is a member of the International Mayan League team and is a descendant of the Maya K'iche' peoples, Cabrera Lopez is a Member of the Maya Mam Nation and Executive Director of the International Mayan League. Brady is Policy and Program Manager at the International Mayan League and originally from Ecuador.

2 ORR Proposed Rule, § 410.1302(c)(2), § 410.1304, § 410.1801(b)(3), § 410.1305 3 EMRIP https://digitallibrary.un.org/record/3838104?ln=en 4 Preamble of the United Nations Declaration on the Rights of Indigenous Peopleshttps://www.un.org/development/desa/indigenouspeoples/wpcontent/uploads/sites/19/2018/11/UNDRIP_E_web.pdf

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International Mayan League 1201 K St. NW Washington, D.C. 20005

Phone: (202) 827-6673 Email: info@mayanleague.org www.mayanleague.org

involved in the development of this proposed rule had worked in cooperation and consultation with Indigenous Peoples. Thus, we underscore the urgency in the establishment of an Indigenous Peoples Advisory Commission made up of Indigenous leaders who can oversee the development, implementation, and monitoring of recommendations laid out in this comment - specifically those relating to the establishment of the Ombuds office. 5 The following committees within the Indigenous Peoples Advisory Commission are recommended to be established to achieve that end: A. Committee on Indigenous Children’s Rights B. Committee on Monitoring, Implementation, and Evaluation C. Committee on Indigenous Languages and Cultures D. Committee on Indigenous Children’s Health, Welfare, and Education E. Committee on Indigenous Identity, Membership, and Citizenship.

This comment aims to 1) inform on the human rights situation of unaccompanied Indigenous children migrating to the U.S. including root drivers of forced migration; 2) provide an overview of the human rights of Indigenous children that have been violated by the U.S. government; 3) give an understanding of the particular rights of Indigenous children beyond language rights; and 4) provide comments on the proposed rules and process.

The U.S. government must uphold its domestic and international human rights law obligations to protect and guarantee the individual and collective rights of unaccompanied Indigenous children in migration and in the care and custody of ORR. These recommendations allow for a more robust approach to address the key substantive gaps in the proposed rule that directly affect the human rights of unaccompanied Indigenous children in their placement, care, and services under the U.S. government.

1. Background on the human rights situation of unaccompanied Indigenous children in migration Indigenous children make up a significant percentage of unaccompanied children seeking asylum at the U.S. southern border. Children, particularly Indigenous children, “are the ones most affected by centuries of structural inequality and discrimination in Guatemala. They often have no future in their rural and extremely impoverished communities. Many have little access to formal education and likely only speak their native language, an additional barrier that hinders their communication with authorities or service providers when migrating.”6 49,463 unaccompanied children from Guatemala have been apprehended at the U.S. southern border as of November 29, 2023.7 Per ORR, in FY 2022, 47% of the children in their custody were from Guatemala. 8 Guatemala is comprised of 22 distinct Maya Nations, Xinka, and Garifuna peoples, and estimates of the Indigenous population of Guatemala range anywhere from 44 to 80%. 910 It can be inferred that at least 21,763 - 42,043 of the unaccompanied children apprehended at the southern border in FY2023 are Indigenous, thus a significant number of unaccompanied children in the care of ORR are Indigenous.

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See The National Congress of American Indians Resolution #ABQ-19-012: https://ncai.assetbank-server.com/assetbankncai/action/viewAsset?id=232&index; https://issuu.com/mayanleague.org/docs/indigenous_peoples__rights_to_exist__self_determin and Executive Summary of Indigenous Peoples’ Recommendations to the Interagency Task Force on the Reunification of Families Specific to the Rights of Indigenous Children Forcibly Separated (2021) 6 Indigenous Children are Dying at the U.S. / Mexico Border, https://issuu.com/mayanleague.org/docs/indigenous_children_dying_at_the_bo 7 https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters 8 https://www.acf.hhs.gov/orr/about/ucs/facts-and-data 9 https://www.censopoblacion.gt/explorador 10 https://www.prensalibre.com/ciudades/quetzaltenango/tres-argumentos-del-consejo-del-pueblo-maya-para-rechazar-los-resultados-del-censo/

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International Mayan League 1201 K St. NW Washington, D.C. 20005

