INDIGENOUS AND TRIBAL PEOPLES’ RIGHTS OVER THEIR

ANCESTRAL LANDS AND NATURAL RESOURCES

 

Norms and Jurisprudence of the Inter-American Human Rights System

 

V.        INDIGENOUS AND TRIBAL PROPERTY RIGHTS: GENERAL CONSIDERATIONS

 

A.        The Special Relationship between Indigenous and Tribal Peoples and their Territories

 

55.              The unique relationship between indigenous and tribal peoples and their territories has been broadly recognized in international human rights law. Article 21 of the American Convention and Article XXIII of the American Declaration protect this close bond with the land, as well as with the natural resources of the ancestral territories,[135] a bond of fundamental importance for the enjoyment of other human rights of indigenous and tribal peoples.[136]  As reiterated by the IACHR and the Inter-American Court, preserving the particular connection between indigenous communities and their lands and resources is linked to these peoples’ very existence and thus “warrants special measures of protection.”[137]  The Inter-American Court has insisted that “States must respect the special relationship that members of indigenous and tribal peoples have with their territory in a way that guarantees their social, cultural, and economic survival.”[138] For the IACHR, the special relationship between indigenous and tribal peoples and their territories means that “the use and enjoyment of the land and its resources are integral components of the physical and cultural survival of the indigenous communities and the effective realization of their human rights more broadly.”[139]  

56.              This special relationship is fundamental both for the material subsistence[140] and for the cultural integrity[141] of indigenous and tribal peoples.[142] The IACHR has emphatically explained, in this line, that “the indigenous population is structured on the basis of its profound relationship with the land”;[143] that “land, for the indigenous peoples, is a condition of individual security and liaison with the group”;[144] and that “the recovery, recognition, demarcation, and registration of the lands represents essential rights for cultural survival and for maintaining the community's integrity”.[145]  Likewise, the Inter-American Court has pointed out that “for indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations”;[146] that “the culture of the members of the indigenous communities directly relates to a specific way of being, seeing, and acting in the world, developed on the basis of their close relationship with their traditional territories and the resources therein, not only because they are their main means of subsistence, but also because they are part of their worldview, their [religiousness], and therefore, of their cultural identity”;[147] and that “to guarantee the right of indigenous peoples to communal property, it is necessary to take into account that the land is closely linked to their oral expressions and traditions, their customs and languages, their arts and rituals, their knowledge and practices in connection with nature, culinary art, customary law, dress, philosophy, and values. In connection with their milieu, their integration with nature and their history, the members of the indigenous communities transmit this nonmaterial cultural heritage from one generation to the next, and it is constantly recreated by the members of the indigenous groups and communities”.[148]

 

57.              The lack of access to land and natural resources can produce conditions of extreme poverty for the affected indigenous communities, given that the lack of possession of, and access to, their territories prevents them from using and enjoying the natural resources that they need to obtain the goods necessary for their subsistence, develop their traditional cultivation, hunting, fishing or gathering activities,[149] access traditional health systems,[150] and other key socio-cultural functions. Therefore, the lack of access to ancestral territories, and the lack of State action in this regard, expose indigenous and tribal peoples to precarious or sub-human living conditions in the fields of access to food, water, dignified housing, basic utilities and health,[151] and consequently bear an impact –inter alia- upon higher rates of child and infant mortality and malnutrition, and higher vulnerability to illnesses and epidemics.[152]  To that extent, the State’s lack of guarantee of indigenous and tribal peoples’ right to live in their ancestral territory may imply subjecting them to situations of extreme unprotectedness, which entail violations of their rights to life,[153] to personal integrity, to a dignified existence, to food, to water, to health, to education and children’s rights,[154] among others. In addition, disregard for the rights of the members of indigenous communities over their ancestral territories can affect, for the same causes, other basic rights, such as the right to cultural identity, the collective right to cultural integrity, or the right to collective survival of communities and their members.[155]  The extreme living conditions borne by the members of indigenous communities that lack access to their ancestral territory cause them to suffer,[156] and undermine the preservation of their way of life, customs and language.[157]

 

B.        The Right to Indigenous Territorial Property in Inter-American Human Rights Instruments

 

58.              Although neither the American Declaration of the Rights and Duties of Man nor the American Convention on Human Rights expressly recognize indigenous peoples’ rights over their territories, the organs of the Inter-American protection system have concluded that these rights are protected by the right to property in the Declaration Article XXIII and Convention Article 21.[158]

 

59.              Consistent with its evolutionary interpretation of human rights guarantees in Inter-American instruments, the IACHR has held that “Article 21 of the American Convention recognizes the right to property of members of indigenous communities within the framework of communal property,”[159] and that the right to property under Article XXIII of the American Declaration “must be interpreted and applied in the context of indigenous communities with due consideration of principles relating to the protection of traditional forms of ownership and cultural survival and rights to land, territories and resources.”[160] 

 

60.              The Inter-American Court has recalled that “the terms of an international human rights treaty have an autonomous meaning, for which reason they cannot be made equivalent to the meaning given to them in domestic law.”[161] Thus, the right to property may encompass property interests in addition to those that are already recognized by states or defined by their internal legislation.[162]  The Inter-American Court has underscored that “both the private property of individuals and communal property of the members of the indigenous communities are protected by Article 21 of the American Convention.”[163] 

 

61.              Indigenous and tribal peoples’ property rights over their territories are legally equivalent to non-indigenous private property rights,[164] an aspect mandated by the duty of non-discrimination established in the American Declaration of the Rights and Duties of Man and in the American Convention on Human Rights.[165]  The rights to equality before the law, equality of treatment and non-discrimination mean that states must establish the legal mechanisms which are necessary to clarify and protect indigenous and tribal peoples’ right to communal property, in the same way that property rights in general are protected in the domestic legal system.[166]  States violate the rights to equality before the law, equal protection of the law and non-discrimination when they fail to grant indigenous peoples “the protections necessary to exercise their right to property fully and equally with other members of the population.”[167]  Applying this rule, in the case of Mary and Carrie Dann the IACHR found a violation of Article II, in addition to a violation of the right to property (Article XXIII), insofar as the facts of the case revealed that the Western Shoshone people, to which the co-plaintiffs belonged, had historically experienced forced expropriation of their lands without benefiting from the application of guarantees established in the United States Constitution to protect persons from arbitrary takings of property.[168]

 

62.              The Inter-American Court of Human Rights has repeatedly characterized the right to territorial property as a right whose bearers are the individual persons that make up indigenous or tribal peoples, and whose exercise takes place within collective property systems.  At the same time, the IACHR has reiterated that indigenous and tribal peoples’ right to property is also a collective right, whose bearer is the corresponding people.[169]  This collective dimension coexists with the individual dimension of the right.[170] For the organs of the system, there is no contradiction between the protection of the individual and collective dimensions of the territorial property rights of indigenous peoples and their members.[171]

 

63.              The collective dimension refers to the “particular connection between communities of indigenous peoples and the lands and resources that they have traditionally occupied and used, the preservation of which is fundamental to the effective realization of the human rights of indigenous peoples more generally and therefore warrants special measures of protection.”[172]  The IACHR has explained that indigenous rights and liberties are frequently exercised and enjoyed in a collective manner, in the sense that they can only be properly ensured through their guarantee to an indigenous community as a whole.[173]  In that sense, the American Convention on Human Rights protects modalities of indigenous property in which “the overall territory of the Community is possessed collectively, and the individuals and families enjoy subsidiary rights of use and occupation.”[174]  In general, the legal regime on the distribution and use of communal lands must be in accordance with the customary law, values, uses and customs of indigenous peoples and communities.

 

64.              The Inter-American Court has noted that “among indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community.”[175] For the Court, “[t]his notion of ownership and possession of land does not necessarily conform to the classic concept of property, but deserves equal protection under Article 21 of the American Convention. Disregard for specific versions of use and enjoyment of property, springing from the culture, uses, customs, and beliefs of each people, would be tantamount to holding that there is only one way of using and disposing of property, which, in turn, would render protection under Article 21 of the Convention illusory for millions of persons.”[176]

 

65.              The IACHR has held that respect for indigenous peoples’ collective rights to property and possession of their ancestral lands and territories is an obligation of OAS member States. Non-compliance with this obligation incurs a State’s international responsibility.[177]  The collective right to property in indigenous lands also implies the recognition of a collective property title over such lands. This obligation, as discussed below, has been reiterated in a number of contentious cases decided by the Inter-American Court.

 

66.              The collective nature of indigenous and tribal peoples’ right to territorial property bears a direct incidence upon the content of other rights protected by the American Convention and the American Declaration, giving them a collective dimension.  Such is the case of the right to juridical personality,[178] or of the right to effective judicial protection.[179]

 

67.              The persons who belong to indigenous and tribal groups are guaranteed the totality of human rights protected by international law, and consequently they may exercise an individual right to private property, striving as they do so to avoid entering into conflict with the collective rights of the people.

