Indigenous People Issues Of Definition

Nombre Revista:

International Journal of Cultural Property

Número y/o Volúmen:

N° 8

Nombre Artículo:

Indigenous Peoples: issues of definition

Autor Artículo:

SANDERS, Douglas

Ubicación:

4 - 13

Extensión:

8 páginas

Año Publicación:

1999

Editor:

Cambridge University Press

INDIGENOUS PEOPLES: ISSUES OF DEFINITION Professor Douglas Sanders Faculty of Law, University of British Columbia January 26, 1999 The progress that has been made by "indigenous peoples" in international fora has been aided by the political perception that this category of claimants is limited and in some respects unique, and that such claims can properly and safely be treated as a special case. Although the imprecision of the category and the expanding array of groups involved in the "indigenous peoples movement" could eventually threaten this perception and provoke more sustained demands for precision, such a transformation has not yet occurred. (1) For the last thirty years "indigenous peoples" have become more and more a focus of international attention. This attention began with a focus on the Americas, where the indigenous status of the Indian, Inuit and Aleut peoples could not be doubted. (2) But western commentators, non-governmental organisations and intergovernmental bodies have applied the terminology far beyond the Americas. In reaction certain states, most notably China and India, have sought a definition which would make it clear that the populations they refer to as "tribals" or "minority nationalities" are not "indigenous peoples." The category has been accepted by states outside the Americas. There was never any question that Australia and New Zealand had indigenous minorities. The governments of Norway, Sweden and Finland came to accept that the Saami were indigenous. This constituted recognition by an indigenous majority of the indigenous status of a minority within the state, a somewhat different situation than in the Americas. The Soviet Union denied it had "indigenous peoples," but began to move from that position in the years before its collapse. The Russian Federation recognises the "small nations of the north" as indigenous peoples. In Asia the governments of Malaysia, the Philippines, Singapore and Taiwan refer to certain peoples as indigenous. The United Nations has consistently treated indigenous peoples as a special case, separate from other cultural or racial minorities. Possibly the "tribals" and "minority nationalities" should be seen as cultural minorities, not indigenous peoples. A distinction between "indigenous peoples" and cultural minorities is drawn by all states in the Americas and Australasia. The traditions with uniform approaches to indigenous peoples and other cultural minorities are the nationalities policies of the former Soviet Union and China. The Russian Federation has moved away from this linkage. China has not.

THE ISSUE OVER TIME International Labor Organisation activity on indigenous peoples began with the co-ordination of the Andean Indian Programme in the 1950s. (3) ILO Convention 107 of 1957 spoke of both "indigenous" and "tribal" people. One part of the 1957 Convention referred to individuals who 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 colonisation... (4) The Convention was revised in 1989 as Convention 169. The new text has an independent definition of indigenous peoples: (b) peoples in independent countries who 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 colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. (5) The ILO has regularly suggested to the United Nations that it refer to both "indigenous" and "tribal" peoples in its work, following the usage of the ILO. The United Nations has continued to use "indigenous" alone. The state parties to the ILO conventions are not limited to the Americas. Three Asian states, Bangladesh, India and Pakistan, are parties to Convention 107. (6) International concern developed in the 1960s over the situation of Indians in the Amazonian and forest interior of South America. The concern led to the formation of two leading nongovernmental organisations, Survival International, based in London, and the International Work Group for Indigenous Affairs, based in Copenhagen. International indigenous organisations began in the mid-1970s, with the formation of the World Council of Indigenous Peoples and the International Indian Treaty Council, initiated by indigenous peoples in Canada and the United States. (7) The international support organisations and the international indigenous organisations did not confine their concerns to the Americas and Australasia. All saw the tribal or minority national peoples in Africa, Asia and northern Europe as entitled to consideration as indigenous. (8) The Study on the Problem of Discrimination Against Indigenous Populations, by Special Rapporteur Jose R. Martinez Cobo, authorised in 1972 and reporting to the U.N. SubCommission on Prevention of Discrimination and Protection of Minorities in 1983, developed an important "working definition" of the category: 379. 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. 380. This historical continuity may consist of the continuation, for an extended period reaching into the present, of one or more of the following factors: a. Occupation of ancestral lands, or at least of part of them; b. Common ancestry with the original occupants of these lands; c. Culture in general, or in specific manifestations (such as religion, living under a tribal system, membership of an indigenous community, dress, means of livelihood, life-style, etc.); d. Language (whether used as the only language, as mother-tongue, as the habitual means of communication at home or in the family, or as the main, preferred, habitual general or normal language); e. Residence in certain parts of the country, or in certain regions of the world; f. Other relevant factors. 381. On an individual basis, an indigenous person is one who belongs to these indigenous populations through self-identification as indigenous (group consciousness) and is recognized and accepted by these populations as one of its members (acceptance by the group). (9) The report also stresses the "right of indigenous peoples themselves to define what and who is indigenous..." (10)

