Indigenous peoples have lived in different part of the globe since time immemorial. In 2003 they number about 350 million, belonging to different nations, communities, and groups, with specific cultures, traditions, customs, languages, and religions. They have survived in spite of the massacres, discrimination, oppression, diseases, poverty, and misery inflicted on them principally by the colonial powers (Spain, Britain, France, the Netherlands, and the United States).
The problems of indigenous peoples exist, to varying degrees, on all continents. Even in countries where the indigenous still constitute a majority, they remain powerless, by and large unheard, misunderstood, or simply ignored by their governments. Their past history is disdained, their way of life scorned, their subjugation unrecognized, their social and economic system unvalued. The belief that indigenous peoples were sub-human and inferior was common among European invaders and colonizers.
There is not an international consensus on who indigenous peoples are; the term cannot be defined precisely or applied all-inclusively. International debate on the meaning of the term indigenous commenced in the late nineteenth century. Among European languages, notably English and Spanish, the term indigenous (indigena) shares a common root in the Latin word indigenae, which was used to distinguish between persons who were born in a particular place and those who arrived later from elsewhere (advenae). The French word autochtone has, by comparison, Greek roots and, like the German term Urspung, suggests that the group to which it refers was the first to exist in a specific location. Hence, the roots of the terms historically used in modern international law share a single conceptual element: priority in time.
Berlin Conference (1884 and 1885)
A good starting point for the examination of international practice with regard to indigenous peoples is the Berlin Conference of 1884 and 1885. The great powers of the time convened the conference with the aim of agreeing on principles for the recognition and pursuit of their territorial claims in Africa. In Article 6 of the General Act of the Conference, the great powers declared their commitment to "watch over the preservation of the native tribes" of Africa, with the term "native tribes" distinguishing between nationals of the great powers and the peoples of Africa living under the colonial domination of these same nations.
According to Article 22 of the Covenant of the League of Nations, members of the League accepted as a "sacred trust of civilization" the duty of promoting the well being and development of the indigenous population of those colonies and territories remaining under their control. The Covenant specifically used the word "indigenous" to distinguish between the colonial powers and the peoples living under their domination. The Covenant included a second element of qualification, however, characterizing indigenous populations as "peoples not yet able to stand by themselves under the strenuous conditions of the modern world." Both factors, that is, colonial domination and institutional capacity, were to be considered, under Article 22 of the Covenant, in determining the degree of supervision that was appropriate to particular territories and peoples. Another element important to the evolution of the term indigenous appeared in the Covenant. Article 22 also referred to "territories" as places demarcated by internationally recognized borders, in comparison to "peoples," who could be distinguished by sociological, historical, or political factors.
The Pan-American Union, the predecessor of the present-day Organization of American States (OAS), began to use the term indigenous in a different manner. In its Resolution XI of December 21, 1938, the Eighth International Conference of Americas States declared that "the the indigenous populations, as descendants of the first inhabitants of the lands which today form America, and in order to offset the deficiency in their physical and intellectual development, have a preferential right to the protection of the public authorities."
As a matter of practice in the Americas, the term indigenous was used to identify marginalized or vulnerable ethnic, cultural, linguistic, and racial groups within state borders. The consolidated text of the Draft American Declaration on the Rights of Indigenous Peoples (being negotiated by the OAS, as of June 2003) refers in its Article 1 to indigenous peoples as those who "descend from a native culture that predates European colonization and who conserve normative systems, usages and customs, artistic expressions, beliefs and social, economic, political and cultural institutions." Negotiations proceed within the OAS in a quest for consensus among states and indigenous peoples of the region on the latter's rights.
International Labor Organization (ILO) Convention
The 1957 International Labor Organization (ILO) Indigenous and Tribal Populations Convention (No. 107) applies to tribal populations that "are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization" and who remain socially, economically, and culturally distinct.
