(Final report of study on treaties, agreements and other construcctive
arrangements between States and indigenous populations)
Chapter III, part 2
210. The effective exercise of their attributes as international subjects had already been effectively liquidated circa the third decade of this century in all areas of the world in which bilateral treaties between Indigenous and non-indigenous peoples had been relatively frequent in the past. This process coincided with the United States Senate decision at the beginning of the 1870s, to discontinue treaty-making with Indigenous nations and to refuse treaty status to the instruments still awaiting ratification.
211. In this respect, one must also recall the Indigenous peoples' unsuccessful attempts (despite President Woodrow Wilson's "14 Points") to reestablish recognition of their international status by the League of Nations; or to gain access, in their own right as peoples, to the International Court of Justice, established by the United Nations Charter as the principal judicial organ of the new world Organization that emerged as a result of the Axis defeat in the Second World War.
212. This was so despite the large number of Indigenous soldiers who contributed
to the Allied victory in that war, and despite the Preamble to its Charter which declares
that the U.N. was established by "the peoples of the United Nations", who
through their governments declared themselves in 1945 "determined to establish
conditions under which justice and respect for the
obligations arising from treaties and other sources of international law can be maintained" [Emphasis added]
213. Furthermore, this was the situation even though the Charter, in formulating one of the purposes of the Organization, recognizes (Article 1-2) the importance of respect for "the principle of equal rights and self-determination of peoples". A simple, direct, and unqualified way of saying all peoples, bar none.
214. In the current contemporary context and in the framework of this same Charter provision, it is worth underlining, at least in passing, the patent incongruency in the position of those who used this Charter reference as a basis for legitimizing the decision by some nations formerly part of the today-extinct USSR (e.g., the so-called Baltic countries) to secede from it, claiming their status as full sovereigns, while, at the same time, objecting to even mentioning that same right in the context of debates related to Indigenous issues.
215. This is not the only example of the double standard treatment Indigenous
peoples are receiving in the current milieu of the United Nations, although the
Organization has devoted much greater attention to this issue as of 1982, with the
establishment of the Working Group on Indigenous Populations. To be kept in mind are the
insurmountable obstacles confronting their efforts to
fully represent themselves in bodies in the United Nations system other than the Working Group. Such was the case in 1989, when the ILO discussed and adopted Convention 169, whose text is directly related to their daily living conditions.
216. Moreover, similar difficulties blocked the much needed full participation
by Indigenous organizations in the Working Group established by the Commission on Human
Rights to discuss the draft "United Nations Declaration on the Rights of
Indigenous Populations"; a forum for which strict rules for participation were
instituted, that, in fact, are limiting to a good degree the indigenous input in such
debate. No similar rules were applied for non-governmental organizations without
recognized ECOSOC status in the case of another working group established by the
Commission, i.e. the one dealing with the rights and
responsibilities of human rights defenders".
217. The constant reduction (or total disappearance) of their territorial base not only affected their real capacity to survive as peoples but is the source of the most crucial aspect of the "Indigenous question" in its current context. It deals with the right of these peoples to the use. enjoyments, conservation. and transmission to future generations of their ancestral lands: in peace. without outside interference. in accordance with their own uses. customs. and norms of social life. We will come back to this issue.
218. Once the work of the initial conquistadores/colonizers or their successors was completed, the colonial process advanced toward the gradual or rapid dispossession of Indigenous lands.
219. It is not the task of the Special Rapporteur in this Final Report to
describe in detail the harsh impact of being subjected to a new and totally alien social,
economic, and political-juridical order. Much has been published on the subject by both
Indigenous and non-indigenous sources (including by official government bodies in the
States now inhabited by these peoples). He will only attempt to summarize its most
relevant effects --some still lingering even at the end of the 20th century--; in
particular, those touching
on land rights.
220. It must be stressed, in this regard, that for these peoples their lands (from whence they came or where they live today) hold singular spiritual and material values. It contains for them the essential elements of their cosmogony. It is the ultimate source of life and wisdom. They believe in the collective enjoyment of what it provides; in the inalienability of something not "owned" but "preserved" for future generations. It plays an irreplaceable role in their religious practices. In short, their understanding of the land was (and is) singularly different from that imported by the newcomers and their successors. The latter's approach, logically, reflected (although not always exactly) the predominant values of their respective societies.
221. Grosso modo, and at the risk of generalizing, the newcomers and their continuators imbued (and imbue) the land with an essentially patrimonial value, subject to exclusive individual appropriation --and, thus, capable of being passed on to others at the will of the title holder--; as a source of material wealth, and a basis for political and economic power.
222. The process that took the indigenous peoples' lands from them left behindvery limited and debilitating alternatives for survival: vassalage (or servitude in its diverse forms), segregation in reduced areas "reserved" for them, or assimilation into the non-indigenous sector of the new socio-political entity created without indigenous input. The last alternative meant the social marginalization and discrimination prevalent in these mixed societies, about which little or nothing could be done despite praiseworthy efforts by certain non-indigenous sectors.
