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B I O D I V E R S I T Y S E R I E S

Models for RecognizingIndigenous Land Rightsin Latin America

Roque Roldán Ortega

PAPER NO. 99

October 2004

Administrator

30886

Papers in this series are not formal publications of the World Bank. They are circulated to encourage thought and discussion. The useand citation of this paper should take this into account. The views expressed are those of the authors and should not be attributed tothe World Bank. Copies are available from the Environment Department of the World Bank by calling 202-473-3641.

Models for RecognizingIndigenous Land Rightsin Latin America

Roque Roldán Ortega

THE WORLD BANK ENVIRONMENT DEPARTMENT

October 2004

The International Bank for Reconstructionand Development/THE WORLD BANK1818 H Street, N.W.Washington, D.C. 20433, U.S.A.

Manufactured in the United States of AmericaFirst printing October 2004

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Contents

FOREWORD v

PREFACE ix

ACKNOWLEDGMENTS xv

Chapter 1A Short History of Indigenous Legal Treatment in Latin America 1

Chapter 2Description of Indigenous Land Tenure Regimes in Selected Countries of Latin America 5

Countries with a Superior Legal Framework 5Bolivia 5Brazil 6Colombia 6Costa Rica 7Panama 8Paraguay 8Peru 9

Countries with a Legal Framework in Progress 9Ecuador 9Guatemala 10Honduras 11Mexico 11Nicaragua 12Venezuela 12

Countries with a Deficient Legal Framework 13El Salvador 13Guyana 13Suriname 14

Chapter 3Common Problems in the Legal Framework for Recognition of Indigenous Lands 15

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Models for Recognizing Indigenous Land Rights in Latin America

Chapter 4Case Studies in Indigenous Land Tenure and Its Implications for Natural Resources Management 17

Land Tenure Regime 17Territorial Recognition 20Natural Resources Rights 20Tenure Security 22Autonomy 23Legal Recourse 24Conclusions 25

NOTES 27

BIBLIOGRAPHY 29

BOXES

1 Status of ILO 169 Ratification 22 Typology of Indigenous Legal Regimes 33 Key Characteristics of Indigenous Land Tenure, by Country 18

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Foreword

The history of the Americas did not begin withthe discovery by Christopher Columbus. Thepeople of the Americas had already livedthousand of years of impressive development,including those of science and technology; theforgotten history of that continent.

In many ways, this paper represents animportant dimension in filling history’s gapsthrough the lens of land rights. The continentwas populated by many nations thatfunctioned in harmony with nature, had avariety of cultures and languages, anddeveloped many different socio-economicsystems (nationally and locally). These nationswere sovereign and recognized from Alaska toPatagonia.

Many nations grouped actively around animportant metropolis (e.g., Tikal, MachuPicchu), others were mainly agriculturalsocieties and deeply attached to and,dependent on, the land. However, in all ofthem, we know they had very advanced andwell established institutional arrangements andorganizations (formal and informal), createdand nurtured with the view to respond to theneeds and challenges of the time. With avariety of forms of governance, these societiesdid assign rights and responsibilities to thedifferent actors and groups in order tomaintain an acceptable level of social cohesion,to establish important political consensus

around economic and social issues, and tocreate the capacity for the integration of thematerial and the non-material dimensions ofpeoples’ lives.

Some of the above became important tradi-tions, which we find even today in many parts,including the territories inside the developedcountries of North America.

Central to those indigenous traditions wasland and, therefore, land tenure systems andrights were essential to the people’s welfare inmany respects—in particular, land as a majoreconomic asset, an instrument of inheritance,and a symbol of social status. But land was alsosacred and essential to people’s spiritualdevelopment. In all those societies, it is veryrare to find a vacuum in both the legal, orcustomary arrangements, as regards theassignment of land titles and land rights—whether these are expressed formally orinformally.

Once the Conquistadores realized that therewas not much gold to take away from theAmericas, they clearly saw economic andsocial power, and substantive material gains,from the land. This created a major pressure toassign rights in forms and manners that wouldbenefit those Conquistadores. Whole valleysand huge chunks of nations were assigned toindividuals, without respect for existing

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customary laws, rules and regulations. Theycreated and, at the same time, superimposedtheir own colonial system of legislation on thetop of what was already a sophisticated andeffective system of land tenure.

Thus, these societies experienced an impositionof one system of governance over another.Physical force and non-discriminating forms ofenforcement were the foundations of theConquistadores’ new forms of governance.

In today’s reality, we know that the peoplesfrom these nations have not vanished, norhave their ways of empowerment, assignmentof rights, or other forms of institutionalarrangements vanished either. Therefore, wewitness in many countries a great deal ofcomplexity in relation to the access,management, usufruct and control of landassets.

As the political systems of some countries arenow becoming more democratic or open tolistening and embracing the views ofminorities (e.g., power, ethnic), these issues ofland rights have clearly come up to the surfaceof the political life. Issues of sovereignty,customary law and, simply, of traditionalnorms—from the national to the householdlevels—are being put on the table of what isclearly a complex social dialogue. In someinstances, these dialogues have even causedthe demotion of several presidents in LatinAmerica.

The paper in front of you is an excellent sourceof basic information, sharing an easy andpractical understanding about land tenure/titling, in the same sense discussed above. Inaddition, the paper represents a genuineattempt to:

• First, recognize the existence of thesecomplex land rights and land titlingsystems across Latin America, oftenignored in the public debate, unless policymakers confront an immediate problem.

• Second, study the content at the countrylevel, so that international experiences andcomparisons may spark a move towardspolicy coherence and legislation that willultimately benefit indigenous peoples andthose poor people who live from the land.

• Third, demonstrate that land is not only aphysical asset with some economic andfinancial value, but an intrinsic dimensionand part of peoples lives and beliefsystems. The end is not necessarily amaterial product or a level of economicproductivity.

The phenomena addressed in this paper arenot unique to the Americas. In my ownexperience of several years working in theconfines of the Sahelian countries’ agriculturalsector (e.g., Senegal, Mali, Niger, Gambia), thejuxtaposition of customary arrangements,colonial arrangements, and post-colonialarrangements was really evident. The lack ofcoherence in the land tenure and land titlingpolicies in the mid-eighties constituted one ofthe main sources of poverty—particularly forwomen—and of unsustainable agriculturalpractices. Many agricultural programs andstrategies failed because of issues of titling andtenure. Development institutions tried manyforms of interventions: agrarian reforms,resettlement programs, privatization of land,and the like. The performance of many of theseinterventions was mixed.

Titles over the land represent also a form ofproductive asset that determines the cash

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income of the owner and her/his ability tohave access to credit. In most societies, havinga title over a good piece of the land is a majorsource of credit collateral. Thus, if you do nothave land, then your access to credit is verylimited. It was, in fact, out of these titles overthe land that many landlords (absentee ones)became bankers and industrialists. For thepoor, even tenure and titling of a small plot inrural, or urban, areas represents a major sourceof welfare for her/his and future generations.The market prices value mainly (not always)what is formally owned.

Not less important is the land titles’ role in thedevelopment of individual and social identity.Land is a source of social power and social self-worth. In many societies, part of the land hassacred meaning and great spiritual value.Thus, whenever governments or the privatesector move people away, or alienate them,from those sacred sites, this process is almostalways accompanied by social disruption,instability and conflict.

While for landlords the land is just a produc-tive asset, for indigenous peoples it is muchmore than that.

If the main aim of development institutions isto alleviate poverty, it is clear that issues ofland tenure and land titling in the context ofindigenous peoples cannot be overlooked.Thus, any future debate on land titlingdemands focus on the fact that those titles area significant instrument to take people out ofpoverty and a major source of economicgrowth, particularly in agrarian economies.

However, this is not all. There is also a humanrights dimension to all of the above. And it isessential to understand this human rightsdimension of land rights, not just as a legalobligation, but as a key element of economicand social development. Land laws in bothdeveloped and developing countries haveaffected the poor and the powerless the most,particularly women. These rights over the landaffect other human rights; e.g., The Right ToFood (security of food supplies), The Right ToHousing (capacity to own a house), The Right ToHealth (the use of medicinal plants) and TheRight To Development, to name a few.

This paper should be read by developmentpractitioners and policy makers.

Alfredo Sfeir-YounisSenior Adviser to the Managing Director’s Office

The World Bank

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Preface

Over the past several years, the internationalcommunity has become increasingly aware ofthe vital importance of the legal recognition ofindigenous land rights to the cultural survival,economic development and self-determinationof indigenous peoples and their communities.As far back as 1981, for example, the UnitedNations Subcommittee on Racism, RacialDiscrimination, Apartheid and Decolonisationsponsored a special International NGOConference on Indigenous Peoples and theLand in Geneva, Switzerland which wasattended by over 300 indigenous leaders andNGO representatives from all parts of theworld. The purpose of the meeting was tobring to the attention of the internationalcommunity the disparate legal, political andeconomic conditions under which indigenouspeoples lived and their struggles to survive asculturally distinct peoples and communities.“The root cause of the crisis,” the statementwhich resulted from the International NGOconference declared, “is the denial of the right of[indigenous peoples] to their land. Their land andresources are plundered by vested interests andparticularly by transnational corporations seekingmaximum profits. The constant grabbing of moreof their land and the denial of self-determination isdestroying their traditional value systems and thevery fabric of their societies.” (World Federationof Democratic Youth, 1981, p.10).

