(Final report of study on treaties, agreements and other construcctive arrangements between States and indigenous populations)
CHAPTER III: A LOOK AT THE PRESENT: ORIGIN, DEVELOPMENT AND CONSEQUENCES OF
THE DOMESTICATION PROCESS
168. It must be recalled that in establishing the mandate of the Special Rapporteur, both the Commission and ECOSOC instructed him "...[to take into proper account] the social-economic realities of States...". [CHR resolution 1988/56 (op. para2), and ECOSOC decision 1988/134 (op. para 2)] It is therefore imperative for him to review the present day situation of Indigenous peoples now inhabiting multi-national States. However, the current situations cannot be fully understood if the origins and development of the process of domestication of Indigenous issues, are not examined as well.
169. Any attempt, at the end of the 20th Century, to arrive at a general
approach to the vast, complex, and more than 500 years old problematique of the Indigenous
peoples, should not --and can not-- ignore a fundamental fact: their initial
contacts with "non-indigenous" peoples from other parts of the world, dating
back to the late 15th Century, were the result of the launching
and development of European colonial expansion.
170. This expansion, in turn, was inherent to the new mode of production
emerging in Europe during the final part of the late Middle Ages. By the last decade of
the 15th Century, this new economic model had already developed enough scientific,
technological, and financial wherewithal to allow it to successfully launch exploration
companies, "discovery" expeditions, and colonization in the search for new trade
routes and markets in far off regions. The theatre of these operations included the
Americas, Asia, Africa,
the vast expanses of the Pacific, or, even, in certain parts of the periphery --insular or
not-- of Europe itself.
171. Other contributing factors to this expansionism at a later stage included:
religious intolerance, oppression based on national origin, and the economic and social
marginalisation of certain sectors of the European populations, as well as antagonisms and
confrontations between the European powers during diverse epochs. All this would, in later
centuries, foster both the establishment of new initial contacts in the hinterlands of the
territories "discovered", and the further development and consolidation of the
colonial phenomena as a whole.
172. Despite the surfeit of pious excuses that has been found to ethically justify the launching of this overseas colonial enterprise, and the pseudo-juridical (sometimes even openly anti-juridical) reasoning which has attempted to "legally" defend it, there is irrefutable evidence that its clearly well-defined goals had nothing either "humanitarian" or "civilizing" about them.
173. Its first raison d'être was to guarantee a permanent presence of the
overseas power --either in terms of settler populations or mere trading posts --in
territories inhabited by other peoples. Secondly, it sought to acquire the rights to
exploit the natural resources existing there and to secure these new markets for its
import and export needs. Thirdly, it coveted those new
strongholds to strengthen its position in the struggle with other European powers.
Finally, it sought to safeguard what had been acquired by imposing itspolitical, social,
and economic institutions and modalities on the peoples inhabiting these lands.
174. This goal was to be accomplished at any cost, even --should it be necessary and possible--, that of the destruction of the often highly advanced culture, socio-political institutionally, and traditional economic models whose development over centuries by the Indigenous peoples represented no mean achievement.
175. Just as has been reasoned before in a previous Report submitted in 1995,
the overseas colonial undertaking differed completely from the very common phenomenon of
expansion into adjacent territories (at the expense of their neighbors), practiced by the
peoples in those "new" territories before the arrival of the European colonizer.
Its inborn nature, the exploitative, discriminatory, and dominating character of its
"philosophy" as a system, the methods employed, and the final results it had on
very dissimilar societies
mark the difference.
176. These dissimilarities acquire today --as a result of the decolonisation process (still unfinished) in the second half of the 20th century-- an even greater dimension as far as Asia, the Pacific, and Africa are concerned. As a direct result of decolonisation, the gap left by the "non-indigenous" colonial political powers in those continents has been filled by population sectors whose "indigenous" (or "autochthonous") condition is indisputable by any of today's standards.
177. It must be borne in mind that, according to all available information, the terms "indigenous", "native", "mitayo", "Indian", "autochthonous populations" and others of a similar cast, do not come from the lexicon of those whom we today label "Indigenous peoples", but from the vocabulary utilised by the "discoverers" /conquistadores/colonisers and their descendants, to differentiate themselves --in a relationship of superiority-inferiority-- from the original inhabitants of the new territories being added to the European crown jewels.
178. The initial encounters were, of course, colored by different shades of light. Some were guided solely by the logic of outright force. We must recallthat the sword --efficiently backed by the cross-- has for more than 500 years sealed the fate of tens of millions of the original inhabitants of Latin America and the Caribbean and that of their descendants.
179. The right emanating from force --and imposed by it as an instrument of
assimilation/marginalization policies-- was also the basis of the "asymmetric"
bilateral relations between Indigenous peoples and the criollos established in the new
Latin American republics after independence from Spain and Portugal. The victory of
Ayacucho meant little or nothing for the original inhabitants,
who simply found themselves subject to the domination of new rulers.