The Charter of the United Nations (UN)
The Charter of the United Nations (UN) contains nothing to help reconcile different uses of the term indigenous in international law. Article 73 of the Charter refers merely to "territories whose peoples have not yet attained a full measure of self-government."
In 1987 the UN published Study of the Problem of Discrimination against Indigenous Populations by Jose Martinez Cobo that offered the following definition for the term indigenous:
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 ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems (p. 379).
This definition combines the element of distinctiveness, which characterizes both indigenous and tribal peoples, with the element of colonialism. In addition, the definition contains the following other essential elements: (1) "non-dominance at present," implying that some form of discrimination or marginalization exists; (2) the relationship with "ancestral land" or territories; (3) culture in general, or in specific manifestations (such as religion, living under a tribal system, membership in an indigenous community; (4) language (whether used as the only language, the mother tongue, the habitual means of communication at home or in the family, or the main, preferred, habitual, general, or normal language); (5) residence in certain parts of the country. This is the definition that has prevailed and is applied by the UN.
The 1989 ILO Indigenous and Tribal Peoples' Convention (No. 169), which revised the earlier 1957 Convention, defines indigenous peoples in terms of their distinctiveness, as well as their descent from the inhabitants of a territory "at the time of conquest or colonization or the establishment of present state boundaries." The only difference between the definition of indigenous and tribal peoples in the Convention relates to the principle of self-identification. A people may be classified as indigenous only if it so chooses by perpetuating its own distinctive institutions and identity. Article 1, paragraph 2, of the Convention provides that self-identification "shall be a fundamental criterion for determining the groups to which the Convention shall apply." Paragraph 3 contains a disclaimer stating, "the use of the term peoples in this Convention shall not be construed as having any implications as regards [to] the rights which may attach to the term under international law."
It should be noted in this regard that no accepted legal, sociological, or political definition of the term a people exists. General or customary international law does not provide any rules or principles concerning the term indigenous peoples, or its relationship with the wider concept of peoples. Whether a group is a people mainly for the purpose of self-determination depends on the extent to which the members of the group making this claim share ethnic, linguistic, religious, or cultural bonds. There is also a subjective element, which weighs the extent to which members of a group perceive the group's identity as distinct from those of other groups. Indigenous peoples are peoples in every political, legal, social, cultural, and ethnological meaning of this term. They have their own languages, laws, customs, values, and traditions; their own long histories as distinct societies and nations; and a unique religious and spiritual relationship with the land and territories in which they have lived.
Indigenous peoples' right to self-determination should ordinarily be interpreted as their right to freely negotiate their status and representation in the state where they live. This might best be described as a kind of "belated state-building," through which indigenous peoples are able to join with all other peoples making up the state on mutually agreed upon and just terms. It does not mean that indigenous individuals should be assimilated into the dominant culture, but that they should be recognized as distinct peoples and incorporated into the state on that basis. Indigenous peoples have repeatedly expressed their preference for constitutional reform within existing states that would allow this process to take place, as opposed to secession from the state. What most indigenous peoples mean when they speak of self-determination is the freedom to live as they have been taught.
History: West Indies
The Western Hemisphere was densely populated when Europeans began their colonization of the region. In 1492 Christopher Columbus set sail under the flag of King Ferdinand and Queen Isabella of Spain and soon subjugated the West Indies. The so-called Indians lived in a land across the ocean, with their own cultures, civilizations, and languages. The Spaniards waged a series of genocidal campaigns against the Indians of Hispaniola. On horseback, accompanied by infantry and bloodhounds, the conquerors destroyed the hunting and gathering nations of the island, and by 1496 they were in complete control. Besides the subjugation the Europeans also brought their diseases. Smallpox arrived in 1518 and spread to the mainland. By 1540 the Indians in the Caribbean had been virtually exterminated.
