CHAPTER III 

DOCTRINE AND JURISPRUDENCE OF THE IACHR
ON INDIGENOUS RIGHTS (1970-1999)

I.       DOCTRINE AND JURISPRUDENCE OF THE IACHR ON INDIGENOUS RIGHTS (1970-1999)

1.          Rights to life, personal liberty, and humane treatment 

          The Commission has had to intervene in hundreds of cases of alleged violations of rights of indigenous people, who have been harmed or killed by agents of the state in the course of the repression of dissident movements that occurred in the 1980s and early 1990s.  Some of these cases were regarded as “massacres”, since the killings were indiscriminate and in some cases were mass reprisals against activities of dissident groups.  The Commission issued many resolutions and recommendations, as well as requests for precautionary measures to protect against threats or imminent danger to the lives of indigenous persons associated with systematic violations committed against indigenous persons and communities, particularly in cases that occurred in Guatemala and Peru. At the same time it recommended that the respective governments clarify the matters, provided compensation to the families, investigate and punish those responsible, and adopt adequate legislative measures.^[1] 

          The Commission reaffirmed the importance of ensuring respect for these and other rights, such as freedom of movement and residence (Article 22) and respect for honor and dignity (Article 11), applied to both indigenous persons and indigenous communities in the context of internal conflicts: 

… in order for the government to achieve its objective of  eradicating what it considers subversion, the Government has divided the peasant and Indian population into those who it considers prone to joining the socio-military programs of the government, whom it has organized in self-defense civil patrols and provided with "guns and beans", and those peasant and Indian sectors whom it considers leaning toward the guerrillas and whom have been punished by all possible means, including very serious violations of human rights which sometimes have even reached the destruction and ransacking of whole villages and the killing of all their residents. ^[2] 

The Commission also considered in one case^[3] that an attack on an indigenous community in which several Saramaka indians died was racially motivated and committed in the context of ongoing conflicts that apparently existed between the Government and the Saramaka tribe and, accordingly the whole community should receive reparation for moral damages.  The Inter-American Court decided, however, that it had not been proved that the racial factor was a motive for the attack and killings, but that the origin of the events lay, rather, in a subversive situation that prevailed at the time. 

The Court did not accept either the Commission’s argument that reparation should be made to the tribe as a whole, on the basis that the traditional Maroon society was an exceptional case, given that the victims were not only a member of their own family group, but also of the village community and of the tribal group or, as the Commission put it, “the villagers constitute a family in the broad sense of that term.”  In that respect, the Court held that all persons, in addition to being members of their own families and citizens of a State, also generally belong to intermediate communities, and that if such compensation has ever been granted, it would have been to a community that suffered direct damages and not for the murder of one of its members. 

2.          Right to property 

The first time that the Commission referred to the duty of the state to defend indigenous lands was in 1970 in the case of the Guahibo in Colombia.^[4]  Later, in 1985, the Commission issued a resolution in the case of the Yanomami Indians of Northwest Brazil (States of Mato Grosso and Roraima) in which it recommended that the Government of Brazil set and demarcate the boundaries of the Yanomami Park to encompass an area of more than 9 million hectares of mostly Amazonian forest that is the habitat of some 12,000 Yanomamis.^[5]   The significance of this resolution was twofold, inasmuch as it confirmed that the system was capable of processing violations of collective rights, as in the case of the property, life, health, and well-being of the Yanomami people^[6]; and because it was the first time that an inter-governmental organization had issued a resolution requesting such demarcation.  The resolution also addressed aspects of health, education, and social integration. As Brazil, at that time, had not ratified the Convention, the resolution was based on the right to life, liberty, and personal security (Article I); the right to residence and movement (Article VIII); and the right to the preservation of health and to well-being (Article XI) of the Declaration. 

          The Commission also intervened in cases of violations which mainly had to do with indigenous communities that had been stripped of ownership of their lands.  Most notable was the case “Los Cimientos” in Guatemala, in which a community alleged that the Army had ejected them from their lands and given those lands to another community for political motives.  The case was settled through arbitration by a committee composed of the representatives of the Government of Guatemala and the interested parties.  The settlement of the case entailed an expert’s report on the conflicting titles of the two communities to the same property, and the respective compensation arrangements, which are in the process of implementation. 

