Indigenous land rights

Indigenous land rights are the rights of indigenous peoples to land, either individually or collectively. Land and resource-related rights are of fundamental importance to indigenous peoples for a range of reasons, including: the religious significance of the land, self-determination, identity, and economic factors.[1] Land is a major economic asset. The majority of indigenous peoples living in forest areas depend on the natural resources of their lands to fulfill their subsistence needs. Hunting, fishing, gathering of forest products, and small garden plots still form the basis of their household economy. The security and permanence of their control and use of the natural resource base is actually more important to most indigenous groups than direct ownership of the land itself. The demand for ownership, in fact, derives from the need to ensure their access to these resources, so it is of particular importance to examine how the different national-level legal regimes handle this aspect of indigenous ownership. Land is also an important instrument of inheritance and it is a symbol of social status. The land is essential for people’s spiritual development. The land is sacred and everything they get from the land is a gift from their gods. Losing their land means a loss of contact with the earth and a loss of identity. Land is not only an asset with economic and financial value, but also a very important part of people's lives, worldviews and belief systems.

Indigenous land claims have been addressed, with varying degrees of success on the national and international level, since colonization. Such claims may be based upon the principles of international law, treaties, common law, or domestic constitutions or legislation. Statutory recognition and protection of indigenous and community land rights continues to be a major challenge, with the gap between formally recognized and customarily held and managed land is a significant source of underdevelopment, conflict, and environmental degradation.[2]

International law

Indigenous land rights have historically been undermined by a variety of doctrines such as terra nullius.

The foundational documents for indigenous land rights in international law include Indigenous and Tribal Peoples Convention, 1989 ("ILO 169"), the Declaration on the Rights of Indigenous Peoples, the Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights.

Common law

Aboriginal title is the common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty. Indigenous peoples may also have certain rights on Crown land in many jurisdictions.

Canada

The leading case for aboriginal title in Canada is Delgamuukw v. British Columbia (1997).

New Zealand

Indigenous land rights were recognised in the Treaty of Waitangi made between the British Crown and various Māori chiefs. The Treaty itself has often been ignored, but New Zealand courts have usually accepted the existence of native title. Controversies over indigenous land rights have tended to revolve around the means by which Māori lost ownership, rather than whether they had ownership in the first place.

United States

The foundational decision for aboriginal title in the United States is Johnson v. McIntosh (1823), authored by Chief Justice John Marshall.

Native Americans in the United States have largely been relegated to Indian reservations managed by tribes under the United States Department of the Interior's Bureau of Indian Affairs.

Latin America

As the political systems of some Latin American countries are now becoming more democratic and open to listening and embracing the views of minorities these issues of land rights have clearly come up to the surface of the political life. Despite this new “re-recognition” bit by bit, the indigenous groups are still among the poorest populations of the countries and they often have less access to resources and they have lesser opportunities for progress and development. The legal situation of indigenous land rights in the countries of Latin America is highly varied. There is still a very broad variation of indigenous rights, laws and recognition throughout the whole continent. In the year 1957, the International Labour Organization(ILO), made the ILO Convention 107. This convention created laws and norms for the protection and integration of indigenous peoples in independent countries. All the independent countries of Latin America and the Caribbean of that time ratified this convention. Since the 1960s they started with the recognition of the first indigenous land claims since the colonial era. In the year 1989 the ILO made the Convention 169; the convention concerning Indigenous and Tribal Peoples in Independent Countries, which updates the ILO 107 of 1957. In this convention was also the recognition of the very close and important relationship between land and identity, or cultural identity very important. Today this convention has been ratified by 15 Latin American and Caribbean countries.

Civil law

Mexico

The years after the Mexican Revolution of 1910 saw agrarian reforms (1917–1934), and in article 27 of the Mexican Constitution the encomienda system was abolished, and the right to communal land for traditional communities was affirmed. Thus the ejido-system was created, which in practice should comprise the power of private investments by foreign corporations and absentee landlords, and entitled the indigenous population to a piece of land to work and live on.
Since the 1980s and 1990s the focus of Mexico's economic policy concentrated more on industrial development and attracting foreign capital. The Salinas government initiated a process of privatization of land (through the PROCEDE-program). In 1992, as a (pre)condition for Mexico for entering the North American Free Trade Agreement (NAFTA) with the US and Canada, art.4 and art.27 of the Constitution were modified, by means of which it became possible to privatize communal ejido-land. This undermined the basic security of indigenous communities to land entitlement, and former ejidatorios now became formally illegal land-squatters, and their communities informal settlements. (see also the Chiapas conflict)

References

  1. ^ Bouma; et al. (2010). Religious Diversity in Southeast Asia and the Pacific: National Case Studies. Springer.
  2. ^ "Indigenous & Community Land Rights". Land Portal. Land Portal Foundation. Retrieved 22 June 2017.
  3. ^ Eede, Joanna (2009). We are One: A Celebration of Tribal Peoples. Quadrille Publishing. ISBN 1-84400-729-4.