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Indigenous peoples in Abiayala 11 (the Americas) have experienced more than 500 years of genocide and colonialism.12 Maya peoples have been dispossessed of their ancestral lands and face fraudulent legal claims, illegally forcing them off of their land.13 Persecution of Maya peoples based on their Indigenous identity is conducted with impunity in Guatemala, ongoing effects of the legacy of a colonial State. Due to the lack of legal certainty to lands, territories, and natural goods of the earth, Maya peoples are being forcibly displaced by megaprojects and transnational corporations. 1415 The UN Special Rapporteur on the Rights of Indigenous Peoples, after her country visit to Guatemala in 2018, stated that “the basic underlying cause of the problem affecting the Indigenous peoples in Guatemala is the lack of protection of their rights to their lands, territories and natural resources in conformity with the relevant international human rights standards.”16 Furthermore, climate change-related factors connected to environmental destruction caused by transnational corporations displace Maya peoples as they are the most vulnerable to the effects of climate change due to government discrimination and neglect. 1718 Gang violence in Guatemala exposes Indigenous children to violence which is an additional compounding factor forcing thousands of Indigenous children to seek refuge in the U.S.1920 2. Human Rights Violations of Indigenous Children under the U.S. Government Indigenous children are particularly vulnerable to human rights violations under the U.S. government; six Indigenous children and youth died at the hands of U.S. federal agents or in the custody of the Department of Homeland Security (DHS) from May 2018 to late May of 2019.2122 In DHS custody, Indigenous children have experienced lack of adequate healthcare, and some have died as a result.23 The Trump Administration’s Family Separation Policy disproportionately separated Guatemalan children from their families, constituting 58% of the children harmed by this policy. 24 Because Guatemala is an Indigenous-majority country, we reiterate that a disproportionate number of Indigenous families were violated by this policy. Family separation has also occurred under the Biden Administration. 25 Indigenous children suffer mental and physical trauma as a result of being separated from their families. 26 Indigenous children have lost contact with their parents after they remain in the U.S. and their parents are deported without their knowledge. Many of these children are still separated from their families to this day. 27 As a result of this policy, Indigenous children have been placed for adoption away from their families reminiscent of historical practices of genocide and severance of generational connections under the U.S

11 12

https://www.jstor.org/stable/10.5749/natiindistudj.5.1.0042 https://www.ohchr.org/en/press-releases/2018/10/guatemala-un-experts-welcome-court-ruling-ixil-mayans-were-victims-genocide

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https://www.refworld.org/docid/55fbdb984.html#:~:text=The%20IACHR%20found%20that%20the,implement%20the%20IACHR's%20decision %2C%20however 14 https://www.oas.org/en/iachr/reports/pdfs/Guatemala2017-en.pdf 15 https://nacla.org/guatemala-maya-land-rights-court 16 https://documents-dds-ny.un.org/doc/UNDOC/GEN/G18/246/43/PDF/G1824643.pdf?OpenElement 17 https://sanford-dcid-files.cloud.duke.edu/sites/default/files/Migration-Policy-Brief-Guatemala.pdf 18 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9745731/ 19 https://www.unhcr.org/us/news/news-releases/death-threats-and-gang-violence-forcing-more-families-flee-northern-central 20 https://www.sciencedirect.com/science/article/pii/S2666623522000198 21 https://ncai.assetbank-server.com/assetbank-ncai/action/viewAsset?id=232&index=0&total=710&view=viewSearchItem 22 https://issuu.com/mayanleague.org/docs/we_denounce_the_death_of_jakeline_c 23 https://www.nytimes.com/2019/05/20/us/politics/migrant-boy-dies.html 24 https://www.dhs.gov/news/2021/06/08/family-reunification-task-force-provides-initial-progress-report-and-announces 25 https://www.texasobserver.org/the-biden-administration-is-still-separating-kids-from-their-families/ 26 https://phr.org/our-work/resources/you-will-never-see-your-child-again-the-persistent-psychological-effects-of-family-separation/ 27 https://www.aclu.org/wp-content/uploads/2023/10/ICCPR-Family-Separation-Submission-Finalized.pdf

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International Mayan League 1201 K St. NW Washington, D.C. 20005

Phone: (202) 827-6673 Email: info@mayanleague.org www.mayanleague.org

government towards Native Nations.2829 This violates Indigenous sovereignty and the forcible removal of Indigenous children from their families is a direct violation of Article 7(2) of the UN Declaration, supported by the U.S.30 Lack of Indigenous language interpretation and translation services during asylum hearings obstructs due process rights for Indigenous peoples. Indigenous children with credible fear have been denied asylum and sent back to situations in which they have a high likelihood of facing persecution based on their Indigenous identity and membership of a particular social group.31 This is a violation of non-refoulement obligations laid out in Article 3 of the Convention Against Torture.32 Lack of language interpretation is also a violation of Article 13(2) of the UN Declaration.33 Though Indigenous peoples from Mexico, Central, and South America do not fall within the parameters of Federally recognized Tribes and Nations, we believe that existing policies specific to American Indian and Alaska Native Nations can broaden the conversation and provide examples of existing practices focused on Indigenous children. The Indian Child Welfare Act (ICWA) lays out policy “to protect the best interest of Indian Children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian Children and placement of such children in homes which will reflect the unique values of Indian Culture.”34 Given that a goal of the Unaccompanied Children Program Foundational Rule is to “ensure the safety and well-being of unaccompanied children in ORR care” ICWA could provide a reference point. For instance, in the case of adoptions, Native American children from recognized Tribes in the United States 35 extended family is the first option for adoption under ICWA, then a Tribal member, and then “other Indian families”. Indigenous children, such as Maya children, should see their adoption follow the same principles as outlined in the ICWA in order to respect the sovereignty and self-determination of the Maya Nation. Doing otherwise, as is currently outlined in the current and proposed ORR policy, undermines the sovereignty of the Maya Nation and other Indigenous peoples and the “right to preserve, maintain, and promote their own family systems.”36 Formal processes of engagement between Maya and Indigenous Peoples’ leadership and ORR need to be made in order to facilitate proper placement of Indigenous Unaccompanied Alien Children (UAC) in ORR care.

