According to UN sources, more than 350 millions of individuals are considered indigenous. It is estimated that there are at least 5.000 different groups, each of which speaks a different language. The groups range from Tribal peoples of India to forest peoples of Amazonia and indigenous peoples in the Andean region, from the Aborigines peoples of Australia to Inuit in the Arctic.

The groups are present in more than 70 countries all over the world, most of the times "sub-divided" in bordering states.
In some of these countries the Indigenous peoples represents even more than 50% of the total population (e.g. Bolivia).

But how can we define "Indigenous People"?
Let us start with the significance of the word Indigenous people: If we give a look to a standard dictionary, under the word "indigenous" we can find the following synonyms: "originating"; "innate"; "native". For the word "aborigine": "original", "who first inhabited a land/territory".
Both these adjectives have similar significance in English and in Italian, while in French the word for "indigène" is depreciative; consequently the word "aborigène" is preferred. In Spanish (Castellan) the word "aborigen" is not used while referring to indigenous peoples who are referred to as "indígena".
 
The UN Permanent Forum on Indigenous Issues (Fact sheet 21 October 2007) lately reported that
"the [UN] system has developed a modern understanding of this term based on the following:
• Self-identification as indigenous peoples at the individual level and accepted by the community as their member.
• Historical continuity with pre-colonial and/or pre-settler societies
• Strong link to territories and surrounding natural resources
• Distinct social, economic or political systems
• Distinct language, culture and beliefs
• Form non-dominant groups of society
• Resolve to maintain and reproduce their ancestral environments and systems as distinctive peoples and communities."
[Emphases added].

Indeed, indigenous issues' experts and scholars individuated the following characteristics contained in the UN 1994 Draft Declaration on the Rights of Indigenous Peoples (Preamble and articles 25, 27, 37 and 39):
- Distinctiveness, in the sense of being different and wanting to be different;
- Dispossession of lands, territories and resources, though colonization or other comparable events, causing denial of human rights or other form of injustice;
- Lands (located in a specific area), as a central element in the history and identity;
- Being first, in the geographic area defined as 'lands';
- Lack of political control, in respect of the (internationally) recognized State.

The new Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly of United Nations on 13th September 2007, does not include any definition.

In fact, the difficulties to define so many groups, scattered all over the world, emerged first in the report made by Mr. Josè R. Martinéz Cobo, nominated in 1971 Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples by UN Sub-Commission (of the Commission of Human Rights) on Prevention of Discrimination and Protection of Minorities.

The report, handed in to the Sub-commission between 1981 and 1984, and adopted in 1986, contains the following definition which tried to be as exhaustive as possible:
"Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems."
[Emphases added].
(UN document C/CN.4/Sub.2/1986/7/Add.4, para. 379)

This definition was soon criticized as being too simplistic, and cointaining many flaws, especially regarding the historical origins (in particular this definition was not contemplating the isolated tribal peoples especially the ones living in Asia).

Nevertheless, what is important is that the report of Mr. Cobo contained also the principles of "self-identification", and "self-recognition":

"On an individual basis, an indigenous person is one who belongs to these indigenous populations through self-identification as indigenous (group consciousness) and is recognized and accepted by these populations as one of its members (acceptance by the group)"
[Emphases added].
(para. 381)

In 1989, the International Labour Organization (ILO) adopted the "Indigenous and Tribal Peoples' Convention" (Convention no. 169) regarding the working conditions of many indigenous peoples. This Convention, which replaces the one of 1957, represents the only binding treaty (for the States that ratify it) on the protection of indigenous rights.

The Convention acknowledges the principle of "self-identification" and "self-recognition". Article 1 of the Convention affirms:
 "1. This Convention applies to:
(a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;
(b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.
2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.
3. The use of the term peoples in this Convention shall not be construed as having any implications as regard the rights which may attach to the term under international law."
[Emphases added].

In the 90s, while preparing the 1994 Draft Declaration on the Rights of the Indigenous Peoples mentioned before, even though elements where given, the omission of a definition was based on the ground that "historically, indigenous peoples have suffered from definitions imposed by others. For example, in the past the criterion for membership of an indigenous population in certain countries was based upon parentage or blood quotient and this is now deemed discriminatory as it denies the right of indigenous people to determine their own membership. For this and other relevant reasons the Working Group would not consider it appropriate to develop a definition of its own without full consultation with indigenous peoples themselves", explains in her report adopted in 1995 Ms. Erica Irene Daes, Rapporteur of the Working Group on Indigenous populations.
(UN Document E/CN.4/Sub.2/AC.4/1995/3, page 4)

In fact, as mentioned above, the new UN Declaration on the Rights of Indigenous Peoples, adopted last September, does not include any definition.

How do some States define the indigenous peoples' groups living in their territories…?

The Mexican Constitution, recently modified in November 2007, states that:  "Nation [Mexico] is one and indivisible" but that "has a multicultural composition originally formed by its indigenous peoples, who are the ones that descends from peoples who inhabited the actual territory of the country at the beginning of the colonization, and who preserves own social, economic, cultural and political institutions, or part of it" (Art.2). Moreover it includes the principle of self-identification.

In Guyana the definition excludes who has "mixed blood" or women who get married with non-indigenous men.

The same occurs with regard to Canadian's definition of indigenous/aboriginal peoples.

In United States there is the division into three groups: recognized "indios", non-recognized "indios", and urban "indios", according to some characteristics like living in the Reserves, belonging to a tribe, having a certain percentage of "Indian" blood…

In Chile the descendants and the surnames are recognized as relevant aspects.

In Paraguay the language and some indigenous customary aspects are predominating.

In Argentina the descendants prevail.

Lastly, the Bolivian definition of 1994 embraces all the aspects of historical origins, language, customary aspects and lands' attachment.

One paradox…

In Chile a "Chilean" woman who got married to an indigenous man before the Chilean 1993 "Indigenous Law" (Ley Indígena no. 19.253 of 1993) and adopted his surname is actually considered "indigenous".
In Canada or Guyana an indigenous woman looses her "indigenous status" when married to a "non-indigenous" man…

31.01.08

Alexandra Tomaselli

(Picture: logo of UN Permanent Forum on Ingenous Issues)