          The first case involving property rights that the Commission submitted to the Inter-American Court for consideration was the so-called Awas Tingi Case versus Nicaragua, in which it requested that the rights of the Mayagna (Sumo) Indigenous Community be respected.  The Commission filed the application in the above-cited case on June 4, 1998. The application concerns the alleged violation on the part of the Nicaraguan State of Articles 1 (Obligation to Respect Rights), 2 (Domestic Legal Effects), 21 (Right to Property) and 25 (Right to Judicial Protection) of the American Convention; due to lack of demarcation and official recognition of the territory of said community.  The Commission also requested the Court, pursuant to Article 63(1) of the Convention, to order reparation of the consequences of the violations alleged in its application. 

          Respect for the material property of indigenous people was also the focus of particular concern for the Commission, which underscored that certain practices of state agents discriminated against indigenous people: 

From the standpoint of human rights, a small corn field deserves the same respect as the private property of a person that a bank account or a modern factory receives; a peasant farmer's identification papers are as important as the private papers of a legal office and may only be reviewed or confiscated on orders from the competent authority.^[7] 

          On March 25, 1998, the Commission formalized the first friendly settlement agreement to restore legitimate property rights to an indigenous community of the hemisphere under the inter-American system for protection of human rights. Under the aforesaid agreement the Paraguayan State undertook to acquire almost 22,000 hectares of land and to transfer it to the Enxet-Lamenxay and Kayleyphapopyet (Riachito) communities, both of which belong to the Enxet–Sanapana people, thereby terminating the respective claim to recover ancestral lands over which third parties had been granted title.  The Commission approved the aforesaid friendly settlement inasmuch as it considered it to respect the human rights recognized in the Convention, in accordance with Article 49 thereof. 

3.          Rights of the family  

Article 17 of the Convention recognizes the family as the natural and fundamental group unit of society and that it is entitled to protection by society and the state. The concept of “family,” though universal, varies in its actual structure in different cultures, as is the case in the different indigenous cultures in the Americas.  The Court, in response to the Commission’s request, recognized as much in a reparations judgment in which it ruled who the victim’s successors were in a case involving the violation of the right to life and to humane treatment. 

In the above-mentioned case of the Saramakas, the Court accepted the argument of the Commission in the sense that it is necessary to take into account the family structure of the Maroons, of which the Saramakas are a part; it is essentially a matriarchal structure, where polygamy is common, and where care of family members is entrusted to a communal group organized along maternal lines.  The Court held that the evidence offered led to the conclusion that Surinamese family law is not effective insofar as the Saramakas are concerned. The members of the tribe are unaware of it and adhere to their own rules.  Furthermore, the Court found, the Saramakas do not bring the conflicts that arise over such matters before the State's tribunals, but resolve them in accordance with their own customs and institutions. It should be pointed out, the Court mentioned, that, in the instant case, Suriname recognized the existence of a Saramaka customary law. Accordingly, compensation was awarded in keeping with this principle, in recognition of the fact that the principal group of relatives appears to be the "bêè", composed of all the descendants of one single woman. This means that the compensation payable to one person would be given to the "bêè," whose representative would distribute it among its members. 

4.       Discriminatory military recruitment of indigenous men, in violation of the rights to personal liberty, protection of human dignity, and freedom of movement 

The Commission condemned the practice of forcible recruitment in conditions of “servitude” to form self-defense patrols. This practice was imposed on rural and indigenous populations in several countries during periods of conflict against subversive groups.  The Commission also condemned enforced military recruitment of young indigenous men by unlawful means. In an individual case^[8] in 1993, the Commission rejected the violatory practice of violent round-ups of young indigenous men using illegal procedures.  On the grounds that these practices were used by agents of the State, the Commission found the State responsible for violation of the rights to personal liberty (Article 7), to protection of human dignity (Article 11) and to freedom of movement (Article 22). The Commission also held the State responsible for violating the provisions on guarantees and judicial protection contained in Articles 8 and 25.  In reaching these conclusions the Commission also underscored the discriminatory nature of this practice, saying that: 

…discriminatory recruitment practices that make young Maya-Quichés almost a majority of conscripts persist.  These practices consist mainly of strict application of recruitment criteria to the rural and indigenous populations while youths from mestizo, urban, and higher-income groups are almost automatically exempted.

