AND JURISPRUDENCE OF THE IACHR
DOCTRINE AND JURISPRUDENCE OF THE IACHR ON INDIGENOUS RIGHTS
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.
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
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.
Commission also considered in one case
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.
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.
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.
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.
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;
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:
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.
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.
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
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
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.
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 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:
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,
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.
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
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.
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.
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.
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
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
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:
Indian land rights in Indian territory must be recognized as a
whole and not as parcels or sections granted by the Government.
Indians must be guaranteed their right to the natural resources of
3. The Indian right to self-determination or autonomy within their
territory must be recognized.
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:
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;
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;
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;
Examination of ways to promote and ensure respect for the cultural
identity of the indigenous peoples of the Atlantic Coast.
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.” 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.
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.
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.
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. 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.
The IACHR began to take steps in defense of the rights of Guatemalan
indians in the early 1980s. In 1982 it conducted an observation
mission in Guatemala and in Guatemalan indian refugee camps in Mexico.
Those visits provided the basis for the first report on Human Rights
in Guatemala 1983.
In the wake of another visit in 1985, the IACHR, in 1986,
issued a resolution in which it vigorously condemned the thousands of
summary executions, illegal detentions, and disappearances that
occurred under the government administrations of Generals Romeo Lucas
García, Efraín Ríos Montt, and Oscar Humberto Mejía Víctores, and
recommended that the State conduct investigations with a view to
clarification of each case, punishment of those responsible,
reparation of the families, and adoption of appropriate legislative
(Res. 225-86- IACHR, Annual Report).
regards Peru, the Commission also processed a large number of
The IACHR Annual Report of 1990-91, for example, contains
resolutions in which the Commission condemns violations of the rights
to life and to humane treatment in 49 cases, many of which involved
multiple victims, the vast majority being indigenous peasants, who
were killed, disappeared, or tortured.
IACHR, Report on the Situation of Human Rights in the Republic of
Guatemala, OEA/Ser.L/V/II.61, Doc. 47 rev.1, October 5, 1983, p. 70.
Inter-Am.Ct.H.R., Case Aloeboetoe
et al., Judgment on Reparations from September 10, 1993, par. 82,
(Ser. C) Nº 15 (1994).
See Section II. e.
See Resolution 12/85 herein and in IACHR Annual Report 1985, p. 24 et
See Section II. e.
“Fourth Report on the Situation of Human Rights in Guatemala,”
IACHR, June 1, 1993, p. 36.
IACHR, 1993 Annual Report, Report Nº 36-93 Case 10,975 Piche Cuca
(Guatemala), p. 216.
IACHR, 1998 Annual Report, Report Nº 60/99, Case 11.516, Ovelário
Davis, S. op.cit. p. 38.
Original petition of MISURASATA, an organization of several Miskito
and Sumu ethnic groups, cited in: IACHR “Report on the situation of
human rights of a sector of the Nicaraguan population of Miskito
origin,” OAS/Ser.L/V/II.62.doc 10 rev.3 and doc. 26, Washington,
D.C., 1984, p.12 (hereinafter, ”IACHR, Report on the situation of
IACHR, Report on the Situation of Human Rights of a Segment of a the
Nicaraguan Population of Miskito Origin, p.2 et
IACHR, Report on the situation of the Miskitos, p. 24
IACHR, Report on the situation of the Miskitos, p.138.
The Government agreed to the holding of that conference; the
“Statute on the Populations of the Atlantic Coast” [Estatuto
de las Poblaciones de la Costa Atlántica] was later adopted,
enshrining those rights, which are currently exercised by the
indigenous peoples of that region of Nicaragua.
IACHR, Report on the situation of the Miskitos, p. 139.
IACHR, Report on the situation of human rights in Ecuador. OAS/Ser.
L/V/II.96.Doc.10, rev 1, April 24, 1997, p.115
The case was declared inadmissible, however, due to failure to exhaust
the remedies under domestic jurisdiction.
Report 6/97 on admissibility, Case 11.071.
IACHR, Annual Report 1996 OAS/Ser.L/V/II.95 p. 60 et
 In the initial questionnaire used by the Commission in 1992 (reproduced here in Section II, doc. 4), governments and indigenous organizations are consulted on 22 possible areas of collective rights of indigenous peoples.