3. Why the particular needs and rights of Indigenous children need to be understood beyond language rights Indigenous children are abused within the U.S. immigration system, resulting in re-traumatization and violation of their human rights. The policy put forth by U.S. institutions focuses almost exclusively on interpretation needs for Indigenous Peoples, and though interpretation is critical, the rights of Indigenous Peoples including children go beyond language rights. Core rights for Indigenous peoples are found in the

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https://apnews.com/article/97b06cede0c149c492bf25a48cb6c26f https://www.nytimes.com/2023/05/16/nyregion/indian-child-welfare-act-supreme-court.html https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf 31 https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=7670&file=EnglishTranslation 32 https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-ordegrading#:~:text=justification%20of%20torture.-,Article%203,of%20being%20subjected%20to%20torture.

33 “States shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.” https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf 34 https://www.bia.gov/bia/ois/dhs/icwa 35 https://www.nicwa.org/wp-content/uploads/2016/11/Indian-Child-Welfare-Act-of-1978.pdf 36 https://www.oas.org/en/sare/documents/DecAmIND.pdf 29 30

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International Mayan League 1201 K St. NW Washington, D.C. 20005

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first 5 articles of the UN Declaration37, “upon which all other rights of Indigenous peoples are dependent.”38 It is critical to underscore that Indigenous children experience greater vulnerability in migration because of the various intersectional factors affecting them including their Indigenous identity, membership, or citizenship of their Native Nation, coupled with their gender, age, and Indigenous language.

Indigenous children need due process protections for their credible asylum claims. Indigenous children need adequate medical care and mental health care attuned to their lived experience as persecuted Indigenous peoples. Indigenous children have a right to free, prior, and informed consent related to their own healthcare and legal representation. Indigenous children have a right to connection to their community through among many things - continuance of connection with their Nation across borders, connection to their cultural resources, and placement with Indigenous community members during ORR and after ORR custody.39 Indigenous children are members of sovereign Native Nations, and as such are afforded rights under international treaties. 40 Indigenous children are not citizens of just the State of Guatemala or other nation-states. They are also members and citizens of sovereign Native Nations. As such, ORR needs to communicate with those Nations when it comes to the best interest of the children from their respective Nations. It is a lack of protection for all these rights that has resulted in Indigenous children facing racism and discrimination in the U.S. immigration system. It is not just a language rights issue - it is a human rights issue.

Numerous international human rights instruments41 create a comprehensive framework for the human rights obligations and protections afforded to children generally, while the UN Declaration 42 and the American Declaration more specifically address Indigenous children’s rights43. Given that immigrant rights and the rights of Indigenous Peoples, including unaccompanied Indigenous children, are addressed separately, it is imperative that a comprehensive review or study of existing laws and policies be conducted. Such a process would offer information and data that could better inform the protection and safety of unaccompanied Indigenous children in U.S. government custody.

4. Comments on proposed rules and process After reviewing the proposed rule, we highlight some key human rights in various areas of the rule including but not limited to: 1) Indigenous identity, membership, and citizenship as it pertains to belonging to an 37

Article 1: Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights4 and international human rights law. 2: Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity; Article 3: Indigenous peoples have the right to selfdetermination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development; Article 4: Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions; and Article 5: Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

38 EMRIP Para 10 39 See UNDRIP Articles 13 and 36.

40 See UNDRIP Article 3.

41 See: 1951 Refugee Convention - Articles 3, 31, 32, 33, International Convention on the Elimination of All Forms of Racial Discrimination Articles 2, 5, 6, International Covenant on Civil and Political Rights - Articles 2, 6, 7,8, 9, 13, 14, 17, 23, 24, 26, 27, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment - Article 3, Universal Declaration of Human Rights - Articles 12, 14(1), United Nations Declaration on the Rights of Indigenous Peoples - Articles 1, 2, 3, 4, 5, 7(2), 8(2), 9, 13(2),14.3, 15, 17(2), 18, 19, 21, 22, 24, 31, 33, International Covenant on Economic, Social and Cultural Rights - Articles 10, 12, Convention on the Rights of the Child - Articles 3, 4, 5, 6(2), 7(1), 8, 9, 10, 12, 13(1), 16, 19, 20, 21, 22, 24(1), 25, 30, 32, International Labour Organization Indigenous and Tribal Peoples Convention Articles 2(1), 3, 6(1), 12, 20, American Declaration on the Rights of Indigenous Peoples - Articles 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 17, 18, 22, 23, 27, 28, 29, 30, 31, 33, American Declaration of the Rights and Duties of Man - Articles 1, 2, 7, 9, 17, 18, 26, 27.