 

C.        Foundations of the Right to Territorial Property

 

68.              Inter-American jurisprudence has characterized indigenous territorial property as a form of property whose foundation lies not in official state recognition, but in the traditional use and possession of land and resources; indigenous and tribal peoples’ territories “are theirs by right of their ancestral use or occupancy.”[180]  The right to indigenous communal property is also grounded in indigenous legal cultures, and in their ancestral ownership systems, independent of state recognition;[181] the origin of indigenous and tribal peoples’ property rights is, therefore, also found in the customary system of land tenure that has traditionally existed among the communities.[182]  In the case of the Maya Communities of the Toledo District, for example, the IACHR concluded that the communities had proved their communal property rights over the lands they inhabited, rights that had arisen “from the longstanding use and occupancy of the territory by the Maya people, which the parties have agreed pre-dated European colonization, and have extended to the use of the land and its resources for purposes relating to the physical and cultural survival of the Maya communities.”[183]  The Inter-American Court, for its part, has explained that “as a result of customary practices, possession of the land should suffice for indigenous communities lacking real title to property of the land to obtain official recognition of that property, and for consequent registration.”[184]  As clarified below, however, indigenous peoples who have been deprived of the possession of the territory they have traditionally occupied preserve their property rights, and have the right to restitution of their lands.[185]

 

69.              Given that the foundation of territorial property lies in the historical use and occupation which gave rise to customary land tenure systems, indigenous and tribal peoples’ territorial rights “exist even without State actions which specify them”[186] or without a formal title to property.[187]  Official recognition “should be seen as a process of ‘production of evidence establishing the prior ownership of the communities’"[188] and not as a grant of new rights.  Territorial titling and demarcation are thus complex acts that do not constitute rights, but merely recognize and guarantee rights that appertain to indigenous peoples on account of their customary use.[189]  The organs of the Inter-American system have held that the American Convention is violated when indigenous lands are considered to be state lands because the communities lack a formal title of ownership or are not registered under such title.[190]  A legal system which subjects the exercise and defense of the property rights of indigenous and tribal peoples’ members to the existence of a title of private, personal or real ownership over ancestral territories, is inadequate to make such rights effective.[191]

 

70.              On the other hand, regarding indigenous and tribal peoples’ rights over lands and natural resources, “traditional land tenure is linked to a historical continuity, but not necessarily to a single place and to a single social conformation throughout the centuries”.[192] For such reason, the specific location of settlements within ancestral territory does not determine the existence of the rights; there may have been movements of the places of settlement along history, without hindrance to the American Convention’s protection of the corresponding property rights.[193] Ultimately, as explained above, the history of indigenous peoples and their cultural adaptations along time are not obstacles for preserving their fundamental relationship with their territory, and the rights that stem from it.

 

71.              Indigenous property rights based on customary use or possession, regardless of the existence of state recognition, exist not only in cases of state claims to property, but also in relation to third parties who purport to hold real property titles over the same areas.  The recognition of the normative value of customary indigenous law as the foundation of the right to property also implies that claims to property by indigenous communities who lack a formal title over their lands must be fully taken into account for all legal purposes, most significantly in relation to compliance with State duties related to investment, development or extractive projects,[194] as discussed in further detail below.

 

D.        Land Management and Rights over Natural Resources

 

72.              Indigenous peoples have the right to legal recognition of their diverse and specific forms and modalities of control, ownership, use and enjoyment of their territories,[195] “springing from the culture, uses, customs, and beliefs of each people”.[196]  Their unique relationship to traditional territory may be expressed in different ways, depending on the particular indigenous people involved and their specific circumstances. “[I]t may include the traditional use or presence, be it through spiritual or ceremonial ties; settlements or sporadic cultivation; seasonal or nomadic gathering, hunting and fishing; the use of natural resources associated with their customs and any other element characterizing their culture.”[197]  These modes of using territory are protected by the right to property.[198]

 

73.              For this reason,[199] states must recognize and protect productive systems based on extensive use of territory, on temporary use of crops, along with crop rotation and leaving fields fallow – among many other examples. Disregarding these systems, or considering that they are tantamount to abandonment of the land, deprives the communities of effective security and legal stability in respect to their property rights.[200]  Such traditional systems for the control and use of territory “are in many instances essential to the individual and collective well-being, and indeed the survival of, indigenous peoples,”[201] given that “control over the land refers both its capacity for providing the resources which sustain life”[202] and to “the geographic space necessary for the cultural and social reproduction of the group.”[203]

 

74.              The Inter-American system’s jurisprudence is supported by the terms of other international instruments; ILO Convention No. 169 expressly establishes the state duty to “safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities.  Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.”[204]  Article 27 of the International Covenant on Civil and Political Rights similarly establishes the right of persons who belong to ethnic, religious or linguistic minorities to enjoy their own culture together with other members of the group.[205]  The right to culture includes distinctive forms and modalities of using territories such as traditional fishing, hunting[206] and gathering as essential elements of indigenous culture.[207]  This complex notion of the right to indigenous property is also reflected in the United Nations Declaration on the Rights of Indigenous Peoples, by which “indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired”.[208]

 

75.              Distinctive modalities of relationship to the ancestral territory generate, in turn, customary systems of land tenure that must be recognized and protected by the State, as the very foundation of indigenous and tribal peoples’ territorial rights.[209]  Recognition of indigenous customary law by the authorities, and particularly by the courts, is necessary for indigenous and tribal peoples to be able to claim and obtain respect for their rights over their territory and natural resources.[210]

 

76.              The Court has reiterated that the right of indigenous peoples to administer, distribute and effectively control their ancestral territory, in accordance with their customary law and communal property systems, forms part of the scope of the right to property encompassed by Article 21 of the American Convention.[211]

 

VI.       THE SPECIFIC CONTENT OF INDIGENOUS PROPERTY RIGHTS OVER TERRITORIES

 

77.              Failure to adopt measures to guarantee indigenous peoples’ and communities’ rights over lands and natural resources in accordance with their traditional patterns of use and occupation is a violation of Articles 1.1 and 2 of the American Convention on Human Rights.[212]

 

A.        The Geographic Scope of Indigenous Property Rights

 

78.              Indigenous property rights over territory extend in principle over all of those lands and resources that indigenous peoples currently use, and over those lands and resources that they possessed and of which they were deprived, with which they preserve their internationally protected special relationship – i.e. a cultural bond of collective memory and awareness of their rights of access or ownership, in accordance with their own cultural and spiritual rules.  Since the Awas Tingni case, the Inter-American Court described the extent of the community’s right to property, which the State had to protect through delimitation, demarcation and titling, as “the geographical area where the members of the Community live and carry out their activities”.[213] In similar terms, in Yakye Axa, the Court elucidated that the community’s right to property extended over “their traditional territories and the resources therein.”[214]

 

79.              In order to identify the traditional territory of a given community or people in specific cases, the organs of the Inter-American system have looked to evidence of the historical occupation and use of the lands and resources by members of the community, of the development of traditional subsistence, ritual and healing practices therein, of the names given to the area in the community’s language, and also to technical studies and documentation, as well as to evidence of the adequacy of the claimed territory for the development of the corresponding community[215] – always bearing in mind that the relevant traditional territory, for purposes of the protection of the right to communal property, is that of the community itself, and not that of its historical ancestors.[216]

 

80.              It has also been held by the IACHR that States are under a duty to grant to indigenous and tribal peoples “lands, at no cost, of sufficient extent and quality to conserve and develop their ways of life.”[217] The test to determine whether the lands are sufficient in size and quality is whether the members of the community living in that area are or will be guaranteed the continuous exercise of the activities from which they derive their livelihood, and on which the preservation of their culture depends.[218]  The right to a territory of sufficient quality and extent is particularly relevant for certain types of indigenous and tribal peoples whose sociocultural specificity, and whose concrete situations, require a special level of protection. Hence, in the case of hunter-gatherer indigenous communities, who are characterized by itinerant residence patterns, “the area transferred must be sufficient for conservation of their form of life, to ensure their cultural and economic viability, as well as their own expansion”.[219]

 

81.              Likewise, special care must be taken in adopting measures to guarantee territories of sufficient extent and quality to peoples in voluntary isolation,[220] peoples in initial contact, binational or plurinational peoples, peoples at risk of disappearance, peoples in reconstitution processes, shifting cultivators or pastoralist peoples, nomadic or semi-nomadic peoples, peoples displaced from their territories, or peoples whose territory has been fragmented, inter alia.