Bibliography

  • Richardson, Benjamin J., Shin Imai & Kent McNeil. 2009. Indigenous peoples and the law: comparative and critical perspectives.
  • Robertson, L.G., (2005), Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands, Oxford University Press, New York ISBN 0-19-514869-X
  • Snow, Alpheus Henry. 1919. The Question of Aborigines in the Law and Practice of Nations.

External links

1978 Hawaii State Constitutional Convention

The 1978 Hawaii State Constitutional Convention is considered the watershed political event in the modern State of Hawaii. The convention established term limits for state office holders, provided a requirement for an annual balanced budget, laid the groundwork for the return of federal land such as the island of Kahoʻolawe, and most importantly created the Office of Hawaiian Affairs in an effort to right the wrongs done towards native Hawaiians since the overthrow of the Kingdom of Hawaiʻi in 1893. The event also created an ambitious project of preservation of the Hawaiian culture including the adoption of Hawaiian diacritical marks for official usage, use of Hawaiian names, etc. The Hawaiian language became the official state language of Hawaii for the first time since the overthrow.

A major outgrowth of the constitutional convention was the launching of the political careers of men and women who would later dominate Hawaiian politics. Delegates to the convention included:

Carol Fukunaga, future legislative leader

Helene Hale, future legislative leader

Jeremy Harris, future Mayor of Honolulu

Les Ihara, Jr., future legislative leader

Barbara Marumoto, future legislative leader

Joseph M. Souki, future Speaker of the House

John David Waihee III, future Governor

Aboriginal land rights in Australia

Aboriginal land rights in Australia are return of lands to Aboriginal Australians by the Commonwealth, state or territory governments of Australia based on recognition of dispossession.

Different types of land rights laws exist in Australia, allowing for the renewed ownership of land to Aboriginals [Aboriginal Australians] under various conditions. Land rights schemes are in place in the Northern Territory, Queensland, New South Wales, South Australia, Victoria and Tasmania. The land titles may recognise traditional interest in the land and protect those interests by giving Aboriginal people legal ownership of that land. Plus:

According to the National Native Title Tribunal:

A successful land rights claim usually results in a special grant of freehold title or perpetual lease. A title document for the land is issued. The title is normally held by a community or an organisation, not by individuals. There are usually some restrictions on selling, and dealing with, land that has been granted in a land rights claim. Normally, the land will be passed down to future generations in a way that recognises the community’s traditional connection to that country.

Aboriginal title

Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the case of extinguishment vary significantly by jurisdiction. Nearly all jurisdictions are in agreement that aboriginal title is inalienable, and that it may be held either individually or collectively.

Aboriginal title was first acknowledged in the early 19th century, in decisions in which indigenous peoples were not a party. Significant aboriginal title litigation resulting in victories for indigenous peoples did not arise until recent decades. The majority of court cases have been litigated in Australia, Canada, Malaysia, New Zealand, and the United States. Aboriginal title is an important area of comparative law, with many cases being cited as persuasive authority across jurisdictions. Many commentators believe that the doctrine is applicable in all common law legal systems.

Aboriginal title is also referred to as indigenous title, native title (particularly in Australia), original Indian title (particularly in the United States), and customary title (particularly in New Zealand). Aboriginal title jurisprudence is related to indigenous rights, influencing and influenced by non-land issues, such as whether the government owes a fiduciary duty to indigenous peoples. While the judge-made doctrine arises from customary international law, it has been codified nationally by legislation, treaties, and constitutions.

Ancestral domain

Ancestral domain or ancestral lands refers to the lands, territories and resources of indigenous peoples, particularly in the Asia-Pacific region. The term differs from indigenous land rights, Aboriginal title or Native Title by directly indicating relationship to land based on ancestry, while domain indicates relationships beyond material lands and territories, including spiritual and cultural aspects that may not be acknowledged in land titles and legal doctrine about trading ownership.

Apology Resolution

United States Public Law 103-150, informally known as the Apology Resolution, is a Joint Resolution of the U.S. Congress adopted in 1993 that "acknowledges that the overthrow of the Kingdom of Hawaii occurred with the active participation of agents and citizens of the United States and further acknowledges that the Native Hawaiian people never directly relinquished to the United States their claims to their inherent sovereignty as a people over their national lands, either through the Kingdom of Hawaii or through a plebiscite or referendum" (U.S. Public Law 103-150 (107 Stat. 1510)). The resolution has been cited as a major impetus for the Hawaiian sovereignty movement, and has been the subject of intense debate.The resolution was adopted by both houses of the United States Congress on November 23, 1993. A joint resolution, it was signed by President of the United States Bill Clinton on the same day.