A year following this conference, in 1982, theUN Human Rights Commission’s Sub-

Commission on Prevention of Discriminationand Protection of Minorities established aspecial Working Group on IndigenousPopulations, the purposes of which were toreview current national legislation in relationto the human rights and fundamentalfreedoms of indigenous peoples andrecommend new international standards forthe recognition and protection of indigenouspeoples rights. From the beginning, the issueof indigenous land rights was on the agenda ofthe UN Working Group, and during the 1985session of the Working Group, a group ofindigenous leaders from the Amazon region ofSouth America focused particular attention onthe collective rights of indigenous peoples totheir lands, territories and natural resources.Jose Uranavi, the President of the newlyformed Central Organization of IndigenousPeoples and Communities of Eastern Bolivia(CIDOB) and representing the CoordinatingCouncil of Indigenous Organizations of theAmazon Basin (COICA), related the followingto the members of the UN Working Group atthe 1985 meeting:

Our defense of the land and natural resourcesis for the cultural and human survival of ourchildren, and is the foundation of a moral secu-rity for peoples who have different languagesand customs… We indigenous peoples think andplan in terms of the territory, not only the in-dividual plot; in this way, we assure the access

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of the community to the diverse resources ofthe forest (wood, soil appropriate for agricul-ture and cattle, and wild fauna)… For us, thefirst thing is to secure our land whichbelongs to us by right, because we are the trueowners of the land and natural resources. Weindigenous peoples know that without landthere can be no education, there can be no healthand there can be no life. —Uranavi, 1985, p. 20

Continuing along a similar path, in the secondhalf of the decade of the 1980s, theinternational environmental community beganto acknowledge the increasing significance ofindigenous peoples’ traditional knowledge andland use practices to the new notion of“sustainable development.” The WorldCommission on Environment andDevelopment, for example, conductedconsultations with indigenous leaders fromthroughout the world and in its well-known1987 report, Our Common Future, highlightedthe great loss to humanity posed by thedisappearance of indigenous peoples and theirtraditional knowledge and experience. “Thestarting point for a just and humane policy forsuch groups,” the report of the WorldCommission wrote in a section titled“Empowering Vulnerable Groups”:

. . . is the recognition and protection of theirtraditional rights to land and the other resourc-es that sustain their way of life—rights theymay define in terms that do not fit into stan-dard legal systems. These groups’ own insti-tutions to regulate rights and obligationsare crucial for maintaining the harmony withnature and the environmental awareness char-acteristic of the traditional way of life. Hencethe recognition of traditional rights must gohand in hand with measures to protect the lo-cal institutions that enforce responsibility in

resource use. And this recognition must alsogive local communities a decisive voice in thedecisions about resource use in their area.

—World Commission on Environmentand Development, 1987, pp. 115–116

Finally, in 1989, the International LaborOrganization (ILO), which at the time was theonly UN agency with a special convention inrelation to indigenous peoples, revised itsConvention 107 of 1957 and created a newConvention (ILO Convention 169) whichcountered the “integrationist” or“assimilationist” philosophy of the previousconvention and called for respect for both thecultural integrity of indigenous peoples andtheir communities and for their co-participation in national society anddevelopment decision-making. Land rights,which assumed an important role in bothconventions, are especially highlighted in thelatter convention.

ILO Convention 169 states that the term“indigenous lands” should be conceived as thetotal environment of the areas that indigenouspeoples occupy and use. It also defines theconditions for compensating indigenouspeoples for the exploitation of subsoil wealthcontained on their lands, and calls for theparticipation of indigenous peoples in theutilization, administration and conservation ofnatural resources contained on such lands.(See: ILO Convention 169 on Indigenous andTribal Peoples in Independent Countries, 1989.)

All of the above provides an internationalperspective for understanding the significanceof the current paper by Colombian lawyer andindigenous rights specialist Roque RoldánOrtega on the current situation of indigenous

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land rights in the constitutions, legislativeregimes and administrative institutions ofLatin American countries. Roque RoldánOrtega is eminently qualified to write on thissubject given his several decades of experienceas the head of the Office for Indigenous Affairsof the Colombian Agrarian Reform andColonization Institute (INCORA), his positionas Director of the General Office of IndigenousAffairs of the Colombian Ministry of theInterior, and his founding and leadership of thenon-governmental Center for IndigenousPeoples Cooperation (CECOIN) in Bogota in1985.

Roque Roldán Ortega has played anhistorically important role in the recognitionand titling of numerous indigenous resguardosin his native Colombia. He has also providedactive and critical support to numerousindigenous and Afro-descendant organizationsin their successful struggle to reform theColombian Constitution in 1991 and toproduce post-Constitutional legislationprotecting the land, territorial and naturalresource rights of both indigenous peoples andAfro-Colombian populations. Background tothis experience is contained in his book,Indigenous Peoples of Colombia and the Law —A Critical Approach to the Study of the Past andPresent, published in English by the GaiaFoundation, COAMA and the ILO in 2000.

Roque Roldán Ortega also has had extensiveexperience in providing technical advice in thearea of indigenous legislation andadministrative procedures relating toindigenous land regularization to several otherLatin American governments. He has alsoworked as a consultant with such

international agencies as the ILO, theOrganization of American States, the WorldBank, and numerous bilateral agencies inreviewing legislative reforms relating to therecognition of indigenous lands andrecommending changes in administrativeprocedures for the more efficient and justregularization and titling of such lands. He isalso currently involved in a very importantproject sponsored by the COICA in preparinggeneral guidelines for indigenous landregularization and natural resources controlthroughout the lowland regions of SouthAmerica.

From the perspective of the World Bank,Roque Roldán Ortega’s paper is also importantbecause over the past decade, and especiallysince the introduction of the World Bank’sOperational Directive on Indigenous Peoples in1991, the World Bank has been involved infinancing several land administrationprograms in Latin American countries, manyof which contain indigenous landregularization components. Both the originalWorld Bank Operational Manual Statement on“Tribal Peoples in Bank-financed Projects”(OMS 2.34) and its current OperationalDirective on “Indigenous Peoples” (OD 4.20)contain special directives for protecting theland rights of indigenous peoples. The latterdocument, in fact, states under the section onthe requirement for Borrowers to prepareIndigenous Peoples Development Plans that“when local legislation needs strengthening,the Bank should offer to advise and assist theborrower in establishing legal recognition ofthe customary or traditional land tenuresystems of indigenous peoples.” It also notesthat “where the traditional lands of indigenous

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peoples have been brought by law into thedomain of the state and where it isinappropriate to convert traditional rights intothose of legal ownership, alternativearrangements should be implemented to grantlong-term, renewable rights of custodianshipand use to indigenous peoples.” Finally, itstates in the same paragraph that “these stepsshould be taken before the initiation of otherplanning steps that may be contingent onrecognized land titles.” (See OD 4.20,paragraph 15 (c), 1991.)

In the year following the introduction of OD4.20, Alaka Wali (an anthropologist who haddone fieldwork among the Kuna Indians ofPanama) and I published a desk review of 13World Bank-financed projects undersupervision or preparation which containedspecial land regularization programs forindigenous populations in lowland SouthAmerica. The review looked at theachievements and operational problems ofthese programs, especially in countering thepotentially negative effects of roadconstruction, land settlement and resourceextraction activities on the lands, naturalresources and cultures of forest-dwellingindigenous groups in several South Americancountries. One of the major findings of thisreview was that although these landregularization programs were instrumental inphysically demarcating and in some casescollectively titling large areas of indigenouslands, they also contained many outstandingproblems especially in terms of the nature oflegal frameworks, procedural problems inregularizing such lands followingdemarcation, and follow-up activities in termsof controlling land invasions and protecting

the natural resources contained on such lands(see Wali and Davis, 1992).

Since the publication of this report, there havebeen numerous other projects financed by theWorld Bank which contain indigenous peoples’land regularization programs or are stand-alone land administration projects targeted atindigenous peoples. To date, there have beensome evaluations of individual projects,including one very important review done byEnrique Sánchez Gutiérrez and Roque RoldánOrtega of a Bank-financed land regularizationprogram for indigenous and Afro-descendantcommunities on the Pacific Coast of Colombia(see Sánchez Gutiérrez and Roldán Ortega,2002). However, there has still not been asystematic comparative study of the lessonslearned from the entire portfolio of indigenousland regularization programs financed by theWorld Bank since the introduction of OD 4.20in 1991.

In all of the above senses, the present report byRoque Roldán Ortega poses a special challengein terms of the need both to better understandthe current legislative frameworks of LatinAmerican countries in relation to indigenouspeoples land rights, as well as to providesupport for the sorts of actions whichinternational donors have or could be taking toassist these countries in actually implementingsuch legislation. In taking up this challenge,the World Bank would not only be responsiveto the international focus upon indigenouspeoples land rights which was first highlightedby international agencies in the decade of the1980s and is contained in its own operationaldirective in relation to indigenous peoples, butit would also assist its borrower countries in

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preparing the legal and institutional conditionsfor the cultural survival, ethno-developmentand protection of the lands and naturalresources of indigenous peoples and theircommunities in the years ahead. The currentreport by Roque Roldán Ortega provides an

excellent historical framework for such futureanalytical and operational work on indigenousland and natural resource rights and is worthyof close attention by the World Bank and otherinternational development agencies.

Shelton H. Davis, Ph.D.Senior Fellow, Center for Latin American Studies,

Edmund A. Walsh School of Foreign Service,Georgetown University, Washington, DC

Previous position: Social Sector Manager, LatinAmerica and the Caribbean Region, World Bank

References Cited

Roldán Ortega, Roque, Indigenous Peoples ofColombia and the Law: A CriticalApproach to the Study of Past and PresentSituations (Bogota, The Gaia Foundation,COAMA and ILO, 2000).

Sánchez Gutiérrez, Enrique and Rolda Ortega,Roque, Titulación de los TerritoriosComunales Afrocolombianos e Indígenasen la Costa Pacífica de Colombia(Washington, Banco Mundial, 2002).