Catholic priests accompanying the soldiers would read out in Spanish, on reaching Indian villages the Requerimiento, a formal demand that the townspeople adopt Catholicism. If the Indians refused to acknowledge the authority of the king and the pope, the soldiers would kill them. Those who were not slaughtered were seized as slave-laborers for the mines. In 1502 the system known as encomienda was introduced, whereby the Crown granted land to Spaniards, usually soldiers, who were also allotted a certain number of Indians to work it. This system of forced labor was known as repartimiento.
Subjugation of the Indians was accompanied by hideous acts of cruelty. Representatives sent by Catholic Church authorities began to protest. Spain passed the Laws of Burgos in 1512 in an attempt to control some of the abuses. In 1514 Bartolomé de las Casas, a priest who came to be called the father of human rights in the New World, decided that the Spaniards' treatment of the Indians was unjust and tyrannical, and he tried to intervene with the king to reform the encomienda system.
History: North America (Mexico)
After the Spaniards had subjugated the Indians of the West Indies, they invaded the mainland, where they encountered the great empires of the Aztec and Inca. In 1519 Hernando Cortés landed at Veracruz on the eastern shores of Mexico. Reaching the Aztec capital of Tenochtitlan, the Spaniards were astonished to find a beautiful city, the center of an empire of eleven million people. By 1521 Mexico was conquered. The Spaniards brought with them the disease smallpox, which was unknown in Mexico, and Indians died by the hundreds of thousands.
History: South America
By 1532 Francisco Pizarro had conquered Peru, where the Inca ruled over six million Indians. The empire of the Inca, established along the highlands stretching from Ecuador to Bolivia, was an astounding achievement: with winding roads through the mountains, irrigation systems, storehouses, and agricultural terraces. Manco Inca led the revolt of the Inca against the Spaniards. Tupac Amaru, the last Inca king, was captured and brought to Cuzco, where he was beheaded in the central plaza.
As early as 1523, a decade before Pizarro's encounter with Atahualpa, smallpox had begun to depopulate the empire of the Inca. A multitude of plagues, in addition to smallpox, ravaged the Indian population during the sixteenth and seventeen centuries: chickenpox, measles, influenza, pneumonia, scarlet fever; yellow fever, and typhus. Their enormous impact can be best understood by considering population statistics related to both North and South America. In 1519 the Indian population of central Mexico was estimated to be 25 million; by 1523 17 million remained; in 1548 there were only 6 million; and by 1568 a mere 3 million had survived. By the early seventeenth century the number of Indians in central Mexico was scarcely 750,000, that is, 3 percent of the population before the Spanish Conquest began. It is estimated that the Indian population of Peru likewise fell from 9 million before the arrival of Columbus to 1.3 million by 1570.
At the end of a half-century under Spanish rule, the peoples of the Aztec and Inca empires had undergone devastating cultural as well as numerical decimation. Ancient ceremonies of birth, marriage, and death disappeared. Old customs died. A cultural genocide was committed. In the Brazilian rain forest during the twentieth century the epidemics of the earlier Conquest—smallpox and measles—and diseases such as malaria, influenza, tuberculosis, and yellow fever killed thousands of indigenous peoples, in particular, the Yanomami. Depopulation placed terrible stress on the social institutions of indigenous society. From 1900 to 1957, according to Darcy Ribeiro, an anthropologist who sought to help the Urubus-Kaapor in 1950, the Indian population of Brazil dropped from one million to less than two hundred thousand. Seventy-eight Indian communities became extinct. What remains of pre-Colombian civilizations are ruins such as Maccu Picchu, the lost city of the Inca, while the heirs of the conquered peoples sell handicrafts and beg in the streets of Andean cities.
History: North America
In North America the destruction of the Indian population did not necessarily occur at the time of first contact, as was the case in Central and South America. In the sixteenth century a remarkable federal and state structure was established among Indians from the Great Lakes to the Atlantic, and as far south as the Carolinas and inland to Pennsylvania. Known as the Iroquois Confederacy, it incorporated five widely dispersed nations of thousands of agricultural villages. It later included the Tuscarora of the south and refugees from British colonization.