42 https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf 43 https://www.oas.org/en/sare/documents/DecAmIND.pdf

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International Mayan League 1201 K St. NW Washington, D.C. 20005

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Indigenous Nation or People; 2) Right to Housing; 3) Child Welfare including forcible removal and labor context; 4) Social Welfare; 5) Culture and Language; 6) Labor and Employment; 7) and Education. We again emphasize the need to restructure the rule drafting process in order to ensure cooperation and coordination with Indigenous peoples to assess the full scope of rights pertaining to unaccompanied Indigenous Children. Lastly, we highlight again that if an Indigenous Peoples Advisory Commission existed, with the following committees: Committee on Indigenous Children’s Rights; Committee on Monitoring, Implementation, and Evaluation; Committee on Indigenous Languages and Cultures; Committee on Indigenous Children’s Health, Welfare, and Education; and Committee on Indigenous Identity, Membership, and Citizenship - recommending in cooperation and coordination with Indigenous Peoples could fully be established that would uphold the human rights of unaccompanied Indigenous children.

Training needs to be administered to staff so they can effectively safeguard Indigenous peoples’ rights as laid out in international law. “The lack of data disaggregated by gender, age, and other relevant factors, and of systems to collect data on the prevalence of disabilities among Indigenous children and young people and on specific violations of their human rights, is a serious constraint in assessing their challenges.” 44 Therefore, data on the number of Indigenous peoples needs to be collected during intake processes, so a better understanding of the scope of Indigenous migration can be had. This data should be collected on the basis of sex, age, language, disability, country of origin, Tribal affiliation, and in cooperation and agreement with Indigenous peoples. More due diligence is required from intake personnel to correctly identify whether or not a child is Indigenous, their Tribal affiliation and or membership or citizenship to a particular Indigenous Nation. Currently, Indigenous peoples from Mexico, Central or South America are being miscategorized as Latino/Hispanic - which they are not. Indigenous children come from sovereign Native Nations that predate current Nation States and accordingly have specific cultural, socioeconomic, religious, and linguistic rights that must be respected and upheld. Funding needs to be set aside for the development and integration of comprehensive Indigenous language safeguards for Indigenous peoples throughout ORR systems. A thorough Indigenous language assessment is necessary to ensure that Indigenous children can experience the full realization of their due process rights, Indigenous rights, and security of health and person while in the care of ORR. This will also help ensure that children can be placed in foster care households that are sensitive to their needs as Indigenous children.

Additionally, Health and Human Services needs to investigate deaths and human rights abuses of Indigenous children by U.S. officials and contractors openly and exhaustively. Those responsible for deaths and abuses need to be held accountable. This investigation can be completed by the newly formed Ombuds office.

We respectfully present the following specific changes to the proposed rules and reiterate that an Indigenous Peoples Advisory Commission or Committee must be established to provide expert guidance on these and other provisions to effectively safeguard the wellbeing and uphold the full human rights of unaccompanied Indigenous children in U.S. government custody.

A. § 410.1002 ORR Care and Placement of Unaccompanied Children a. Comment: i.

Considering the high number of Indigenous children seeking refuge in the U.S., it warrants explicit mention that particular attention and respect for human rights will be given to extremely high-risk populations.

44

https://digitallibrary.un.org/record/3838104?ln=

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b. Language recommendation: i.

ORR coordinates and implements the care and placement of unaccompanied children who are in ORR custody by reason of their immigration status. Taking into consideration the respect for particular human rights, such as the child’s Indigenous identity, Membership, and or Citizenship of a Native Nation.

B. § 410.1003 General Principles That Apply to the Care and Placement of Unaccompanied Children a. Comment: i.

ORR should require that Indigenous cultural and language experts be required in the consultation process for Indigenous children to provide their free, prior, and informed consent. b. Language recommendation: i. (a) Within all placements, unaccompanied children shall be treated with dignity, respect, and special concern for their particular vulnerability. Special attention will be given to the Indigenous identity of unaccompanied children and their human rights including, culture and language rights when considering placements. ii. (b) ORR shall hold unaccompanied children in facilities that are safe and sanitary and that are consistent with ORR’s concern for the particular vulnerability of unaccompanied children. iii. (c) ORR plans and provides care and services based on the individual needs of and focusing on the strengths of the unaccompanied child. iv. (d) ORR encourages unaccompanied children, as developmentally appropriate and in their best interests, to be active participants in ORR’s decision-making process relating to their care and placement. ORR will ensure that Indigenous children are given necessary information in their primary language in order for them to fully and effectively participate in the decision-making process.