 

B.        Legal Title and Registration

 

82.              By virtue of Article 21 of the American Convention and Article XXIII of the American Declaration, indigenous and tribal peoples are bearers of the rights to property and ownership over the lands and resources they have historically occupied,[221] and therefore they have the right to be recognized as the legal owners of their territories,[222] to obtain a formal legal title to property over their lands,[223] and to the due registration of said title.[224] Additionally, indigenous and tribal peoples have the right to permanent use and enjoyment of their ancestral territory, to secure which they must obtain legal title.[225]  The collective right to property of indigenous lands implies a collective title to territory, that is, the recognition of an equally collective title to property over such lands that reflects the community property of the land,[226] with due respect for indigenous peoples’ forms of internal organization with regard to land tenure.[227] In cases of land purchase, the titles must be allocated to the community, and not to the State.[228] The complexity of the matter is no excuse for the State to consider or administer untitled indigenous lands as State lands.[229] 

 

83.              The issue of title to territory was a central axis of the Awas Tingni case, in which the Inter-American Court expressly found that the recognition of indigenous rights to communal property must be secured through the granting of a formal title to property or another similar form of State recognition, which grants legal certainty to indigenous land tenure vis-à-vis the acts of third parties or, as in the Awas Tingni case, of State agents.[230]  In the case of this community, a prolonged lack of title to their lands entailed a clear limitation of their right to property when confronted with concurrent property claims by third parties or by the State itself.[231]  The Court considered that the repeated failure to respond to Awas Tingni’s requests for granting of title was a violation of the community’s right to property under Article 21 of the American Convention, in connection with Articles 1 and 2.  The Court’s judgment imposed upon Nicaragua the duty to grant title to the community’s lands as a form of reparation for the violation of its rights, in accordance with its customary law, values, uses and customs, and with its full participation.[232]

 

84.              Likewise, in the Saramaka case, the Inter-American Court ordered Suriname, as a measure of reparation, to “remove or amend the legal provisions that impede protection of the right to property of the members of the Saramaka people and adopt, in its domestic legislation, and through prior, effective and fully informed consultations with the Saramaka people, legislative, administrative, and other measures as may be required to recognize, protect, guarantee and give legal effect to the right of the members of the Saramaka people to hold collective title of the territory they have traditionally used and occupied, which includes the lands and natural resources necessary for their social, cultural and economic survival.”[233]

 

Example: granting of collective title as a consequence of a friendly settlement agreement

 

On March 25, 1998, in the framework of a petition against the State of Paraguay concerning the territorial claims of the Lamenxay and Kayleyphapopyet (Riachito) indigenous communities of the Enxet and Sanapaná peoples, the State and the communities signed a friendly settlement agreement promoted by the IACHR. In said agreement, “the Paraguayan State agreed to acquire a 21,884.44-hectare tract of land in Pozo Colorado district, Presidente Hayes department, in the Paraguayan Chaco, hand it over to the aforesaid indigenous communities, and register it with the competent authorities as belonging to them” [par. 1]  The State effectively complied with the Agreement: it purchased the lands, gave them to the communities, issued legal title to the communities in July 1999, and the corresponding titles were given to the community representatives by the President of the Republic in the presence of the IACHR.

 

In its report on the friendly settlement, the IACHR “reiterate[d] its appreciation of the Paraguayan State’s willingness to settle this case by means of reparations, including the measures needed to reclaim the land and hand it over to the Lamenxay and Kayleyphapopyet (Riachito) indigenous communities and to provide them with the requisite social assistance” [par. 22]; it expressed its appreciation of the petitioners and other parties who were affected for having accepted the terms of the agreement; and it held that it would “continue to monitor the ongoing commitments assumed by Paraguay dealing with the sanitary, medical, and educational assistance to be given to the Enxet-Lamenxay and Kayleyphapopyet (Riachito) communities in their new settlements and with the upkeep of the access roads leading to their property” [par. 23].

 

85.              The procedures for granting title over indigenous or tribal communal lands must be effective,[234] taking into account the respective people’s distinctive traits.[235] The lack of effective, specific and regulated procedures for the granting of title to indigenous communal lands causes a general uncertainty that does not conform to the standards imposed by Article 25 of the American Convention.[236]  The lack of internal legislation to obtain title to indigenous ancestral lands is not redressed by the mere availability of judicial recourses that can potentially recognize those rights; the mere possibility of judicial recognition is not a substitute for the real recognition and the granting of title thereof: “a distinction should be made between the State’s duty under Article 2 of the Convention to give domestic legal effect to the rights recognized therein, and the duty under Article 25 to provide adequate and effective recourses to remedy alleged violations of those rights. (…) The Court observes that although so-called judge-made law may certainly be a means for the recognition of the rights of individuals, particularly under common-law legal systems, the availability of such a procedure does not, in and of itself, comply with the State’s obligation to give legal effect to the rights recognized in the American Convention.  That is, the mere possibility of recognition of rights through a certain judicial process is no substitute for the actual recognition of such rights.  The judicial process mentioned by the State is thus to be understood as a means by which said rights might be given domestic legal effect at some point in the future, but that has not yet effectively recognized the rights in question.”[237]

 

Example: legal obstacles to obtaining legal title to ancestral territory

 

In its 1997 report on the situation of human rights in Ecuador, the IACHR identified some legal barriers to the full and effective enjoyment of the right to obtain legal title of property over ancestral territory. The IACHR explained that in Ecuador, “the Civil Code establishes that registered title is required to prove ownership of land, and any land which is not registered is deemed to belong to the State. The system of attributing title provides for the communal holding of real property; however, indigenous leaders complain of encountering consistent barriers to gaining communal title.”

 

The first barrier was lack of full recognition of indigenous peoples’ organizational units. The IACHR explained that “communities and cooperatives are recognized in Article 46(3) of the Constitution as one of the basic sectors of the economy, and such groups are authorized to hold property communally. Indigenous communal ownership of land is specifically recognized under the Law of ‘Comunas.’ However, while the Comuna (administered by an elected ‘cabildo’) is very popular in the Highlands, the Amazonian indigenous peoples utilize other forms of internal administration.” Thus, the legal system did not recognize the distinctive forms of organization of the country’s different indigenous peoples, preventing some of them from acquiring property titles.

 

The second barrier consisted of failure to recognize indigenous peoples’ traditional cultivation methods, which made it possible to expropriate communal lands under certain circumstances. The IACHR reported that “the Law of Agrarian Development permits the State to expropriate land that has been left fallow for more than two years. This requirement is inconsistent with indigenous land use systems in some regions of the country. For example, Amazonian forest-dwelling indigenous peoples clear and cultivate small gardens on a rotating basis to maximize the productivity of the shallow top soil. Their methods of managing and harvesting the resources of the forest are consistent with their needs, and with the characteristics of the forest topsoil, which is shallow and poorly suited for the intensive cultivation models contemplated in the Law of Agrarian Development.”

 

A third limitation identified by the IACHR was “the provision of the Forestry Law which specifies that all land within the borders of legally designated natural reserves must be appropriated by or reverted back to the State. The law does not take into account that a number of these protected areas include lands traditionally inhabited by and of special importance to indigenous peoples.”

 

The IACHR pointed to other difficulties for territorial legalization including “the continuing designation of traditionally indigenous lands as ‘tierras baldias’ [unclaimed lands]”, as well as “bureaucratic obstacles which continue to hinder claimants seeking action or redress.”

 

C.        Legal Certainty of Title to Property

 

86.              Ensuring the effective enjoyment of territorial property by indigenous or tribal peoples and their members is one of the ultimate objectives of this right’s legal protection.  As established in the foregoing sections, States have the obligation to adopt special measures to secure the real and effective enjoyment of indigenous peoples’ rights to territorial property. For this reason, the IACHR has emphasized that “demarcation and legal registry of the indigenous lands is in fact only the first step in the establishment and real defense of those areas,”[238] given that the ownership and effective possession are constantly being threatened, usurped or eroded by various de facto or legal acts.

 

87.              Indigenous and tribal peoples’ right to territorial property must have legal certainty.[239]  The legal framework must provide indigenous communities with effective security and legal stability for their lands.[240]  This implies that indigenous and tribal peoples’ legal title to property over land “must be recognized and respected, not only in practice, but also in law, in order to ensure its legal certainty”.[241]  Legal uncertainty in respect to these rights makes indigenous and tribal peoples “especially vulnerable and open to conflicts and violation of rights.”[242] Factors that cause legal uncertainty include: the possession of titles to property that are not recognized by common law; titles to property that are in conflict with other titles; titles that are not fully registered; unrecognized titles.  In some cases they also include lack of knowledge by the courts of the rights that stem from ancestral use and possession, or lack of recognition of indigenous customary law, which “blocks or considerably limits their ability to assert these rights, as well as recognition of ancestral possession of their lands.”[243]

 

88.              The right to legal certainty of territorial property requires the existence of special, prompt and effective mechanisms to resolve existing legal conflicts over the ownership of indigenous lands.[244]  States are, consequently, bound to adopt measures to establish such mechanisms[245] including protection from attacks by third parties.[246] Part of the legal certainty to which indigenous and tribal peoples are entitled consists in having their territorial claims receive a final solution.  That is to say, once the claims procedures over their ancestral territories have been initiated, be it before administrative authorities or before the Courts, their claim should be given a final solution within a reasonable time, without unjustified delays.[247]

 

89.              Effective security and legal stability of lands are affected whenever the law fails to guarantee the inalienability of communal lands and instead allows communities to freely dispose of them, to establish liens, mortgages or other encumbrances, or to lease them.[248]  To avoid this, some of the OAS member states have crafted special legal mechanisms for the protection of indigenous lands and territories, such as the recognition of legal guarantees of indivisibility, inalienability, and non-subjection to adverse possession or to liens of the lands titled in favor of indigenous peoples.  These mechanisms may be adequate to guarantee the legal certainty of indigenous territorial property rights.