223. Various methods were utilized to achieve dispossession of the land. They, unquestionably, included treaties and agreements, at least if we accept the non-indigenous interpretation of these documents (and in general, that version is the only one available in written form). This issue will be returned to later.
224. Coercion --either by armed force or by judicial and legislative institutionality, or both-- was very frequently brought to bear. This is true whether or not its employment was preceded by formal juridical commitments contrary to it.
225. It went to extremes, as mentioned in an early report. An example is the forced exodus in the 1830s to the other side of the Mississippi of the so-called "five civilized tribes" of the southeastern United States. This is the first documented case of "ethnic cleansing", the background available to the Special Rapporteur, as duly noted in a previous report.
226. Another method was frequently employed to attain dispossession in those cases in which no juridical instruments of any sort had been compacted. This took advantage of the inability of the Indigenous peoples (or individuals) to show "property deeds" considered valid under the new, non-indigenous law. This made their ancestral lands vulnerable to seizure by non-indigenous individuals holding such documents (acquired via the most diverse --and, most often, less than honorable-- means), or by the central or local authorities, who claimed them as public property (or lands belonging to the Crown, or federal lands) subject to their jurisdiction.
227. The total or partial dispossession of their lands (a basic life source in all categories) created new forms of dependency or sharpened the pre-existing ones. First, it notably affected the ability of Indigenous authorities to effectively exercise their functions and also the capacity of these societiesto be self-sustaining by way of their traditional economic activities. All this had a traumatic impact on their social framework.
228. The new non-indigenous authorities hastened to create a distinct political-administrative order to replace the traditional Indigenous authorities and the decision making mechanisms that had guided these societies for centuries. This was a generally successful effort. However, in multiple cases it could only be achieved with the participation of certain segments of the Indigenous societies, already subject to stresses of all types.
229. Similarly, in recent times, there has opened up the possibility of Indigenous participation, as such, in certain aspects of the non-indigenous established political order in some multi-national societies. This is particularly true in the parliamentary area. Examples can be found in Colombia and New Zealand/Aotearoa.
230. The Special Rapporteur welcomes these developments which appear to be steps in a positive direction. This is particularly true in the case of the latter country. Its electoral law gives the Maaori population the option (to be freely taken) of registering on the list reserved for them. Still it remains to be seen just how much of a real impact this type of measure will have in the enormous effort required to achieve more just relations between both sectors of these same societies.
231. In economic terms, the loss or substantial reduction of their territorial base had lamentable consequences. The impossibility of continuing their traditional economic activities (or of having to carry them out in greatly reduced areas) generated a constant migration to non-indigenous economic centers, in particular, to large cities. For multiple communities this has meant the loss or severe reduction of their demographic base and, in general, the acculturation and progressive loss of Indigenous identity by a significant number of their members.
232. Today, in lands still not affected by dispossession --in particular, in those cases where no treaties or agreements exist-- there is a continuing and visible affect on the traditional economic activities. This is so because of the juridical insecurity (according to non-indigenous law) of their effective possession of the land and the inroads made by alien technology for the exploitation of natural resources (including the subsoil, rivers, forests, and fauna).
233. There is a long and varied list of such cases. For this reason, it is
impossible to enumerate them all in this Report. It is enough to point out that the great
majority of these people eke out an existence under obviously precarious conditions. This
is due to a number of factors: the direct threat of forced eviction, in some cases; the
obligation at times to obtain licenses or permits from non-indigenous administrative
authorities to be able to engage in their traditional economic activities (or to be
limited by restrictive
quotas that do not cover their needs); forced, in other cases, to seek the authorization from these same authorities to make use of natural resources, even when their ownership has been recognized even by non-indigenous law, orsubjected --in general-- to the effects of modern technology on their traditional habitat.
234. The general situation of the Australian aborigines --even after the
well-known decision in the Mabo case-- and the situations that affect the Lubicon Cree and
Hobbema peoples/nations in Alberta, Dene (Navajo) in Arizona, Crees in James Bay, Quebec,
many segments of the Maaori peoples in Aotearoa/ New Zealand, and the Mapuche in southern
Chile are some tangible examples of
Indigenous peoples living in the precarious economic conditions described above.
235. In this respect, it should be mentioned that during his field work among
the Cree of Québec (1993) and the Mapuches (1998), the Special Rapporteur could confirm
--both from personal observation and from vivid testimony-- the enormous irreversible
damage already caused to, or threatening, the Indigenous habitat because of the re-routing
or damming of large rivers (such as the
Upper Bio-Bio or the Great Whale River Basin) to build large scale hydro-electric plants; whose output, by all accounts, is earmarked for consumption by the non-indigenous population (even in other countries).
