PERMANENT COUNCIL OF THE ORGANIZATION OF AMERICAN STATES
SPECIAL COMMITTEE ON INTER-AMERICAN SUMMITS MANAGEMENT

OEA/Ser.G    CE/GCI-9/95
29 September 1995
Original: Spanish

REPORT OF THE INTER-AMERICAN INDIAN INSTITUTE TO THE SPECIAL COMMITTEE ON INTER-AMERICAN SUMMITS MANAGEMENT

INTER-AMERICAN INDIAN INSTITUTE

September 19, 1995

Her Excellency
Ambassador Harriet C. Babbitt
U.S. Permanent Mission to the Organization
of American States
ARA/USOAS, Room 6494
Department of State
2201 C Street, NW
Washington, D.C. 20520
U.S.A.

Dear Mrs. Babbitt:

In reply to your letter dated August 25, I wish to note that, as you know, the Institute is in the process of amending its charter. Nonetheless, within the framework of the Summit of the Americas initiatives, we have continued our training and publishing activities to help improve awareness of the problems affecting indigenous peoples in the Americas, publicize policies, strategies, and approaches for surmounting them ? with particular emphasis on those affecting their human rights--and seek greater attention to those problems in the national societies involved.

As a contribution of this Institute under item 1 of the Plan of Action "Preserving and Strengthening the Community of Democracies of the Americas," I am pleased to send you the attached document: "Human Rights of the Indigenous Peoples of the Americas."

Sincerely,

Jos� Matos Mar
Director

HUMAN RIGHTS OF THE INDIGENOUS PEOPLES OF THE AMERICAS

Efforts in this area should encourage national societies to welcome the empowerment of indigenous peoples and should promote conditions leading to their full participation, equal to that of other organized groups, in the development of positive and flourishing societies that are both pluricultural and multilingual. Thus, although this is a largely legal and administrative question, its substance is essentially political in two ways. First, it involves a change in attitudes and positions regarding the organization, institutional framework, and concerns of modern states and societies. Second, given the conditions in which they emerge and develop, the indigenous movement and organizations are gaining a momentum of their own that adamantly challenges the status quo. In the face of bureaucracy, inertia, and insensitivity, not to mention the conservative and elitist stances of certain groups, this momentum leads to conflicts, confrontations, and, most importantly, increased frustration and alienation in interethnic relations.

Action to change this will require recognition that the main causes of the problems of indigenous peoples do not lie with them, their communities, or some innate predisposition of their race but, rather, in the kind of relationships the dominant groups have established with the indigenous population throughout history and, consequently, in the very structure of national societies and states.

From this perspective, these activities concern individual and collective human rights overall; the specific rights of Indian minorities as communities with their own identities and history; and the development of Indian law itself.

The principal objective in this area is to further the development of democracy by simultaneously drafting more advanced legislation regarding interethnic relations and better and more effective institutional instruments to ensure its observance. This will require the promotion of Indianist policies so as to strengthen efforts to foster and facilitate the comprehensive ethnic development of the Indian peoples.

This effort must be approached from many angles. Not only does it involve strengthening international instruments and incorporating into constitutions and codes the progress made at that level but, in many instances and at a deeper level, it also entails a revision of the legal principles on which states are founded. This is a conscious effort to reconcile current trends toward national, regional, and worldwide integration with enhancement and encouragement of an enriching cultural diversity and the legitimate aspirations of the Indian peoples to preserve their identities and regain their autonomy. This is a twofold task: on the one hand, producing the points of consensus and general instruments needed in the international community and each of the countries that belong to it; and, on the other, the creation of specific legal spheres and mechanisms for the genuine exercise of civil rights by Indian populations.

The Geneva Working Group's initial task of shaping an international legal instrument recognizing and governing the exercise by Indian peoples of their inherent human rights is a vital focus in this area. So too, in a complementary sense, is the draft inter-American convention on Indian rights being prepared by the Organization of American States with assistance from the Inter-American Indian Institute.

In the meantime, there are a few instruments which represent a considerable increase in awareness, on the part of the states, of the need for considering the Indian populations within the framework of the American Declaration of the Rights and Duties of Man. In June 1989, the International Labour Organization (ILO) adopted Convention 169, which represents substantial progress.

Required here is not only incorporation of existing international regulatory instruments into the legislation of each country but also enactment of constitutional and legal provisions in those countries where such instruments have already been incorporated but, in the absence of local implementing legislation, remain at the declarative level.

The variety of national and ethnic situations is a determining factor. But, in any case, there is a long road ahead before the individual and collective rights of indigenous peoples are effectively exercised, and this is one of the areas requiring greater attention from the appropriate international organizations. Recognition of customary law and the creation of courts and instruments functioning under this law are equally important. Participation by indigenous peoples themselves in drafting and discussing any new legal instrument affecting them and establishment of the institutions required to make such participation effective are also necessary. Special attention should be given to ensuring the effective exercise of individual, civil, and political rights by eliminating from the laws all those provisions which, either directly or indirectly, institute discrimination or impair the exercise of civil rights for ethnic or linguistic reasons. Particular emphasis should be placed on the full exercise of rights in the areas of political representation, ownership and use of natural resources and other assets, and civil and criminal procedure.

An important underlying question, in legal terms, is that of the state. The problem of indigenous peoples is but a reflection of the structural incompatibility between society and the state. In many countries, the structure of the state is premised historically on a national society with an homogeneous identity. This premise runs counter to the pluricultural, plurilingual, and multiethnic social reality. The contradiction between this type of state and the peoples it governs has been expressed in two opposing and extreme trends: forced cultural homogenization and the exclusion of indigenous populations in a cultural sense and from public affairs. In countries densely peopled with indigenous groups, where the population explosion of recent years has caused their mass displacement to the big cities, the tension generated has opened a new scenario: conflict and mounting confrontation between society and the state, and the overwhelming of legal structures and formal institutions. This leads to the conviction that a definitive solution to the problems of indigenous peoples can only be found through state reform, and that in some cases such reform must be substantial.

Examination of the structure and dynamics of the state in multiethnic societies, the effort to harmonize its legal and organizational principles with the just demands and claims of the ethnic minorities, and the drafting and discussion of alternative models nationally, regionally, and throughout the Hemisphere must be given priority attention. To this end, not only must specific projects be drawn up and implemented, but the initiatives of private researchers and governmental and nongovernmental institutions must be encouraged and promoted as well. Dialogue between social science experts and representatives of the various ethnic groups should also be facilitated through fora, meetings, and publications.

Despite this emphasis on medium- and long-term legal issues, urgent situations must also be handled. In particular, interest must be taken in the situation of Indian populations in areas in which armed movements are now present and active. In those areas, despite their express wish for peace, indigenous people are forced to participate in the activities of government and antigovernment military forces, with the consequent loss of life and property, disruption of economic activities and daily life, and widespread abuse.

Finally, special attention, in the form of assistance, encouragement, and facilities, should be given to the Indian organizations and movements whose countless initiatives have a common focus on self-management and cooperation with the national societies in question. In the indigenous organizations and movements and their chances of success lies the hope of a better future for ethnic groups and the societies to which they belong. Hence, they should be provided with any information, advice, and support they may require; they should be afforded adequate opportunities for dialogue and, when necessary, mediation services in their dealings with government agencies.

Jos� Matos Mar