 

90.              Legal certainty also requires that indigenous peoples’ titles to property be protected against arbitrary extinction or reduction by the State, and against trumping by third parties’ property rights.[249]  Prior consultation with, and the consent of, the relevant indigenous people are required for the adoption of any State decision that can legally affect, modify, reduce or extinguish indigenous property rights; in the IACHR’s opinion, “Articles XVIII and XXIII of the American Declaration specially oblige a member state to ensure that any determination of the extent to which indigenous claimants maintain interests in the lands to which they have traditionally held title and have occupied and used is based upon a process of fully informed consent on the part of the indigenous community as a whole.”[250]  For the IACHR, the general international legal principles applicable in the context of indigenous peoples’ human rights include the right to have their legal title to the property and use of territories and resources “changed only by mutual consent between the state and respective indigenous peoples when they have full knowledge and appreciation of the nature or attributes of such property.”[251]  If such consent is obtained, and an indigenous people’s title to property is consequently to be extinguished or reduced, the state must secure its members equality of treatment vis-à-vis non-indigenous persons, and comply with the general requirements established in international law for an expropriation,[252] including fair compensation[253] - and respecting all of the additional guarantees and safeguards of indigenous and tribal peoples’ territorial property provided by International Law, as explained in the present Study.[254]  In this same fashion, the IACHR has explained that the State may not justify the extinction of indigenous ancestral title to property over territory based on a desire or policy to promote settlements or agricultural development, especially when there is continuity in the occupation and use of that territory by the corresponding indigenous or tribal people’s members, even if such occupation and use are partial.[255]

 

91.              Legal certainty for indigenous and tribal peoples’ titles to territorial property also requires State authorities to abstain from affecting such titles by means of legal or socio-political strategies, such as the creation of non-indigenous municipalities inside indigenous territories,[256] the adoption of judicial decisions which are arbitrarily contrary to their rights,[257] or the deployment of legal or political attacks aimed at undermining the stability of the rights which have already been established, or the consolidation of those which are in the process of establishment.[258] 

 

92.              The legal certainty of title to territorial property also has practical manifestations which have been highlighted by the Inter-American protection system.  The lack of effective delimitation and demarcation of indigenous territories, even if there exists a formal recognition of their members’ right to communal property, causes “a climate of constant uncertainty” in which the members of the communities “do not know for certain how far their communal property extends geographically and, therefore, they do not know until where they can freely use and enjoy their respective property”.[259]

 

93.              The Inter-American Court has also explained that recognition of indigenous and tribal peoples’ right to property must be made in full, and have legal certainty as to its stability; it does not satisfy the American Convention to substitute it for other legal devices, such as forestry concessions, which grant limited rights and are subject to revocation.[260]  The Inter-American Court has held that Articles 21, 2 and 1.1 of the American Convention are not fulfilled by a legal framework that grants the members of indigenous and tribal peoples a mere privilege to use the land, instead of securing them the permanent use and enjoyment of their territory: “The Court has held that, rather than a privilege to use the land, which can be taken away by the State or trumped by real property rights of third parties, members of indigenous and tribal peoples must obtain title to their territory in order to guarantee its permanent use and enjoyment”.[261]  According to the Court, it is not sufficient to comply with the American Convention for the domestic legislation to recognize indigenous and tribal peoples certain interests, not rights, in relation to lands: “an alleged recognition and respect in practice of ‘legitimate interests’ … cannot be understood to satisfy the State’s obligations under Article 2 of the Convention with regards to Article 21 of such instrument.”[262]  A legal system that does not recognize the right to territorial property of the members of indigenous and tribal peoples through the granting of full ownership titles, but which recognizes instead simple interests, privileges or permits of use and occupation of the lands at the State’s discretion, places the corresponding State in a situation of non-compliance with its duty to make that right effective in its domestic system under Article 21 of the Convention, in connection with Articles 1.1 and 2.[263]

 

Example: State actions that undermine the legal certainty of indigenous and tribal peoples’ title to territorial property and territorial rights

 

In its 1997 report on the situation of human rights in Brazil, the IACHR identified several types of State actions that undermined the legal certainty of the territorial rights of the country’s indigenous peoples. For the Commission, these actions proved that “demarcation and legal registry of the indigenous lands is in fact only the first step in the establishment and real defense of those areas,” given that such “ownership and effective possession is constantly being threatened, usurped or eroded by various acts”, which included “judicial and political attacks on the permanent status of rights that have already been established, or the consolidation of those in process.” [par. 33]

 

The IACHR pointed out that since 1993, the courts of some federal States had adopted decisions that were contrary to indigenous peoples’ rights. In second place, the IACHR reported that some non-indigenous persons who were occupying ancestral territories resorted to a legal strategy, namely, “to attack Decree 22/91--which established the procedures for demarcation and registry of indigenous lands--on the grounds that it did not grant the right of defense to possible occupants or holders of rights in the face of administrative acts of the Government that had recognized the indigenous rights”, taking into account that the National Constitution establishes the right to review of the State’s administrative acts. In order to respond to this legal attack, the Government issued Decree 1775/96, which established a summary procedure that added one recourse avenue to the process for the determination of indigenous peoples’ territorial rights: “Through this recourse, private parties and local or State governmental authorities were enabled to contest the creation or demarcation of indigenous areas, through the provision of evidence which denied prior occupation by the indigenous, or which proved third party rights over those lands.” The Government argued that the aim of this procedure was “to avoid this putative judicial threat to the juridical clarity of indigenous titles”, and that the recourse “was necessary to guarantee due process to third parties and government agencies, so that any subsequent recognition of indigenous territories would be immune to unconstitutional remedies; and that this would imbue the process with transparency.” Decree 1775/96 was the target of several lawsuits, in spite of which, by the expiration of the term for filing claims in April 1996, over 545 claims by occupants were presented with regard to 45 indigenous territories, affecting nearly 35% of the lands that were demarcated or undergoing demarcation. As explained by the IACHR, “the greatest number of land claims from non-indigenous persons under Decree 1775 occurred in the State of Roraima. The ones about land in the Indian area of San Marcos alone were the subject of 573 claims. The Legislative Assembly of Roraima itself offered free legal advice to the claimants, and presented its own claim to indigenous lands.” Finally, in July 1996, the FUNAI finished examinating the claims and deciding on their merits; it rejected most of the non-indigenous claims. [pars. 35-39]

 

In third place, the IACHR referred to the process of establishment of new municipalities, located totally or partially in lands that were being claimed or even demarcated as indigenous areas, by decision of State authorities. The IACHR explained that the creation of these municipalities “results in the establishment of a new jurisdiction, which not only erodes the limited indigenous sovereignty recognized by the Constitution, but also becomes a source of friction between the indigenous authorities and the municipal officials, since the latter are dependent on the state political system.” The creation of these new municipalities also entailed serious additional problems for the indigenous or tribal peoples who inhabited the respective territory; the IACHR explained that the “creation of new municipalities in fact serves as a tool for dividing the local indigenous peoples, since it provides a means of attracting or bribing some local leader to take part in the municipal government ignoring the internal structure of the indigenous government, and thus provoking the excision thereof. At the same time, the municipality's structure and its power relations tend to favor the settlement of nonindigenous persons--along with public services and authorities which compete with the ones already provided by or accepted by the indigenous authorities--in those areas.” [pars. 42-43] Bearing the above in mind, the IACHR recommended the State “to suspend all decisions on municipalization that have an effect on Indian lands, including those for which demarcation and official sanction are underway; and to establish procedures aimed at maintaining their integrity and autonomy in conformity with the constitutional provisions in force.” [Recommendation (c)].

 

In general terms, the IACHR classified these State actions as “obstacles which thwart firm application of the constitutional and legal precepts regarding indigenous lands” [par. 40]. It thereby concluded that “over the past decade, the Indian peoples of Brazil have made major strides, insofar as their rights --including the demarcation and ownership of their lands--are concerned. Their cultural and physical integrity, as well as the integrity of their lands are, however, under constant threat and attack by both individuals and private groups who disrupt their lives and usurp their possessions. What is more, there have been attempts by the authorities of several States to erode their political, civil and economic rights”; and that “significant progress has been made in recognizing, demarcating, and granting territorial lands to the Indian peoples. Nonetheless, there are some cases, especially in the State of Roraima, where the Commission was able to confirm that action had been taken by the state to erode the human rights of the Indian population.” [par. 82, (a) and (d)]

 

 

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[135] IACHR, Follow-up Report - Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, par. 156. I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 148.  I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 137.  I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, pars. 118, 121.  This unique relationship to the traditional territory may be expressed in different ways, depending on the particular indigenous people involved and its specific circumstances.  It may include traditional use or presence, such as maintenance of sacred or ceremonial sites; settlements or sporadic cultivation; seasonal or nomadic gathering, hunting and fishing; the use of natural resources associated with their customs or other elements characterizing their culture. [I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 131]  These cultural manifestations are protected as part of the right to property in Inter-American human rights instruments.

[136] IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, par. 1054.  The right to territory and to the use and enjoyment of its natural resources, is directly related to the rights to an existence under conditions of dignity, to food, water, health and life, because its effective enjoyment is a precondition for access to nutritional and water sources, as well as the traditional healthcare systems [IACHR, Democracy and Human Rights in Venezuela, 2009, Doc. OEA/Ser.L/V/II, Doc. 54, December 30, 2009, pars. 1076-1080] and other aspects of culture; for this same reason, “[each community’s] relations to its land and resources are protected by other rights set forth in the American Convention, such as the right to life, honor, and dignity, freedom of conscience and religion, freedom of association, rights of the family, and freedom of movement and residence.”  [IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua.  Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(f)].