236. As can be inferred from all of the above, every aspect of the Indigenous peoples' socio-cultural life, including, obviously, their religion, has been negatively impacted by the overall process of "domestication" (which touches on all areas), as well as by its obligatory corollary, dispossession from and the loss of effective control over their ancestral lands.
237. Whether subject to the control of a system of direct servitude or to a sort of judicial guardianship (or trusteeship) similar to that applied to minors; whether assimilated (or on the way to being assimilated) and marginalised in the new societies; or restricted to small areas surrounded by another powerful, aggressive, and alien culture, or living in other lands on the periphery --in flight from the non-indigenous authority (having lost their own)--, these peoples witnessed multiple attacks on their rich social fabric.
238. First, it is important to note the forced separation of families, as children and adolescents were sent --for long periods during their formative years-- to religious schools far from their original natural environment. In those institutions they were rewarded for accepting assimilation, while any expression of their original identity (such as speaking in their own language) would draw severe punishment, including corporal.
239. They also saw the destruction of many manifestations of their
historical-cultural heritage and the desecration of their cemeteries and other sacred
sites. The archeological treasures of their lands and even the bones of their ancestors
are still exhibited today in numerous non-indigenous museums around the world, despite the
efforts to recover them, the national laws
passed to protect them, and the protests of many international organizations.
240. Over the remains of demolished temples there stands impressive cathedrals or other manifestations of the new culture. In addition, the Special Rapporteur has received sound information on at least two attempts, in recent years, to build golf courses on lands of recognized religious value to Indigenous peoples.
241. On no few occasions, and during long periods, their customs, ceremonies,
and religious practices were simply and categorically prohibited. Moreover, in many cases
they lost access --for diverse reasons-- to the places where, according to their
traditions, these practices and ceremonies should take place. In one or another of these
situations, they have been forced either to
celebrate them clandestinely at the risk of serious sanction (the case of Sundance in North America), or (like the slaves brought from Africa to the Caribbean and Brazil) to ingeniously disguise them in alien liturgy, such as that of the Catholic religion, a common phenomena in Latin America.
242. Their institutions and cultures were considered "Inferior", "archaic", and "inefficient and impractical" by non-indigenous sectors. These negative views were promoted daily and urbi et orbis via the most diverse methods ("scientific" literature or simply by word of mouth) and quickly became part of the conventional wisdom" in large sections of the political and academic worlds -as well as for vast segments of the population at large-- in the pluri-national societies in which Indigenous peoples continue to live today.
243. Thus, there should be nothing surprising about the desire of a number of Indigenous individuals to assimilate, nor about their acceptance of the ethical or material values of this alien society by which they are surrounded. The common root of this evident threat to their survival as distinct peoples can be found in the obvious erosion of self-esteem afflicting certain sectors of diverse Indigenous peoples nowadays. This is even true in a stage such as the present one, in which there is also a highly noticeable, vigorous process of recovery and development of these peoples' traditional values.
244. In this regard, it should be pointed out that the lack of employment opportunities and, in general, the inability --in the current circumstances-to achieve a sustainable development according to their own traditions has contributed heavily to this loss of self-esteem. This is particularly evident for peoples caught in the "indigenous reserves" system established in the United States and Canada --as well as in other situations in northern Europe and Greenland.
245. All too frequently, their daily reality feeds the belief that their survival is possible thanks only to the "subventions" and "services" provided by the State on which they depend. These services might be of greater or lesser quality and coverage, and the assistance might be direct or indirect; but what all these instances have had in common for centuries is that their cost is always, by definition, less than the value of the benefits accrued by the non-indigenous sector with whom they share the society.
246. Finally, it must be stressed that in practically all cases in which Indigenous peoples live in modern multinational States, their social development indexes are lower, or less favorable, than those of the non-indigenous sectors with whom they co-exist.
247. This is true for some of the most important socio-economic indexes: employment, annual income, pre-natal and infant mortality, life expectancy, educational level, percentage of the prison population, suicide rate, etc. Quite regularly, the official figures provided by the competent sources in these countries provide proof of the above assertion.
248. All of the above explains why for more than fifteen years the Sub-Commission and the Working Group have dealt with Indigenous issues under an item entitled "Discrimination against Indigenous peoples"; the same title carried by the seminal report by Mr. Martínez Cobo published 16 years ago. Not much of substance has changed for Indigenous peoples since then. The basic elements of their relationships with the non-indigenous world remain unchanged.
249. Nor is it by chance that the Commission --on the very date on which it established the Special Rapporteur's mandate-- recognized (in impeccable diplomatic parlance) that Indigenous peoples "in diverse situations could not enjoy their inalienable rights and liberties" (viz. resolution 1989/34 of 6 March 1989, paragraph six of the preamble).
TO CHAPTER IV TO INDEX