Bordering the Iroquois state to the west were the peoples of the plains and prairies of central North America, from West Texas to the sub-Arctic; in the Canadian prairies, the Cree; in the Dakotas, the Lakota and Dakota (Sioux); and to their west and south the Cheyenne and Arapaho peoples.
Prior to the arrival of the British colonizers with African slaves, the territory was a thriving civilization, with most peripheral areas having been settled by the year 1600. The inhabitants were the Muskogeespeaking Choctaw, Creek, and Chickasaw Nations; the Cherokee, an Algonquin-speaking people just as the Iroquois in the eastern half of the region; and the Natchez Nation to the west, that is, the Mississippi Valley area. The total population of the region is estimated to have been between two to three million. The Natchez Nation alone, which was totally destroyed by colonization with the remaining population sold into slavery, may have numbered several million.
In the 1890s an American whaling fleet from San Francisco entered the Beaufort Sea and established whaling stations in the western Arctic. Eskimos were hired to gather driftwood to conserve the ships' stocks of coal, and to hunt caribou and musk ox to supply the whalers with fresh meat. The whalers brought syphilis, measles, and other diseases. When the whaling industry collapsed in 1908, of the original population of 2,500, there were only approximately 250 Mackenzie Eskimos left in the region between Barter Island and Bathurst Peninsula.
Alcohol was used by some of the Indians in the Americas. Most indigenous peoples regard the abuse of alcohol as one of the most disruptive forces brought on by colonization and the most serious danger to the future of their communities. There are disturbing contemporary studies of indigenous communities in the Arctic and Sub-Arctic regions that identify a social pathology which threatens to destroy life there: family violence, alcoholism, and a high suicide rate among young people, with most victims being in their teens and early twenties. This is the tragic outcome of the policies pursued by dominant nonindigenous societies for many years. Certain governments and their economic, social, and educational institutions, as well as some missionaries and clergy, have made every effort to destroy indigenous languages, cultures, customs, and traditions. Despite this history, Native peoples remain in the New World.
With respect to Oceania, there is archaeological evidence that Aborigines have lived in Australia for at least sixty thousand years. On May 13, 1787, a fleet of eleven ships, most carrying convicts, set sail for New South Wales. It arrived on January 26, 1788, giving birth to modern-day Australia. Starting with British occupation, Aboriginal and Torres Strait Islander peoples have been subjected to successive government policies seeking to "protect," "civilize," and "assimilate" them. The policy of assimilation, which often involved removing indigenous children from their families and communities and placing them in nonindigenous communities, government or church institutions, or foster homes, reached its peak between 1910 and 1970. These children, commonly referred to as the Stolen Generations, were not only isolated from their families and traditional lands, but also forbidden to speak their language or practice their culture. Frequently, they never learned of their indigenous origin. This policy and practice may be viewed as a form of genocide on the basis of Article II(e) of the 1948 United Nations (UN) Convention on the Prevention and Punishment of the Crime of Genocide.
In Asia, Japan recognizes the Ainu as a religious and culture minority, but Ainu efforts to celebrate, preserve, and revive their traditions and customs of the past are severely circumscribed. Japan maintains that the Ainu have lost most of their cultural distinctiveness through assimilation. Despite the official position of the Japanese government, the Ainu place strong emphasis on their distinct cultural identity.
Most of the countries in which indigenous peoples live are relatively poor and less developed. Government officials, and the executives of development banks, and other financial institutions and transnational corporations, often have a limited knowledge of indigenous societies and their culture. As a result, the projects these executives conceive, authorize, and fund—dams, roads, and the utilization of natural resources sometimes involving the large-scale relocation of populations—irrevocably affect the peoples who lie in their paths. The land and natural resource issues of indigenous peoples remain critical and unsolved in many states. In North America, Great Britain and later theUnited States signed over three hundred treaties with Indian nations that were subsequently broken.