The Working Group on Indigenous Populations, under the Sub-Commission, began meeting in 1982. It allowed participation by any indigenous person or representative of an indigenous community or organization. No accreditation process was established which assessed "indigenousness". Self-identification as indigenous was accepted in practice. "Indigenous" representatives began attending from a number of states, including states which did not acknowledge the existence of any indigenous grouping within their population, notably Bangladesh, India, Indonesia and Japan. By 1982 Finland, Norway and Sweden had acknowledged that the Saami living in their countries were an indigenous people. This established a precedent for the recognition of a group as indigenous where the majority population in the state as a whole was indigenous or very old. A Voluntary Fund for Indigenous Peoples was established by General Assembly Resolution 40/131 of 1985 to facilitate the attendance of indigenous delegations. The fund has assisted participation by individuals from India, Bangladesh and other parts of Asia and Africa. One current member of the board of the fund is a Maasi, suggesting that Maasi in Kenya are considered an "indigenous people". In 1982 the World Bank developed a policy statement on "Tribal People in Bank-financed Projects", a response to problems in the field. (11) 1991 the World Bank revised its concerns in this area and issued Operational Directive 4.20 on "Indigenous Peoples". It contains a definition: 3. The terms "indigenous peoples," "indigenous ethnic minorities," "tribal groups," and "scheduled tribes" describe social groups with a social and cultural identity distinct from the dominant society that makes them vulnerable to being disadvantaged in the development process. For the purposes of this directive, "indigenous peoples" is the term that will be used to refer to these groups. This is not so much a definition as a description of a group of categories brought together by reason of shared patterns of vulnerability. Clearly it is not in fact required by this formulation that a "tribal group" in World Bank usage actually be "indigenous". The directive goes on: Because of the varied and changing contexts in which indigenous peoples are found, no single definition can capture their diversity. Indigenous people are commonly among the poorest segments of a population. They engage in economic activities that range from shifting agriculture in or near forests to wage labor or even small-scale market-oriented activities. Indigenous peoples can be identified in particular geographical areas by the presence in varying degrees of the following characteristics: a. b. c. d. e.

a close attachment to ancestral territories and to the natural resources in these areas; self-identification and identification by others as members of a distinct cultural group; an indigenous language, often different from the national language; presence of customary social and political institutions; and primarily subsistence-oriented production.

Task managers (TMs) must exercise judgment in determining the populations to which this directive applies and should make use of specialized anthropological and sociological experts throughout the project cycle. The directive also allowed special Indigenous Peoples Development Plans. But some countries did not like the World Bank's use of the phrase "indigenous peoples". A discussion paper on reform of policy, issued in 1998, deals with this issue:

One of the difficulties encountered in implementing OD 4.20 has been the identification and definition of "indigenous peoples." In some of the Bank's regions (e.g., Africa and large parts of Asia), there is a reluctance among Borrower countries to the use of the term "indigenous peoples" because of the general belief that all members of the respective national populations are "indigenous." Where vulnerable indigenous or tribal groups exist, there are also numerous terms used to describe such groups (e.g., "indigenous ethnic minorities," "national minorities," "scheduled tribes," "aboriginal groups," "remote area dwellers," "hill tribes," etc.). These different regional and national contexts and the varying usage of the terms make it difficult to obtain agreement on a common term or definition to identify all of the indigenous or tribal groups covered by the Bank's policy. However, because the terminology is so varied, the term indigenous peoples has come to subsume these different categories and usages, and its use is consistent with current United Nations and academic discussions of the topic. (12) The discussion paper essentially proposes the continuation of the World Bank's quite open-ended approach. The Working Group on Indigenous Populations completed the text of a Declaration on the Rights of Indigenous Peoples in 1993. The text avoids any definition of "indigenous". Pressure continued from some States for a definition. India was anxious to gain support for its position that it had no "indigenous" people. (13) An additional definitional concern developed in 1993 and 1994 when white groups from Namibia and South Africa came to the Working Group claiming indigenous status, leading to a protest letter signed by many indigenous delegates. Responding to these concerns, Madam Erica-Irene Daes, the chair of the Working Group, prepared a note on definition for the 1995 meetings of the Working Group. Madame Daes concluded that the Martinez Cobo definition had sufficient criteria to determine whether a person or a community was indigenous. In the final paragraph of the note, she recognized that the definition of the category ...is developing continually as more people from different regions seek to participate in the Working Group and other international activities. (14) In the context of 1993, the International Year of the World's Indigenous People, and the current Decade of the World's Indigenous People, the United Nations published material and hosted events which have suggested a broad interpretation of "indigenous" status. Groupings from Bangladesh, China, India, Japan and Kenya have been featured in UN events or literature as indigenous. It has become common to say there are some 300 million indigenous people worldwide, belonging to 5,000 or so groups in more than 70 countries. In these statements, Asia is identified as the region with the largest indigenous population. (15)

CURRENT APPROACHES TO DEFINITION The author attempted a definition in 1995. He proposed the following: An indigenous people is a collectivity which has descent from the earliest surviving population in the part of the State where the people traditionally lived (whether still living in that area or, as a result of involuntary relocation, in another part of the State) and which has a distinct identity associated with its history. (16) Indigenous minorities could be recognized in states with indigenous majorities. The definition also dealt with the problem of forced relocation, a common problem for tribes in the United States.

The most significant attempt, to date, to exclude parts of the south from United Nations work on indigenous issues has come in the final report of the Cuban Special Rapporteur, Miguel Alfonso Martinez in the Study on Treaties, Agreements and Other Constructive Arrangements between States and Indigenous Populations. While western non-governmental organisations and academic commentators have supported extending the use of the term "indigenous", Alfonso Martinez was sympathetic to the concerns of states in the south who wanted the term confined to the West and Latin America. Alfonso Martinez wrote that he would confine his study to "situations in which the indigenous peoples' category is already established beyond any doubt from a historical and modern day point of view", suggesting that the distinction he draws may not prove durable. (17) Alfonso Martinez argued that the category of indigenous people should be confined to populations in states with national populations established by colonial migration, whether the new national population retains foreign racial and cultural characteristics or is mestizo. This confines the term to states where there was "the organised colonialisation, by European powers, of peoples inhabiting since time immemorial, territories on other continents." Quite different, in his view, are cases of the "territorial expansion by Indigenous nations into adjacent areas." (18) In the latter cases, one finds "state-oppressed peoples" and "minorities." (19) It is important, he argues, to have a "clear-cut distinction between Indigenous peoples and national and ethnic minorities". (20) Minorities, under existing international instruments and standards, are entitled to individual rights. Indigenous peoples "justly attach considerable importance" to their collective rights. (21) It should be recalled that many representatives of what they describe as State-oppressed groups/minorities/peoples in Africa and Asia have brought their case before the Working Group on Indigenous Populations for lack of other venues to submit their grievances to. This situation is no being remedied with the establishment of the Working Group on Minorities. (22) For most of its life, the Working Group on Indigenous Populations was the only forum in the United Nations dealing with cultural minorities. In 1992 the General Assembly approved the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. In 1995 a working group of the Subcommission was established to monitor compliance with the Declaration. The primary force behind the establishment of the working group and its first chair is Asbjorn Eide of Norway, who was the first chair of the Working Group on Indigenous Populations. The new working group, however, has been established out of concern with the negative consequences of ethno-nationalism in the former Yugoslavia and the former Soviet Union. It seems unlikely that the new working group will become the same user-friendly forum that the Working Group on Indigenous Populations became. Groups, such as tribal peoples in India, are still more likely to come to "indigenous" fora at the United Nations, than the new "minority" working group. Alfonso Martinez's study is on treaties, and he suggests that treaties "tended not to be" characteristic of the Asian and African situations he is excluding from consideration. 85. It must be underlined, however, that the Special Rapporteur has not been in a position to assess all possible overlaps and contradictions of every treaty-related issue and the overall Indigenous problematique in the African and Asian contexts. 86. Moreover in this connection, it can be validly argued that the legacy of "protected" tribal areas in Africa and Asia (especially in regions formerly included in the British colonial empire, for example in India and southern Africa) has raised a number of specific problems -- particularly when reflected in the work of some international organisations, such as the ILO and the