Uranavi, José, “Bolivia: Statement to the UNfrom the Indigenous Peoples of EasternBolivia,” IWGIA Newsletter (Copenhagen),Numbers 43 and 44, September andDecember 1985, pp. 15-22.

Wali, Alaka and Shelton Davis, ProtectingAmerican Indians: A Review of World BankExperience with Indigenous LandRegularization Programs in Lowland SouthAmerica (World Bank, Latin America andthe Caribbean Technical Department,Regional Studies Program, July 1992).

World Commission on Environment andDevelopment, Our Common Future(Oxford, Oxford University Press, 1987).

World Federation of Democratic Youth, ReportPrepared for the International NGOConference on Indigenous Peoples and theLand, Geneva, Switzerland, 15-18 1981.

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Acknowledgments

The idea of this report came from ClaudiaSobrevila, Senior Biodiversity Specialist of theWorld Bank’s Environment Department. Thepaper was prepared by the author in Septem-ber 2003. We would like to recognize thegenerous help of Karen Anne Luz from theEnvironment Department, who synthesizedthe original report provided by the author and

for her comments during various versions ofthe document. We would also like to thank thecolleagues that provided constructivecomments to the manuscript: Anthony B.Anderson, Tania Carrasco, Judith Lisansky,Kathy MacKinnon, and Alberto Ninio. Thestudy was funded by the EnvironmentDepartment.

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A Short History of IndigenousLegal Treatment in Latin America

The official policy of all the Latin Americanstates towards their indigenous populationsfrom independence until at least the 1930s wasone of assimilation. They used a variety ofcoercive means to obtain this goal, from forcedconversion to Christianity and compulsory useof Spanish to outright war. State authoritieswere particularly keen to abolish the institutionsof collective territorial property and communalgovernment of the native peoples of theAmericas.

The justification for this strategy of eliminatingnative peoples as separate entities was nationalunity. Its philosophical underpinning was aconception of indigenous societies as savage andbackwards, inimical to the project of buildingsolid and prosperous national societies based oneconomic liberty and representative democracy.As one republican ideologue put it, nationalunity was only to be found in a societycharacterized by “a single religion, a singletongue, and a single lineage.”

Starting in the 1940s, the relationship betweenLatin American governments and theirindigenous populations began to change. InApril of 1940, the First Interamerican IndigenistCongress was held in the Mexican city ofPátzcuaro, which generated the PátzcuaroAgreement, largely based on the indigenouspolicies of the government of Lázaro Cárdenas.This did not represent a fundamental change inthe strategy of assimilating indigenous peoples;

rather, it signaled a recognition that the mostexpeditious and constructive way to ensuretheir integration into national societies was toprovide better education, technical training, andfinancial assistance to the traditionallymarginalized indigenous populations.

The approval in 1957 of the International LaborOrganization’s Convention 107, which lays outnorms for the protection and integration ofindigenous peoples in independent countries,reinforced the strategic approaches codified inthe Pátzcuaro Agreement. All the independentcountries of Latin America and the Caribbeanratified this convention, thereby incorporating itinto their national legal framework, as well asmaking it part of their internationalresponsibilities. Following the spirit of theconvention, some of the new agrarian lawsadopted by countries in the region under theUS-led Alliance for Progress included modestproposals for focusing attention on thenumerous land claims of the region’s nativepeoples.

The agrarian reforms undertaken widelythroughout Latin America in the 1960’s,although not very successful, did result in thefirst important examples of recognition ofindigenous land claims since the colonial era. Inaddition, the popular mobilization amongcampesinos that accompanied these reformshelped strengthen the indigenous movement inmany countries. As social scientists finally

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discredited the notion that indigenous societieswere stuck in a backwards phase of humandevelopment, the indigenous movementthroughout the region also gained the supportof other sectors of society.

Starting at the beginning of the seventies, thisnew vision of relations between the state andindigenous peoples began to be integrated intonew constitutions as they were adopted by thevarious countries. The PanamanianConstitution of 1972 took the first timid steps inthis direction, while the Peruvian Constitutionof 1979 laid out a clearer vision. Otherconstitutions with a new focus on indigenousissues followed: after waging war against theirindigenous populations, new constitutions inGuatemala in 1985 and Nicaragua in 1987evinced a clearer recognition of indigenousrights; these were followed by constitutionscodifying more progressive indigenous policiesin Brazil (1989), Colombia (1991), Paraguay(1992), Argentina (1994), Bolivia (1995), Ecuador(1998), Venezuela (1999), and Mexico (2001).With the exception of Panama and Nicaragua,all the other countries mentioned above havealso ratified ILO Convention 169, theConvention concerning Indigenous and TribalPeoples in Independent Countries (see Box 1),which updates ILO 107 by recognizing, amongother indigenous rights, the very closerelationship between traditional lands andcultural identity for indigenous peoples.

The situation in other countries of LatinAmerica is mixed. Some, like Honduras andCosta Rica, haven’t recognized indigenousrights in their constitutions, but they haveratified ILO Convention 169. Chile has neitherrecognized indigenous rights in its constitutionnor ratified the convention, yet it has a law thatestablishes norms for the protection anddevelopment of the indigenous population, and

it has created an institution, the NationalCorporation for Indigenous Development(CONADI) to do so. Four other countries—Guyana, Suriname, Uruguay, and El Salvador—have no legal recognition of indigenous rightsas of 2003 when this review was done.

Today, there is substantial variation in thedegree of legal recognition of indigenous rightsacross the Latin American region. Broadlyspeaking, the countries of Latin America can bedivided into three groups, according to theirlegal treatment of their indigenous populations:

Superior legal framework: These countrieshave made a high-level commitment, througheither their constitution, internationalagreements (such as ILO 169) or both, toindigenous rights, and they have followedthrough with a regulatory framework andconcrete actions to ensure those rights,including legal recognition of indigenous lands.This group includes Bolivia, Brazil, Colombia,Costa Rica, Panama, Paraguay, and Peru.

Legal framework in progress: These countrieshave made a high-level commitment, through

Box 1Status of ILO 169 Ratification

Source: ILO website.

Ratified

ArgentinaBoliviaBrazil

ColombiaCosta RicaEcuador

GuatemalaHonduras

MexicoParaguay

PeruVenezuela

Not Ratified

BelizeChile

El SalvadorGuyana

NicaraguaPanama

SurinameUruguay


A Short History of Indigenous Legal Treatment in Latin America

either their constitution, internationalagreements (such as ILO 169), or both, toindigenous rights, but they have not followedthrough with an adequate regulatoryframework, and they generally have not madesignificant progress in recognizing indigenousland rights as the other countries have. Thisgroup includes Mexico, Guatemala, Honduras,Nicaragua, Venezuela, and Argentina.

Deficient legal framework: These countrieshave not entered into any high-levelcommitments on indigenous rights at the legallevel, and they have made little effort torespond to indigenous requests for legalrecognition of their land claims. This groupincludes El Salvador, Guyana, Suriname, andUruguay.

Box 2Typology of Indigenous Legal Regimes

Superior legalframework

BoliviaBrazil

ColombiaCosta Rica

PanamaParaguay

Peru

Legal frameworkin progress

ArgentinaGuatemalaHonduras

MexicoNicaraguaVenezuela

Deficient legalframework

El SalvadorGuyana

SurinameUruguay


Description of Indigenous Land Tenure Regimes in SelectedCountries of Latin America

In this section, we will review the current legalframeworks for indigenous land tenure inselected countries, illustrating the range ofexperience in this issue across Latin America. Inthe following section, we will look more closelyat several countries that are relatively advancedin terms of legally defining indigenous landtenure.

Countries with a Superior LegalFramework

These countries—Bolivia, Brazil, Colombia,Costa Rica, Panama, Paraguay, and Peru—allhave high-level judicial instruments(constitutions or international agreements)recognizing indigenous land rights, as well assome national legal and regulatory frameworkoperationalizing the high-level instruments.These countries provide the best practice modelsfor land legalization, despite their shortcomings.Nevertheless, there are important differencesbetween them, which the following country bycountry discussion will make apparent.

Bolivia

Although it has the largest proportion ofindigenous population in South America, anddespite a powerful popular movement, Boliviaonly recently began to offer legal redress toindigenous land claims. The first measureswere taken as a result of popular mobilization of

the Amazonian and Chaco indigenous groups atthe end of the 1980s and early 1990s, when thenational government issued a series of executivedecrees recognizing some areas as being underindigenous control and possession. Somesectors of Bolivian society regarded thesedecrees as unconstitutional. The constitutionalreform of 1994 contained a clear recognition ofthe special rights of indigenous people andcommunities, including the character as legalincorporation (personería jurídica) of indigenousgroups, their right to full ownership of theirancestral lands, and their autonomy to exercisetheir own traditional forms of internalgovernment and administration.

In 1996, the National Agrarian Reform ServiceLaw was promulgated; along with theregulations later issued for that law, it definesthe institutions and procedures for legalrecognition of indigenous lands. Despiteserious obstacles, caused by the bureaucraticrequirements of the law, budgetary limitations,the country’s political crisis, and opposition tothe delimitation of indigenous lands, Bolivia hasmanaged to recognize some 5.4 million hectaresof indigenous lands to date. The 1996 law,however, was considered flawed by indigenousgroups for several reasons: the technical rulesfor deciding land allocations, for example, led tosmaller areas than the indigenous groupsclaimed, and gave priority to titling agriculturalcolonists on indigenous-claimed land, leading tothe fragmentation of indigenous land claims. A

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mass protest in 2000 led to the correction ofsome of the flawed regulations. Seriousobstacles to indigenous titling remain in Bolivia,including the complexity of the bureaucraticprocedures required for land recognition, aswell as the inability of indigenous communitiesto define their own administrative andmanagement models for their lands.