The resolution was passed in the Senate by a vote of 65–34. In the House, it was passed by a two-thirds voice vote. It was sponsored on January 21, 1993, as S.J.Res.19 by Daniel Akaka and co-sponsored by Daniel Inouye, both Democratic senators from Hawaii.

Awas Tingni

Awas Tingni is an indigenous Mayagna community of some 2,400 members on the Miskito Coast of Nicaragua, in the municipality of Waspam in the North Caribbean Coast Autonomous Region. Awas Tingni is located near the junction of the Rio Wawa and the river Awas Tingni in a densely forested area. In Mayagna, Awas Tingni means "Pine River" and denotes both the town and the river by which it is situated. Awas Tingni was named due to the large pine forest in the area, similar to the pine barrens of the mid-Atlantic United States.

In 2001 the Mayagna won a landmark case against the government of Nicaragua in which the Inter-American Court of Human Rights held that they had a right as indigenous people to their collective land. In December 2008, the government completed a process of demarking and titling the land, giving them title to a total of 73,394 hectares.

Ceded lands

In Hawaiʻi, the term "ceded lands" refers to 1.8 million acres (7,300 km2) of land that were the crown lands of the Hawaiian monarchy prior to January 17, 1893, lotted out by Kamehameha III during the Great Mahele. On this date, the government of the Hawaiian Kingdom was overthrown by anti-monarchial residents of Hawai`i. The abrogation of the monarchy led in turn to the formation of a Provisional Government (January 17, 1893 – July 3, 1894) and to the Republic of Hawaiʻi (July 4, 1894 – August 12, 1898) which was the government that sought and achieved annexation.

At the time of annexation as the Territory of Hawaii, the former Crown lands were given ("ceded") to the US Federal Government. When the Hawaii Admission Act made Hawaiʻi a U.S. state, the lands were transferred to the state. The federal act authorizing the transfer required that the lands be held in trust and that revenue from the land be used for five purposes: (These excerpts actually came from the Statehood Act 1959)

Support of public education

Betterment of the conditions of native Hawaiians as defined in the Hawaiian Homes Commission Act of 1920 (The Hawaiian Homes Commission Act 1920 did not exist in 1893)

Development of farm and home ownership

Public improvements

Provision of lands for public useDelegates to the State of Hawaii Constitutional Convention, believed that the second purpose had been largely ignored, amended the state constitution to create the Office of Hawaiian Affairs as an avenue for Native Hawaiians to make their own decisions as to investment of ceded lands and collect revenue generated by those lands to fund programs for the people.

Some Native Hawaiian organizations contend that these lands belong to the Hawaiian people, and that any use of or possession of them by any other body is not legal. Such groups are seeking back rent for the use of the land, as well as the return of the title to said land.

At present, control of these lands is divided mostly between the US federal government and the State of Hawaiʻi. A number of facilities, including airports and military facilities, are located on ceded lands, which in part leads to the controversy surrounding the issue.

Chittagong Hill Tracts

The Chittagong Hill Tracts (CHT; Bengali: পার্বত্য চট্টগ্রাম, Parbotto Choŧŧogram; or the Hill Tracts for short) are an area within the Chattogram Division in southeastern Bangladesh, bordering India and Myanmar (Burma).

Covering 13,295 square kilometres (5,133 sq mi), they formed a single district until 1984, when they were divided into three districts: Khagrachari District, Rangamati Hill District, and Bandarban District. Topographically, the Hill Tracts are the only extensively hilly area in Bangladesh. It was historically settled by many tribal refugees from Burma Arakan in 16th century and now it is settled by indigenous peoples who have been living there since.

The Chittagong Hill Tracts along with Ladakh, Sikkim, Tawang, Darjeeling, Bhutan and Sri Lanka, constitute the few remaining abodes of Buddhism in South Asia.

Diergaardt v. Namibia

J.G.A. Diergaardt (late Captain of the Rehoboth Baster Community) et al. v. Namibia (No. 760/1997) (2000) was a case decided by the United Nations Human Rights Committee.

Fanny Balbuk

Fanny Balbuk (1840-1907) was a prominent Noongar Whadjuk woman who lived in Perth, Western Australia during the early years of the Swan River Colony. Fanny Balbuk (sometimes recorded as 'Yooreel') was born on Matagarup (Heirisson Island) in the Derbal Yaragan (Swan River) and her boodja (country) included the swamps and wetland in the area currently occupied by the Perth Railway Station and Perth Cultural Centre. She is remembered for her fierce commitment to land rights, and her reactions to the buildings, fences and homes which quickly replaced her boodja (land) as the Swan River Colony expanded at the cost of Noongar peoples' land, language and lives.