In 1840 the Maori in New Zealand signed the Treaty of Waitangi with Great Britain. According to it, they ceded sovereignty in exchange for exclusive and undisturbed land rights. However, within a few years the British Crown forcibly purchased half of the guaranteed area, some thirty million acres, and by successive acts of Parliament much of the remaining land has also been wrested from the Maori. At the end of the twentieth century they owned only 3 percent of New Zealand territory. Present-day Maori (along with North American Indians, including those residing in Canada) insist on their treaty rights and continue to demand that the treaties they earlier signed be recognized as legitimate international agreements.
In 2002 the indigenous Wanniyala-Aetto in SriLanka; the forest-dwelling Adivasis in India; and the San, Hadzabe, and Ogiek in Africa all faced situations in which they were either denied access to their ancestral lands, or evicted from them in order to make way for commercial hunting or logging interests. Pastoralists suffered hardships in Ethiopia and Tanzania, where land dispossession increasingly threatened their livelihood. Even the Saami reindeer pastoralists of the European Saamiland—considered the most privileged indigenous people in the world—experienced economic setback.
The Torres Strait Islanders are an indigenous Melanesian people of Australia. At present they are slowly working toward a system that will provide both a strong government and relatively autonomous local island councils, together with protection for and political inclusion of the nonindigenous residents of the islands. Such an arrangement will contribute to economic and social improvement for all. In addition the State of Queensland has demonstrated some recognition of Native status since the landmark decision of the high court in Mabo v. Queensland (1992), which recognized Native title in the Torres Strait Islands.
Many states regard indigenous peoples as an obstacle to their national development, not as an economic asset. By pursuing such a philosophy and policy, they ignore the potential contribution of a large portion of their national population and condemn them to poverty, despair, and conflict. Ignoring the economic potential of indigenous communities is a waste of resources in the short term, and a source of high social and financial costs in the long term.
In the Andes and Southeast Asia, where the majority of the world's indigenous peoples live, the flow of private foreign investment and expropriation of lands and natural resources continues unabated, without the free consent of indigenous peoples. National parks, biosphere preserves, and the lands set aside for indigenous peoples have been opened to mining and logging. Large-scale development projects, such as hydroelectric dams and transmigration programs have not just displaced many thousand of peoples, they have also leveled rain forests, emptied rivers, and eliminated much of the word's biological diversity. Indigenous peoples have been an integral part of the worldwide environmental movement that led to the 1992 Earth Summit at Rio de Janeiro. Chapter 26 of Earth Summit Agenda 21, Recognizing and Strengthening the Role of Indigenous People and Their Communities, was adopted during this conference.
Indigenous Peoples Movement and Contemporary Global Protection
In 1923 Chief Deskaheh, leader of the Council of the Iroquois Confederacy, traveled to Geneva to inform the League of Nations of the tragic situation of indigenous peoples in Canada and to request the League's intervention in their long-standing conflict with the Canadian government. In spite of Chief Deskaheh's efforts, the League decided not to hear the case, claiming that the issue was an internal Canadian matter.
Since 1921 the ILO has sought to address the plight of Native workers in European colonies. The 1930 Forced Labor Convention (No. 29) was one result. In the period from 1952 to 1972 the Andean Program, a multi-agency effort under the leadership of the ILO, was launched in Argentina, Bolivia, Chile, Colombia, Ecuador, Peru, and Venezuela; its work affects some 250,000 indigenous peoples. The ILO has further adopted two conventions on indigenous peoples (Nos. 107 and 169 on "Indigenous and Tribal Populations" and the "Convention Concerning Indigenous and Tribal Peoples in Independent Countries"). The 1989 convention (No. 169) is an important international standard on the subject.