Brazil

At the beginning of the 20th century, in reactionto the harm inflicted on indigenous groups as aresult of official policies promoting theexploitation and settlement of the country’stropical forests, Brazil adopted constitutionalprovisions aimed at establishing a paternalisticsystem in which indigenous people would beprotected by the state. It is generally believedthat this policy was inspired by a militaryofficer with humanitarian interests, GeneralCándido Mariano Silva Rondón, after whom thestate of Rondonia was later named. A series ofinstitutions devoted to protecting Brazil’sindigenous people were created: first the IndianProtection Service (SPI), around 1911, that wasdisbanded in 1967 when massive corruption inthe agency was exposed; followed by theNational Council for Indian Protection (CNPI)some years later and then the National IndianFoundation (FUNAI) in 1968. In 1988, Braziladopted a new constitution that stipulated thatall indigenous lands in the country would bedemarcated within a space of five years. Article231 of the Brazilian constitution states thatindigenous people have primary, inherent andunalterable rights to their lands theypermanently inhabit and use for productiveactivity, preservation of natural resources andcultural and spiritual well-being. Indigenouslands are the property of the State; however, theregularization process recognizes and

formalizes indigenous rights and specificallyguarantees perpetual usufruct by indigenouspeople of their lands.

In 1995, Brazil adopted new legislationrevamping the process of indigenous landsregularization. This was Decree 1775 whichreplaced the previous set of rules andregulations, Decree 22. The addition of a civiladministrative grievance procedure and a 90day period of contention, during which non-Indians can challenge the identification anddelimitation of indigenous lands, was protestedby national and international NGOs,particularly because decree was retroactive andbecause of concerns that already delimitedlands would be reduced in size. Despite theprotests, the vast majority of claims andgrievances to date against existing indigenouslands have been dismissed , and the primacy ofindigenous rights upheld.

The resulting demarcation and recognition ofindigenous lands has been truly impressive. Intotal, some 103.7 million hectares, or more than12% of the national territory of Brazil, have beenrecognized as indigenous lands, possessed byindigenous groups representing only 2% of thenational population. Serious problems remain,however. Many indigenous lands continue tobe invaded by landless campesinos or miners,and some of the lands that have beenrecognized are tied up in court with legalchallenges from third parties. Another issue ofconcern is that 15 years after the passage of thenew Constitution, the Indian Statute, which is inclear contradiction to the Constitution, remainsin force.

Colombia

In Colombia, the new constitution adopted in1991 was the first to clearly recognize the


Description of Indigenous Land Tenure Regimes in Selected Countries of Latin America

special rights of indigenous peoples. Evenbefore this high-level juridical support toindigenous land recognition, however,Colombia had had an active program ofrecognizing indigenous lands, a product of itsexecution of the agrarian reform laws that werepassed starting in the 1960s. At first these landshad the character of simple provisional reserves;later the concept of indigenous reservations(resguardos) was adopted from the old IndianLaw, which guaranteed the indigenouscommunities full ownership and a high degreeof autonomy in management of their lands.

The Colombian judicial framework grants manyrights to the indigenous peoples, which areaimed at guaranteeing the protection of theirsocial and cultural integrity. In 1989 theColombian Government ratified ConventionNo.169 of the International Labor Organization(ILO) concerning the rights of indigenous andtribal peoples (Law 165, 1994.) The PoliticalConstitution of 1991 defines the Colombiannation as multi-ethnic and pluri-cultural, andadvanced the right of indigenous peoples tomanage the political and administrative affairsof their territories. In addition, indigenouspeoples are defining their own plans for land-use and environmental management, whichprovide the framework for the sustainable useof natural resources in their territories, based ontheir traditional knowledge

The 1991 Political Constitution also opened thespace for the creation of a new territorialdivision within Colombia, the IndigenousTerritorial Entity (ETI). The proposed lawregarding the establishment of the ETIs has beenapproved by the Senate and is currently beingdiscussed in Congress. In the meantime,indigenous authorities in the resguardos arelegally responsible for land-use and social

programs in these indigenous territories, andthey receive state funds for their own health,education and social programs.

In 2001, the Colombian Government presented areform to two articles in the PoliticalConstitution, to guarantee the stability of statefunds for social investment in territorial entitiesincluding indigenous resguardos. Law 715 of2001 was subsequently enacted, to regulate thedistribution of these funds, and their use. Thesame law establishes that indigenous resguardoswill receive a specified percentage of theavailable funding each year, to be used foreducation, health, housing, drinking water andproductive projects.

Costa Rica

Costa Rica does not have specific norms onindigenous peoples in its Constitution, and itonly ratified ILO 169 in 1993. Nevertheless, likeother countries in the region, Costa Rica hashistorically established programs to benefit theindigenous population. In 1973, the NationalIndigenous Affairs Commission (CONAI) wascreated and made responsible for dealing withindigenous demands, including land claims andthe task of “integrating indigenous communitiesinto the process of development.” Four yearslater, the Indigenous Law of Costa Rica (Law6172 of 1977) was issued, which gave moresupport to the territorial claims, separatecultural identity, and administrative autonomyof indigenous groups. It also decreed thatindigenous reserves are inalienable1,imprescriptible2, untransferable3, andexclusively reserved to the indigenouscommunities that inhabit them. Although therehas been serious criticism of the existing legalprotections for indigenous people, and althoughthe state has been working on a new legal



formulation that would be more consistent withILO 169 and current thinking on indigenousrights, Costa Rica has made significant progressin recognizing indigenous lands under theexisting legal framework. Various decisions ofthe country’s Supreme Court have alsocontributed to defining an acceptable degree ofautonomy for indigenous communities inmanagement of their legally-recognized lands.

Panama

The Constitution of 1972, for the first time inPanamanian history, declared that indigenouslands must be given as property, and not undersome type of usufruct arrangement. Using thisdisposition, the Legislative Assembly hasrecognized indigenous lands through a speciallaw for each indigenous group, in which thelegal figure of the comarca or collectivelandholding is created. To date, six comarcashave been created in Panama, covering morethan 20% of the national territory. Each isgoverned by an executive decree, which givesthe indigenous group wide latitude foradministering its lands, under the general rulesestablished in the legislative act creating thatcomarca. Interestingly, Panama has not ratifiedILO 169, although it had previously ratified ILO107 in 1971. Nevertheless, its model of landregularization and indigenous rights isrecognized as innovative and effective,respectful of indigenous autonomy andsupportive of community initiative.

Paraguay

In 1981, Paraguay passed the IndigenousCommunities Statute (Law 904), which gaveindigenous peoples certain rights, including theright of legal incorporation and the right toobtain the land necessary for their survival and

development. In 1992, the country adopted anew Constitution which recognizes the specialrights of the indigenous population andrecognizes them as ethnic groups with aseparate culture identity. One year later,Paraguay ratified ILO 169.

Like other constitutions in Latin America, theParaguayan Constitution gives indigenouslands the attributes of being inalienable,unmortgageable4, and imprescriptible. Theconstitution and the Indigenous CommunityLaw also guarantee indigenous groups a highdegree of autonomy in the management of theirlands and conduct of their internal affairs.Unfortunately, these general laws have not beensupported by a body of regulations that definesprecisely what powers the indigenouscommunities have, resulting in the potential forconflict between the communities and thenational government and its specializedagencies.

In practice, experience with the implementationof these higher-level legal norms has beenmixed. With the passage of the IndigenousCommunities Statute, the state created theParaguayan Indigenous Institute (INDI), adependency of the Ministry of Defense; INDIhas wide powers to enforce the guarantee ofindigenous rights, including land rights. Onland rights, INDI acts in close collaboration withthe Institute of Rural Wellbeing (IBR), theagrarian reform agency in Paraguay. INDI hasreceived some financial support from thegovernment, as well as from some churches andhumanitarian agencies. Nevertheless, exceptingfor some small areas that indigenouscommunities have managed to retain over theyears, the lands they claim have to be purchasedfrom current owners, at high cost; if the ownersare not interested in selling willingly, they must



be expropriated by an act of Congress. A recentstudy showed that in the Eastern Region of thecountry, where according to the law thecommunities require a minimum of 240,000hectares, only slightly more than 66,000 hectareshad been passed to them by 2002; in theWestern Region, where they should have at least1.2 million hectares, they have only been givenabout 972,000 hectares. This same study showsthat after an unsuccessful attempt on the part ofthe government in 2002 to reduce INDI’sfunctions and programs, its budget and staffwere cut. The resulting situation is even moreproblematic for the indigenous communities,since some of the land that has already beengiven to them has not yet been fully paid for,and INDI’s current insolvency could precludefinalization of the payments.

Peru

Peru has a long and rich legislative history infavor of indigenous rights, and in particularland rights. The constitutional provisions inPeru that recognize indigenous rights areprobably the earliest in the Americas. Thecountry also ratified ILO 107 and, in 1994, ILO169. It was also the first country to adoptspecial legal regimes for the governing ofindigenous communities, in the 70s and 80s.The first Law of Native Communities wasadopted in 1974; a later law on the same topic isstill in force. The 1979 Constitution recognizedindigenous lands as inalienable, unmortgage-able, and imprescriptible; the currentConstitution (1993) represents a step backwardon this issue, weakening the legal treatment ofindigenous lands by making them subject tobeing bought and sold. Despite seriousobstacles, gaps, and ambiguities in thetreatment of different indigenous issues,including the land legalization model and the

internal governance of indigenous communities,the relatively long and rich experience of Peruin this area is worth close examination.

