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Rights and Status of Indigenous
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II. TOWARD INTERNATIONAL INDIGENOUS LAW: THE RENASCENCE OF THE FIRST NATIONS |
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Wounded Knee, the Trail of Tears, the Siege of Cusco[1]—these words, vessels of meaning, capture only a tiny fragment of the history of suffering, actual and cultural genocide, conquest, penetration, and marginalization[2] endured by indigenous peoples[3] around the world.[4] The focus of the Interna-
tional Decade of the World’s Indigenous People[5] is to honor the memory of the victims, but also to celebrate the survivors and their values. The global community recognition implied in this dedication testifies to the success of indigenous peoples’ refusal to accept the alternatives of dying or living the lives of the conquerors. The Indian way of life has not merely survived; it is back as the foundation of a strong identity[6] which has forced itself to the top of the international agenda. Its values could be, and increasingly are, sought-after models[7] for a world drifting slowly, but seemingly inexorably, into alienation. Beyond the cultural sphere, indigenous peoples have reentered the arena of power. Under the battle cries of human rights and self-determination, they have become recognized actors in the world constitutive process.
This Article is designed to review the legacy of conquest in various arenas around the planet, and to arrive at a transnationally valid conclusion, if possible, on the status of indigenous peoples under domestic law (Part I); to describe the actors and trends in decision-making in international indigenous law (Part II); and to appraise these developments with particular focus on the issues of conceptualization of indigenous peoples, their claims to self-determination, unique collective rights, as well as innovative avenues of enforcement (Part III).
It bears repeating that the process of colonization has left so-called indigenous peoples defeated, relegated to minor spaces, reservations, breadcrumbs of land conceded by the dominant society. Indians were separated from their sacred land, the land of their ancestors, and from their burial grounds with which they shared a deeply spiritual bond. Deprived of traditional environments, they were not only politically, but economically, culturally,
and religiously dispossessed. They became entrapped peoples, “nations within.”[8] They aspire to extricate themselves from the trap, and to live lives of self-defined dignity and happiness. Indigenous peoples all over the world claim the right to live freely on their ancestral lands, to celebrate their culture and deeply felt spirituality, and to move from cultural to economic autonomy and to political self-government, including the ultimate option of secession.
Despite the European powers’ successes on the battlefield, the legal systems of the conquerors often had a hard time justifying the conquest in the terms of the constitutive myths of the community. Catholic Spain had Francisco de Vitoria rationalize the duty of the Indians to welcome the Iberian “guests,” inter alia, with the New Testament admonition to “love thy Neighbor” and to be hospitable to strangers.[9] His view of the essential humanity of Indians and their natural rights, however, did not fit nicely with the atrocities committed by these self-invited guests, and his fellow Dominican Bartolomé de las Casas argued for better treatment of the beaten people.[10] By contrast, the British colonization relied much less on brute force and the destruction of indigenous political structures and society; its subjugation strategies included to a much larger degree the mechanisms of negotiation and persuasion.[11] Nevertheless, the hands of its government, and those of its successor governments have not been free from blood.
The history of conquest and the meanderings of legal status of the subjugated, but resurgent, indigenous nations are retraced in the following over-
view of the attitudes of representative domestic political and legal systems toward indigenous peoples in their midst. It is imperative to delimit what, exactly, constitutes an “indigenous people.” This definitional issue has come to the fore, and has been pressed at the level of the United Nations Human Rights Commission as it strives to delimit the scope ratione personae of the Draft United Nations Declaration on the Rights of Indigenous Peoples.[12] The arguments for and against the various conceptualizations advanced are discussed in the context of international efforts, at Part III.A. The outcome of that discussion, and the orienting notion for our comparative inquiry, is that indigenous peoples are best defined as groups traditionally regarded, and self-defined, as descendants of the original inhabitants of lands with which they share a strong, often spiritual bond. These peoples are, and desire to be, culturally, socially and/or economically distinct from the dominant groups in society, at whose hands they have suffered, in past or present, a pervasive pattern of subjugation, marginalization, dispossession, exclusion and discrimination. Contrary to widely held expectations, they and their cultures have survived and are making their presence known in the Americas, Asia, Africa, Australia, the Pacific, and even on the launching pad of colonization, the continent of Europe.
The United States of America is built on the rock of a fiercely moralistic myth, the right to self-determination and the right to secede from a sovereign who mistreats and violates the natural rights of the people who consider themselves a community. The Declaration of Independence is the textual expression of that primordial feeling.[13] This founding myth, set against the stark economic interest and, sometimes, evangelizing fervor of the European settlers, has resulted in a profound ambivalence about the treatment of American Indians. This ambivalence manifested itself over time in paradoxes in the law that range from the authoritative assertion of “tribal sovereignty”[14] to
the practice of making treaties with Indian nations[15] to the federal government’s establishment of a trusteeship over Indian lands[16] to the designation of Indian tribes as “domestic dependent nations.”[17] While the courts of the conqueror could not deny the fact that the federal government and even some states in contravention of a federal statute of 1790[18] had entered into treaties with Indian nations just as with other nation-states,[19] they pro-
claimed the “plenary power of Congress to regulate Indian affairs.”[20] This United States rationale leaves Indian tribes at the mercy of the federal government, which has exercised its discretion swinging wildly from extreme to extreme. Before and, for a brief time after independence, Indian nations were often considered useful allies in the fight against other contestants for their land. As a consequence, they were implicitly recognized as so-called “subjects of international law,” and solemn treaties, mostly of friendship and commerce, were concluded with them and were ratified by the Senate according to constitutional procedure.[21] In the early nineteenth century, the content of the treaties changed; under the spirit of the “Manifest Destiny,”[22]
these treaties were mostly in the character of capitulations of the defeated Indian nations, sacrificing even more Indian land to the voracious appetite of the white settlers pushing westward. Those treaties, moreover, were often honored only in their breach. In 1871, the Congress put a stop to the practice of concluding treaties with the Indians altogether without, however, invalidating the treaties concluded before that time.[23] A policy of forced assimilation followed, with allotment of traditionally communal property of the Indian nations to individual Indians, resulting in substantial net loss of territory to Indian nations.[24]
In this century, federally recognized tribes were “terminated”[25] as part of a Congressional resolution in 1953;[26] this policy only came to an end in the 1970s under the Nixon and Ford administrations.[27] Subsequent federal laws and policies gradually improved the lot of the Native Americans. Under the battle-cry of “tribal sovereignty,” Indian nations were allowed to set up their own courts with a significant range of jurisdiction[28] and strengthen their other governmental bodies under their own constitutions, often following the Anglo-American model.[29] Economic development was encouraged by the use of tax incentives[30] and the generation of revenues by permitting gaming activities on reservations.[31] Now, more than 50 tribes operate more than 100 bingo halls and casinos within the territorial confines of nineteen states, and they take in $6 billion a year.[32] Indian housing became a priority of the Department of Housing and Urban Development,[33] and health care
services were improved as well. President Clinton appointed a Native American leader, the Honorable Ada Deer, to head the Bureau of Indian Affairs. After conferring with Indian leaders in the White House, Clinton made a solemn pledge to respect tribal sovereignty.[34] Attorney General Janet Reno organized listening sessions with tribes in Albuquerque, and, in a bid to reaffirm and strengthen the Clinton Administration’s “government-to-government” relationship with the Indian nations, she established an “Office of Tribal Justice” within the Department of Justice which coordinates federal Indian policy with a view toward maximizing, to the extent politically feasible, Indian self-determination.[35] Beyond the Executive Branch, the Indian Child Welfare Act of 1978,[36] the Native American Languages Act of 1990,[37] and the Native American Graves Protection and Repatriation Act of 1990[38] are examples of Congress’ growing sensitivity toward issues of Indian self-preservation and self-determination.[39]
As stated above,[40] according to 1990 census data, 1,878,285 persons identified themselves as American Indians. This number is up from 523,591 in 1960 and greatly increased from the population low reached in 1890.[41] This massive individual “ethnic switching”[42] has been attributed to Federal Indian policy, American ethnic politics, and American Indian political activism following Alcatraz[43] and Wounded Knee.[44] Still, some facts, figures and demographics remain deeply troubling: 31% of the total American Indian population, and 51% of Indians residing on reservations, live below the official government poverty level; while only 13% of the total United States population is in this predicament. In 1997, of the 554 federally recognized tribes, 306 tribes (55%) are defined as small and needy, i.e., with 1500 or fewer members, and without sufficient funds to operate without further federal support. Twenty-two percent of Indians live on reservations or trust land. Tribes currently control a land base of only 100 million acres. Over 40% of American Indians are under the age of twenty. Their educational level remains significantly below that attained by the mainstream American population.[45]
With American Indians, mixed heritage is the norm: a Washington Post journalist of Osage heritage recently stated that “you could probably put all the full-blood Indians in the continental United States on a 747 and still have some empty seats.”[46] The U.S. Government now allows federally recognized tribes to decide who their proper members are; however, a tribe seeking first time recognition must meet a variety of specific criteria.[47]
The Supreme Court, after Chief Justice Marshall and his pathbreaking opinions, particularly Worcester v. Georgia,[48] has not been overly friendly to Indians. Most recently, in Employment Division, Department of Human Resources v. Smith,[49] it changed its previous strict scrutiny standard of interpretation of the free exercise clause of the First Amendment[50] to deny Indians an exception from state drug laws to smoke peyote in religious ceremonies. It took a constitutionally controversial, and now invalidated, act of Congress to restore the original test.[51] The Court also shielded state governments from suit by Indian tribes under the Indian Gaming Regulatory Act.[52] In sum, the Executive Branch and Congress have led the way to preserve Native American self-determination and cultural heritage. The Supreme Court has provided the theme of tribal sovereignty in a series of early decisions; after that, it has been a retarding, if not retrogressive force.