C. § 410.1103 Considerations Generally Applicable to the Placement of an Unaccompanied Child a. Comment: i.

ORR needs to ensure that Indigenous children are protected from human trafficking and other crimes while in ORR-funded residential care provider facilities according to the TVPRA. Indigenous-specific residential care providers need to undergo quarterly Know Your Rights and cultural competency training for the special needs of Indigenous children to ensure that those needs and rights are met. Additionally, ORR needs to conduct a thorough assessment of a child’s Indigenous identity before placing children in residential care, so that Indigenous children are not misrepresented as Latino or Hispanic. ii.

Indigenous children need to be placed in an Indigenous community-based care model, where Indigenous values, cosmovision, and cultural rights can be protected and nurtured. iii.

State licensing requirements for provider facilities need to include quarterly know your rights and cultural competency training in Indigenous childcare considerations. ORR needs to ensure that every disparate state licensing body has this requirement as well as every contractor that ORR uses to carry out its duties. iv.

Indigenous identity needs to be identified within an Indigenous child’s specialized needs assessment. It is in an Indigenous child’s best interest to be placed in an environment that can continue links to the child’s Indigenous identity. Removal of 7

International Mayan League 1201 K St. NW Washington, D.C. 20005

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an Indigenous child from their Indigenous community can be disorienting and can further exacerbate the trauma that Indigenous children may experience during the migrant and resettlement process. b. Language recommendation: i. (a) ORR shall place each unaccompanied child in the least restrictive setting that is in the best interest of the child and appropriate to the unaccompanied child’s age and individualized needs, provided that such setting is consistent with the interest in ensuring the unaccompanied child’s timely appearance before DHS and the immigration courts and in protecting the unaccompanied child’s well-being and that of others. ii. (b) ORR considers the following factors that may be relevant to the unaccompanied child’s placement, including: (1) Danger to self; (2) Danger to the community/others; (3) Runaway risk; (4) Trafficking in persons or other safety concerns; (5) Age; (6) Gender; (7) LGBTQI+ status; (8) Disability; (9) Any specialized services or treatment required or requested by the unaccompanied child; (10) Criminal background; (11) Location of potential sponsor and safe and timely release options; (12) Behavior; (13) Siblings in ORR custody; (14) Language access and Indigenous identity, when applicable; (15) Whether the unaccompanied child is pregnant or parenting; (16) Location of the unaccompanied child’s apprehension; and (17) Length of stay in ORR custody.

D. § 410.1105 Criteria for Placing an Unaccompanied Child in a Restrictive Placement a. Comment: i.

ORR must provide interpretation for Indigenous children to ensure Indigenous children are not being placed in restrictive placements due to misunderstandings arising from difficulties in communication between the child and ORR staff, discrimination, or intimidation. b. Language recommendation: i. (b) Criteria for placing an unaccompanied child in a heightened supervision facility. (1) ORR may place an unaccompanied child in a heightened supervision facility either at initial placement or through a transfer to another facility from the initial placement. (2) In determining whether to place an unaccompanied child in a heightened supervision facility, ORR considers if the unaccompanied child: (i) Has been unacceptably disruptive to the normal functioning of a shelter such that transfer is necessary to ensure the welfare of the unaccompanied child or others; (ii) Is a runaway risk; (iii) Has displayed a pattern of severity of behavior, either prior to entering ORR custody or while in ORR care, that requires an increase in supervision by trained staff; (iv) Has a non-violent criminal or delinquent history not warranting placement in a secure facility, such as isolated or petty offenses as described in paragraph (b)(2)(iii) of this section; (v) Is Indigenous and has had effective language interpretation and understanding throughout their time in ORR custody to ensure that misunderstandings are not taking place which may lead to Indigenous children being disproportionately placed in heightened supervision facilities.

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E. § 410.1210 Post-release Services a. Comment: i.

Indigenous children need to be placed with sponsors who are members of the Indigenous community from which the child originates and who understand the specific needs of an Indigenous child. This is the best way to ensure the child’s welfare and that a child’s rights are protected. ii.

Indigenous Peoples are at high risk for human trafficking, forced labor and sexual exploitation - this risk is further compounded for Indigenous children, in particular girls.45 iii.

ORR needs to have processes in place to ensure the safety and continued upholding of rights for sponsored Indigenous children. Indigenous children have been found to disproportionately work in unlawful child labor practices. Conditions are often dangerous and not conducive to the needs of a child’s further development. iv.

ORR relinquishes responsibility to monitor children after they have been discharged. ORR doesn’t know what has happened to 85,000 children who have been placed with sponsors, because reporting from sponsors is not mandatory. This has contributed to Indigenous children being disproportionately involved in child labor, which is a violation of Article 17 of the UN Declaration. 46 ORR needs to require that sponsors report back to ORR on the status of children and implement monitoring mechanisms to ensure that Indigenous children are not falling victim to child labor. v.