Countries with a Legal Framework inProgress

These countries have made a high-levelcommitment to indigenous rights, in theirconstitution or the adoption of internationallegal agreements or both, but they have notfollowed through with an adequate regulatoryframework. Despite this, they offer someinteresting insights into the process of landregularization. The countries included in thissection are Ecuador, Guatemala, Honduras,Mexico, Nicaragua, and Venezuela.

Ecuador

In 1998, Ecuador approved its currentconstitution and at the same time ratified ILO169. Like the Venezuelan Constitution (seebelow), the Ecuadorian Constitution guaranteesa wide gamut of indigenous rights; as inVenezuela also, the Ecuadorian Constitutionuses the future tense to refer to indigenousrights, which seems to imply that further actionby the national legislature is necessary in orderto fully establish those rights. Even beforeapproving the new Constitution, Ecuadormanaged to regularize a significant extension ofindigenous lands, utilizing the existing agrarianlegislation. Because of the lack of specificindigenous procedures for land recognition,these lands were titled not to legally recognizedethnic groups or communities, but rather usingwhatever form of organization, or lack oforganization, the groups had at the moment thetitles were granted. Thus, indigenous landshave been titled to individuals, cooperatives,Centers (“Centros”) or Associations of Centers



(Centers are an organizational form introducedby religious missionaries among someindigenous groups), Communes (a legal figureestablished by several laws in 1937,characterized by communal ownership), andethnic territories. The only one of these that hasany relationship to the indigenous tradition isthe Commune, but this was only used in thehighlands, and not in the Amazon, where thevast majority of the titled land was located.

The lack of legal norms associated with thetitled entities led to the application of the CivilCode provisions for communal property beingapplied to these titles. While the newConstitution says that indigenous lands areinalienable and cannot enter into the freemarket in property, it appears to require that thecharacteristic of inalienability be grantedthrough a subsequent law passed by thelegislature, such that all the lands that havebeen titled would need an additional legalaction in order to become inalienable. As can beseen from this analysis, the Ecuadorianlegislature urgently needs to issue the lawsnecessary to support the constitutionaldeclarations on indigenous rights, including notonly the specification of an appropriateprocedure for titling indigenous lands, but alsoa legal framework for the incorporation ofindigenous groups and a model for landmanagement after lands are titled to thosegroups.

Guatemala

The Constitution of 1985, which is still in force,recognizes the right of indigenous communitiesto the lands they have historically utilized andproclaims the responsibility of the state toprovide state-owned lands for those groups thatneed lands “for their development.” In practice,

neither the constitutional provisions nor theratification of ILO 169 by Guatemala in 1996 hasled to much progress on this issue. Guatemalahas relied on its body of agrarian laws todistribute lands to indigenous communities,which has led to land being granted in ahodgepodge of forms, depending on theparticular law being used or the governmentagency involved. Because of this, some landshave been issued under individual titles, whileothers have been titled as “collective agrarianpatrimony” or in the form of cooperatives.Since most of these titles required payment bythe new title holders, the titles were precarious,subject to being revoked if the payments werenot made on time. It appears that very fewindigenous families were able to obtain theirdefinitive titles in the end, after completingpayments spread out over a period of 10 to15years.

These lands distributed under the agrarianreform laws have not afforded indigenouscommunities the ability to manage theirterritories and their internal affairs according totheir own traditions, as opposed to civil law.For the vast majority of the communal landsthat the indigenous communities still control,they have only very precarious titles, or no titlesat all. The only alternative model for legalpossession of their land is in the form of a non-profit civil association under the Civil Code, amodality that exposes them to all the risks ofprivate property and of the free market in land,which can be brought about at the behest of anyone of the members of the association.

In the 1995 peace accords that put an end to thecivil war in Guatemala, the governmentcommitted itself to forming a commission withindigenous representation to proposeprocedures and institutional mechanisms for



guaranteeing indigenous land tenure, as well asdefining the use and management of naturalresources on indigenous lands. While themembers of the commission have been named,there has been little additional progress to date.

The 1999 Law of the Land Fund, according to itspreamble, was intended to operationalize thepromises about indigenous land titling made inthe peace accords, but in effect it has only threedispositions that concern the indigenouspopulation: it promises technical assistance toindigenous groups in obtaining legalincorporation (personería jurídica); it promisesthat the Land Fund will not to be applied tolands held by indigenous groups; and it alsoprotects indigenous sacred and ceremonial sitesfrom acquisition under the program. It doesnot, however, define procedures for indigenousland legalization, leaving Guatemala withoutany specific legislation doing so, despite thecommitments in the Constitution and the peaceaccords.

Honduras

In its Constitution of 1982, Honduras recognizesthe responsibility of the state to “establishmeasures for the protection of the rights andinterests of the indigenous communities thatexist in the country, and especially of the landsand forests in which they live.” TheAgricultural Sector Modernization andDevelopment Law (Decree 31-92), passed in1992, promised to title community lands toindigenous communities for free, but thisprovision has never been applied.

In 1995, Honduras ratified ILO 169, and in 1997the state decreed the “creation of a commissionto prepare a draft law to regulate issues relatedto the indigenous and tribal populations.”

Nevertheless, there has been very little progressin recognizing indigenous land rights. Whilesome land has been adjudicated to indigenouscommunities in the last few decades, this hasbeen done using the general agrarian reformlaws, and not under a special land regime bettersuited to their traditional landholding practices.Serious contradictions between the agrarianreform laws and other regulations, especiallythose governing forests and environmentalissues, have further slowed and weakened anyprogress toward adopting a real policy torecognize indigenous territorial rights in thecountry. The very few properties that have beenadjudicated in favor of indigenous peoples,through the efforts of missionaries or, morerecently, under the agrarian reform laws, havebeen granted as regular property under the civilcode, which impedes the autonomy of thecommunities in managing their lands.

Mexico

Historically, Mexico has been a leader onindigenous policy-making in Latin America.The 1917 Constitution, product of the firstrevolution of the 20th century in 1910,guarantees a wide range of rights to campesinos,within a framework of communal lands. Article27 of the original text recognizes “communalproperty for tribes and peoples who de facto orde jure will retain their communal status, andwho will continue to enjoy in common the useof the lands, forests, and waters that belong tothem or that have been returned to them underthe law of 1915.” Later, the concepts of tribesand peoples were replaced by the concepts ofejidos and communal populations which are stillin effect today. From then on, the ejido was theofficial form of collective production ofcampesino communities, within which ethnicitywas obscured.



From the beginning of the 19th century, there isdocumentary evidence of indigenous groupsthat insisted on the return of their ancestrallands and the recognition of their own forms ofcommunal property. In 1990, Mexico was thefirst Latin American country to ratify ILOConvention 169. In 1992, Article 27 of theConstitution was reformed, allowing theparcelization and privatization of the ejidos, andthe fourth Article recognized the multiculturalcomposition of the country’s indigenouspopulation

In 1996, the Agreements of San Andrés weresigned in Chiapas, and both sides of thatconflict committed to the construction of a newnational compact defined by the culturaldifferences between Mexico’s citizens.Nevertheless, the expectations of the indigenouspeoples were not fulfilled. The proposed law on“Indigenous Rights and Cultures,” sent toCongress in 2001, was substantially modified,especially in terms of the autonomy,responsibility, and rights of the indigenouspeoples. The Law characterizes indigenouspeoples as entities of public interest, rather thanlegal entities, and it does not define importantconcepts such as territory, habitat, and lands. Italso maintains the reform of Article 27, whichallows for the alienation of ejidal lands.

Nicaragua

In 1987, Nicaragua made great strides forwardin formal recognition of indigenous land rightson the Atlantic Coast with the passage of a newconstitution and the Autonomy Law (Law 28 of1987). These legal instruments granted politicaland administrative autonomy to the AtlanticRegion of Nicaragua, where the majority of theindigenous population lives, and theycommitted the national government to

recognizing the indigenous claims to the landthey have traditionally occupied. Sixteen yearslater, Nicaragua has not recognized more than5% of the lands claimed by indigenous groups.Although the Autonomy Law definesindigenous lands as inalienable, intransferable,unmortgageable, and imprescriptible, therecognition of indigenous lands that hasoccurred has been carried out under the normalagrarian laws, without any special regimen thatintegrates traditional indigenous usage andnorms. While this may not affect theintangibility5 of these lands, it clearly puts theindigenous groups in a vulnerable position inwhich they could easily lose their lands, eitherde jure or de facto. In December 2002, after along struggle by the indigenous groups, theNational Assembly approved a law which bothdefines the procedures for recognizingindigenous lands and provides a model for theadministration and management of thoseterritories. It is not clear whether there ispolitical will in Nicaragua at this point toenforce this law.

Venezuela

Venezuela adopted its current constitution in1999, and it gives full recognition to indigenousrights. In 2002, the country also ratified ILO169. Before this time, the state had recognizedindigenous lands under the usual proceduresfor titling lands to campesinos. These lands weregiven in collective form, but since no legalrecognition of indigenous groups existed, theywere given to groups of particular individualsby name. In the absence of legislation providingfor their management, these lands came underthe Civil Code, and this imposed seriouslimitations on their use by indigenous groups.The new constitution, like the Ecuadorian,describes indigenous rights in the future tense,



leading to the conclusion by some that theserights must be embodied in specific laws by thenational legislature before taking effect, and todate this has not happened. The Law forDemarcation and Guarantee of Habitat andLands for Indigenous Peoples, passed in 2001,did not do so, although it did define someconcepts and new strategies of the state onindigenous issues. Currently, the NationalAssembly has before it a new draft law, calledthe Law of Indigenous Peoples, introduced byindigenous legislators in November of 2002,which would define not only the procedures forrecognizing indigenous lands, but alsoindigenous autonomy, the authority ofindigenous representatives and theirrelationship to the state, as well as providing theadministrative model for the legally recognizedindigenous territories.