Other former British colonies had slightly different ways of dealing with the people who were there first, although the outcomes are similar. The British authority over Canadian[53] territory, for example, was not considered established by conquest; a Royal Proclamation of 1763 recognized Indian territorial rights as “pre-existing rights.” The process of concluding peace and friendship treaties with Indian nations began in the 1640s. Land surrender treaties first were entered into in 1790. In the period from 1871 to the 1920s, land cession treaties were signed covering roughly one-half of the country; and adhesions to existing treaties were signed up to the 1950s. While Canada never formally declared an end to treaty-making, such
agreements simply were not used to establish its sovereignty over various territories. In fact, in the last territories added, British Columbia, Northwest Territories, Northern Québec, the Inuit and Yukon areas, Canada established itself unilaterally, just as the United States had in California, Alaska, and Hawaii. In 1867, the Canadian parliament obtained its jurisdiction over “Indians, and Lands reserved for Indians.”[54] In the Indian Act of 1876, the powers of tribal self-government were defined very narrowly. Although the Canadian government did not duplicate the early twentieth-century assimilation and termination policies of its neighbor south of the border, its courts, for a long time, did not honor the treaties concluded with the Indian tribes or “bands,” as is the preferred local designation. In R. v. Syliboy (1929),[55] hunting and fishing rights of the Indians in Nova Scotia were held to be unenforceable, because Indians were not independent powers legally capable of concluding a treaty.[56] In the mid-1960s, the Supreme Court held in R. v. George that Indian treaty rights to hunt migratory birds were overridden by general federal regulation.[57]
Indian claims for self-government and recognition of their traditional culture and rights increased dramatically in the 1970s. A landmark Supreme Court case, Calder v. Attorney General for British Columbia (1973),[58] heralded a breakthrough in their favor. In Calder, three judges agreed with the claim of the Nishga Indians that they had retained their ownership of traditional territories.[59] Although the Nishga Indians technically had lost, then Minister of Indian Affairs, now Prime Minister, Jean Chrétien, recognized that the Supreme Court was inching closer to deciding in favor of the claimed aboriginal rights claims. The government thus negotiated large land settlements with the First Nations, including a 1975 agreement with the James Bay Cree Indians in Northern Québec.[60]
In the early 1980s, important indigenous rights were protected at the level of the Canadian Constitution. The 1982 Constitution Act included section 25 of the Canadian Charter of Rights and Freedoms[61] which stipulated that:
guarantees in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including a) any rights or freedoms recognized by the Royal Proclamation of October 7, 1763 and b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
In addition, section 35 states, in relevant part:
(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Metis people of Canada . . . .
Based on this constitutional foundation and the policy underlying it, the Canadian Supreme Court, in Simon v. The Queen (1985),[62] overruled the Syliboy decision, stating that the extinguishment of Indian treaty rights required strict proof of intent. Still, there is controversy over the meaning of the term “existing” aboriginal rights in section 35. The Supreme Court of Canada showed further signs of growing sensitivity to Native rights in Sparrow v. R. (1990).[63] Based on testimony from an anthropologist,[64] the Court recognized the Indian’s “aboriginal right” to fish. The Court found that the Fisheries Act’s intention to extinguish this right was not “plain and clear.” In addition, the Court developed a prima facie test for the justification of interference with an existing aboriginal right.
In 1992, a constitutional amendment that would have accorded Indians greater rights of self-government, was defeated by Canada’s voters. This was a digression from the progress made.[65] The enlargement of the scope of Indian self-government is, however, still ongoing policy. Rather than through constitutional changes, those rights now are enacted through legislation
based on treaty-type agreements between Indians and the government. In fact, treaty-making with First Nations was reestablished in 1973 as a matter of policy and has led to six major treaties in the early 1990s.[66] These treaties have supported the First Nations’ drive toward political and economic self-determination. As early as in 1986, the Sechelt Indian Band Self-Government Act, for example, transferred local government powers to the band as well as ownership over their original land of over 2500 acres.[67]
On April 1, 1999, the Northwest Territories were split in two, forming the new Canadian territory of Nunavut.[68] This was the principal effect of the 1993 Nunavut Land Claims Agreement[69] between the Inuit of the Northwest Territories and the Canadian federal government and the Nunavut Act[70] both signed by the Prime Minister on May 25, 1993. Nunavut constitutes the farthest-ranging Canadian recognition yet of claims to aboriginal self-government, in response to longstanding Inuit claims for an Inuit-run territory.[71] Although the government will be chosen by all the citizens of this new territory regardless of ethnicity, the Inuit will have preponderant influence, since they make up eighty-five percent of the population of Nunavut.[72]
In terms of socio-economic status, the 630 federally recognized First Nations in Canada, numbering approximately 1.2 million people, still trail the
other parts of the population of Canada significantly. Although they receive over five billion dollars (Canadian) per year from the federal government, in the words of a high-ranking federal government official, aboriginal people in Canada face a situation that is “tragically similar to the situation in the U.S.A. Aboriginal people are on the bottom of every list where it’s a bad place to be, such as regarding life span, income and so forth, and on the top of the list, where that is the worst place to be, such as concerning unemployment, suicide, diabetes and the like.”[73]
In New Zealand, the traditional view is that the indigenous people, the Maori,[74] had no legally recognizable rights to their lands and fisheries after the British annexation; Maori property rights, if any, existed “at the sufferance” of the Crown. Still, in 1840, the British Crown, through Captain Hobson, and the “confederated and independent chiefs of New Zealand” signed the Treaty of Waitangi.[75] According to its English text, this treaty granted the Crown “sovereignty” in exchange for the tribes’ “full, exclusive and undisturbed possession of their lands and estates.”[76] The Maori text characterizes the powers of the Crown as kawanatanga, signifying rights of government somewhat short of sovereignty, and calls the Maori’s retained rights rangatiratanga, the Native term for chiefs’ authority, i.e., their power to own, use and manage Maori lands and other resources according to Maori ways.[77] Similar to the Canadian Syliboy case,[78] an 1877 decision in the case of Wi Parata v. Bishop of Wellington[79] had declared the Treaty of Waitangi not legally binding, since the Maori were not sovereign and according to the prevailing jurisprudence of John Austin, property rights could only be
granted by the sovereign.[80] Contrary to this ruling, the doctrine of aboriginal title maintained that the Crown took title (both public and private, imperium and dominium) subject to preexisting property rights enjoyed by tribal peoples. Those rights could only be extinguished by voluntary sale or relinquishment by tribal owners or through passage of expropriatory legislation.[81] Maori land was dispossessed through, essentially, two legislative acts: the 1862 Maori Land Act, transforming Maori customary rights of occupation into Crown-recognized freehold interests that could be and were sold to non-Maori inhabitants,[82] and the 1909 Native Land Act, expressly making Maori title unenforceable against the Crown.[83] Still, “non-territorial” Maori rights were arguably untouched by this legislation, chief among them fishing rights. The Treaty of Waitangi Act of 1975[84] accorded some effect to the Treaty: it created the Waitangi Tribunal with the charge to investigate legislative or executive actions that violate the principles of the Treaty, to report findings, and to make pertinent recommendations.[85] Despite its lack of enforcement powers, the Tribunal’s recommendations have influenced actions of New Zealand’s three governmental branches. In a recent water rights case, Huakina Development Trust v. Waikato Valley Authority,[86] the High Court of New Zealand declared the Treaty of Waitangi to be part of the “fabric of New Zealand society” and justified its reliance on the Tribunal by reference to that institution’s expert understanding of Maori cultural and spiritual values in the context of the Treaty.[87] The New Zealand government uses the Treaty as a source of a “trust-like” relationship between itself and the Maori. Still, the claims of the Maori regarding self-government and ownership of land are far from settled, and violent actions such as the March 1997 sledgehammer attack on the America’s Cup by an indigenous protester have called world attention to an angry new generation of Maori.[88]
Unlike the United States, Canada, and New Zealand, Australia did not enter into treaties with its indigenous peoples.[89] Aboriginal lands were acquired on the basis of an enlarged terra nullius doctrine, maintaining that the acquisition of New South Wales and other areas of Australia since the first settlement in 1788 was undertaken by occupation, by the very act of British subjects’ taking possession of the territories in the name of the Crown.[90] Since indigenous inhabitants of a settled colony had no recognized sovereign, they were considered to be without laws, and the English common law was imposed.[91] The occupier’s law did not recognize the aboriginal inhabitants’ proprietary interest in land.[92] This doctrine of the Crown’s exclusive, universal and absolute beneficial ownership of all the lands in the Australian colony, meaning that all the land belonged to the Crown until the Crown chose to grant it, was reaffirmed in Australian case law as late as 1975.[93]
The Australian High Court’s 1992 decision of Mabo v. Queensland,[94] marked a revolutionary departure from this foundational reasoning. In a 6-1 opinion, the Court concluded that “the common law of this country recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws and customs, to their traditional lands.”[95] Justice Brennan’s opinion, with ample references to international and comparative law, called the denial of tribal title to the Murray Islands in the Torres Strait a “discriminatory denigration of indigenous inhabitants, their social organization and habits.”[96] Speaking for the Court, he continued:
[t]he fiction by which the rights and interests of indigenous inhabitants in land were treated as nonexistent was justified by a policy which has no place in the contemporary law of this country. . . . Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous
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inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted.[97]
In its recasting of the common law, emboldened by the 1986 Australia Act, the Court squarely relies on the inspiration of international law, in particular, the United Nations Covenant on Civil and Political Rights[98] and its prohibition of unjust discrimination.[99] As in Canada, Native title may be surrendered voluntarily or extinguished as per the Crown’s sovereignty, but only if the intention to do so is “clear and plain,”[100] referring, inter alia, to the Canadian decisions in Calder and Sparrow.[101] The Court ruled that the annexation of the Murray Islands in 1879 did not purport to extinguish Native title.[102]
Before that judicial turnaround occurred, the 1976 Aboriginal Land Rights (Northern Territory) Act[103] had been passed, responding to the claims of Australian Aborigines by recognizing traditional claims to land in the Northern Territory based on spiritual ties.[104] In 1989, the Lands Acquisition Act,[105] in a more encompassing scheme, allowed the government to compel the sale of land to meet Native claims.[106] The Native Title Act of 1993[107] sets up a mechanism to determine whether Native title exists over particular areas of land or waters, and it also addresses claims of compensation.[108] The Act is administered by the National Native Title Tribunal, which is, in essence, a negotiating, mediating and research body whose determinations are not binding.[109] Rather, contested claims will be decided, with binding force, by the Federal Court of Australia.[110] Meanwhile, the Australian High Court is continuing its jurisprudence in the vein of the
Mabo decision. In The Wik Peoples v. The State of Queensland,[111] the Court held that pastoral leases did not extinguish Native title.
While progress on the land front is definite and tangible,[112] discrimination against Aborigines continues, and there is the peculiar phenomenon of a disproportionately high number of arrests and deaths of Aboriginal persons while in the custody of the Australian government.[113]
As in the United States, Canada, and New Zealand, the numbers of people identifying themselves as indigenous show a markedly upward trend. Estimates put the Aboriginal population between 1911 and 1966 at 80,000 to 100,000.[114] The census of 1981 showed 159,897 indigenous persons in Australia.[115] In the 1996 census, 386,000 Australians classified themselves and their children as indigenous, up 55% from 1986.[116]
Brazil’s policies regarding the role and functions of tribal communities have set important trends for Latin America. Indians, most of them inhabitants of the tropical rainforest of the Amazon, numbered 1.1 million at the time of conquest. By 1970, their numbers had dropped to 120,000. Now, estimates are of a total Brazilian Indian population of about 250,000 divided into 200 tribes and speaking 170 languages.[117] In Brazil, Indians do not enjoy any “inherent right” of “self-government.” They are considered to be
“relatively incapacitated,” legally minor under the guardianship of the Brazilian state, and subject to a special regime of tutelage.[118]
The tutelage is exercised by Fundação Nacional do Índio (FUNAI), the Brazilian government agency for Indian affairs. The role of FUNAI is, presumably, to protect Indians’ interests, but this protection was carried out in an exclusivist way, under the guiding light of a national policy of assimilation.[119] Indians could not legally own land or initiate legal proceedings in their own right to defend their precarious rights of “possession” and “usufruct” of lands.[120] The old Brazilian Constitution postulated: “The Union shall have the power to legislate upon . . . incorporation of forest-dwelling aborigines into the national community.”[121] The Statute of the Indian states the assimilationist goal of “integrating them, progressively and harmoniously, in the national communion.”[122] This model of development has been considered, just like the model in neighboring Venezuela, to be paternalistic and ethnocentric.[123]
Relying partly on Vitoria’s naturalist theory of international law,[124] Brazil recognized the right to primordial occupation of land. While, under the pre-1988 Constitution, lands occupied by “forest-dwelling aborigenes” were part of the “patrimony of the Union,”[125] i.e., property of the federal government, those lands were inalienable and it was prescribed that the Indians “shall have permanent possession of them, and their right to the exclusive usufruct of the natural resources and of all useful things therein existing [was] recognized.”[126] Many other statutes, however, undermine this advantageous legal starting-point. The national government owns all the minerals and hydropower resources wherever found.[127] Brazil also claims forest areas to be vacant land owned by the government.[128] To have their rights recog-
nized, forest-dwellers[129] have to seek recognition of their title from a government agency that is also in charge of economic development. Also, land reform measures such as land grants to individuals threaten the lands communally held by indigenous peoples.[130] The Brazilian Constitution of 1988, prompted by a 1985 communication from the Inter-American Commission on Human Rights,[131] reduces the role of FUNAI. Interventions on Indian land can no longer be authorized by the Executive Branch, but they require approval by Congress. Also, the Indians’ rights to their cultures and languages as well as access to the judicial system and their original rights to land have been recognized.[132] Art. 231 provides:
(1) Lands traditionally occupied by Indians are those inhabited by them permanently; those used for their productive activities; those indispensable for the preservation of the environmental resources necessary for their well-being; and those lands necessary for their physical and cultural reproduction, according to their uses, customs and traditions.
(2) Indians are entitled to the permanent ownership of the lands traditionally occupied by them including the exclusive fruition or enjoyment of existing soil resources, rivers and lakes.
The Yanomami are the largest indigenous nation in the Amazon.[133] Nine thousand of them live in the Brazilian state of Roraima, 12,000 across the border in Venezuela. They occupy a territory the size of Washington State, and lived undisturbed in relative isolation until the 1980s. As many indigenous peoples, they believe that the natural and the spiritual world are a
unified force.[134] Their life in peace ended in the late 1980s when gold, diamonds, and tin were discovered in their territory.[135] Between 40,000 and 80,000 miners poured in, killing, burning houses and the forest, bringing epidemic diseases and environmental and moral destruction.[136] The new federal policy heralded by the 1988 Constitution was supposed to stem this tide.
According to the federal policy, ten percent of Brazil’s territory was slated for demarcation as Indian land. An October 1993 deadline for demarcating these Indian lands has come and gone. Nearly one-half of Brazil’s Indian lands still need to be demarcated. FUNAI President Sydney Possuelo started a serious effort to protect indigenous peoples from economic interests encroaching on their habitat, in particular, gold-mining interests.[137] He was dismissed in May 1993.
Brazil’s internal politics also did not help. In May 1992, President Collor de Mello signed a decree ordering the demarcation of 9.66 million hectares of Yanomami territory.[138] FUNAI and the Federal Police began to expel the invaders, reducing their number to approximately 300 in July 1992. In December 1992, President Collor was impeached and government vigilance came to an end. In the spring of 1993, the miners returned. Approximately 11,000 of them are now back in full force. Out of despair about being driven out of their life-sustaining environment, some Yanomami are killing themselves, committing the first known suicides in Yanomami history.[139]
The government of Fernando Henrique Cardoso has, lamentably, given in to some of the pressures of powerful groups opposed to the new federal pol-
icy on Indian lands.[140] Its Decree No. 1775 of January 8, 1996,[141] was liable to stop, if not roll back, demarcation of Indian land.[142] It afforded private commercial interests, in essence, miners, loggers, farmers, local state governments, and corporations, the right to formally contest the boundaries of Indian lands not yet demarcated.[143]
At the time of the passing of Decree No. 1775, of the 554 indigenous areas slated to be demarcated, registered and guaranteed by October 5, 1993, only 210 were fully registered. The new decree casts a legal cloud over the remaining 344 territories. At the decree’s April 1996 deadline, 1066 challenges had been made to the demarcation of specific Indian lands. FUNAI dismissed all of these challenges, with the exception of eight. Minister of Justice Nelson Jobim referred those eight claims back to FUNAI for reconsideration.[144] On December 20, 1996, Minister Jobim awarded 540,000 acres of land claimed by the Macuxi tribe to miners and ranchers who had illegally invaded the reserve.[145] By the end of 1998, however, a Presidential decree recognized title to the Macuxi with respect to all the territory they claimed.[146] It is feared that Decree No. 1775 may even open up presidentially approved and demarcated areas to legal challenge,[147] including the gold-rich lands of the Yanomami. Injunctions to reverse indigenous land titles have already been filed. The effects of Decree No. 1775, moreover, extend beyond the courtroom and the suites of government. In the first few weeks after it became law, eight Indian territories were reported to have been invaded,
primarily by pirate mahogany loggers and gold miners.[148] The decree has been called a “recipe for tragedy,” only encouraging illegal invasions, and resulting in massacres, selective killings, abductions and other serious assaults on the original inhabitants and guardians of the Amazon.[149]
By February 1999, however, 315 indigenous areas have now been demarcated and registered. These areas cover 738,344 square kilometers, i.e., 79.4% of all Indian lands. The Brazilian government claims that Decree #1775 has given these Indian titles heightened legal protection and has made the process more transparent.[150]
Unlike 150 years ago in the United States, however, any possible replay of “Manifest Destiny”[151] in Brazil will not go unnoticed and unaddressed by the world community.[152] Indigenous peoples have increasing support worldwide, in the heartland and the capitals of the conquering nations.