[137] IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 128.

[138] I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 91.  The Inter-American Court has reiterated that “the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival” [I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 149].

[139] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 114. The Inter-American Court of Human Rights “has taken a similar approach to the right to property in the context of indigenous peoples, by recognizing the communal form of indigenous land tenure as well as the distinctive relationship that indigenous peoples maintain with their land” [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 116.  I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 149].

[140] The protection of indigenous peoples’ culture encompasses the preservation of aspects linked to their productive organization, which includes, among other elements, the issue of ancestral and communal lands [[IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 120].  The control of the land protected by Article 21 “refers both its capacity for providing the resources which sustain life, and to the geographic space necessary for the cultural and social reproduction of the group” [IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 128].

[141] The notions of family and religion are intimately connected to traditional territory, where the ancestral cemeteries, places of religious meaning and importance and kinship patterns are linked to the occupation and use of physical territories [[IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 155].  Therefore, given that territory and natural resources are substantial elements of the worldview, spiritual life and forms of subsistence of indigenous and tribal peoples, they form an intrinsic part of their members’ right to cultural identity [IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, par. 1054].

[142] The special relationship between indigenous or tribal peoples and their ancestral territories has additional legal relevance in specific aspects. Recognition of the close material and cultural link between indigenous peoples and their traditional territories is a fundamental factor for the determination of rights in cases of property conflicts with third parties, in which States must consider the implications of indigenous peoples’ territorial rights for their cultural identity and material survival.  The special relationship that indigenous and tribal peoples keep with their traditional territories has also been taken into account by the Inter-American Court at the moment of determining the reparations in cases in which specific communities have been forcibly dispossessed of their territories.  Thus, in the Moiwana case, the Court held that the community’s forced displacement had hurt its members in emotional, spiritual, cultural and economic terms, and considered this fact relevant for the calculation of the indemnity for the immaterial damage that the State had to repair. [I/A Court H.R., Moiwana Case, par. 145(c)].

[143] IACHR, Fifth Report on the Situation of Human Rights in Guatemala. Doc. OEA/Ser.L/V/II.111, Doc. 21 rev., April 6, 2001, Chapter XI, par. 56.

[144] IACHR, Second Report on the Situation of Human Rights in Peru. Doc. OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, Chapter X, par. 16.

[145] IACHR, Second Report on the Situation of Human Rights in Peru. Doc. OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, Chapter X, par. 16.

[146] I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 149. I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005. Series C No. 125, pars. 124, 131.  I/A Court H.R., Case of the Plan de Sánchez Massacre v. Guatemala.  Reparations and Costs.  Judgment of November 19, 2004. Series C No. 116, par. 85.

[147] I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 135. I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 118.

[148] I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 154.

[149] I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 164.

[150] IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, pars. 1076-1080.

[151] IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, pars. 257-268, 297 – Recommendation 8.

[152] IACHR, Third Report on the Situation of Human Rights in Paraguay. Doc. OEA/Ser./L/VII.110, Doc. 52, March 9, 2001, Chapter IX, par. 37.

[153] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Yakye Axa v. Paraguay. Cited in:  I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of June 17, 2005. Series C No. 125, par. 157(d).  IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, pars. 1076-1080. IACHR, Fifth Report on the Situation of Human Rights in Guatemala. Doc. OEA/Ser.L/V/II.111, Doc. 21 rev., April 6, 2001, Chapter XI, pars. 44-48.

[154] IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, pars. 1076-1080.  IACHR, Fifth Report on the Situation of Human Rights in Guatemala. Doc. OEA/Ser.L/V/II.111, Doc. 21 rev., April 6, 2001, Chapter XI, pars. 44-48.

[155] IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 241. See also: I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 147.

[156] I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of March 29, 2006. Series C No. 146, pars. 73-75.

[157] I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, pars. 73-75.

[158] Indigenous and tribal peoples’ right to territorial property is not a mere internal affair of States.  The rules and principles of International Law on indigenous peoples include human rights considerations related to the property, use and occupation by indigenous peoples of their traditional lands.  On account of these considerations, it is not valid for States to argue that indigenous peoples’ territorial disputes refer solely to internal agrarian controversies over land titles or use; these disputes imply internationally protected human rights aspects [IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 124].

[159] IACHR, Follow-up Report - Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, par. 156.

[160] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 115.

[161] I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community (Nicaragua).  Merits, Reparations and Costs. Judgment of January 31, 2001.  Series C No. 79, par. 146.

[162] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 131. The organs of the Inter-American system have acknowledged that the property rights protected by the system are not only those that are already recognized by States or defined by their internal legislation; the right of indigenous and tribal peoples and their members to property has an autonomous meaning in International Human Rights Law, and an autonomous foundation in the context of International Law. Therefore, it does not depend on particular interpretations made in domestic judicial decisions dealing with the possible existence of aboriginal rights according to the internal legal system.  [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, pars. 117, 131] As a safeguard for a human right protected by the Inter-American provisions and other international instruments, the State duty to guarantee the right to indigenous comunal property is autonomous from domestic legal provisions, and operates even in the absence of recognition of the right in States’ domestic legal systems.

[163] I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of June 17, 2005. Series C No. 125, par. 143.

[164] Thus, any legal distinction that privileges the property rights of third parties over the property rights of indigenous and tribal peoples is incompatible with Articles 21 and 2 of the American Convention; for example, the Inter-American Court concluded that such was the case in Suriname, where the legal system used the term “factual rights” or “de facto rights” to distinguish indigenous rights from the “de jure” rights of the bearers of real title and other property rights subject to registration, recognition and issuance by the State:  “This limitation on the recognition of the legal right of the members of the Saramaka people to fully enjoy the territory they have traditionally owned and occupied is incompatible with the State’s obligations under Article 2 of the Convention to give legal effect to the rights recognized under Article 21 of such instrument.”  I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 110.

[165] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 119.

[166] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 155.

[167] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 171.

[168] IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, pars. 142-145.

[169] According to the characterization of the right to indigenous communal property advanced by the IACHR and the Inter-American Court, one of the fundamental elements of this right is its communal or collective nature. Both organs have recognized the collective aspect of indigenous and tribal peoples’ rights, “in the sense of rights that are realized in part or in whole through their guarantee to groups or organizations of people” [IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 128].  In ruling on the complaints presented against States in the context of indigenous peoples, the IACHR has explained that the provisions of the American Declaration of the Rights and Duties of Man must be interpreted and applied “with due regard to the particular principles of international human rights law governing the individual and collective interests of indigenous peoples” [IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 131.  IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 98].  In the same sense, applying Article 29 of the American Convention, in cases concerning indigenous and tribal peoples the IACHR has stated that “the American Convention must be interpreted including the principles pertaining to collective rights of indigenous peoples” [IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31st, 2001. Series C No. 79, pars. 140(ñ)].  The right to territorial property has been identified by the IACHR as one of the rights of indigenous and tribal peoples with a collective aspect [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 113]: “the rights of the Community are protected by the American Convention and by provisions set forth in other international conventions” [IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(c)].  Indigenous peoples’ right to recognition, titling and/or restitution of their ancestral lands and territories is, thus, a collective right, which is protected by the right to property established in the American Convention on Human Rights [IACHR, Access to Justice and Social Inclusion:  The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 244. I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001. Series C No. 79, par. 149. I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005. Series C No. 125, par. 137. I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 118]; for the IACHR, “Article 21 of the American Convention recognizes the right to property of members of indigenous communities within the framework of communal property” [IACHR, Follow-up Report - Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, par. 156].

[170] The Inter-American Court of Human Rights, in turn, “has taken a similar approach to the right to property in the context of indigenous peoples, by recognizing the communal form of indigenous land tenure as well as the distinctive relationship that indigenous people maintain with their land” [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 116. I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001. Series C No. 79] – even though, as explained above, the Inter-American Court has consistently held that territorial property rights are rights of the members of indigenous peoples, individually considered.  In the Court’s words, “through an evolutionary interpretation of international instruments for the protection of human rights, taking into account applicable norms of interpretation and pursuant to article 29(b) of the Convention -which precludes a restrictive interpretation of rights-, it is the opinion of this Court that article 21 of the Convention protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property” [I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001. Series C No. 79, par. 148].

[171] It is precisely on account of the collective dimension of indigenous and tribal peoples’ right to property, that the organs of the Inter-American system have acknowledged that indigenous peoples have a distinctive relationship with the lands and resources they have traditionally occupied and used, by virtue of which said lands and resources are considered to be under the property and enjoyment of indigenous communities as a whole [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 114.  I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79]; recognition of the collective aspect of indigenous and tribal peoples’ rights that “has extended to acknowledgement of a particular connection between communities of indigenous peoples and the lands and resources that they have traditionally occupied and used” [IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 128].

[172] IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 128.

[173] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 113. IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 128. IACHR, Resolution No. 12/85, Case No. 7.615, Yanomami People (Brazil), March 5, 1985.  The IACHR has underlined that “by interpreting the American Declaration so as to safeguard the integrity, livelihood and culture of indigenous peoples through the effective protection of their individual and collective human rights, the Commission is respecting the very purposes underlying the Declaration which, as expressed in its Preamble, include recognition that ‘[s]ince culture is the highest social and historical expression of that spiritual development, it is the duty of man to preserve, practice and foster culture by every means within his power.’”  IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 131.