ORR is required by the TVPRA “to ensure unaccompanied children are protected from human trafficking and other crimes.”47 ORR cannot guarantee that Indigenous children will not fall victim to child labor practices if they do not have adequate reporting and follow-up procedures in place once children are placed with sponsors. b. Language recommendation: i. (b) (1) Placement stability and safety. PRS providers shall work with sponsors to address challenges in parenting and caring for unaccompanied children. This may include guidance about maintaining a safe home; supervision of unaccompanied children; protecting unaccompanied children from threats by smugglers, traffickers, and gangs; and information about child abuse, neglect, separation, grief and loss, and how these issues affect children…(6) Employment. PRS providers shall educate sponsors on U.S. child labor laws and requirements with special attention being paid to Indigenous children who are most vulnerable to child labor exploitation. ii. (c) PRS for unaccompanied children requiring additional consideration.

Additional unaccompanied children may be referred to PRS based on their individual needs, including, but not limited to: (1) Unaccompanied children in need of particular services or treatment; (2) Unaccompanied children with disabilities; (3) LGBTQI+ status unaccompanied children; (4) Unaccompanied children who are adjudicated delinquent or who have been involved in, or are at 45

https://digitallibrary.un.org/record/3838104?ln=en “States shall in consultation and cooperation with indigenous peoples take specific measures to protect indigenous children from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development, taking into account their special vulnerability and the importance of education for their empowerment.” https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf 47 https://www.federalregister.gov/documents/2023/10/04/2023-21168/unaccompanied-children-program-foundational-rule 46

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high risk of involvement with the juvenile justice system; (5) Unaccompanied children who entered ORR care after being separated by DHS from a parent or legal guardian; (6) Unaccompanied children who are victims of human trafficking or other crimes; (7) Unaccompanied children who are victims of, or at risk of, worker exploitation; (8) Unaccompanied children who are at risk for labor trafficking; (9) Unaccompanied children who are certain parolees; and (10) Unaccompanied children enrolled in school who are chronically absent or retained at the end of their school year. (11) Unaccompanied children who are Indigenous. (d) Assessments. The PRS provider shall assess the released unaccompanied child and sponsor for PRS needs and shall document the assessment. The assessment shall be developmentally appropriate, traumainformed, and focused on the needs of the unaccompanied child and sponsor. (e) Ongoing check-ins and in-home visits. (1) In consultation with the released unaccompanied child and sponsor, the PRS provider shall make a determination regarding the appropriate methods, timeframes, and schedule for ongoing contact with the released unaccompanied child and sponsor based on the level of need and support needed.

F. § 410.1302 Minimum Standards Applicable to Standard Programs a. Comment: i.

At a minimum, the various intake forms and processes described must take into account whether or not a child belongs to an Indigenous Nation. Measures to support self-identification should be explored and implemented in cooperation, coordination, and agreement with Indigenous Peoples. ii. (c)(9) Indigenous Peoples need to be part of determinations around what type of education Indigenous children should receive. Indigenous children need to be offered education that teaches them about their history, traditions, and values. ORR staff may not be aware of the specific traditions, holidays, food, dress, hygiene routines, etc. that make up Indigenous children’s cultural heritage. b. Language recommendation: i. (c)(2)(v) whether the child belongs to an Indigenous Nation; ii. (c)(3) Educational services appropriate to the unaccompanied child’s level of development, communication skills, and disability, if applicable, in a structured classroom setting, Monday through Friday, which concentrate primarily on the development of basic academic competencies and secondarily on English Language Training (ELT), including: (i) Instruction and educational and other reading materials in such languages as needed; (ii) Instruction in basic academic areas that include science, social studies, math, reading, writing, and physical education; and (iii) The provision to an unaccompanied child of appropriate reading materials in languages other than English for use during the unaccompanied child’s leisure time; (iiii) Indigenous children will be offered education in their own culture and in their own language in accordance with Article 14(3) of the UN Declaration.

G. § 410.1304(b) Behavior Management and Prohibition on Seclusion and Restraint a. Comment: i.

Indigenous children should be given special attention whenever law enforcement is called by a care provider facility due to historical and ongoing traumas 10

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associated with Indigenous persecution by law enforcement personnel in their country of origin. Some Indigenous children in ORR custody may have been persecuted by law enforcement in their country of origin, so special consideration of that possibility needs to be taken into account to avoid further traumatizing them. b. Language recommendation i. (b) Involving law enforcement should be a last resort. A call by a facility to law enforcement may trigger an evaluation of staff involved regarding their qualifications and training in trauma-informed, de-escalation techniques. Special attention will be given to the decision to call law enforcement when an Indigenous child is present due to historical and ongoing traumas associated with Indigenous persecution by law enforcement personnel in their country of origin; and or because some Indigenous children in ORR custody may have been persecuted by law enforcement in their country of origin due to their Indigenous identity, Membership, and or Citizenship to an Indigenous Nation. Procedures and training will be developed and given to staff to avoid further traumatizing Indigenous children.