Great Māhele

The Great Māhele ("to divide or portion") or just the Māhele was the Hawaiian land redistribution proposed by King Kamehameha III.

The Great Māhele was one of the most important episodes of Hawaiian history, second only to the overthrow of the Hawaiian Kingdom. While intended to provide secure title to Hawaiians, it would eventually end up separating many of them from their land.

Hawaiian home land

A Hawaiian home land is an area held in trust for Native Hawaiians by the state of Hawaii under the Hawaiian Homes Commission Act of 1921.

Internal colonialism

Internal colonialism is the uneven effects of economic development on a regional basis, otherwise known as "uneven development" as a result of the exploitation of minority groups within a wider society and leading to political and economic inequalities between regions within a state. This is held to be similar to the relationship between metropole and colony, in colonialism proper. The phenomenon creates a distinct separation of the dominant core from the periphery in an empire.Robert Blauner is regarded as the developer of the Internal Colonialism Theory. The term was coined to highlight the "blurred" lines between geographically close locations that are clearly different in terms of culture. Some other factors that separate the core from the periphery are language, religion, physical appearance, types and levels of technology, and sexual behaviour. The cultural and integrative nature of internal colonialism is understood as a project of modernity and has been explored by Robert Peckham in relation to the formation of a national modern Greek culture during the nineteenth century, when Greece gained independence from the Ottoman Empire.The main difference between neocolonialism and internal colonialism is the source of exploitation. In the former, the control comes from outside the nation-state, while in the latter it comes from within.

Kuleana rights

Kuleana rights arose in the mid-1800s and protected the entitlement of Hawaiian tenant farmers and their descendants to, among other things, access landlocked real estate parcels.In 2012 the Hawaiian Supreme Court confirmed the viability of Kuleana rights in the present day.In late 2016 Mark Zuckerberg filed suit to eliminate the ownership interests of more than 100 Hawaiians in Kuleana lands. Early in 2017 Mr. Zuckerberg announced that he would drop the litigation.

Lands inhabited by indigenous peoples

The lands inhabited by indigenous peoples receive different treatments around the world. Many countries have specific legislation, definitions, nomenclature, objectives, etc., for such lands. To protect indigenous land rights, special rules are sometimes created to protect the areas they live in. In other cases, governments establish "reserves" with the intention of segregation. Some indigenous peoples live in places where their right to land is not recognised, or not effectively protected.

Mohegan Indians v. Connecticut

Mohegan Indians v. Connecticut (1705–1773) was the first indigenous land rights litigation in history in a common law jurisdiction. James Youngblood Henderson, professor of law, calls the case "the first major legal test of indigenous tenure." Robert Clinton calls it the "first formal litigation of North American Indian rights."Mark Walters has noted that the case established that "in certain circumstances native nations on reserved lands in British colonies were subject, not to colonial jurisdictions established for settlers, but to their own traditional customs." The Mohegan claim was not a claim to aboriginal title, but a claim that certain lands were held in trust by the descendants of John Mason on behalf of the Mohegan.

In 1979, the Mohegan Indian Tribe filed a suit against the state for possession of lands in Montville, Connecticut. In this re-litigation, the judge held in 1980 that the 1790 Non-Intercourse Act applied to the case, a ruling upheld on appeal. The United States Supreme Court declined to hear the case. In 1994 the tribe gained federal recognition by the Department of Interior; in addition, that year Congress passed the Mohegan Nation (Connecticut) Land Claim Settlement Act, which authorized the US to take 800 acres of land into trust for the tribe for use as its reservation, and allowed it to have gambling operations on the property.

Newlands Resolution

The Newlands Resolution was a joint resolution passed on July 4, 1898 by the United States Congress to annex the independent Republic of Hawaii. In 1900, Congress created the Territory of Hawaii. It was drafted by Congressman Francis G. Newlands of Nevada, a Democrat. Annexation was a highly controversial political issue along with the similar issue of the acquisition of the Philippines in 1898.

Office of Hawaiian Affairs

The Office of Hawaiian Affairs (OHA) is a semi-autonomous department of the State of Hawaii created by the 1978 Hawaii State Constitutional Convention.

Resettlement and villagization in Ethiopia

Resettlement and villagization in Ethiopia has been an issue from the late nineteenth century up to the present, due to the overcrowded population of the Ethiopian highlands. As the population of Ethiopia has increased in the twentieth century, the need to move inhabitants has only increased as available cropland per family declined to its current level of less than one hectare per farmer.

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