Countries with a Deficient LegalFramework

These countries have not entered into higher-level agreements on indigenous land rights, andthey have made little or no effort to respond toindigenous demands for legal recognition oftheir land claims. They include El Salvador,Guyana, and Suriname.

El Salvador

El Salvador is a good illustration of a country inwhich the legal framework protectingindigenous rights is tenuous. The 1983Salvadoran Constitution establishes equaltreatment for all people, regardless ofnationality, race, gender, or religion. TheConstitution also recognizes the existence ofindigenous national languages which should berespected and protected by law. It also statesthat “the artistic, historic, and archaeological

treasures of the country form part of theSalvadoran cultural heritage, which is placedunder the protection of the state and is subjectto special laws for its conservation.” There is noexplicit recognition in the Constitution of theexistence of ethnic groups, indigenous peoples,or separate cultures as part of the nationalpopulation, but the clauses mentioned abovecould help form a vague case for legalacceptance by the Salvadoran state of variouscultures within the national polity. El Salvadordid ratify ILO Convention 107 in 1958, but thisdocument alone is not sufficient to support apolicy of land recognition for indigenouspeoples.

Guyana

Guyana’s 1980 Constitution, like El Salvador’s,contains general assurances of the importanceof the different communities that comprise thenational population, and along with its 1996constitutional reforms and Legislative Act #11 of2000, establishes the obligation of the state tocreate a Commission for Ethnic Relations. TheCommission’s responsibility is to fightdiscrimination against and promote thedevelopment and equality of opportunity forpersons belonging to the country’s minorityethnic groups. Several additional laws—theAmerindian Law of 1951, amended in 1976 andsubsequently, and the Law of the AmerindianLands Commission, passed in 1966—didestablish legal recognition of indigenous landrights. However, the procedures, requirements,and institutions that these laws establish are socumbersome, incomplete, and ambiguous, andgrant so much discretion to the executivebranch while leaving the indigenous groupswithout any ability to intervene in the process,that in practicality they have had very littleeffect. Guyana has never passed the laws



required to establish the above-mentionedCommission for Ethnic Relations, and it has notratified ILO 169.

Suriname

Laws dating to its period as a Dutch colonydecree that indigenous settlements andMaroons6 be respected, but this respect appearsto have been more a question of commoncourtesy than a legal treatment. Surinamegained its independence in 1975, and itsConstitution of 1987, reformed in 1992, does notexplicitly recognize the ethnic or culturaldiversity of the population, although it doesprohibit any type of discrimination.

In 1992, to put an end to an armed uprising thathad divided the country, the government and

rebel groups signed the “Agreement forConciliation and National Development.” Inthis document, the government promised topass a law recognizing the territorial claims ofindigenous groups living in tribal communities,generating the institutions and procedures toensure land titling and land access for bothsubsistence and market-oriented exploitation byindigenous groups. In this same agreement, thegovernment promised to initiate a nationaldialogue on the ratification of ILO 169. None ofthese promises were ever fulfilled, and to date,Suriname lacks even the minimal legalframework necessary to recognize the existenceof its indigenous peoples, let alone to guaranteetheir rights.


Common Problems in the LegalFramework for Recognition ofIndigenous Lands

There are many common threads amongcountries in the preceding discussion, both inthe elements that lead to successful legalframeworks for the support of indigenous lands,and those that lead to less successful outcomes.Common problems affecting the legalframework for indigenous lands in LatinAmerica include the following:

• Failure to develop the body of lawsnecessary to operationalize the rightsguaranteed by the constitution orinternational treaties. For example, inEcuador, while the Constitution guaranteesindigenous land rights, no law has beenpassed to define how they are to be granted.The only course of action available is to usethe Civil Code, which is actually in conflictwith some constitutionally guaranteedcharacteristics of indigenous land, such asinalienability.

• Time-consuming, overly complex, orpoorly conceived procedures for gaininglegal recognition of indigenous lands. InBolivia, for example, the proceduresrequired in order to resolve conflicting landclaims and assign indigenous land rights areextremely slow and burdensome. In thecase of Peru, indigenous groups seekingtheir lands must first be legallyincorporated, a procedure that can itselftake as long as gaining the recognition of theindigenous territory.

• Imprecision in the writing of indigenouslegislation. In many cases, the legislationuses terms that are not defined, and whichare imprecise in meaning, or to whichdifferent definitions have been given indifferent cases. Examples of this probleminclude the use of the concept of“autonomy” and the mention of“renewable” and “non-renewable naturalresources,” all of which can be interpretedin various ways.

• Failure to carry out adequate consultationwith indigenous communities. While afew states, such as Ecuador, Colombia, andPeru, have tried to define participation in ameaningful way, most states have notengaged in meaningful consultation withindigenous communities over issues thatare in their vital interest. Often consultationis in reality simply the act of informingindigenous representatives of programs thatare already approved and about to begin,without giving them time to study theproposals, inform their own communities,or properly comment on them.

• Lack of legal definition of ownershiprights over, and use and administration of,natural resources in indigenous territories.There is nothing intrinsically difficult aboutprecisely defining the rights indigenouspeoples have over natural resources on theirlands. Nevertheless, in the vast majority of

3



the Latin American countries this legaldefinition is either ambiguous or completelylacking. A contributing factor to thissituation is probably the desire of states notto lose control over the income fromconcessions of valuable natural resources.Where indigenous land rights are notrecognized, rights over natural resource useare unlikely to be legally defined.Conversely, where indigenous land rightsare well defined, such as in Colombia andPanama, indigenous rights over naturalresources have been recognized withoutgreat controversy.

• Lack of adequate legal definition of themanagement of indigenous territories thatoverlap with national parks or otherprotected areas. In many countries, the

areas that harbor the most importantbiodiversity are the ancestral lands ofindigenous peoples. Since the region’s legalsystem cannot recognize two titles to thesame land, there is often a conflict betweenareas that have been declared some type ofprotected area by the national government,but which are claimed as ancestral territoryby indigenous people. While a clearsolution would be to recognize indigenousland with restrictions that would preserveits biodiversity values, states have beenreluctant to do so, perhaps because, asmentioned above, they fear losing control ofthe invaluable natural resources of thoseareas. Nevertheless, recently Colombia andBolivia have made some progress towardsresolving these contradictions, which giveshope that they are not insoluble.


Case Studies in Indigenous LandTenure and Its Implications forNatural Resources Management

In this section, we will focus in on four of thecountries with superior legal frameworks forindigenous land tenure—Colombia, Costa Rica,Panama, and Peru—and examine how thediffering bodies of law in each countrycontribute to or undermine the ability ofindigenous people to manage their naturalresources. The laws governing land rightsrecognition in these countries have several keycharacteristics which determine the degree ofsecurity and authority the indigenous peopleexercise over the land the state has recognizedas theirs. These include the following:

• Land tenure regime: The character of theright over land that has been recognized,which can range from outright (fee simple)ownership through several types ofrestricted ownership to simple use rights(usufruct)

• Territorial recognition: Recognition of landin a form that corresponds to the concept ofan indigenous territory, as defined by ILO169

• Natural resources rights: The sorts of rightsover natural resources ownership,administration, and use granted as aconsequence of the land right

• Tenure security: The degree of security ofthe type of land title

• Autonomy: The amount of autonomy inmanaging their own affairs that is accordedto an indigenous group as a consequence oftheir land rights, including legal recognitionas an indigenous group (personería jurídica),and their ability to use their own traditionallegal and justice systems

• Legal recourse: The legal actions to whichthey have recourse in order to defend theirlands.

These characteristics also shape the ability ofindigenous peoples to participate actively in theconservation of the ecosystems and naturalresources on their lands, and they have beenrepeatedly identified by indigenousorganizations as the key attributes necessary fortheir acting as effective agents of conservation.

Below, we examine each of these characteristicsfor each of the countries and analyze theimplications for indigenous management oftheir lands. This information is summarized inBox 3.

Land Tenure Regime

In Costa Rica, the laws and regulations thattreat the subject of indigenous land tenure referto indigenous lands as “reserves.” Traditionally,in Latin America this word has referred to landsdedicated to a specific purpose, but over whichthe state retains final ownership. During the

4



Box 3Key Characteristics of Indigenous Land Tenure, by Country

Costa Rica Panama Colombia PeruLand tenure regime

Fee simple. Fee simple. Fee simple. Fee simple over agricultural lands; usufruct over forest lands.

Territorialrecognition

Territories,according to ILO 169, but in practice very few of the recognized indigenous areas could be described as territories.

Not legally defined, but in practiceindigenous lands function as territories.

Territories,according to ILO 169. In practice, indigenous lands are recognized as reservation lands; courts have supported full indigenouscontrol as a communalterritorial space.

Territories,according to ILO 169. In practice, indigenous lands do not function asterritories, due to reduced size, limited rights over forest land, and the fact that lands can be bought and sold.

Natural resources rights

Resourceproperty rights not addressed in indigenous laws; forest property rights according to Civil Code; guaran teedexclusive rights in use and administration of resources on their lands.

No clear legal definition. In practice, wide power to administer and use natural resources on their lands.

No clear legal definition, but the courts have supportedexclusive rights of indigenouscommunities to administer and use the natural resources on their lands.

Legally, the state owns all renewable and non-renewableresources.Indigenouscommunitieshave exclusive rights to use resources on their land.Communitiesshareresponsibility for administration of resources with the state.

Tenure security Strong tenure security; no apparentcontradictionswith other laws.

Very strong tenure security, since each comarca is created by its own individual law.