One comparatively bright spot, regarding governmental policy favoring Indian political and economic autonomy is Colombia. The indigenous sector in this country is significant, encompassing approximately 800,000 persons, divided into 81 different communities, and scattered throughout 27 of the
32 political subdivisions of the state.[153] The 1991 Constitution,[154] drafted with significant indigenous input, constituted a major breakthrough. It recognizes and protects the ethnic and cultural diversity of the Colombian nation.[155] This was a marked departure from integrationist or assimilationist schemes. It affords indigenous communities a high degree of political and administrative autonomy;[156] respect for their institutions of self-government is guaranteed, including indigenous courts applying traditional customary standards.[157] Their collective property rights are recognized, in particular, collectively owned and inalienable resguardos.[158] Native languages and dialects are made official in indigenous territories;[159] education in these territories is to be bilingual and must be directed to preserve and develop indigenous cultural identity.[160] On the national level, the indigenous peoples are represented by at least two senators in a special national district and a number of representatives fixed by law. They participate in key decisions concerning the exploitation of natural resources within their territories[161], and the drafting of the national plan.[162] They also will receive transfers from the national budget and from the oil and mineral resources exploitation royalties.[163] The judicial system, in particular, the newly created Constitutional Court using the innovative writ of protection for human rights (acción de tutela) was instrumental in making this prescriptive scheme a reality.[164] Still,
there are counterforces, the “fog of war” with narcoterrorism, and ONIC (Organización Nacional Indígena de Colombia), founded in 1982 as the leading force of indigenous empowerment in the country, has to continue its strenuous efforts to protect the rights and interests of the first peoples of Colombia.[165]
Another place of cautious hope is Venezuela,[166] at least at the federal level of government. The Constitution of 1961, in Article 77, establishes the principle of special protection for the indigenous peoples in order to facilitate their inclusion in the life of the nation.[167]
Making use of this rather oblique provision, the Venezuelan Supreme Court recently invalidated the political structuring of the federal state of Amazonas as unconstitutional and ordered a reorganization that will consider the legitimate interests of the indigenous communities in that state.[168] Issuing an order of execution of that judgment, on December 10, 1997, the Supreme Court ordered the Legislative Assembly of the State of Amazonas to abstain from any action to give legal effect to its draft law on the political-territorial restructuring of the State that was written without the indigenous communities participating. Unfortunately, the State legislature, on December 17, 1997, decided to go ahead and publish the law. This action of defiance of the Supreme Court order is now under attack in the very same court.[169]
Thirty-five to forty percent of the population of Ecuador is estimated to be indigenous. The country’s unity forced by the ruling criollo elite was based on mestizaje, common religion and language.[170] Assimilationist and paternalistic policies characterized the actions of the government, resulting in efforts to “launder” the indigenous people by underreporting their number,[171] or by referring to them as “minorities.”[172] For the ten indigenous nationalities exclusion is the reality, as recognized by the Inter-American Commission for Human Rights in its 1997 report on the human rights situation in Ecuador.[173] They are shockingly poor, but no longer forgotten. Some of them have managed to maintain their identity or are struggling to maintain it, largely by avoiding contact with the outside world.[174] Organized now on a national level, in the Confederation of Indian Nationalities of Ecuador (CONAIE) established in 1986, they are pressing the interrelated demands of plurinationality, territoriality, and self-determination.[175]
Most of Peru’s indigenous people reside in its Highland Andean regions. They speak predominantly Quechua or Aymara and number approximately 9 million, which equals thirty-eight percent of the country’s population.[176] As in other places, they constitute the poorest and least influential stratum of society.[177] They earn whatever income they derive from agricultural and heavy industrial work. Many suffer from severe health problems due to the lack of water and sanitation facilities,[178] and illiteracy is high.[179] Historically, the Spanish, in the 1600s, recognized the pre-colonial social units of
the Indians of the Andes called ayllus.[180] The borders of these communities, or pueblos de reducción, were protected by the colonial administrators. The Peruvian government, in 1854, renounced this scheme and sold many indigenous lands. The Peruvian Constitutions of 1920, 1933, and 1980 again protected communal lands. In 1926, fifty-nine indigenous communities were recognized. This number has increased, and the communities have been accorded a large measure of internal autonomy.[181] The 1979 Constitution, while establishing Spanish as Peru’s official language, recognized the right of all Peruvians to use their own language in dealings with the authorities, if need be, through interpreters.[182] It also recognized the right of people to adhere to their own cultural identities as well as bilingual education.[183]
Judging by percentages of population, Bolivia is the most indigenous of all the countries in the Americas. 4.44 million indigenous people, most of them speaking Quechua and Aymara, live in the altiplano, or Andean region of the country. They constitute fifty-five percent of all Bolivians.[184] The indios are highly discriminated against. A nineteenth-century decree by de facto President Mariano Melgarejo forced Indians to sell their traditional communal land to rich newcomers, the hacendados;[185] in 1950, the latter owned ninety-two percent of all the land in Bolivia. Indians were forced to work that land, and they were not allowed to vote or otherwise participate in government. The National Revolutionary Movement (MNR), which assumed power in 1953, gave them citizenship and the right to vote, but denied
them many other political rights, and tried to assimilate them. In the 1960s, an indigenous movement started, taking its inspiration and name from the former Aymara leader, Tupac Katari, who had led the 1781 uprising against the Spanish colonizers. This Katarista movement was quite successful in the 1970s, and, from 1989 to 1991, Carlos Palenque, an Aymara Indian, was elected mayor of La Paz and El Alto. His new party, Conciencia de Patria, became the rallying point of indigenous and rural peasants. In 1991, the Bolivian government not only signed ILO Convention No. 169, but it also passed a national law protecting the rights of indigenous people. On May 13, 1992, President Paz Zamora granted the indigenous people in the Andean region 1 million hectares of land.[186] In 1993, Victor Hugo Cárdenas, a former Katarista leader, became the first Indian Vice-President of Bolivia, via an alliance with MNR President Sanchez de Losada.[187] In 1994, a constitutional reform designated Bolivia a “multiethnic, pluricultural society” and allowed the indigenous people to assume the ownership of their traditional lands. While progress on the political front is undeniable, social discrimination and economic distress are likely to persist, partly due to the fact that Bolivia is the Western Hemisphere’s second poorest country.[188]
Bolivia’s neighbor to the south, Chile, reports, as of 1995, only 598,000 indigenous people, making up 4.2% of the population.[189] The largest group of them, comprising over 570,000 persons, is the Mapuche. In violation of a 1641 peace treaty between the Spanish and the Mapuches,[190] the Chilean government granted or sold Mapuche lands to European settlers. Now, the Mapuches primarily live south of Santiago on reservations established by the government in the 1800s, and thirty percent live in urban areas. They are the poorest sector of Chile’s society, and they continue to cling to their customs, language, religion and traditions.[191] On the basis of 2000 meetings with indigenous communities and the work of a Special Commission of Indigenous Peoples (CEPI), the Chilean government has tried to move beyond the history of oppression and neglect.[192] Towards this end, it passed a Ley
Indígena in October 1993 that legally recognizes indigenous peoples and proclaims their rights to self-identification, to their culture, and to the lands they historically occupied and possessed.[193] It also affords protection for sacred sites and establishes a special fund (Fondo de Tierras y Aguas) for the financing of mechanisms to resolve disputes over land and water as well as a fund for the development of indigenous persons (Fondo de Desarrollo Indígena).[194]
On March 25, 1998, Paraguay signed a friendly settlement agreement with the indigenous organization Tierra Viva, according to which 21,884.44 hectares of land in the Chaco will be returned to the indigenous communities of Lamenxay and Riachito. This agreement, reached at the initiative of the Inter-American Human Rights Commission, terminates Case No. 11,713 before it and constitutes the first restoration of indigenous land via the Inter-American human rights system.[195]
Nicaragua’s Political Constitution[196] adopted by the Sandinista government[197] in the mid-1980s recognized the communal property and cultural rights of the indigenous peoples of the Atlantic Coast.[198] Further legislation in 1987 also created autonomous political regions for the indigenous communities of the Atlantic Coast.[199] Still, problems persist. The Nicaraguan government’s thirty-year concession to a Korean-owned company to log a large area of tropical rain forest in the Atlantic Coast region inhabited by indigenous communities has been attacked in domestic court as well as before the Inter-American Commission on Human Rights.[200] In June 1998,
the Inter-American Commission decided to file a complaint with the Inter-American Court of Human Rights against the government of Nicaragua, charging it with a violation of the indigenous community’s traditional rights to their land. The petitioning community of Awas Tingni[201] asked the Court to declare that its land and resource rights were violated, and to order the government of Nicaragua to take measures to demarcate and legally guarantee its communal rights to land as a model for all the other indigenous communities in the Atlantic Coast region.[202]