180. This has been, in general, the situation of the region. It was true both in
those countries that were fully colonized before independence was obtained, as it was in
those where it was left to the new Republic --consider, for example, the cases of
Argentina and Chile-- to complete, also by force, in every corner of the new State. Only
in an extremely limited number of cases
(when no way could be found around an effective refusal to submit, i.a. in the
parlamentos on the Chilean Araucnia) are there vestiges of juridical obligations assumed
(although rarely met) with "the Indians" through negotiation and legally binding
instruments.
181. However, in different latitudes of the Americas, as well as in other areas of the world, these first contacts were not marked exclusively by military force. On the one hand, this was related to then-predominating political and juridical discourse in the societies from which the outsiders came. On the other, it reflected the balance of forces that originally existed between the newcomers and the well organized societies that had populated these "new" territories for centuries, a balance that was to radically change with the progress of the colonization process.
182. A case in point is Britain's progressive colonization --and that further
advanced by its successors in the original 13 colonies (the kernel of the U.S.) at the end
of the 18th century-- of the vast tracts of land today comprising Canada and the United
States. There, a "juridical factor" (i.e. treaties) was introduced. To a certain
degree, this form of initial contact can also be seen in the French colonial endeavors in
parts of these same territories at that time. During the progressive advance from the
Atlantic to the Pacific, military might coexisted with negotiations and juridical
instruments, as the basis of relations between the colonizer and the
Indigenous peoples encountered.
183. In the general run of late cases --especially in Africa and in certain areas of the Pacific--, the initial colonial presence and implantation also began with a low profile. This can be seen, for example, in British behavior both in Africa and in New Zealand.
184. In many places, successive waves of settler migration from the metropolis (case of Hawaii), or of Royal Trading Companies' representatives (frequent in the "East Indies"); and certain legal modalities (some highly "innovative" such as the "perpetual leasing" of territories) emerged alongside the traditional juridical forms (bilateral agreements and treaties). All, however, sought the same end: to secure the colonial domination.
185. These options were employed according to the real needs and possibilities of the alien powers in each specific case. This is so, whether it was done to formalize, ex post facto, the acquisitions already made or to smooth the path for any future military action that might be required.
186. However, something must be said about the juridical instruments that emerged to suit the first stages of the diverse periods in which the initial contacts occurred. Their intrinsic natures, forms, and contents make it clear that the Indigenous and non-indigenous parties mutually bestowed on each other (in either an explicit or implicit manner) the condition of sovereign entities in accordance with the non-indigenous International Law of the times.
187. It must be stressed that certain States had a very powerful motivation for making these treaties or other international instruments of a contractual nature requiring the consent of participants. Furthermore, this motivation (in the direct interest of the non-indigenous party) was quite clear: to legitimize (via the acquiescence of the autochthonous sovereign of the territories in question) any "right" (real or intended) with which they could counter opposing claims advanced by other colonial powers vying for control of those lands.
188. However, to acquire such "rights" via derivative title (since they clearly lacked original title, or because the legality of their presence in those areas was being questioned), required that they seek the agreement of the legitimate holder of the original title, i.e., the Indigenous nation in question. The latter would have to do this by the formal cession of their lands (or their sale, or a concession of acquisitive possession, or any other type of valid transfer).
189. In accordance with European legal tradition and formalities, this transfer
should appear in a document that could be presented as proof before the colonizing power's
equals in the "concert of civilized nations". The ideal instrument for this,
according to the International Law of the epoch, was the treaty. Furthermore, the only
entities with the juridical capacity to make treaties were (like today), precisely,
international subjects possessing sovereignty --their own or delegated by other
sovereigns--, through the
exercise of it.
190. In a second phase of the colonization project and until it peaked -during its "classical" manifestation or a variation thereof, and very particularly as of the second third of the 19th century-- there was a visible increase in the use of military force to acquire vast tracts of "new" territories. This shift was very much in line with the enormous power already being wielded by the traditional European imperial powers and by others who emerged later only to begin their own expansionism.
191. The newcomers' descendants increased their military and economic capacity,
while that of the Indigenous peoples remained (in the best of cases) the same or (most
frequently) decreased rapidly. Whichever variation of this occurred, the result would be
the same: a growing vulnerability of these peoples to the machinations of the
non-indigenous (with whom they had possibly
made treaties/agreements) but who now wished to ignore their sovereignty and impose a
"new order" on their ancestral homes.
192. Thus began the process that the Special Rapporteur has preferred to call
(without any pretension of originality) the "domestication" of the
"Indigenous question". This is to say, the process by which this entire
prolematique was removed from the sphere of international law and placed squarely under
the exclusive competence of the internal jurisdiction of the non-indigenous
States. In particular, although not exclusively, this applied to everything related to
juridical documents already agreed to (or that were negotiated later) by the original
colonizer States and/or their successors and Indigenous peoples.