Strong tenure security; noapparentcontradictionswith other laws.

Laws provide for strong tenure security, but in practice,governmentnorms and plans are detrimental to the security of collectivelandholdings.

(continued)


Case Studies in Indigenous Land Tenure and Its Implications for Natural Resources Management

first phase of indigenous land recognition inCosta Rica, it appears that recognized landsfulfilled this traditional role as reserves. ButLaw 6172 of 1977 decrees that indigenous landsare “the property of the communities,” andsubsequent Supreme Court decisions haveconfirmed the full ownership of their lands byindigenous communities.

Similarly, in Panama in the years preceding theConstitution of 1972, recognition of indigenousterritories was carried out under the legalconcept of reserves, and the law made clear thatfinal ownership rested with the state. Some of

the Kuna territories in San Blas were recognizedin this fashion. The 1972 Constitution, however,guarantees indigenous communities “thereservation of the necessary lands, andcommunal ownership of those lands, to achievetheir social and economic development,” and allthe laws that have created comarcas have doneso recognizing full indigenous ownership.

In Colombia, all lands that are recognized toindigenous peoples are recognized in the formof resguardos, or indigenous reservations, a legalconcept that dates to colonial times and whichhas been given full recognition in the

Costa Rica Panama Colombia PeruAutonomy Legal

incorporation of indigenousgroups is recognized;customary law for internal affairs; wide powers to administer their lands and communityaffairs.

Legalincorporation of indigenousgroups with comarcas is recognized; wide powers to administer their lands and internal affairs according to customary law; recognition of comarcas as political and administrativeentities.

Legalincorporation of indigenousgroups is recognized; wide powers to administer their lands and internal affairs according to customary laws;reservations are seen as political andadministrativeentities.

Legalincorporation of indigenousgroups is recognized;formally, wide powers to administer their lands and internal affairs according to customary laws, but in practice the state exercisessubstantialcontrol.

Legal recourse Same rights asother citizens.Variousinstitutionscharged with defendingindigenous rights.

Comarcaauthorities are public servants and can initiate judicial actions.Variousinstitutionscharged with defendingindigenous rights.

Indigenousgroups can initiate judicialactions. Various institutionscharged with defendingindigenous rights.

Same rights as other citizens.Little judicial record of upholdingindigenous rights.Variousinstitutionscharged with defendingindigenous rights.

Box 3 (continued)Key Characteristics of Indigenous Land Tenure, by Country



Constitution. Historically, these reservationlands have always been seen as belonging as acommunal territorial space to the indigenousgroups. The highest tribunals in Colombia haverepeatedly acknowledged the full ownership ofthe indigenous peoples of their lands.

In Peru, the current Constitution clearlyrecognizes the different sorts of property in land(individual, communal, and associative), butdoes not state which type is appropriate forindigenous communities. The first Law ofNative Communities (1974) clearly stated thatindigenous communities would have fullproperty rights over their lands. But the secondLaw, which is still in force, makes an exceptionfor forest lands, which are to be “ceded inusufruct” to indigenous groups, while ultimateownership is reserved to the state.

Territorial Recognition

Three of the four case study countries (CostaRica, Colombia, and Peru) have ratified ILO169, and consequently have formally acceptedthat indigenous groups are to be consideredpeoples and that their lands should berecognized under the legal concept of territoriesas defined in that Convention. While there isnot complete consensus on what this actuallymeans, for purposes of this paper, we considerthat the status of peoples means that indigenousgroups are associations that are perpetual andnot transitory, in contrast to legal associationssuch as cooperatives, which can be establishedand dissolved over time. The legal concept ofindigenous territory is one in which indigenouspeoples retain full ownership of their lands.Territories have the character of beinginalienable, unmortgageable and imprescrip-tible, so that indigenous territories, like thepeoples that own them, are perpetual in nature.

Among our case studies, Costa Rica andColombia have ratified ILO 169, and havefulfilled their obligations vis-à-vis thisinternational agreement by embodying in theirlaws or constitutions language guaranteeingthat indigenous lands are inalienable,unmortgageable and imprescriptible, makingthem virtually untouchable legally. AlthoughPeru has also ratified ILO 169, its currentconstitution gives indigenous people the right tobuy and sell their lands, and although it statesthe imprescriptible character of the lands,limitations occur in the event that lands areabandoned; the territoriality of indigenouslands proclaimed in ILO 169 is not thereforesupported by Peruvian law. Panama is aparticularly interesting case, in marked contrastto Peru. While Panama has not ratified ILO 169,the body of laws that has supported theestablishment of the comarcas clearlydemonstrates that Panama, more than any otherLatin American country, recognizes theterritorial nature of indigenous lands and thestatus as peoples of indigenous communities.This can be deduced from the size of theterritories recognized to them, their authorityover use and management of their naturalresources, and from the autonomy of their self-government within their territories.

Natural Resources Rights

The majority of indigenous peoples living inforest areas depend on the natural resources oftheir lands to fulfill their subsistence needs.Hunting, fishing, gathering of forest products,and small garden plots still form the basis oftheir household economy. The security andpermanence of their control and use of thenatural resource base is actually more importantto most indigenous groups than directownership of the land itself. The demand for



ownership, in fact, derives from the need toensure their access to these resources, so it is ofparticular importance to examine how thedifferent national-level legal regimes handle thisaspect of indigenous ownership.

In Costa Rica, the legal norms do not expresslystate whether the state or the indigenous groupscontrol natural resources on indigenous lands.The Indigenous Law and the Forestry Law seemto indicate, however, that at least the forest itselfwould belong to the titled indigenouscommunities, since titled lands are consideredto be under private ownership, which includesthe ownership of forests on those lands. Theindigenous law has two other key provisionsthat govern natural resources rights. One saysthat “the communities will have full legalpower to acquire rights and contract obligationsof any type,” while the other states that “onlythese indigenous people will be able toconstruct houses, fell trees, exploit timberresources or plant crops for their own benefit.”These provisions demonstrate that theindigenous communities have wideadministrative power over natural resources ontheir land, and that the right to utilize thoseresources is exclusive to their communities.

In Panama, it is not yet clear if the staterecognizes the authority of indigenouscommunities over natural resources on comarcalands. The Constitution defines the goods andrights of the State without referring to forestsand wildlife, which would seem to imply thaton private lands, the titleholder would have theright to those natural resources. The laws thatrecognize the comarcas do not explicitly defineauthority over natural resources, and theOrganic Law (carta orgánica) of most of thecomarcas also do not address this topic.However, the Organic Law of the Emberá-Wounaan comarca in the Darién states that “the

natural resources that exist in the comarca arethe collective patrimony of the Emberá-Wounaan people.” Under the assumption thatthis provision is not meant to give a right to theEmberá-Wounaan that other indigenous groupsdo not enjoy, this statement clearly indicates anintention to grant indigenous communitiescontrol over at least some natural resources.Finally, all the laws and regulations of thecomarcas do grant a high degree of autonomyand authority to the indigenous communities inthe administration, management, and use ofnatural resources on their lands.

In Colombia, neither the Constitution nor thelaws clearly designate whether the indigenouspeople or the state has ownership of naturalresources in indigenous territories.Nevertheless, the Constitutional Court hasinterpreted provisions in the Constitution andILO 169 to conclude that indigenous groups doown natural resources on their lands,unequivocally stating that “the recognition ofthe right of collective property of the resguardosby indigenous people includes their ownershipover renewable natural resources.” In terms ofadministration, management, and use of naturalresources, the Constitution itself givesadministrative authority to the indigenousauthorities, also stating that one of their explicitfunctions is to “ensure the preservation of thenatural resources” on their lands. Additionally,the regulations that establish the managementand governance systems of the resguardosrecognize specific responsibilities of theindigenous authorities in natural resourcemanagement, which should be carried outaccording to the customs and use patterns of thecommunities.

Peru is one of the Latin American countries thatcategorically decrees in its body of law that bothrenewable and non-renewable natural resources



are the “patrimony of the Nation,” and that thestate is sovereign in the use of those resources.Both the Law of Native Communities and theLaw of Campesino Communities give localcommunities exclusive rights to utilize thenatural resources on their lands and a certainamount of decision-making power over thoseresources, but they are severely constrainedwithin the limits of their traditional usepatterns. Formally, the responsibility foradministering those resources is shared betweenthe local communities and the state.

Tenure Security

There are many elements that contribute to therelative security of land tenure, but here we willfocus on two: whether the titles have beengiven following the proper regulations andprocedures for that purpose, and whether thosenorms that govern land recognition are inconflict with other laws or regulations withinthe legal regime of a particular country.

Costa Rica is a simple case in which theresponsibilities and procedures for indigenousland recognition are clearly stated in the body oflaw and regulations. There do not seem to beany serious contradictions or ambiguitiesbetween these responsibilities and proceduresand other laws and regulations, such as couldlead to legal questioning of titles granted toindigenous groups.

In Panama, the Constitution defines as theresponsibility of the state the recognition of theland claims of indigenous groups. The state haschosen to fulfill this responsibility through theemission of a special and specific law for eachcomarca, which has served to make these titlesvery secure. One small area of ambiguity,however, is the lack of definition of rights andresponsibilities when an indigenous area

overlaps with a protected area, which is not anuncommon problem; this could in some casesaffect the rights indigenous groups have inthose areas.

In Colombia, the procedures for recognizingindigenous lands have been defined in a bodyof law dating back to the 19th century andincluding constitutions, internationalagreements, and the various agrarian laws, withtheir special provisions for indigenouscommunities. The legal solidity of theresguardos created under this body of law hasbeen tested in various court cases, and thesecases have been uniformly resolved in favor ofthe indigenous communities. As in the case ofPanama, there is a slight ambiguity in the caseof lands that are both protected areas andindigenous lands; while a number of legaljudgments have clearly established thesupremacy of indigenous titles, indigenousrights over natural resources use in those casesare unclear.