5.          Right to Judicial Protection 

          The States have the duty to provide a prompt and effective judicial recourse. In a case involving the death of a young Macuxi indian man in Brazil^[9], who was arrested in a discriminatory manner and later died as a result of mistreatment while in custody, the Commission, after condemning such actions by the police, found the conduct of the State to be in violation of Article 25 of the Convention, inasmuch as, by postponing indefinitely the criminal prosecution of the culprits, it allowed that process to drag on for nearly 10 years without conclusion, with the attendant lack of reparation for the victim’s family. 

6.          The concept of collective rights in relation to human rights  

          In all its practice in connection with the human rights of indigenous people the Commission has always accepted the concept of collective rights in the sense of rights to which groups or organizations of people are entitled and that refer to their legal status, as in the case of indigenous communities and peoples.  Ever since it issued its first resolution in that regard in 1971, in which it speaks of protection of indigenous populations, and in a constant and peaceful manner in successive cases, the Commission has addressed, pronounced decisions on, and made recommendations to the states regarding, the enjoyment of and respect for the rights of indigenous populations. 

A.      Collective rights in individual cases involving indigenous populations

Case 1690, concerning the Guahibo population of Colombia, was presented to the Commission in 1970. The Commission accepted the case and established its competence to take cognizance thereof. Furthermore, in replying, Colombia referred to the rights of indigenous communities, which in this case were alleged to have been violated by the incursions of settlers and armed Army operatives into indigenous ancestral lands. 

In 1973 the Commission also accepted Case 1802 on the Aché people of Paraguay, who were allegedly suffering attacks, practices of enforced malnutrition, and attempts to enslave them and to cause said people to vanish.  The report of the Special Rapporteur of the Commission not only referred to infringements on the rights of individual Aché persons, such as the right to life, to humane treatment, etc, but also included an analysis of alleged genocide, refusal to recognize collectively owned lands, and eradication of language, traditional music and religious practices; in other words, rights of a clearly collective nature.^[10] 

In the above-mentioned “Yanomami” Case, the chief concern of the petition was the delimitation and demarcation of the Yanomami territory, which was not only a right to which the Yanomami were collectively entitled as a people, but also one that by its nature went beyond the concept of property recognized in the Declaration and the Convention, and included political rights over that property that, likewise, are of a collective nature and have to do with the partial autonomy of the aforesaid territory from the political authority of the federal states and of the Union of Brazil. Those individual and collective rights were subsequently explicitly recognized by the State in 1998 upon the enactment of the new Constitution of the Federative Republic of Brazil.  In its report of 1985 the Commission recognized those collective rights of the Yanomami and recommended that the Brazilian State take steps to implement them, in particular demarcation of lands, together with measures of a collective nature relating to their education, health, and social integration. 

Perhaps the individual case in which the Commission came out in the most comprehensive defense of the collective rights of indigenous peoples was the so-called “Case of the Miskitos” of Nicaragua.  The original petition described bombardment of populations, murder of people, the threat to eliminate the “indigenous race,” wholesale obliteration of villages, and, “specially the defamation campaign to denigrate the authentic struggle of our Indian peoples for their lands and autonomy …”^[11] In examining the case, which took several years and visits to the area, the Commission studied carefully the collective rights of the Miskitos, including the right of autonomy and self-government.  To that end, in its analysis the Commission reviewed the historical background of that right, including an examination of the Miskito Kingdom created and recognized in 1697 by the British Crown, and the treaties between the Crown of England, the Republic of Nicaragua, and indigenous representatives.^[12]  Subsequently, in that report, the Commission continued to refer to the collective rights of the Miskitos, citing the Episcopal Conference of Nicaragua, which said that “it is a right and a duty to protect the legitimate possession and enjoyment of the riches of the natural, traditional and cultural patrimony of the Indian peoples …” The Commission later accepted the amendment of the petition, which summarized the main indigenous claims as follows: 

1.       Indian land rights in Indian territory must be recognized as a whole and not as parcels or sections granted by the Government.