Similarly, the Toledo Maya Cultural Council in Belize challenged the Government’s authority to grant logging concessions in their ancestral lands before the Inter-American Commission on Human Rights. On February 16, 1999, the Mayas and the government of Belize signed an agreement to negotiate a friendly settlement of this claim.[203]
In Guatemala, on December 29, 1996, “the guns may have finally fallen silent.”[204] The peace accord signed that day between the government and the guerrilleros, many of them Maya Indians, proclaimed to put an end to this country’s long, bloody, and “forgotten” civil war which left at least 100,000 persons killed, 40,000 disappeared, about 250,000 children orphaned, and more than one million people driven from their homes. The final accords signed guarantee, inter alia, Indian rights and land reform.[205] At this point, the ultimate success of this experiment in national reconciliation cannot be known. The wounds are deep: the military government had, for a long time, perceived the indigenous peoples as a threat to the national security of Guatemala and, to remove this threat, killed, tortured or “disappeared”[206] many of their members. The situation is not helped by the fact that the indigenous people are the poorest of the poor. They also have the lowest education level, the least access to health services, to water and to sanitation. In October 1992, the Nobel Peace Prize was awarded to Mayan leader Rigoberta Menchú—an honor then largely ignored by Guatemalan government
officials.[207] Land is the primary issue to the 3.942 million indigenous people in Guatemala, most of whom are Mayans, who constitute 37.12% of the population of about 10.5 million.[208] Communally held land was a key element of Mayan culture. Colonization deprived indigenous peoples of their sacred territory, and the indigenous peoples were forced into higher and less accessible elevations. Most indigenous peoples do not own title to the lands they farm; the successors to the encomendero do.[209] The implementors of the peace accords will not only have to address this situation; they have to overcome the legacy of Guatemala’s persistent refusal, since its days of independence, to legally recognize any special rights or interests of indigenous peoples.[210] Still, the 1995 UN-sponsored Agreement on Identity and Rights of Indigenous Peoples references a State obligation under the Guatemalan Constitution to
give special protection to cooperative, communal or collectively-held lands; [the Constitution] recognizes the right of indigenous and other communities to maintain the system of administration of lands which they hold and which historically belong to them; and lays down the obligation of the State to provide State lands for the indigenous communities which need them for their development.[211]
Moreover, “[r]ecognizing the particularly vulnerable situation of the indigenous communities, which have historically been the victims of land plundering, the Government undertakes to institute proceedings to settle the claims to communal land formulated by the communities and to restore or pay compensation for those lands.”[212] Furthermore, the Constitution is to be reformed “in order to define and characterize the Guatemalan nation as being of national unity, multi-ethnic, multicultural and multilingual.”[213] Maya and other indigenous communities are given the right to local self-government in accordance with their traditional customary norms, and should participate meaningfully in the decisions of the nation.[214]
Mexico is the battleground where it appears that indigenous peoples have taken up arms against the ruling elites. Eighty-five percent of the Mexican
population is mestizo,[215] while more than ten million Mexicans are considered indios, primarily because of their language.[216] These indigenous peoples, divided into fifty-three different Indian ethnic groups or etnias, have suffered degradation and severe deprivation of values. The Indian past is “in many ways glorified,” but there is an enormous gap between the Mexican myth and its “operational code.”[217] The movement embodied by the Ejército Zapatista de Liberación Nacional (EZLN) in the Mexican State of Chiapas unites men and women from the Tojolobal, Tzeltal, Tzotzil, and Chol communities, all with Mayan roots, in the desire to confront the situation head-on. The uprising has not only military, but political and spiritual dimensions, and has garnered considerable support, both inside and outside of Mexico. It started on January 1, 1994.[218] The year before, thousands of indios died needlessly in that very state; they had experienced “physical and spiritual hunger, lack of medical services, and a century and a half of discrimination.”[219] Their reasons for revolt were outlined in a document called the Declaración de la Selva Lacandona. Their demands include autonomy, the democratization of the country’s political life, the rule of law, and certain aspects of social justice.[220] Negotiations, begun with much hope, have stalled, and the reaction to the uprising has become ever more violent. The “first post-modern revolution,”[221] quite unlike previous or contemporary revolutionary or guerrilla movements in Latin America and beyond, professes not to aspire to take power for itself, having “neither the desire nor the capacity” to impose its program on the rest of the country. Instead, it aims at creating a “democratic space” where differences between competing political visions can be resolved.[222] The Zapatista revolt rises from Mexico’s half-forgotten past to defend itself against government modernization policies[223] that took
scant account of Indian needs to the point of threatening Indian survival.[224] Needless to say, the movement faces a difficult road ahead.
The phenomenon of indigenous renascence is not limited to the Western hemisphere. Far too little is known of the indigenous groups in Africa, Asia, the Pacific and even Europe. Asia[225] has its own share of resurgent original inhabitants, in areas ranging from Siberia[226] to China,[227] to the Philippines[228] and Indonesia,[229] to name a few.[230] Even in Japan, a country perceiving itself as monoethnic for a long time, a court has just recognized the Ainu as an indigenous minority group with special rights.[231] On May 8, 1997, the Japanese legislature enacted a law designed to protect and preserve Ainu culture and to disseminate knowledge about Ainu tradition. It affects a small number of people (24,000), clearly distinct from Japanese both ethnically and linguistically. In the past, the Ainu were banned from hunting and fishing, their traditional way of life. The new law restoring their cultural rights is seen as atonement for the “shameful decimation” of Ainu society and the disintegration of Ainu culture.[232]
In contrast, the Anthropological Survey of India recently recorded 4835 indigenous communities scattered over thirty-two states and Union Territories.[233] Many of these groups are hunter-gatherers, shifting cultivators, fishermen, and peasants. Their territorial resources are marginal and they live in remote areas of the country. These tribal peoples are reported to be socially oppressed and economically exploited.[234] Between 1951 and 1990, nearly 18.5 million persons, the vast majority of them indigenous, were forcibly displaced by gigantic development projects such as dams, mines, industrial and commercial projects, as well as sanctuaries.[235] One example is the building of the Sardar Sarovar dam in the state of Gujarat. It will submerge 39,134 hectares of land and displace 66,675 indigenous people. The World Bank had conditioned its 1985 credit and loan agreement regarding this project upon adequate resettlement and rehabilitation for the ousted persons. An independent review conducted in 1991 and 1992 concluded that these conditions were not complied with, and the final installment of the World Bank loan was cancelled.[236] Politically, tribal groups, numbering about 50 million people, have been uniting since the 1930s under the term adivasi, the Hindi word for aborigine.[237] For purposes of legislation, social reformers grouped the adivasi and the harijans (untouchables) together as “backward communities”—a historical mistake and anachronism.[238] In any event, the March 18, 1998, National Agenda for Governance presented by the new government of India promises that “[t]he interests of Scheduled Castes, Scheduled Tribes and Backward Classes will be adequately safeguarded by appropriate legal, executive and societal efforts and large-scale education and empowerment.”[239]
The Pacific islands are home to an estimated 15 million indigenous people.[240] Fiji, in particular, presents the example of a state in which the indigenous people, originally a strong minority, now a slight demographic majority, have been guaranteed, after the coup of May 14, 1987, pre-eminent political power.[241]
Also, in Papua New Guinea, indigenous groups are not a minority. Its population of 4.3 million is mainly of Melanesian descent; their ancestors came to the island more than 50,000 years ago.[242] The country’s 1975 Constitution recognizes the customary laws of the various indigenous groupings as binding parts of the national legal system.[243] About ninety-seven percent of the country’s land has remained in customary, communal ownership.[244] The government, in 1995, proposed the registration of customary title in order to facilitate foreign investment. Due to widespread rioting and demonstrations it had to postpone that project indefinitely. However, the State owns gold, silver, and all other minerals below the surface of the land. Mining has become the most important source of income for the country, aside from foreign aid. The concept of the State’s subsurface mineral rights is, however, hard to reconcile with the indigenous peoples’ notion of the land.[245] Also, indigenous village courts, in their quest for restorative justice, at times run head-on into Western concepts of procedural and substantive due process of law.[246]
Africa is not neatly divided into monoethnic entities, and the oppression of indigenous communities occurs there as well.[247] The !Kung of the Kalahari Desert,[248] the Ogoni People of Nigeria,[249] and the Maasai of Kenya[250]
all face a difficult struggle to maintain their traditional way of life and need outside allies, including nongovernmental organizations, the media, and the World Bank.