[174] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(a).

[175] I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 149.

[176] I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 120. I/A Court H.R., Case of the Xákmok Kásek Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of August 24, 2010.  Series C No. 214, par. 87.

[177] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 115.

[178] Lacking the legal capacity to collectively enjoy the right to property and resort to domestic courts to claim its violation, indigenous and tribal peoples are in a situation of vulnerability towards both the State and private third parties [I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007. Series C No. 172, par. 174].  The State must recognize such capacity to the members of the people, in order for them to fully exercise these rights in a collective manner [I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 174]. Recognition of collective juridical capacity “may be achieved by implementing legislative or other measures that recognize and take into account the particular way in which the [respective] people view themselves as a collectivity capable of exercising and enjoying the right to property.”  [I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007. Series C No. 172, par. 174].

[179] In its judgment in the Saramaka v. Suriname case, the Inter-American Court explained that judicial recourses that are only available to individual persons who claim the violation of their individual rights to private property are not adequate or effective to repair alleged violations of the right to communal property of indigenous and tribal peoples and their members; it is necessary for indigenous and tribal peoples, as collective entities, to use such recourses as communities, in order to affirm their members’ right to communal property [I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 179].  For the Inter-American Court, it is also necessary for the State to recognize the right to communal property of the members of indigenous and tribal peoples in order for judicial remedies to be effective; a judicial recourse that requires proof of the violation of a right that is not recognized by the State would not be adequate for these types of claims [I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 179].  In sum, State legislation must provide “adequate and effective recourse against acts that violate [indigenous or tribal peoples’] rights to communal property” [I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 182].  For these reasons, in its judgment in the Saramaka People case, the Inter-American Court ordered Suriname, as a measure of reparation: “grant the members of the Saramaka people legal recognition of their collective juridical capacity, pertaining to the community to which they belong, with the purpose of ensuring the full exercise and enjoyment of their right to communal property, as well as collective access to justice, in accordance with their communal system, customary laws, and traditions” [I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 194(b)].

[180] IACHR, Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser.L/V/II, Doc. 34, June 28, 2007, par. 231.

[181] Indeed, the right to communal property is derived in the first place from the traditional use and occupation of the land and resources necessary for the physical and cultural subsistence of indigenous and tribal peoples and their members [I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 96], and in the second place from the customary property systems that stem therefrom.  As the IACHR has explained, indigenous communities have “communal property rights to land and natural resources based on traditional patterns of use and occupation of ancestral territory” [IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua.  Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(a)].  Indigenous and tribal peoples have, therefore, rights of property, possession and ownership over the lands, territories and resources they have historically occupied [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 115].

[182] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(c).

[183] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 127.

[184] I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001. Series C No. 79, par. 151. I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 127.

[185] For the Inter-American Court, “possession is not a requisite conditioning the existence of indigenous land restitution rights” [I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 128].

[186] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(a).

[187] I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 128.

[188] IACHR, Third Report on the Human Rights Situation in Colombia. Doc. OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, par. 19.

[189] The exercise of indigenous and tribal peoples’ territorial rights is not conditioned to their express recognition by the State, and the existence of a formal title to property is not a requirement for the existence of the right to indigenous territorial property under Article 21 of the Convention [I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of March 29, 2006. Series C No. 146, par. 128].  The dissociation between the customary right to indigenous property and the existence, or lack thereof, of a formal title to property, implies that the act of granting title by States is an act of official recognition and protection of rights, not an act of constitution of rights. Consequently, customary possession and use by indigenous peoples must be the guiding principle for the identification and guarantee of these rights through titling.

[190] IACHR, Arguments before the Inter-American Court of Human Rights in the Case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(j).

[191] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 111.

[192] IACHR, Arguments before the Inter-American Court of Human Rights in the Case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(a).

[193] Thus, the IACHR argued before the Inter-American Court in the Awas Tingni v. Nicaragua case that the historical relocation of settlements within ancestral territory did not affect the existence of the territorial rights of which the community was the bearer: “most inhabitants of Awas Tingni arrived during the 1940s to the place where they have their main residence, having come from their former ancestral place: Tuburús.  There was a movement from one place to another within their ancestral territory; the Mayagna ancestors were here since immemorial times” [IACHR, Arguments before the Inter-American Court of Human Rights in the Case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(h)].  The occupation of a territory by an indigenous people or community is not restricted to the nucleus of houses where its members live; “rather, the territory includes a physical area constituted by a core area of dwellings, natural resources, crops, plantations and their milieu, linked insofar as possible to their cultural tradition” [IACHR, Arguments before the Inter-American Court of Human Rights in the case of the Yakye Axa community v. Paraguay. Cited in: I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 120(h)].  To that same extent, the relationship between indigenous peoples and their territorios is not limited to specific villages or settlements; territorial use and occupation by indigenous and tribal peoples “extend beyond the settlement of specific villages to include lands that are used for agriculture, hunting, fishing, gathering, transportation, cultural and other purposes” [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 129].  Hence in the case of the Maya Communities of the Toledo District, the State of Belize had contested the continuity of Maya occupancy of the territory, on the grounds of the dates of establishment of 13 of the 38 villages to which the petition referred; however, the IACHR held that in its opinion, there is significant evidence that the Maya people, through their traditional agriculture, hunting, fishing and other land and resource use practices, have occupied significant areas of land in the Toledo District beyond particular villages since pre-colonial times and that the dates of establishment of particular Maya villages, in and of themselves, are not determinative of or fatal to the existence of Maya communal property rights in these lands”. [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 130].

[194] The State may not liberate itself from its obligation of recognizing the right of the members of indigenous and tribal groups to the use and enjoyment of their system of communal property over territory, arguing that there is a lack of clarity about the ancestral systems of property and possession; thus, in the Saramaka case, the Court held that “the alleged lack of clarity as to the land tenure system of the Saramakas does not present an insurmountable obstacle for the State, which has the duty to consult with the members of the Saramaka people and seek clarification of this issue (…), in order to comply with its obligations under Article 21 of the Convention, in conjunction with Article 2 of such instrument” [I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 101].

[195] This right is included among the principles and rights that must be considered in interpreting and applying the right to property under the Inter-American human rights instruments. IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 115.  As clarified by the IACHR, the general international legal principles applicable in the context of indigenous human rights include “the right of indigenous peoples to legal recognition of their varied and specific forms and modalities of their control, ownership, use and enjoyment of territories and property” [IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 130]; indigenous and tribal peoples have a right to communal property over the lands they have traditionally used and occupied, and “the character of these rights is a function of [the respective people’s] customary land use patterns and tenure” [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 151].  For the Inter-American Court, “disregard for specific versions of use and enjoyment of property, springing from the culture, uses, customs, and beliefs of each people, would be tantamount to holding that there is only one way of using and disposing of property, which, in turn, would render protection under Article 21 of the Convention illusory for millions of persons” [I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 120].  The notion of current use of indigenous territory is understood by the Court in a broad sense, which encompasses not only permanent occupation of such territory, but also an entire array of activities, both permanent and seasonal, aimed at the use of land and natural resources for subsistence purposes, and also at other uses related to the exercise of indigenous culture and spirituality.  To this extent, the IACHR has positively valued the legislative incorporation of “a broad concept of indigenous land and territories, wherein the latter category includes not only physically occup[ied] spaces but also those used for their cultural or subsistence activities” [IACHR, Follow-up Report - Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, par. 160]; the IACHR “finds this approach to be compatible with the cultural reality of indigenous peoples and their special relationship with the land and territory, as well as with natural resources and the environment in general” [IACHR, Follow-up Report - Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, par. 160].  The right to property under Inter-American instruments “must be interpreted and applied in the context of indigenous communities with due consideration of principles relating to the protection of traditional forms of ownership and cultural survival and rights to land, territories and resources.  These have been held to include the right of indigenous peoples to legal recognition of their varied and specific forms and modalities of their control, ownership, use and enjoyment of territories and property, and the recognition of their property and ownership rights with respect to lands, territories and resources they have historically occupied” [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 115]. Likewise, for the IACHR “the concept of property can consist of co-ownership or in access and use rights, according to the customs of indigenous communities” [IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua.  Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(i)].  In this line, the Inter-American system’s jurisprudence has acknowledged that indigenous peoples’ property rights are not defined exclusively by their rights or titles within States’ formal legal systems, but also include the forms of indigenous communal property that stem from, are derived from or are grounded upon indigenous custom and tradition [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 117].

[196] I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 120.

[197] I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 131.

[198] There is not just one form of using and enjoying property protected under the American Declaration or the American Convention; both the property and the possession of territories by indigenous and tribal peoples can differ from the classic notion of ownership, and in that sense they are protected by the right to property. [I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 120].