2.       Indians must be guaranteed their right to the natural resources of their territory.

3.       The Indian right to self-determination or autonomy within their territory must be recognized.^[13] 

The petition having been thus accepted by the Commission, the Nicaraguan state, in its various replies, also referred at length to those issues, plainly accepting the jurisdiction of the Commission in that respect.  Finally, the Commission issued its report and in it expressly mentioned that “it extensively studied in this report whether the Miskitos Indians could invoke  special rights as an ethnic group.”  In its conclusions and recommendations, the Commission pronounced itself in favor of that right, and referred to the importance of holding, as part of reaching a friendly settlement of the matter, a meeting to address, inter alia, the following matters of a collective nature: 

a.       The appropriate means and conditions to allow the Miskito, Sumo and Rama peoples to participate in the dialogue with the Government of Nicaragua that would be initiated at this Conference, through existing organizations or those to be established, if those peoples so desire;

b.       Participation of the Miskitos and other ethnic groups in national decisions that concern their interests, as well as in the administration of the Atlantic Coast region;

c.       Procedure and mechanisms for granting of compensation to the close relatives (parents, children and spouses) of those who died as a result of the conflict, as well as for those who have been physically impaired for the same reason;

d.       Examination of ways to promote and ensure respect for the cultural identity of the indigenous peoples of the Atlantic Coast.^[14] 

Finally, in its final report on the friendly settlement of the case, the Commission addresses the Miskitos’ claims to several collective rights, notably regarding self-government and indigenous lands.  The Commission refers in particular to the land claims because it considers “that the Government is violating their rights to those lands and introducing changes detrimental to the system of tenure and exploitatin of these lands by means of the Agrarian Reform.”^[15]  The Commission recalls its recommendation to the Government and the lack of a clear demonstration of intent from the latter to comply therewith.  It is clear that the Commission does not refer directly to respect for the individual right to property of the Miskitos; rather, it does so by mentioning their collective right to determine the form of ownership and use of those ancestral lands. 

This argument applies also to the case of the “Awas Tingi” of Nicaragua, which, in 1998, the Commission decided to refer to the Inter-American Court.  The Commission’s application, inter alia, reiterates what it has maintained in several special reports in the sense that continued utilization of traditional collective systems for the control and use of territory are essential to their survival, as well as to their individual and collective well-being. The Commission underscores that control over the land refers both to its capacity for providing the resources which sustain life, and to the geographical space necessary for the cultural and social reproduction of the group.^[16] 

In a petition concerning the rights of the Cherokee Nation in respect of an agreement between the United States and said Nation to cede territory of a portion of the Cherokees to the Cherokee Nation, the Commission in keeping with its well-established position, accepted the petition prima facie for processing.  The Government of the United States, in its reply to the petition, provided a substantive explanation of the status of the agreement that it had concluded with the different Bands of the Cherokee Nation in respect of those collective rights.^[17]

B.       Collective rights in the Proposed American Declaration on the Rights of Indigenous Peoples

In drawing up the Proposed American Declaration on the Rights of Indigenous Peoples, the Commission began to develop in 1990 the legal principle that individual and collective rights are not opposed but, rather, are part of the principle of full and effective enjoyment of human rights.  Following the precedent set by Article 29 of the Universal Declaration of Human Rights and Article 27 of the International Covenant on Civil and Political Rights, which recognize that there are certain rights that can only be enjoyed in community with the other members of the group, the Commission considered that the full realization by an individual of certain individual rights is only possible if that right is recognized for the other individual members of that community as an organized group.  The right of individuals to use their own language or to profess their own religion or spiritual beliefs requires not only respect for the right of the individual to do so, but also respect for the right of the group to establish its own institutions, practice its own rituals, and to develop such shared beliefs or cultural elements.  In the proposed Declaration that concept is embodied in all the articles contained therein that deal with cultural, political and economic rights.^[18]  Indigenous communities are the holders of the rights enunciated in the proposed Declaration. Those rights refer to the collective legal status of those communities and may be invoked, as appropriate, either by individuals, or by the representative authorities in name of the community.