Finally, our tour du monde comes full circle in the Arctic regions of Norway, Sweden, and Finland. There, the Sami[251] constitute an indigenous people within the heartland of colonial exploration and exploitation, the Continent of Europe. They are actually scattered into four separate countries: Of their estimated total of 60,000 persons, 40,000 are living in Norway, 15,000 in Sweden, 4000 in Finland, and 1500 to 2000 in Russia.[252] In the Sami worldview, man and nature are inseparable.[253] The Sami, or Lapps, regard the reindeer as the basic guardian of their culture, language, and identity. They are known to the world as reindeer-herders, even though only a small minority of them actually engage in this profession. The others have maintained other traditional subsistence lifestyles or have adapted to modernity.[254] The “vital statistics” of the Sami were not long ago comparable to those of people in “underdeveloped countries;” the poor living standards coincided with high infant mortality rates among the herding population. The remedy for this situation was seen in a thirty percent reduction in the herding labor force and modern ranching.[255] “Immemorial” rights to herding, hunting and fishing were, however, recognized by law, and the Norwegian Supreme Court even found in favor of rights of Swedish Sami to certain Norwegian grazing areas;[256] the Swedish Supreme Court reciprocated in 1981.[257] Violent Sami protests and hunger strikes against a dam construction threatening valuable herding zones alerted the world to the Sami issue. Following the recommendations of national Sami Rights Commissions, Norway, Sweden, and Finland each created a Sami parliament, a Sameting.[258] The Sami has received increased status and financial support; the extent of the “immemorial rights” of Sami has been legislated, but remains subject to controversy.[259]
Despite a variety of differences in the local contexts, we may conclude that there are significant similarities in status, and convergent, if not common trends in the domestic legal treatment of indigenous peoples.
Native communities still occupy the bottom rung of the ladder of economic and social status in the countries in which they reside. Their physical and spiritual survival is threatened by outside encroachment—private and, sometimes, public action. There is, however, a clearly discernible trend toward legal recognition of the special spiritual bond between indigenous peoples and their land, the demarcation and legal guarantee, if not return of lands of traditional indigenous use, and a recognition of Native title conferring the right to, at least, use the resources of nature in the traditional, communal ways (hunting, fishing, for example).
Nation-states are wary of granting the option of political independence, a right to secession, to indigenous peoples on their territory. While, sometimes, the concept of a “government-to-government” relationship between Indian tribes and the established nation-states has been proclaimed, the nation-states and their governments have stopped short of accepting indigenous communities as co-equal sovereigns. In particular, a three-layer federal structure, a “triple” or “triadic sovereignty” of federal, state, and tribal governments has not yet been achieved. However, an increasing range of autonomy is granted to internal indigenous decisionmaking processes. This recognition of self-rule, albeit limited, covers, in particular, issues of membership, structures and processes of authority and control, as well as manifestations of culture and spirituality.
To the extent feasible, and increasingly, Indian treaties concluded in the distant past are honored. New treaty-making and negotiating mechanisms (via commissions, for example) are being explored and implemented. Despite some troubling, but relatively marginal exceptions, the gains made by indigenous communities are probably too far advanced and entrenched for the clock to be turned back to the policies of assimilation and termination.
To help cement these gains domestically, the development of international prescriptions could only help. They might not only seal progress in the common law countries of North America and Oceania, they could provide the necessary sword to fight for a proper regime of protection and empowerment of indigenous populations.
Surprisingly perhaps, international law has found little reflection or recognition in the domestic decision-making processes regarding indigenous
communities. In the United States, the title of Felix Cohen’s seminal treatise, the 1942 Handbook of Federal Indian Law,[260] indicates the popular location of Indian law as just another subdivision of (domestic) federal law, albeit an especially complicated one. This state of things is about to change. The resurgence of indigenous communities worldwide, and a thorough analysis of the roots of the legal relationship between Indian tribes or nations and the country in which they reside will restore the complex mix of international and domestic prescriptions applicable to the unique story of attempted conquest and survival that constitutes the Indian experience.
The Trail of Broken Treaties, to borrow the pained formulation by Vine DeLoria, Jr.,[261] is a historical fact matched in its brutality and disrespect only by the Trail of Tears[262] and other genocidal acts perpetrated on the Sons and Daughters of the Sun. The fact, however, that treaties were signed, approved, and ratified, is relevant and provides much of the legal armament of indigenous peoples today. The pattern of acquiring lands and securing peace and friendship as well as regulating trade by way of formal treaty[263] was followed in North America by, among others, the Dutch,[264] the French,[265]
the British, the early American colonists,[266] and even the Spanish.[267] Trendsetters were the British, who established an extended treaty system on the North American Continent.[268] In a Royal Proclamation of 1763, the British Empire prohibited the grant of land claimed by Indians until the Indian title lapsed by sale or a treaty of cession.[269] Interestingly, in the ensuing battles over colonial land between the British, the French, the Spanish, and the Dutch, treaties were made with particular Indian nations to make them useful allies in fights among the colonizing peoples dividing up the pie of North America. This harnessing of Native Americans in battles of strangers over their land continued long after the Declaration of Independence of 1776. On July 13, 1787, the United States passed the North-West Ordinance, which stated, inter alia:
The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and in their property, rights and liberty, they
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never shall be invaded or disturbed, unless in just and lawful wars authorised by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them.[270]
This doctrine was embodied in an act of Congress of August 7, 1789.[271] Its actual impact faded away with the consolidation of the United States of America as a result of the second war by the Americans against the British and their allies, the northwestern tribes under Tecumseh, the War of 1812. Subsequently, treaties between the United States and Indian tribes were largely used to confine Indian tribes to even smaller patches of land—in exchange for solemn guarantees that this would be a final determination as to what land the white man would desire and receive.[272]
Indigenous nations had to fight an uphill battle for their agreements with the new rulers of European origin to be recognized as prescriptions of international law. This is evident in Professor Max Huber’s 1928 arbitral award in the Island of Palmas Case.[273] He concluded that treaties entered into by the island’s indigenous authorities and the Dutch East India Company were not, “in the international law sense, treaties or conventions capable of creating rights and obligations such as may, in international law, arise out of treaties.”[274] The 1926 Cayuga Indians award went so far as to say that an Indian tribe “is not a legal unit of international law.”[275]
In international law, these conclusions are no longer, if they ever were, tenable. Importantly, treaties of the United States of America with Indian Nations were entered into the same way, observing the same formalities and
undergoing the same procedural treatment as agreements with any foreign nation-state.[276] At the time of their conclusion, all of the American Indian treaties prior to 1871 appeared to have had the nature, as well as force and effect of international legal obligations. Not only the Indian Nations, but the Executive and the Legislative Branches of the United States Government conducted themselves in full accordance with the formalities and contents of international and domestic law when entering into and approving those compacts.[277] The Judicial Branch of the United States Government worked its way up to final recognition of the international law character of these commitments in Chief Justice Marshall’s famed trilogy of Indian law cases: Johnson v. M’Intosh,[278] Cherokee Nation v. Georgia,[279] and Worcester v. Georgia.[280] Later case law[281] and administrative practice[282] confirmed this understanding. Treaties between Indian Nations and the United States Government are thus subject to the prescriptive regime of international law, as far as validity, interpretation and other legal ramifications are concerned.[283] The treaty-making practices of other nations might yield similar or different outcomes.[284]
Traditional international law, in its positivist frame, permitted only nation-states to act and hold legal rights and duties. The horrors of the Nazi Holocaust prompted a rethinking of the virtually unlimited discretion states had regarding the treatment of their own citizens. The United Nations Charter put human rights and self-determination of peoples first, making them a raison d’être of the new worldwide organization of governments.[285] The 1948 United Nations Declaration[286] articulated these rights, and the 1966 United Nations Covenants[287] as well as regional instruments[288] codified them in legally binding agreements. There are also more specialized conventions prohibiting all forms of racial discrimination, genocide and torture, and those ensuring the human rights of women and children.[289] These treaties ensure religious freedom,[290] guarantee self-determination of peoples,[291] and even protect the right of minorities to the preservation and enjoyment of their cultural heritage.[292] The issue is whether these protections are sufficient to meet the needs of indigenous peoples, or whether separately formulated, tailor-made responses by the international community to their plight are necessary or appropriate.