Organisation of American States -- that has contributed to the confusion on the issue of the wellestablished, clear-cut minorities/indigenous dichotomy. Indeed the distinction between situations of indigenous expansion and colonialisation from overseas, made by Alfonso Martinez, raises quite a number of questions. By his analysis, there are no indigenous peoples in the Nordic States, the Russian Federation, Taiwan or Malaysia (contrary to the views of the state governments in each of these cases). Questions are also raised about Japan where some limited recognition of the Ainu as "indigenous" has occurred. In 1998 Professor Benedict Kingsbury published his article "Indigenous Peoples" in International Law: A Constructivist Approach to the Asian Controversy. (23) It reviewed the history of attempts to define "indigenous peoples", and described current patterns of state practice in Asia. In line with the general positions of western scholars, non-governmental organisations and intergovernmental bodies, Kingsbury was sympathetic to the extension of the category outside the Americas and Australasia. To respond to arguments from India that it was problematic to try to assess which populations were the earliest in the subcontinent, Kingsbury did not want the strict historical test to be key in a definition. He suggested a "flexible" "constructivist" approach, with the following suggested elements:

Essential Requirements ƒ ƒ ƒ ƒ

self-identification as a distinct ethnic group historical experience of, or contingent vulnerability to, sever disruption, dislocation or exploitation long connection with the region the wish to retain a distinct identity

Relevant Indicia 1. Strong Indicia ƒ nondominance in the national (or regional) society (ordinarily required) ƒ close cultural affinity with a particular area of land or territories (ordinarily required) ƒ historical continuity (especially by descent) with prior occupants of land in the region 2. Other Relevant Indicia ƒ socioeconomic and sociocultural differences from the ambient population ƒ distinct objective characteristics such as language, race, and material or spiritual culture ƒ regarded as indigenous by the ambient population or treated as such in legal and administrative arrangements. The problems of formulating a definition are clear when one considers that the Quebecois arguably meet all the required criteria, only clearly failing on non-essential "indicia". As these attempted definitions indicate, there continue to be differing approaches - from the open-ended language of the World Bank - to definitions which focus on attachment to land plus vulnerability - to formulations where historical descent from the earliest population is required. As well, of course, is the approach which avoids a definition, on the basis that there is a core group of peoples who are included, and future applications of the category can evolve with changes in state practice and international understandings. The lack of a consensus on a definition, or even on the need for a definition, should not obscure the fact that a range of non-governmental and intergovernmental organisations have institutionalised a concern with "indigenous peoples", bringing the category within contemporary international human rights discourse and practice.

Peoples in various parts of the south now claim indigenous status. The debate is not theoretical. It poses real and basic questions about human diversity and cultural survival.

1.

Benedict Kingsbury, Self-Determination and "Indigenous Peoples", The American Society of International Law, Proceedings of the 86th Annual Meeting, Washington, D.C., April 1-4, 1992, 383-394. 2.

Almost everywhere the indigenous peoples are easily identifiable as distinct from settler or mestiso populations. The Metis in Canada are recognized by the Constitution as a separate "aboriginal" people, a designation that might not be accepted internationally. Some indigenous groups have absorbed a relatively large number of non-indigenous people. Such racial mixture, on its own, is not seen as ending the "indigenous" status of the collectivity. 3.

The ILO published a book, Indigenous Peoples: Living and Working Conditions of Aboriginal Populations in Independent Countries, Geneva, 1953, which commented on the definitional problems. Noting different levels of "integration, absorption and assimilation" it commented at page 5 that it was "increasingly difficult to find a reliable and generally applicable test to distinguish between the aborigines and the rest of the population." This was written in the context of work which promoted assimilation. 4.