[199] As clarified by the IACHR, the general international legal principles applicable in the context of indigenous human rights include “the right of indigenous peoples to legal recognition of their varied and specific forms and modalities of their control, ownership, use and enjoyment of territories and property” [IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 130]; indigenous and tribal peoples have a right to communal property over the lands they have traditionally used and occupied, and “the character of these rights is a function of [the respective people’s] customary land use patterns and tenure” [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 151].  For the Inter-American Court, “disregard for specific versions of use and enjoyment of property, springing from the culture, uses, customs, and beliefs of each people, would be tantamount to holding that there is only one way of using and disposing of property, which, in turn, would render protection under Article 21 of the Convention illusory for millions of persons” [I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 120].  The notion of use of indigenous territory is understood by the Court in a broad sense, which encompasses not only permanent occupation of such territory, but also an entire array of activities, both permanent and seasonal, aimed at the use of land and natural resources for subsistence purposes, and also at other uses related to the exercise of indigenous culture and spirituality.  To this extent, the IACHR has positively valued the legislative incorporation of “a broad concept of indigenous land and territories, wherein the latter category includes not only physically occup[ied] spaces but also those used for their cultural or subsistence activities” [IACHR, Follow-up Report - Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, par. 160]; the IACHR “finds this approach to be compatible with the cultural reality of indigenous peoples and their special relationship with the land and territory, as well as with natural resources and the environment in general” [IACHR, Follow-up Report - Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, par. 160].  The right to property under inter-American instruments “must be interpreted and applied in the context of indigenous communities with due consideration of principles relating to the protection of traditional forms of ownership and cultural survival and rights to land, territories and resources.  These have been held to include the right of indigenous peoples to legal recognition of their varied and specific forms and modalities of their control, ownership, use and enjoyment of territories and property, and the recognition of their property and ownership rights with respect to lands, territories and resources they have historically occupied” [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 115].  Likewise, for the IACHR “the concept of property can consist of co-ownership or in access and use rights, according to the customs of indigenous communities” [IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua.  Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(i)].  In this line, the Inter-American system’s jurisprudence has acknowledged that indigenous peoples’ property rights are not defined exclusively by their rights or titles within States’ formal legal systems, but also include the forms of indigenous communal property that stem from, are derived from or are grounded upon indigenous custom and tradition [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 117].

[200] IACHR, Second Report on the Situation of Human Rights in Peru. Doc. OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, Chapter X, par. 19.

[201] IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 128.

[202] IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 128.

[203] IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 128.

[204] ILO Convention 169, art. 14.1.

[205] IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 130, footnote No. 97.  The Human Rights Committee has explained that “culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples” [Human Rights Committee, General Comment No. 23 (1994): Article 27 (rights of minorities), CCPR/C/21/rev.1/Add.5 (1994), par. 7; cited in IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 130, footnote No. 97]

[206] Human Rights Committee, General Comment No. 23 (1994): Article 27 (rights of minorities), CCPR/C/21/rev.1/Add.5 (1994), par. 7; cited in IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 130, footnote No. 97.

[207] I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 140.

[208] United Nations Declaration on the Rights of Indigenous Peoples, Article 26.2.

[209] The IACHR has explained, in this line, that the relationship between historic tradition, customary law and territorial property is protected by the American Convention: “traditional patterns of use and occupation of territory by the indigenous communities (…) generate customary law property systems, they are property rights created by indigenous customary law norms and practices which must be protected, and they qualify as property rights protected by article 21 of the Convention” [IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(b)].  Indigenous and tribal peoples have historically suffered racial discrimination, and “one of the greatest manifestations of this discrimination has been the failure of state authorities to recognize indigenous customary forms of possession and use of lands” [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 167].  Recognition of indigenous customary law by the authorities, and particularly by the courts, is also necessary for recognition of ancestral possession [IACHR, Fifth Report on the Situation of Human Rights in Guatemala. Doc. OEA/Ser.L/V/II.111, Doc. 21 rev., April 6, 2001, Chapter XI, par. 57], without discrimination.  In the IACHR’s terms, “non-recognition of the equality of property rights based on indigenous tradition is contrary to the principle of non-discrimination set forth in article 1(1) of the Convention” [IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 140(b)].

[210] IACHR, Fifth Report on the Situation of Human Rights in Guatemala. Doc. OEA/Ser.L/V/II.111, Doc. 21 rev., April 6, 2001, Chapter XI, par. 57.

[211] I/A Court H.R., Case of the Saramaka People v. Suriname.  Interpretation of the Judgment of Preliminary Objections, Merits, Reparations and Costs.  Judgment of August 12, 2008. Series C No. 185, par. 48.

[212] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in:  I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 104(ñ).

[213] I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 153(b).

[214] I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, par. 135.

[215] I/A Court H.R., Case of the Xákmok Kásek Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of August 24, 2010.  Series C No. 214, pars. 93-107.

[216] I/A Court H.R., Case of the Xákmok Kásek Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of August 24, 2010.  Series C No. 214, par. 95.

[217] IACHR, Third Report on the Situation of Human Rights in Paraguay. Doc. OEA/Ser./L/VII.110, Doc. 52, March 9, 2001, Chapter IX, par. 50, Recommendation 1.

[218] The IACHR has recommended States, in this sense, to “promptly adopt any such measures as may be necessary to enforce the right to property and possession of the ancestral territory of [indigenous communities] and [their] members, specifically to (…) guarantee the members of the Community the exercise of their traditional subsistence activities” [IACHR, Report No. 73/04, Case of the Sawhoyamaxa Indigenous Community v. Paraguay, October 19, 2004, Recommendation 1. Cited in: I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, par. 8].

[219] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Yakye Axa v. Paraguay.  Cited in: I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of June 17, 2005. Series C No. 125, par. 120(i).

[220] The IACHR has granted precautionary measures on different occasions to protect the rights of indigenous peoples in voluntary isolation, emphasizing the need to protect their territory for purposes of effectively safeguarding the rights to life and integrity of their members, inter alia. Thus, on May 10th, 2006, the IACHR granted precautionary measures in favor of the Tagaeri and Taromenani indigenous peoples in voluntary isolation in the Amazon forest of Ecuador, who were directly threatened in their very existence as groups by the actors who carried out illegal logging in their territories, and had suffered several murders in the course of said conflict.  The IACHR requested the State of Ecuador to adopt the necessary measures to protect these peoples’ ancestral territory from the presence and activities of third parties. On March 22, 2007, the IACHR granted precautionary measures in favor of the Mashco Piro, Yora and Amahuaca indigenous peoples, in voluntary isolation in the Department of Madre de Dios, in Peru, threatened in their life and personal integrity, and at risk of disappearance, because of the illegal logging activities carried out in their territory.  The IACHR requested the Peruvian State to adopt all the necessary measures to guarantee the life and personal integrity of the members of these three groups, in particular that it adopt measures to prevent irreparable harm resulting from the activities of third parties in their territory.  For more information, see: http://www.iachr.oas.org.  Under the auspices of the UN, a process of formulation of protective guidelines for indigenous peoples in voluntary isolation and initial contact is currently underway.  The corresponding report, prepared by the Secretariat of the UN Expert Mechanism on the Rights of Indigenous Peoples, explains that “[p]eoples in isolation are indigenous peoples or subgroups thereof that do not maintain regular contact with the majority population and tend to shun any type of contact with outsiders. Most isolated peoples live in tropical forests and/or in remote, untravelled areas, which in many cases are rich in natural resources. For these peoples, isolation is not a voluntary choice but a survival strategy.  (…) Despite their great diversity, these peoples share some general features that are common to all of them:  (a) They are highly integrated into the ecosystems which they inhabit and of which they are a part, maintaining a closely interdependent relationship with the environment in which they live their lives and develop their culture. Their intimate knowledge of their environment enables them to maintain a self-sufficient lifestyle generation after generation, meaning that the retention of their territories is vitally important for all of them; (b) They are unfamiliar with the ways in which mainstream society functions, and are thus defenceless and extremely vulnerable in relation to the various actors that attempt to approach them or to observe their process of developing relations with the rest of society (…); (c) They are highly vulnerable and, in most cases, at high risk of extinction. Their extreme vulnerability is worsened by threats and encroachments on their territories, which directly jeopardize the preservation of their cultures and ways of life. (…) Their vulnerability is even further aggravated by the human rights violations which they often suffer at the hands of those who seek to exploit the natural resources in their territories and by the fact that aggression against these peoples and their ecosystems generally goes unpunished. (…) Their right to territory is essential, as indigenous peoples in isolation and in initial contact are totally dependent on their environment and their lives revolve around a near-perfect symbiosis with that environment, which enables them to sustain their lives and cultures through the profound knowledge they have of the uses, appications and care of their surroundings.  This means that it is impossible to respect their decision to remain in isolation without guaranteeing and respecting the exercise of their territorial rights, as any attack on their environment would amount to an attack on their culture and would jeopardize the maintenance of their isolation.” UN – Human Rights Council – Expert Mechanism on the Rights of Indigenous Peoples: Draft Guidelines on the Protection of Indigenous Peoples in Voluntary Isolation and in Initial Contact of the Amazon Basin and El Chaco – Report prepared by the Secretariat. UN Doc. A/HRC/EMRIP/2009/6, 30 June 2009, pars. 7, 13, 23.  On indigenous peoples in voluntary isolation, the UN Special Rapporteur has explained: “Small indigenous communities that shun all contact with modern society and prefer to live in isolation and devote themselves to their traditional subsistence economy are to be found in different parts of the equatorial forests that still exist in the world.  Contrary to the image portrayed by some media, these groups are not the original settlers ‘who have never had contact with civilization’, but population groups that for generations have been avoiding contacts that have been extremely violent and deadly for them, leading them to seek refuge in forests. Many of these communities are now on the brink of what some describe as genocide, owing to oil exploration, timber extraction, the introduction of vast commercial plantations, infrastructure works, missionary activity, drug trafficking and international tourism.  The few contacts that may take place can turn violent and the diseases carried by the new settlers continue to wipe out a large number of these population groups. (…) The Special Rapporteur recommends that States should undertake to put into effect the necessary mechanisms to protect the lives and integrity of isolated peoples in order to ensure their survival with respect for their human rights.” UN – Human Rights Council – Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, UN Doc. A/HRC/4/32, 27 February 2007, pars. 42, 48.