It is clear that virtually all indigenous peoples share a common set of problems resulting from the tortured relationship between the conqueror and the conquered. First, Indian freely shared, not exclusively controlled land was taken away. Second, the conqueror’s way of life was imposed. Third, political autonomy was drastically curtailed. Fourth, indigenous peoples have often been relegated to a status of extreme poverty, disease, and despair. Five basic claims of indigenous peoples arise from this condition: (1) traditional lands should be respected or restored, as a means to their physical, cultural, and spiritual survival; (2) indigenous peoples should have the right to practice their traditions and celebrate their culture and spirituality with all its implications; (3) they should have access to welfare, health, edu-
cational and social services; (4) conquering nations should respect and honor their treaty promises; and (5) indigenous nations should have the right to self-determination.
A number of these issues have been addressed, albeit incompletely for some, in present statements of international prescription. This goes for the right to physical survival, social and economic rights, to the extent they are accepted, and the general freedom of religion. What is missing in the broad-based international human rights instruments, however, is a specific protection of the distinctive cultural and group identity of indigenous peoples as well as the spatial and political dimension of that identity, their way of life. The clearest example of the “general human rights gap” is the indigenous peoples’ need for their lands based on deep, often spiritual ties. Other such distinctive claims are those for the return of sacred remains, artifacts and sites, and their demand of governments to keep their word and honor their treaty obligations. It is hard to find these Indian-specific protections in the existing human rights covenants. The 1966 Covenants do not mention property rights at all, neither do they refer to contractual rights.[293] The protection of sacred objects could only be seen covered, with quite a stretch, by the general right to the free exercise of religion. The Genocide Convention[294] is not worded broadly enough to encompass acts of cultural extinction, the withdrawal of the land, material and immaterial space and other spoliation of the environment leading to the “spirit death”[295] of an Indian nation. The Coordinator of the Indian Nations Union has stated the problem most eloquently:
When the government took our land . . . they wanted to give us another place . . . . But the State, the government, will never understand that we do not have another place to go. The only possible place for [indigenous] people to live and to re-establish our existence, to speak to our Gods, to speak to our nature, to weave our lives, is where our God created us. . . . We are not idiots to believe that there is possibility of life for us outside of where the origin of our life is. Respect our place of living, do not degrade our living conditions, respect this life. . . . [T]he only thing we have is the right to cry for our dignity and the need to live in our land.[296]
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Because many of these cries were not heard, the concerns were not addressed domestically, the problem grew into such dimensions that international governmental action, spurred by collective action of indigenous peoples and non-governmental groups acting in their support, was finally coming to pass.
Interestingly, it was a specialized agency of the United Nations, the International Labor Organization (ILO), that first addressed indigenous concerns. Its first attempt, however, launched in 1957, proved to be guided by highly questionable policy goals. ILO Convention No. 107 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries[297] placed little value on indigenous cultures as such, focusing instead on the goal of integration and assimilation rather than on the protection of the unique characteristics and lifestyles of indigenous populations.[298] In 1986, the ILO changed direction, and started to draft a new agreement which was adopted in 1989, as ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries.[299] As of the fall of 1997, the Convention has been ratified by ten countries, including Norway, Mexico, Bolivia, Colombia, Costa Rica, Denmark, Guatemala, Honduras, Panama, and Peru.[300] The convention has as its basic theme the right of indigenous people to live and develop by their own designs as distinct communities. It ensures indigenous peoples’ control over their legal status, lands, internal structures, and development in environmental security. It guarantees indigenous peoples’ rights to ownership and
possession of the total environment they occupy or use, but it does not recognize their right to secede.[301] On the other hand, it does not exclude it either.[302]
In 1982, responding partly to increasing international cooperation between indigenous peoples, through non-governmental organizations such as the World Council of Indigenous Peoples and the International Indian Treaty Council,[303] the United Nations Economic and Social Council (ECOSOC) established a “working group” charged with the task of drafting a universal declaration on the rights of indigenous “populations.”[304] Progressing with the typical “lightning speed” of United Nations bodies, the Working Group on Indigenous Populations finally agreed on a draft Declaration on the Rights of Indigenous Peoples in 1993.[305] Similar to the Founders of the United States Constitution, the members of the Working Group went beyond their designated mandate by drafting a Declaration on the Rights of Indigenous “Peoples.”[306] Established nation-states did not appear to support that terminology, fearing that their territorial integrity might be
endangered by claims to external self-determination whose rightful claimants were designated as “peoples” under the U.N. Charter’s Articles 1, 2, 55, 56, and 73.[307] Limiting their support for self-determination to colonized entities overseas (“salt-water doctrine”),[308] nation-states wanted to define away any potential identification of legally protected claims of indigenous peoples with those of colonized communities.[309] Thus, the “International Decade of the World’s Indigenous People” deliberately kept the word “people” in the singular.[310]
Nevertheless, the text of the 1993 Draft Declaration on the Rights of Indigenous Peoples by the U.N. Working Group on Indigenous Populations embodies the most affirmative intergovernmental response yet to the claims of indigenous peoples. Beyond recognition of the right to self-determination,[311] it formulated an array of tailor-made collective rights, such as the right to maintain and develop their distinct political, economic, social and cultural identities and characteristics as well as their legal systems and to participate fully, “if they so choose,” in the political, economic, social and cultural life of the State.[312] They were guaranteed the right not to be subjected to genocide[313] or ethnocide, i.e., action aimed at or affecting their integrity as distinct peoples, their cultural values and identities, including the dispossession of land, forced relocation, assimilation or integration, the imposition of foreign lifestyles and propaganda.[314] The stated rights guaranteed to Indians as groups, not only as individual persons, include the right to observe, teach
and practice tribal spiritual and religious traditions;[315] the right to maintain and protect manifestations of their cultures, archeological-historical sites and artifacts;[316] the right to restitution of spiritual property taken without their free and informed consent,[317] including the right to repatriate Indian human remains;[318] and the right to protection of sacred places and burial sites.[319] Further listed are the rights to maintain and use tribal languages, to transmit their oral histories and traditions,[320] to education in their language and to control over their own educational systems.[321] They are afforded the right to maintain and develop their political, economic and social systems,[322] and to determine and develop priorities and strategies for exercising their right to development.[323] Their treaties with States should be recognized, observed and enforced.[324] Last, but not least, the Draft Declaration supports the right of indigenous people to own, develop, control, and use the lands and territories which they have traditionally owned or otherwise occupied and used, including the right to restitution of lands confiscated, occupied or otherwise taken without their free and informed consent, with the option of providing just and fair compensation wherever such return is not possible.[325] The document, in particular, goes beyond ILO Convention No. 169 in its statements on self-determination, land and resource rights, as well as political autonomy.[326]
As important as the substantive provisions of this draft are, the procedure through which it was produced was at least as significant. It was developed, “[t]o a large extent, . . . out of a partnership between experts and indigenous people.”[327] The Working Group continues its work, and increasing numbers of indigenous people from different parts of the world attend its meetings. The Working Group has grown into “one of the largest regular human rights meetings organized by the United Nations,”[328] and has made indigenous peoples a permanent presence within that worldwide governmental organization.