H. § 410.1305 Staff, Training, and Case Manager Standards a. Comment: i.

Indigenous cultural competency and Indigenous rights training need to be offered for all individuals interacting with Indigenous children. Though there is a lack of disaggregated data, a significant percentage of UACs are Indigenous children. b. Language recommendation i. (a) Standard programs, restrictive placements, and post-release service providers shall provide training to all staff, contractors, and volunteers, to ensure that they understand their obligations under ORR regulations and international law standards endorsed or ratified by the U.S. in this part and policies and are responsive to the challenges faced by staff and unaccompanied children at the facility. All trainings should be tailored to the unique needs, attributes, Indigenous identity, and gender of the unaccompanied children in care at the individual care provider facility. Special attention will be paid to Indigenous children who have specific rights laid out in the UN Declaration and the American Declaration on the Rights of Indigenous Peoples (the American Declaration).

I.

§ 410.1307 Healthcare Services a. Comment: i.

Indigenous children have experienced persecution based on their Indigenous identity. They need mental health care to navigate this trauma. This necessitates a mental health care professional who understands their specific needs and who is provided with means to communicate in their Indigenous language. Indigenous children need interpretation and access to their communities’ traditional medicines in order to ensure that their medical needs are fully and effectively met in accordance with Article 24 of the UN Declaration. A complete psychological and physical health assessment needs to be performed after a child is transferred from DHS because Indigenous children have been victims of abuse at the hands of DHS staff.

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ii.

Indigenous children must provide their consent to all medical procedures and consumption of medications and should have the right to consult with a member of their Indigenous community on whether to consent to a medical procedure or consumption of psychotropic medication (§ 410.1310). Historically, Indigenous peoples in what is known as the Americas have been forced to undergo sterilization and other medical procedures aimed at continuing the process of Indigenous genocide. Child advocates should be appointed when Indigenous children are faced with a decision on medical procedures. b. Language recommendation i.

(8) Having policies and procedures that enable unaccompanied children, including those with language and literacy barriers, to convey written and oral requests for emergency and non-emergency healthcare services; Special attention will be given to Indigenous children in accordance with Articles 21 and 24 of the UN Declaration.

J.

§ 410.1309 Legal Services a. Comment: i.

Legal advice and representation need to be made available to Indigenous children through interpretation and proper identification of Indigenous children as being Indigenous. Legal advice and representation will continue to fail in providing due process to Indigenous children if proper identification of Indigenous children and effective interpretation in their primary language does not occur particularly at the first point of contact. ii.

Indigenous children need to be provided with Know Your Rights trainings and resources for them to make informed decisions and file complaints with the correct oversight bodies. b. Language recommendation i.

(2) Orientation. An unaccompanied child in ORR’s legal custody shall receive: (i) An in-person, telephonic, or video presentation concerning the rights and responsibilities of undocumented children in the immigration system, presented in the primary language of the unaccompanied child and in an age-appropriate manner, and outlining relevant international laws that apply to said child with special regard given to international obligations applicable to Indigenous children as laid out in the UN Declaration and the American Declaration. ii.

(4) Direct immigration legal representation services for unaccompanied children currently or previously under ORR care. To the extent ORR determines that appropriations are available, and insofar as it is not practicable for ORR to secure pro bono counsel, ORR shall fund legal service providers to provide direct immigration legal representation for certain unaccompanied children such as Indigenous children in accordance with Article 13 of the UN Declaration, subject to ORR’s discretion, determination of vulnerability, and available appropriations.

K. § 410.1501 Data on Unaccompanied Children a. Comment: i.

ORR needs to ensure that Indigenous children’s identity is determined and afforded all the rights that come from being a member of a sovereign Native Nation. As we have previously recommended to the U.S. government, Indigenous 12

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experts must be engaged to oversee the collection and analysis of disaggregated data on Indigenous Peoples to determine language and culturally appropriate social services and legal support for Indigenous unaccompanied children.48 b. Language recommendation i.

Care provider facilities are required to report information necessary for ORR to maintain data in accordance with this section. Data include: ii. (a) Biographical information, such as an unaccompanied child’s name, gender, date of birth, country of birth, is a member or citizen of a Native Nation, whether the child speaks an Indigenous language as their primary language, and country of habitual residence; (b) The date on which the unaccompanied child came into Federal custody by reason of the child’s immigration status; (c) Information relating to the unaccompanied child’s placement, removal, or release from each care provider facility in which the unaccompanied child has resided, including date and to whom and where placed, transferred, removed, or released; (d) In any case in which the unaccompanied child is placed in detention or released, an explanation relating to the detention or release; (e) The disposition of any actions in which the unaccompanied child is the subject; (f) Information gathered from assessments, evaluations, or reports of the child; and, (g) Data necessary to evaluate and improve the care and services for unaccompanied children.