193. It may be argued that in the light of International Law today -particularly on the basis of Article 2-7 of the United Nations Charter-- such a claim for the reserved domain of domestic jurisdiction could, prima facie, find juridical backing.
194. However, to legitimize beyond any doubt the ways and means used to take issues that originally belonged to the realm of international law away from it and to justify making them subject solely to domestic legislation unilaterally passed by the States and adjudicated by domestic non-indigenous courts, States should produce unassailable proof that the Indigenous peoples in question have expressly and of their own free will renounced their sovereign attributes.
195. It is not possible to understand this process of gradual --but incessant-erosion of the Indigenous peoples' original sovereignty, without considering and, indeed, highlighting the role played by "juridical tools", always arm in arm with the military component of the colonial enterprise.
196. In practically all cases --both in Latin America and in other regions mentioned above--, the legal establishment can be seen coming together and serving as effective tools in this process of domination. Jurists (with their conceptual elaborations), domestic laws (with their imperativeness both in the metropolis and in the colonies), the judiciary (subject to the "rule of [non-indigenous] law"), one-sided international law (its enforcement assured by military means), and international tribunals (on the basis of the existing international law) have all been present to juridically "validate" the organized plunder at the various stages of the colonial enterprise.
197. There are abundant examples of this: the 1898 Joint Resolution under which the U.S. Congress, after using force to impose a treaty, consummated the outright annexation of the sovereign State of Hawaii (which had manifold international juridical relations with other "civilized" nations), and the "scramble for Africa" formalized at the 1885 Berlin Congress by the colonial powers of the epoch are just two of the many examples. Others also supporting this assertion can be found in the progress reports submitted earlier by the Special Rapporteur.
198. The concept "rule of Law", began to traverse a long path --today in a new phase-- transforming it into "the Law of the rulers".
199. Yet, one cannot fail to mention the role played by decisions taken by some Indigenous peoples themselves, in this very same process of domestication; most of them, however, taken under extremely difficult conditions, or in a clear estate of necessity", to use a juridical expression.
200. Nevertheless, the Special Rapporteur has chosen to state his views on this
matter keeping very much in mind the forward-looking aspects of his mandate, and highly
aware of the significance of the lessons to be drawn from History, mutatis mutandi,
in the process of building a new, more just, and solid relationship of co-existence
between the Indigenous and non-
indigenous sectors in a considerable number of modern societies. History is an excellent
source of knowledge for shaping political action. To ignore history, would make it
incredibly difficult to fully understand the present and practically impossible to wisely
face the future.
201. In this context let it be said that, the Special Rapporteur's historical
research showed, in his view, that not all Indigenous nations made the wisest choices at
all times. This is to say, at some crucial moments in their history, some Indigenous
nations were not capable of putting the need to unite among themselves over their
individual interests, even though unity was
necessary to properly confront the encroachment on their sovereign attributes. This was
true, even when the ultimate intentions of the newcomers were already evident. The
terrible consequences inherent in allowing themselves to be divided appear not to have
been totally perceived.
202. In addition, on more than one occasion they do not seem to have recognized the pros and cons in all their dimension, nor the final consequences of a policy of alliance with European powers. This can be said about both those who adopted this policy in line with their ongoing fratricidal struggles, and of those who decided to favour one of the non-indigenous powers over the others, in the military confrontations that took place in their ancestral lands.
203. Further, it also seems obvious that they could not fully appreciate (or that they widely underestimated) the questionable role played --and still played in many cases-- by diverse religious denominations or their representatives as effective instruments of the colonial enterprise in its various stages.
204. It is easy to see the negative effects of such a combination of endogenous and exogenous factors not only on their initial sovereign condition, but also on their overall international juridical status. These effects also included the extinction (or substantial reduction) of their territorial base and undermined their political, economic, juridical, cultural, and social-order in general, and even their survival as a distinct society.
205. These negative effects are perceptible, to a greater or lesser degree, whether or not the relations between these peoples and the colonizers were juridically formalized by means of treaties/agreements.
206. The most lethal of these effects has been, of course, the already consummated (or presumably soon to occur) extinction of these peoples as social entities with distinct identities.
207. It is impossible to determine with any certainty in 1998, the number of indigenous peoples extinct since the times of their first encounters with the "discoverers" as the result of the "civilization" imposed on them. Nor is it possible to say how many more will disappear in the not so distant future, unless the circumstances in which they live in the multi-national States today do not change.
208. According to all indications (and to cite just two known examples), the original inhabitants of Catalina Island off the coast of California and the Yanomamis of Roraima should be included in the category of "peoples in danger of extinction".
209. The relentless carving away of their lands as a result of the most varied actions, their expulsion from these lands --via either the use of direct force by the new State, or because they could not obtain the resources to continue practicing their traditional economic activities or to continuing tilling the soil--, the draconian restrictions on the use of their own languages and on the practice of their religious beliefs (or the prohibition of one or both) have contributed, historically and currently to this situation.