In Peru, as in Colombia, there is a relativelylong history of recognition of indigenous landrights, as described above. In addition to theprocedures that have been defined by the lawfor recognizing indigenous lands, indigenousgroups seeking title must first establish theirlegal incorporation through an entirely separateprocess. These two legal procedures are socomplicated and burdensome that it can takeyears, even decades, to complete them. All thetitles that have been granted to indigenouscommunities in Peru to date have followedthese procedures, which would seem to ensurethat the tenure they grant is quite secure. Buttwo factors mentioned previously may impingeupon the seeming solidity of the titles. One isthe fact that the communities have only userights over forested lands, and not ownershiprights. The other is the open contradiction



between the responsibility for perpetualprotection of indigenous land rights guaranteedby ILO 169 and the provisions in theConstitution of 1993 that allow for thedissolution of any sort of association, includingindigenous groups, which would directlyimpact their land rights.

Autonomy

The autonomy demanded by indigenouspeoples as essential to their being able toexercise their fundamental rights is nowherelegally defined, but the following conditions arecommonly supposed to comprise it:

• The ability of indigenous groups to legallyincorporate, so that they can exercise theirrights and contract obligations as a group

• The ability to use their traditional legalnorms and system of justice

• The ability to decide their own form ofinternal government and to manage theirrelations with external groups

• The ability to participate in analyzing anddeciding on issues that affect the group’sinterests.

In Costa Rica, the Indigenous Law states that“indigenous communities have the legalcapacity to acquire rights and contractobligations of all kinds.” It further adds that“the population of each one of the reservesconstitutes a single community, administered byan executive council, representative of the entirepopulation…The reserves will be governed bythe indigenous people using their traditionalcommunal structures or the laws of the Republicthat are applicable.”

In the case of Panama, all the provisions thatgovern the autonomy of indigenous peoples are

found in the various laws and regulationscreating and administering the comarcas. Theseuniformly recognize the legal incorporation ofthe indigenous communities; the ability of thecommunities to administer their territoriesaccording to their own norms and traditionalauthorities; their right to manage and use theirnatural resources, subject to applicable nationallaw; and their right to participate in initiativesrelated to the improvement and development oftheir communities. Although the laws of thecomarcas and their Organic Laws recognize theapplication of ordinary legal procedures withinthe indigenous territories, traditional authoritiesare recognized as having a role to play in thoseareas of conflict over which they havetraditionally had authority. The comarcas areseen as political and administrative entities tiedto the political structure of the state, and theirauthorities are seen as fulfilling a publicfunction.

In Colombia, by law and by tradition,indigenous communities are seen as inherentlypossessing legal incorporation, without havingto formally apply for that status. To gainrecognition of this status, they simply have topresent documentation of the naming of theirleaders, a document which also serves to givelegal recognition to those leaders. This is truefor all indigenous communities, with or withoutresguardos. Those with reservation lands areacknowledged to have these further rights: theright to choose their own authorities; toadminister and govern their territory throughthose authorities and to manage and use itsnatural resources; to exercise rights and contractobligations in relation to the administration oftheir territories; to maintain relations and enterinto agreements with outside entities, public orprivate, in issues related to the interests of thecommunities; to define their own programs forthe development and improvement of their



communities; and to fulfill those legal functionsthat have traditionally corresponded to them.

In Peru, the Constitution states that “native andcampesino communities have legal existence andincorporation. They are autonomous in theirorganization, their communal work, and the useand free disposition of their lands, as well as intheir economic and administrative functions,within the framework of the law.” The variouslaws that govern indigenous and campesinoaffairs give them ample capacity for decision-making in their internal affairs, including that ofelaborating their own statutes for theorganization and functioning of theircommunities. The regulations of the Law ofNative Communities establish the GeneralAssembly of community members as themaximum authority in those communities andstates that the “method of decision-making willbe consistent with the traditions of thecommunity.” Furthermore, the Constitutiongrants to indigenous authorities the right to“exercise jurisdictional functions within theirterritories in accordance with customary law, solong as this does not violate the fundamentalrights of the individual.”

Although the law apparently gives indigenouspeople in Peru a great deal of autonomy, thereality is somewhat different. The state hascreated such a complex body of regulation ofthese general provisions in the law that in fact itexercises a great deal of control over indigenouscommunities in their internal governance andtheir development initiatives. This is especiallytrue in the management of natural resources inthe indigenous territories.

Legal Recourse

There are various factors that influence thestability of property title to land within any

legal system. In addition to the factorsexamined above in the section on tenuresecurity, another important factor are the legalinstruments or legal recourse to which thetitleholders have access to prevent the violationof their property rights, or that help them re-establish their rights in the case of violation.Below we will examine the situation of legalrecourse in each of the case study countries.

Like all other citizens, indigenous people inCosta Rica have the right to turn to the courts todefend their rights, acting in this case as alegally recognized group and not merely asindividuals. For more than three decades, thestate in Costa Rica has empowered variousinstitutions to act on behalf of indigenouscommunities to protect or promote their rights.Among the most important is the NationalCommission for Indigenous Affairs, or CONAI,which is comprised of the President of theRepublic, different universities, ministries, andrepresentatives of the indigenous communities.One of the several functions of this body is to“guarantee respect for the rights of indigenousminorities, ensuring that the state enforces theindividual and collective land rights of theIndians.”

In Panama, the law gives the indigenousauthorities the right to defend their land rightsthrough legal action. Panama has also createdvarious institutions with the responsibility toensure the rights and defend the interests ofindigenous people. Without doubt, the mostimportant of these is the Indigenous AffairsCommission of the Legislative Assembly, whichoversees the study and design of indigenousland proposals, as well as generally defendingthe fundamental rights of indigenous peoples.Another recently-created institution is theNational Council on Indigenous Development(CNDI), part of the president’s office, which is a



consultative and deliberative body on policiesand public actions regarding indigenous people.

In Colombia, indigenous communities havesome very strong instruments at their disposalto assure the protection of their territorialproperty rights, or to vindicate those rights inthe case that they are violated. These includethe widely-recognized legal solidity of theinstitution of the resguardo; the existence ofefficient legal resources for making claimsthrough the court system, introduced by the1991 Constitution; the strong publicconsciousness about indigenous rights, asmanifested in a series of legal decisions in favorof indigenous rights by the Constitutional Courtover the years; and the recent establishment ofadministrative bodies with responsibility in thedefense of the fundamental rights of indigenouspeoples, including land rights. Nevertheless,the internal conflict within Colombia which hasexisted for decades and has recently worsened,has affected many indigenous areas, and thisputs at grave risk the effective control of manyof the indigenous communities over theirterritories.

In Peru, indigenous communities can utilize thelegal recourse that all Peruvian citizens have todefend their fundamental rights. Peru has alsocreated several institutions specificallydedicated to defending indigenous rights.Among these are the Public Defender, whichhas a special program for the defense of theNative Communities of the Amazon; theTechnical Secretariat of Indigenous Affairs(SETAI), under the Ministry for theAdvancement of Women and Human

Development; and the Indian AffairsCommission, a multi-sectoral group in whichvarious government agencies andrepresentatives of indigenous communitiesparticipate. An important challenge in terms oflegal recourse for indigenous people in Peru isthe limited and unsuccessful experience theyhave had in this field, since there is no history ofthe judiciary upholding their rights in the past.

Conclusions

As the case studies amply illustrate, the legalsituation of indigenous land rights in thecountries of Latin America is highly varied.There is no single pattern of legal rights thatguarantees a successful outcome on the groundfor indigenous land tenure; rather, differentcombinations of rights can yield strong or weakresults, depending on the context and the extentof political will. Nevertheless, the case studiesdo show that legal systems more stronglysupport indigenous land rights when they takeinto account not only land ownership itself, butalso the security of that ownership and whetherit is conceptualized within the framework of theconcept of an indigenous territory. Land rightsare also stronger when the legal systemconcurrently recognizes other rights overnatural resources on indigenous lands and therights of indigenous peoples to manage theirown affairs. Recognizing the land rights ofindigenous peoples then is not a simplequestion of granting title, but involvesaddressing a more complex set of interrelatedlegal, social, and political issues in order to beeffective and secure.


Notes

1. Inalienable: Incapable of being lawfullyalienated, surrendered or taken away byanother.

2. Imprescriptible: Incapable of prescription. (Aproperty which is held in trust is imprescriptible;that is the trustee cannot acquire a title to it byprescription; nor can the borrower of a thing geta right to it by any lapse of time).

3. Untransferable: Incapable of beingtransferred from one person to another.

4. Unmortgageable: Not susceptible of beingmortgaged or given as collateral to accesscredit.

5. Intangibility: Something that cannot betouched.

6. The Maroons are the descendants of Blackslaves brought as plantation laborers fromAfrica to Surinam in northeastern SouthAmerica, starting in the last half of theseventeenth century. The ancestors of themajor Bush Negro tribes escaped from theplantations of coastal Surinam to the forestsof the interior in the late seventeenth andearly eighteenth centuries. There theydeveloped distinctive societies reflecting ablending and adaptation to local conditionsof various African socio-cultural patterns,and incorporating strong Amerindianinfluences in their material culture—forexample, horticultural practices, huntingand fishing techniques, crafts such asbasketry, the use of therapeutic plants, andso forth.


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Documents

Models for Recognizing Indigenous Land Rights in Latin …siteresources.worldbank.org/BOLIVIA/Resources/Roque_Roldan.pdf · Models for Recognizing Indigenous Land Rights in Latin