L. § 410.2001(c) US Office of the Ombuds Policies and Procedures a. Comment: i.

We commend the proposed establishment of an Ombuds office. The Mayan League has previously recommended that a process be established to monitor and evaluate U.S. government agencies tasked with the protection of migrants and refugees to ensure that grave human rights violations, in particular for Indigenous Peoples, will be investigated, documented, and prevented. b. Language recommendation: i. (a) The UC Office of the Ombuds shall develop appropriate standards, practices, and policies and procedures, giving consideration to the recommendations by nationally recognized Ombudsperson Organizations and other subject matter experts. ii. (c) The UC Office of the Ombuds shall make information about the office and how to contact it publicly available, in the primary language spoken and understood by unaccompanied children, including those who are Indigenous, in ORR care.

M. § 410.2002(a) US Office of the Ombuds Scope and Responsibilities a. Language recommendation: i.

(2) Investigating implementation of or adherence to Federal law, ORR regulations, and international law standards endorsed or ratified by the U.S.49 and meeting with interested parties to hear input on ORR’s implantation of and adherence to Federal law, ORR policy international law standards endorsed or ratified by U.S

48

A copy of the Executive Summary of previous recommendations on this issue submitted to the White House Taskforce on Family Reunification can be provided upon request.

49 The U.S has endorsed or ratified the United Nations Declarations on the Rights of Indigenous Peoples (UNDRIP), the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the standards adopted by the Organization of American States in the American Declaration on the Rights of Indigenous Peoples (ADRIP).

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ii.

iii.

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(10) Making binding and non-binding recommendations to ORR regarding its policies and procedures, specific to protecting unaccompanied children in the care of ORR; (11) Providing general educational information about pertinent Federal and international laws, regulations and policies, ORR child advocates, and legal services as appropriate; and providing regular Know Your Rights trainings for unaccompanied children with special attention to Indigenous children and their rights;

N. § 410.2003(b) a. Language recommendation: i. (b) The UC Ombuds should have the requisite knowledge and experience to effectively fulfill the work and the role, including membership in good standing of a nationally recognized organization, association of ombudsmen, or State bar association throughout the course of employment as the Ombuds, and to also include but not be limited to having demonstrated knowledge and experience in: (1) Informal dispute resolution practices; (2) Services and matters related to unaccompanied children, Indigenous rights and child welfare; (3) Oversight and regulatory matters; and (4) ORR policy and regulations.

O. §410.2003(d) a. Comment: i.

This office needs to be staffed with Indigenous cultural and language experts to ensure that Indigenous children’s needs are met and that any complaints brought forth will be addressed in an appropriate manner. ii.

The UC Office of the Ombuds should prioritize investigating and publishing a comprehensive report reviewing systematic gaps present in the care of Indigenous children. Indigenous experts should be consulted in the development of this report.

A comprehensive analysis of ORR’s Indigenous language gaps needs to be conducted because Indigenous children are often unable to effectively communicate their needs because there are no interpreters available. ORR needs to fill these gaps to effectively care for Indigenous children's mental, physical, emotional, and spiritual health. Death, further abuse, and exacerbated trauma result from these gaps. b. Language recommendation: i. (d) The Ombuds shall establish procedures for training, certification, compliance with human rights standards and continuing education for staff and other representatives of the Office with the aim of progressive closure of service and human rights gaps experienced by the most vulnerable unaccompanied children, such as Indigenous children. (e) The Ombuds has the authority to create advisory bodies to advise on issues including but not limited to Indigenous children’s rights. Advisory bodies should include Indigenous Peoples and may carry out assessments and develop processes for the implementation of recommendations with the full and effective participation of Indigenous peoples and their respective institutions.

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5. Conclusion There are critical gaps in ORR’s proposed rules regarding protections for Indigenous children. A systematic review needs to take place. The proposed UC Office of the Ombuds needs to make this their highest priority due to the sheer number of Indigenous children who have been discharged from ORR, are currently in ORR custody, and will be in ORR custody in the near future. Indigenous children need to be recognized as Indigenous and members or citizens of distinct Native Nations. Indigenous children should be afforded all of their human rights as members of sovereign Native Nations. ORR needs to consult with Indigenous Nations and their respective institutions before making determinations on policy and decisions affecting Indigenous children in accordance with international human rights obligations. Lastly, ORR should allocate resources to the development of an Indigenous-led intake and data-capturing process to facilitate identification and adequate placement for Indigenous children in cooperation and coordination with Indigenous Peoples. It should engage directly with Indigenous experts, community leaders, and members to identify and hire personnel for their care facilities. A special Visa category for the protection of Indigenous Peoples needs to be created because Indigenous peoples are uniquely vulnerable due to ongoing and historical genocide and persecution based on their Indigenous identity. The development of effective policies that take into account the needs and rights of unaccompanied Indigenous children must include the full and effective participation of Indigenous peoples in the development, design, implementation, and monitoring of such policies. We welcome the opportunity to submit these comments as a first step toward a more inclusive process with Indigenous Peoples for the protection of our children and future generations.

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