After the UN was created in 1946, a number of attempts were made to prompt that body to consider the situation of indigenous peoples around the world. From 1960 to 1970 indigenous movements grew in a number of countries to protest the systematic and gross violations of Native human rights, and the discriminatory treatment and policies of assimilation and integration promulgated by various states. In the 1970s indigenous peoples extended their efforts internationally through a series of conferences and appeals to international intergovernmental institutions and nongovernmental organizations (NGOs). Among the hallmark events of the movement was the International NonGovernmental Organization Conference on Discrimination Against Indigenous Populations in the Americas, held in Geneva in 1977. This conference has contributed to forging a transnational indigenous identity that may be subsequently extended to include indigenous peoples from many corners of the world. Of particular interest was the Fourth General Assembly of the World Council of Indigenous Peoples, held in Panama in 1984, which developed a declaration of principles. This declaration is one of the primary papers on which the Draft United Nations Declaration on the Rights of Indigenous Peoples, as of 2003 under debate in the UN Commission on Human Rights, is based.
In 1982 the UN Working Group on Indigenous Populations (WGIP) was created with a twofold mandate: to review developments relating to the promotion and protection of human rights and fundamental freedoms of indigenous peoples, and to elaborate international standards concerning their human rights. The WGIP, under the chairmanship of Erica-Irene Daes, has produced valuable work. Its annual meetings became the official gathering place for more than nine hundred indigenous representatives from all over the world. The principles of openness, freedom of expression, equality and nondiscrimination, the rule of law, transparency, and democracy have been the subject of its debates, and a constructive dialogue between representatives of indigenous peoples, governments, intergovernmental organizations, NGOs, and members of the WGIP have ensued as a result. With the free and active participation of indigenous peoples, it has drafted and unanimously adopted the Draft Declaration on the Rights of Indigenous Peoples.
On the basis of WGIP's recommendation, the UN proclaimed 1993 the historic "International Year of the World's Indigenous Peoples." Then Secretary-General Boutros Boutros-Ghali called on all governments to respect and cooperate with indigenous peoples. The General Assembly then declared 1995 through 2004 "The International Decade of the World's Indigenous People," with the theme of partnership in action. In 1992 the Permanent Forum on Indigenous Issues was established by the UN Economic and Social Council, as a watchdog on behalf of indigenous peoples. Its most important function and role has been to ensure that the operational side of the UN system focuses on the rights of indigenous peoples, including the right to development, and brings indigenous peoples into a real partnership for development with other sectors of international society. As of 2003 the Permanent Forum held two constructive annual sessions (in 2002 and 2003).
Consequently, indigenous peoples are no longer just victims of development, but also contributors to development and the protection of the environment. With their own special talents, deep knowledge, and long expertise, they will gradually contribute to the improvement of their economic situation and to the prosperity of all people throughout the world.
Reconciliation and Recommendations
In the dawn of the new millennium indigenous peoples worldwide, after centuries of inaction and suffering, have become aware of their rights and responsibilities. The injustice, the exploitation, the discriminatory treatment and dark deeds of the past and present require those who have benefited the most to aid those who have endured the greatest injustices during the last five centuries. Governments must recognize the needs of indigenous peoples and then find a path of restitution that leads to reconciliation. No longer can claimed ownership rights of land and natural resources be ignored. No longer can indigenous customary laws, traditions, and culture be disregarded.
There is a need for national constitutional reforms within existing states, as opposed to secession, with the free and active participation of indigenous peoples. Forced assimilation and integration must be prohibited by law. It is imperative that nations worldwide adopt the UN General Assembly's Draft Declaration on the Rights of Indigenous Peoples. The proclamation will serve as the foundation of a new and just relationship between states and indigenous peoples, and contribute to a successful and viable reconciliation. The education of indigenous peoples must be encouraged, and public awareness properly promoted. The World Bank, International Monetary Fund (IMF), and other international and regional financial institutions must take into consideration the culture of indigenous peoples. Making the right to development a reality will need to entail a very effective socioeconomic planning and implementation process. Indigenous peoples in defending their human rights and fundamental freedoms should not be compelled to routinely seek legal recourse in order to achieve these ends. It must be a last resort against oppression; all their human rights, including the rights to self-determination and development, must be recognized and guaranteed by the rule of law.
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Erica-Irene A. Daes