[221] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 115.

[222] Official recognition of indigenous peoples’ ownership of their territories is not an act of the free will and discretion of States, but an obligation [IACHR, Third Report on the Human Rights Situation in Colombia. Doc. OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 February 1999, Chapter IX, par. 19]; moreover, States are bound to adopt effective measures to recognize indigenous peoples’ right to communal property over the lands they have traditionally occupied and used [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 193].  The State obligation to recognize and guarantee the exercise of the right to communal property by indigenous peoples necessarily demands that the State “take the appropriate measures to protect the right of the [corresponding indigenous or tribal] people in their territory, including official recognition of that right” [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 132].  By virtue of Article XXIII of the American Declaration of the Rights and Duties of Man, the State is bound to “delimit, title or otherwise [establish] the legal mechanisms necessary to clarify and protect the territory on which their right exists” [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, pars. 193 and 197 – Recommendation 1]; therefore, States violate indigenous peoples’ right to property, established in Article XXIII of the American Declaration of the Rights and Duties of Man, “by failing to take effective measures to recognize their communal property right to the lands that they have traditionally occupied and used, and to delimit, demarcate and title or otherwise establish the legal mechanisms necessary to clarify and protect the territory on which their right exists” [IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 152].  In not doing so, States also violate Articles 25, 1.1 and 2 of the American Convention to the detriment of the members of said communities [I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001. Series C No. 79, par. 137].

[223] States are under the obligation of securing the right to property of indigenous and tribal peoples and their members over their ancestral lands [IACHR, Arguments before the Inter-American Court of Human Rights in the case of Sawhoyamaxa v. Paraguay. Cited in: I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs.  Judgment of March 29, 2006. Series C No. 146, par. 113(a). IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 115].  Indigenous and tribal peoples, therefore, have the right to enjoy formal title, or other instruments that recognize their property over the lands where they live and develop their cultural and subsistence activities [IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in:  I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 104(l)].  The general international legal principles applicable in the context of indigenous peoples’ human rights include “the recognition of their property and ownership rights with respect to lands, territories and resources they have historically occupied” [IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 130], and “recognition by that State of the permanent and inalienable title of indigenous peoples relative thereto” [IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 130].  The recognition and titling of indigenous and tribal property rights over their territories, as well as due registration of the corresponding titles, “represent essential rights for cultural survival and for maintaining the community's integrity” [IACHR, Second Report on the Situation of Human Rights in Peru. Doc. OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, Chapter X, par. 16].  Lack of State recognition of indigenous communities’ territorial rights violates articles 1 and 2 of the American Convention on Human Rights [IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31st, 2001.  Series C No. 79, par. 109].

[224] IACHR, Second Report on the Situation of Human Rights in Peru. Doc. OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, Chapter X, pars. 23-25. I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 153-1.

[225] I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007. S eries C No. 172, par. 115.

[226] In its judgment in the Saramaka case, the Inter-American Court ordered Suriname, as a measure of reparation: “delimit, demarcate, and grant collective title over the territory of the members of the Saramaka people, in accordance with their customary laws, and through previous, effective and fully informed consultations with the Saramaka people, without prejudice to other tribal and indigenous communities” [I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 194(a)].  The IACHR has held that States must adopt “appropriate measures to guarantee the process of legal demarcation, recognition, and issuance to the indigenous communities of land titles, and to ensure that this process not prejudice the normal development of property and community life” [IACHR, Second Report on the Situation of Human Rights in Peru. Doc. OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, Chapter X, par. 39 – Recommendation 4]. See also:  IACHR, Third Report on the Situation of Human Rights in Paraguay.  Doc. OEA/Ser./L/VII.110, Doc. 52, March 9, 2001, Chapter IX, pars. 45, 50 – Recommendation 4.

[227] ILO Convention No. 169, art. 17.1 (“Procedures established by the peoples concerned for the transmission of land rights among members of these peoples shall be respected”); United Nations Declaration, Art. 26.3 (“States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.”)

[228] IACHR, Third Report on the Situation of Human Rights in Paraguay. Doc. OEA/Ser./L/VII.110, Doc. 52, March 9, 2001, Chapter IX, pars. 45, 50 – Recommendation 4.

[229] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Awas Tingni v. Nicaragua. Cited in: I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, pars. 104(i) and 140(l).

[230] I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, pars. 152-154.

[231] Id., par. 141(i).

[232] Id., pars. 153(1), 164, 173(3).

[233] I/A Court H.R., Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 194(c).

[234] I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 127.

[235] I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, pars. 122, 123.

[236] I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua.  Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 124.

[237] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, pars. 104, 105.

[238] IACHR, Report on the Situation of Human Rights in Brazil, Doc. OEA/Ser.L/V/II.97, Doc. 29 rev. 1, September 29, 1997, par. 33.

[239] IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, par. 1137 – Recommendation 3.

[240] IACHR, Second Report on the Situation of Human Rights in Peru. Doc. OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, Chapter X, par. 19.

[241] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 115.

[242] IACHR, Fifth Report on the Situation of Human Rights in Guatemala.  Doc. OEA/Ser.L/V/II.111, Doc. 21 rev., April 6, 2001, Chapter XI, par. 57.

[243] IACHR, Fifth Report on the Situation of Human Rights in Guatemala.  Doc. OEA/Ser.L/V/II.111, Doc. 21 rev., April 6, 2001, Chapter XI, par. 57.

[244] IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, par. 1137 – Recommendation 3.

[245] IACHR, Fifth Report on the Situation of Human Rights in Guatemala.  Doc. OEA/Ser.L/V/II.111, Doc. 21 rev., April 6, 2001, Chapter XI, par. 66 – Recommendation 4.

[246] IACHR, Democracy and Human Rights in Venezuela.  Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, pars. 1065, 1071, 1137 – Recommendation 2.

[247] IACHR, Arguments before the Inter-American Court of Human Rights in the case of Yakye Axa v. Paraguay. Cited in: I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of June 17, 2005. Series C No. 125, pars. 52(c) and 52(e). I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of June 17, 2005.  Series C No. 125, pars. 85, 103.  IACHR, Arguments before the Inter-American Court of Human Rights in the case of Sawhoyamaxa v. Paraguay. Cited in:  I/A Court H.R., Case of the Sawhoyamaxa Indigenous Community v. Paraguay.  Merits, Reparations and Costs.  Judgment of March 29, 2006.  Series C No. 146, pars. 74(a) and 74(e).

[248] IACHR, Second Report on the Situation of Human Rights in Peru. Doc. OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, Chapter X, par. 18.

[249] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 115.

[250] IACHR, Report No. 40/04, Case 12.053, Maya Indigenous Communities of the Toledo District (Belize), October 12, 2004, par. 142.

[251] IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann(United States), December 27, 2002, par. 130.

[252] Giving indigenous peoples a different treatment as regards compliance with these requirements of expropriation, without an objective and reasonable justification based on a legitimate purpose, is a violation of the right to equality in the determination of their property rights over their ancestral territories [IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, pars. 143, 144, 145].

[253] IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, pars. 143, 144, 145.

[254] By virtue of Articles II (right to equality), XVIII (right to due process and to a fair trial) and XXIII (right to property) of the American Declaration of the Rights and Duties of Man, States are in the obligation of adopting “special measures to ensure recognition of the particular and collective interest that indigenous people have in the occupation and use of their traditional lands and resources and their right not to be deprived of this interest except with fully informed consent, under conditions of equality, and with fair compensation” [IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 131].

[255] IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann (United States), December 27, 2002, par. 145.

[256] IACHR, Report on the Situation of Human Rights in Brazil, Doc. OEA/Ser.L/V/II.97, Doc. 29 rev. 1, September 29, 1997, pars. 40-43, 83-Recommendation 5.

[257] IACHR, Report on the Situation of Human Rights in Brazil, Doc. OEA/Ser.L/V/II.97, Doc. 29 rev. 1, September 29, 1997, pars. 34, 82(a), 82(d).

[258] IACHR, Report on the Situation of Human Rights in Brazil, Doc. OEA/Ser.L/V/II.97, Doc. 29 rev. 1, September 29, 1997, pars. 33-39, 82(a), 82(d).

[259] I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Reparations and Costs.  Judgment of January 31, 2001.  Series C No. 79, par. 153.

[260] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 113.

[261] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 115.

[262] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 106.

[263] I/A Court H.R., Case of the Saramaka People v. Suriname.  Preliminary Objections, Merits, Reparations and Costs.  Judgment of November 28, 2007.  Series C No. 172, par. 116.