Who are indigenous peoples?

2. Who are indigenous peoples?

As a consequence, no formal definition has been adopted in international law. A strict definition is seen as unnecessary and undesirable.

The Martinez Cobo Study provided the most widely cited “working definition” of indigenous peoples:

Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system.²⁶

It also notes that an indigenous person is:

… one who belongs to these indigenous populations through self-identification as indigenous (group consciousness) and is recognized and accepted by these populations as one of its members (acceptance by the group). This preserves for these communities the sovereign right and power to decide who belongs to them, without external interference.²⁷

According to ILO Convention No. 169, indigenous peoples are descendants of populations “which inhabited a country or geographical region during its conquest or colonization or the establishment of present state boundaries” and “retain some or all of their own social, economic, cultural and political institutions”.²⁸

While not providing a definition, the Chairperson-Rapporteur of the Working Group on Indigenous Populations has listed the following factors that have been considered relevant to the understanding of the concept of “indigenous”:

(a) Priority in time, with respect to the occupation and use of a specific territory;

(b) The voluntary perpetuation of cultural distinctiveness, which may include the aspects of language, social organization, religion and spiritual values, modes of production, laws and institutions;

(c) Self-identification, as well as recognition by other groups, or by State authorities, as a distinct collectivity; and

(d) An experience of subjugation, marginalization, dispossession, exclusion or discrimination, whether or not these conditions persist.²⁹

The Chairperson-Rapporteur stressed that these factors do not, and cannot, constitute a comprehensive definition and that it may not be desirable to derive a more precise definition of indigenous peoples but rather ensure that there is a room for the reasonable evolution and regional specificity of the concept of “indigenous” in practice.³⁰

Debate over a definition of indigenous peoples has often focused on African and Asian indigenous peoples. In the Asian context, the term “indigenous peoples” is generally understood to refer to distinct cultural groups, such as “Adivasis”, “tribal peoples”, “hill tribes” or “scheduled tribes”, while some indigenous peoples in Africa are referred to as “pastoralists”, “vulnerable groups” or “hunter-gatherers”. In Africa, it is often argued that all African peoples are indigenous to Africa. This debate was addressed by the Working Group of Experts on Indigenous Populations/Communities in Africa which noted that a modern approach should put “less emphasis on the early definitions focussing on aboriginality” and instead emphasize:

(1) Self-definition as indigenous and distinctly different from other groups within a state;

(2) A special attachment to and use of their traditional land whereby their ancestral land and territory has a fundamental importance for their collective physical and cultural survival as peoples.

(3) An experience of subjugation, marginalization, dispossession, exclusion or discrimination because of their different cultures, ways of life or modes of production than the dominant model.³¹

The above demonstrates that there is no universally-agreed definition of indigenous peoples. Despite the ongoing debate, the key criterion of self-identification as the expression of the right to self-determination of indigenous peoples is widely recognized today.

The African Commission on Human and Peoples’ Rights agrees that the Endorois consider themselves to be a distinct people, sharing a common history, culture and religion. The African Commission is satisfied that the Endorois are a “people”, a status that entitles them to benefit from provisions of the African Charter that protect collective rights. The African Commission is of the view that the alleged violations of the African Charter are those that go to the heart of indigenous rights – the right to preserve one’s identity through identification with ancestral lands.³²

This has been reaffirmed in the Declaration. Article 33 states that, “indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.” ILO Convention No. 169 also asserts that self-identification as indigenous is a “fundamental criterion for determining the groups”³³ which are indigenous.

It is important that an understanding of self-identification informs the practice of NHRIs. This is particularly important in States where Governments do not recognize the legitimate claims of a people as indigenous. Regardless of the controversy around issues of definition, human rights issues facing indigenous peoples should be addressed. Part II of this Manual provides examples of NHRIs’ engagement in situations where Governments do not embrace the rights of indigenous peoples or do not recognize the existence of indigenous peoples. The absence of a formal definition should not constitute an obstacle in addressing the human rights issues affecting indigenous peoples.

Bangladesh abstained from voting on the Declaration. Explaining its position after the vote, it stated that the Declaration contained some ambiguities, particularly that “indigenous people” had not been identified or explicitly defined in any way. In 2009, the National Human Rights Commission of Bangladesh was established. Active lobbying on the human rights issues of Adivasis (indigenous peoples) is a core part of the Commission’s five-year strategic plan. The Commission is in a position to provide a strong voice and raise the profile of indigenous peoples’ human rights issues.34

Key points: Chapter 1 Indigenous peoples have unique and distinctive cultures, languages, legal systems and histories. Most have a strong connection to the environment and their traditional lands and territories. They also often share legacies of removal from traditional lands and territories, subjugation, destruction of their cultures, discrimination and widespread violations of their human rights. After decades of obtaining little or no attention from the international community, indigenous peoples have increasingly gained visibility and successfully made their voices heard at international forums. The Martinez Cobo Study helped to build the foundations for the modern indigenous international human rights system. The Declaration is the most comprehensive instrument on the rights of indigenous peoples. The United Nations system has not developed a strict definition of “indigenous peoples”, as such a definition may not be workable in all contexts and may be over-inclusive or under-inclusive. Self-identification is a key criterion for determination of a group of peoples or an individual as indigenous.