Article 1 (b).

5.

See Convention Concerning Indigenous and Tribal Peoples, [1989] 4 Canadian Native Law Reporter, 49; (1990) 15 Oklahoma City University Law Review, 237.

6.

It has been pointed out by Mr. Lee Swepston of the I.L.O., long involved in the enforcement of Convention 107 and now 169, that India supported the original convention during the drafting stages when only the term "indigenous" was used. Apparently Indian officials at that time felt that the term "indigenous" had application to the tribal peoples in India, a view from which India has departed.

7.

See Douglas Sanders, The Formation of the World Council of Indigenous Peoples, IWGIA, 1977. Indigenous people from the United States were involved in lobbying at the United Nations in the 1970s. James Durham was a leading figure, representing the International Indian Treaty Council. He is interviewed in the film "Indian Summer in Geneva" which dealt with the first sessions of the Working Group on Indigenous Populations. 8.

See for example the coverage in The Indigenous World, 1994-95, a publication of the International Work Group for Indigenous Affairs, Copenhagen, 1995. The International Work Group organised a conference on the question of indigenous peoples in Africa in June, 1993; see D. Murumbi, The Concept of Indigenous Peoples in Africa, (1994) Indigenous Affairs, IWGIA, 5256. See Christian Erni, Vines That Won't Bind: Indigenous Peoples in Asia, IWGIA, 1996, document No. 80. 9.

E/CN.4/Sub.2/1986/7/Add.4 paras. 379-381. The working definition is quoted in Daes, 1986, page 131 and in Ian Brownlie, Treaties and Indigenous Peoples, Oxford, 1992, page 59.

10.

Paragraph 369. The strong focus on "self-identification" reflects the concern that States will deny indigenous status to groups or restrictively define the category.

11.

See Robert Anderson, Walter Huber, The Hour of the Fox: Tropical Forests, the World Bank and Indigenous People in Central India, Washington, 1988.

12.

World Bank Policy on Indigenous Peoples; Approach Paper for Revision of OD 4.20, October 9, 1998, paragraph 6. 13.

The concern was articulated, for example, in the Report of the Workshop on a Permanent Forum for Indigenous People, E/CN.4/Sub.2/AC.4/1995/7 at paragraphs 10 and 13.

14.

Note by the Chairperson-Rapporteur of the Working Group on Indigenous Populations, Ms. Erica-Irene Daes, on criteria which might be applied when considering the concept of indigenous peoples, E/CN.4/Sub.2/AC.4/1995/3.

15.

See, for example, Nancy Seufert Barr, Seeking a New Partnership, UN Chronicle, June, 1993, page 40. A map produced for the Vienna World Conference on Human Rights in 1993 indicated indigenous peoples in China and India. After protest, the map was withdrawn. Madame Daes, Chairwoman of the Working Group, visited the Ainu areas in Japan in 1991 at the invitation of an Ainu organization and with the co-operation of the Japanese government. This may be the furthest that the government of Japan has gone to formally recognize the Ainu as an "indigenous people". 16.

Douglas Sanders, Indigenous Peoples at the United Nations, in Netherlands Institute of Human Rights, The Legitimacy of the United Nations: Towards an Enhanced Legal Status for Non-State Actors, Studie-en Informatiecentrum Mensenrchten, SIM Special No. 19, 1997, 93-111.

17.

Miguel Alfonso Martinez, Study on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Populations, 1998, unedited version, hereinafter Alfonso Martinez, paragraph 90.

18.

Paragraph 78.

19.

Paragraph 72.

20.

Paragraph 73. He criticises the "working definition" in the Martinez Cobo report as lumping together different situations: paragraph 77 and 84.

21.

Paragraphs 79 and 80.

22.

Paragraph 88. Tibetans, Palestinians and Kurds are three groups that have not come to the Working Group on Indigenous Populations. They may have seen their goals of independence or autonomy as beyond what could be raised in the Working Group. Numerous groups have come to the Working Group meetings from Indonesia, India, Pakistan, Bangladesh, Taiwan, Thailand and from states in Africa.

23.

92 American Journal of International Law, 414.