The Draft Declaration has survived the enhanced involvement of governments as it moves up the United Nations hierarchy to its final destination, the General Assembly. In 1994, the Sub-Commission adopted it without
amendment and sent it to the U.N. Commission on Human Rights.[329] The first intergovernmental meeting at the level of the Commission, held in November 1995, also did not result in any changes, although some governments voiced concern about the language on self-determination for indigenous peoples, as well as on indigenous rights over lands and resources.[330] A second session of this group in October 1996, proved to be more difficult as opposition to collective rights and self-determination increased.[331] Over 100 indigenous organizations, however, have been admitted to participate in the sessions of the Commission’s working group, and their influence will be felt.[332] In any event, the General Assembly has requested that the Declaration be adopted before the end of the International Decade of the World’s Indigenous People in 2004.[333]
Despite the fact that indigenous peoples are significant actors in many states of the Americas, the OAS has begun drafting international protections for indigenous peoples only in the 1990s.[334] It has, however, quickly caught up with, indeed overtaken, the United Nations Working Group. In 1989, the OAS General Assembly recommended that the Inter-American Commission on Human Rights prepare an instrument to protect the rights of indigenous peoples. In 1991, the actual development of that instrument began, and in September 1995, under the presidency of Professor W. Michael Reisman, the first draft[335] was sent to governments, hundreds of indigenous
organizations, individual experts, and other entities for comments.[336] Taking that feedback into account, at its ninety-fifth regular session, the Inter-American Commission for Human Rights approved the Proposed American Declaration on the Rights of Indigenous Peoples.[337] This proposal was submitted to the General Assembly and to its Permanent Council. The Commission also made the draft public so it could be considered by the governments, peoples, and interested organizations, with the expectation that it could be finally approved by the member countries at the 1998 General Assembly, in commemoration of the Organization’s fiftieth anniversary.[338] This date has, however, been slightly pushed back. The Declaration is now scheduled to be passed at the June 2000 meeting of the OAS General Assembly.[339]
The draft offers some interesting counterpoints to the United Nations proposal. First, it defines the personal scope of the document, without, however, spelling out the meaning of the term “indigenous people” itself.[340] The Preamble states that indigenous peoples constitute an “organized, distinctive and integral segment of their population and are entitled to be part of the national identities of the countries of the Americas.”[341] Separatism and secession, options of “external” self-determination, are expressly rejected.[342]
On the other hand, indigenous peoples are designated a “subject of international law.”[343] “Internal” self-government, the formulation and application of indigenous law,[344] and self-identification are broadly allowed and promoted, and forced assimilation is forbidden.[345] The draft also states that the living conditions of Indians are “generally deplorable”[346] and offers as
one of several remedies the “right to development.”[347] The centrality, in fact the sacredness of the environment to indigenous peoples is recognized, and respect for it is to be promoted by way of indigenous culture and ecology.[348] Indians, in turn, are to be given the right to a safe and healthy environment, including a prohibition on the introduction and deposit of radioactive and other toxic waste on their lands.[349] Education is to take place, if so desired by the peoples themselves, in indigenous language, and it should incorporate indigenous content.[350] Traditional collective systems for the control and use of land are to be recognized, and indigenously used property should, in principle, be returned.[351] Maximum priority is to be accorded the demarcation of properties and areas of indigenous use.[352]
Intrusion of illegal miners and farmers are mandated to be stopped by state authorities.[353] Also, racism and abuses of indigenous peoples by security forces should come to an end.[354] Rights that can only be enjoyed when exercised collectively are also recognized,[355] including the profession and practice of spiritual beliefs and the use of indigenous language. Intellectual property rights are another important focus.[356] Finally, indigenous persons are given the right to recognition, observance, and enforcement of treaties concluded with states or their successors[357]—a right long contested and denied. Conflicts and disputes over such treaties, which cannot otherwise be settled, should be submitted to “competent bodies.” This appears to be, at first blush, a regressive departure from the reference to “competent international bodies” included in the 1995 Draft,[358] especially in light of the envisioned role of the United Nations Permanent Forum of Indigenous People.[359] Still, in an international legal system whose prescriptions are subject to enforcement by domestic as well as international institutions, recourse to both domestic courts and international bodies holds greater promise, in the
aggregate, for the enforcement and observance of the substantive rights involved.
In sum, the Proposed American Declaration on the Rights of Indigenous Peoples is a major step toward a more effective system of protection of indigenous rights not only in the Western hemisphere, but beyond. It reflects a growing consensus on the minimum threshold of legally enforceable claims of indigenous communities. It relies more on the remedy of empowerment and self-help than on governmental action to remove the plight of the First Nations. It places a high value on individual choice. It is conservative and, in a way, anti-Wilsonian, in that it excludes the option of secession. On the other hand, internal autonomy of indigenous nations is promoted, over a wide array of societal issues. The Declaration goes against traditional Western thought in its affirmation of the rights of groups. Its respect for indigenous spiritual beliefs and practices as constitutive of identity is reflected in a dramatic legal recognition of the traditional indigenous, inclusive ways of dealing with nature, in the use of land, air, water and other living and non-living resources of the planet.
The World Bank has become increasingly concerned about the effects of Bank-financed development projects on indigenous and tribal communities. In February, 1982, it issued a brief operational policy statement outlining procedures for protecting the rights of “tribal peoples.”[360] It vowed that:
[a]s a general policy the Bank will not assist development projects that knowingly involve encroachment on traditional territories being used or occupied by tribal people, unless adequate safeguards are provided. In those cases where environmental and/or social changes promoted through development projects may create undesired effects for tribal people, the project should be designed so as to prevent or mitigate such effects.[361]
That first concern with protecting small isolated tribes such as Indians in the Amazon from the adverse effects of development later changed to a more extensive promotion of conditions to Bank investments that take into ac-
count the interests of indigenous peoples broadly defined, including, wherever possible, the active participation of indigenous peoples in the development process itself. This new policy is formulated in Operational Directive 4.20 of September 17, 1991.[362] In its definitional section, this document notes the diversity of indigenous peoples, but identifies them as:
in particular geographical areas by the presence in varying degrees of the following characteristics: (a) a close attachment to ancestral territories and to the natural resources in these areas; (b) self-identification and identification by others as members of a distinct cultural group; (c) an indigenous language, often different from the national language; (d) presence of customary social and political institutions; and (e) primarily subsistence-oriented production.[363]
The Bank’s objective is to ensure that the development process “fosters full respect for [indigenous people’s] dignity, human rights, and cultural uniqueness, [and] . . . that indigenous peoples do not suffer adverse effects during the development process, . . . and that they receive culturally compatible social and economic benefits.”[364] Between the policy of insulation of indigenous communities from the modern world and the approach of acculturation or assimilation, the Bank purports to steer a middle course, proclaiming that:
the strategy for addressing the issues pertaining to indigenous peoples must be based on the informed participation of the indigenous peoples themselves. Thus, identifying local preferences through direct consultation, incorporation of indigenous knowledge into project approaches, and appropriate use of experienced specialists are core activities for any project that affects indigenous peoples and their rights to natural and economic resources.”[365]
In implementing this policy, the World Bank’s country and sector departments should maintain information on trends in government policies and institutions that deal with indigenous peoples.[366] This could be easily incorporated into the existing practices of the World Bank. For example, the World Bank provides technical assistance to develop the borrowers’ abilities
to address pertinent issues,[367] and it requires that the borrower prepare an indigenous peoples development plan for an investment project that affects indigenous peoples.[368] That plan should contain, inter alia,
[an] assessment of (i) the legal status of the groups covered by this OD, . . . ; and (ii) the ability of such groups to obtain access to and effectively use the legal system to defend their rights. Particular attention should be given to the rights of indigenous peoples to use and develop the lands they occupy, to be protected against illegal intruders, and to have access to natural resources (such as forests, wildlife, and water) vital to their subsistence and reproduction.[369]
Similar policies are promoted by the Asian Development Bank and the Regional Fund for the Development of the Indigenous Peoples of Latin America and the Caribbean.[370]
Today, many of these proposed or actual prescriptions, coinciding, as they do, with domestic state practice as documented above, have created a new set of shared expectations about the legal status and rights of indigenous people that has matured and crystallized into customary international law.[371] While the specific ramifications of these prescriptions are still evolving and remain somewhat ambiguous, there is widespread agreement and concordant practice, both in international and domestic law, that (a) indigenous peoples are vulnerable groups[372] worthy of the law’s heightened concern; (b) that indigenous peoples are entitled to practice their traditions, to celebrate their culture and spirituality, to protect their language, and to maintain their sacred places and artifacts; (c) that they are, in principle, entitled to demarcation, ownership, development, control, and use of the lands which they have traditionally owned or otherwise occupied and used; (d) that they have, or should be given, powers of self-government, including the administration of their own system of justice; and (e) that governments are to honor and faithfully observe their treaty commitments to indigenous nations. The draft declarations, in their tortuous way through the channels of the United Nations and the Organization of American States, have encountered virtually
no government opposition regarding these issues. With respect to these claims, a consensus has emerged, and has been translated, with whatever imperfections, into widespread, virtually uniform state practice.[373]
The controversial issues are the following: (a) how should we conceive of “indigenous peoples”?; (b) what is, and what should be, the international community’s response to the claim of self-determination?; (c) what is the proper perspective regarding the issue of group or collective rights in the context of indigenous culture?; and (d) what are the prospects and best proposals for enforcement of any catalogue of indigenous rights?
The concept of “indigenous people” has, perhaps surprisingly, eluded easy delimitation. The United Nations Working Group, in its 1993 Draft Declaration, consciously decided to forego any attempt at a definition;[374] the Inter-American Human Rights Commission, in presenting its 1997 Proposed American Declaration on the Rights of Indigenous Peoples, abandoned an effort in an earlier draft at delimiting the term.[375] The lack of success in this endeavor is not due to a lack of effort. J. Martínez Cobo, first United Nations Special Rapporteur on the issue of discrimination against indigenous peoples, offered what is perhaps the most widely acclaimed definition:
Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their
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ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.[376]
This understanding presupposes the historical event of a community suffering invasion or colonization; the group’s self-identification as distinct from other parts of the national society; a present non-dominant status of the community; and the group’s determination to preserve its ancestral lands.
Martínez Cobo’s definition could be seen as underinclusive:
(1) Focusing on the “historic continuity with pre-invasion and pre-colonial societies,” a mandatory link to the phenomena of European colonization and invasion might be established that would limit the concept of indigenous communities largely to peoples in the Americas and Oceania, potentially leaving out indigenous peoples in Africa, Asia and other places that are oppressed by equally “original” inhabitants of neighboring lands that have now become the dominant groups of their society.[377]