---
title: indigenous peoples
date: 2005-10-13 10:16
category: terminology
tags:
slug: indigenous-peoples
summary: :
status: draft
---
INDIGENOUS PEOPLES’ RIGHTS TO SACRED SITES AND TRADITIONAL CULTURAL PROPERTIES AND THE ROLE OF CONSULTATION AND FREE, PRIOR, AND INFORMED CONSENT Stuart R. Butzier and Sarah M. Stevenson Modrall Sperling Law Firm, New Mexico, United States Rocky Mountain Mineral Law Foundation INTERNATIONAL MINING AND OIL & GAS LAW, DEVELOPMENT, AND INVESTMENT Cartagena, Colombia April 22-24, 2013 http://modrall.com/files/6427_IndigenousPeoplesRightsToSacredSitesAndTraditionalCulturalProperties.pdf
1 There is no universally accepted definition of the term “indigenous peoples,” see World Bank Operational Policy 4.10, ¶ 3 (stating that “Indigenous Peoples may be referred to in different countries by such terms as ‘indigenous ethnic minorities,’ ‘aboriginals,’ ‘hill tribes,’ ‘minority nationalities,’ scheduled tribes,’ or ‘tribal groups’”), and for that reason we choose not to capitalize the term in this paper except when quoting sources which have done so. Professor Wiessner provides the following definition: “Their essential characteristics are not only those of a heteronomously defined collectivity of human beings, discriminated against over time, but also of an autonomous, self-defined community with specific ways of life and a view of the world characterized by their strong, often spiritual relationship with the land the outside world regards them as the original inhabitants of.” Siegfried Wiessner, The Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges, EJIL (2011), Vol. 22, No. 1, 121, 126-27. The World Bank uses the term “Indigenous Peoples” “to refer to a distinct, vulnerable, social and cultural group” that self-identifies as indigenous, has geographically distinct habitats or territories, and a connection to the natural resources therein, has customary institutions distinct from the dominant society, and an indigenous language. World Bank Operational Policy 4.10, ¶ 4.
Broadly defined as a distinct social and cultural group processing the following characteristics in varying degrees: Self-identification as members of a distinct indigenous cultural group and recognition of this identity by others; Collective attachment to geographically distinct habitats or ancestral territories in the project area and to the natural resources in these habitats and territories; Customary cultural, economic, social, or political institutions that are separate from those of the dominant society or culture; An indigenous language, often different from the official language of the country or region.
International Finance Corporation. 2006. "Glossary of Terms." ''[http://www.ifc.org/wps/wcm/connect/9a9464804885598c8364d36a6515bb18/Glossary%2Bof%2BTerms.pdf?MOD=AJPERES&attachment=true&id=1322803900995 IFC Policy & Performance Standards and Guidance Notes]''. Washington D.C.: International Finance Corporation.[Accessed 1 November 2013]
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Indigenous People: No definition has been agreed upon internationally, but the principle of self-identification has been broadly accepted.
The World Bank treats as indigenous people “those social groups with a social and cultural identity distinct from the dominant society, which makes them vulnerable to being disadvantaged in the development process.” They are distinctive from other vulnerable social groups insofar as they are recognized by international law and by some states as autonomous seats of power within the state, and exercise collective rights as groups.CommDev. 2012. "[http://commdev.org/glossary-terms Glossary of Terms]." CommDev Website. Washington D.C.: International Finance Corporation. Available online at: http://commdev.org/glossary-terms [Accessed: 22 October 2013].
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during the late twentieth century the term Indigenous peoples evolved into a legal category that refers to culturally distinct groups that had been affected by the processes of colonization. These are usually collectives that have preserved some degree of cultural and political separation from the mainstream culture and political system that has grown to surround or dominate them economically, politically, culturally, or geographically.
The status of the indigenous group in this relationship can be characterized in most instances as an effectively marginalized, isolated or minoritised one, in comparison to other groups or the nation-state as a whole. Their ability to influence and participate in the external policies that may exercise jurisdiction over their traditional lands and practices is very frequently limited. This situation can persist even in the case where the indigenous population outnumbers that of the other inhabitants of the region or state; the defining notion here is one of separation from decision and regulatory processes that have some, at least titular, influence over aspects of their community and lands.
The presence of external laws, claims and cultural mores either potentially or actually act to variously constrain the practices and observances of an indigenous society. These constraints can be observed even when the indigenous society is regulated largely by its own tradition and custom. They may be purposefully imposed, or arise as unintended consequence of trans-cultural interaction; and have a measurable effect even where countered by other external influences and actions deemed to be beneficial or which serve to promote indigenous rights and interests within the wider community.
A definition of "indigenous people" has criteria which includes cultural groups (and their continuity or association with a given region, or parts of a region, and who formerly or currently inhabit the region) either:
- before or its subsequent colonization or annexation, or
- alongside other cultural groups during the formation or reign of a colony or nation-state, or
- independently or largely isolated from the influence of the claimed governance by a nation-state,
and who:
- have maintained at least in part their distinct cultural, social/organizational, or linguistic characteristics, and in doing so remain differentiated in some degree from the surrounding populations and dominant culture of the nation-state, and
- are self-identified as indigenous, or those recognized as such by other groups.
Another defining characteristic for an indigenous group is that it has preserved traditional ways of living, such as present or historical reliance upon subsistence-based production (based on pastoral, horticultural and/or hunting and gathering techniques), and a predominantly non-urbanized society. Not all indigenous groups share these characteristics. Indigenous societies may be either settled in a given locale/region or exhibit a nomadic lifestyle across a large territory, but are generally historically associated with a specific territory on which they are dependent. Indigenous societies are found in every inhabited climate zone and continent of the world.[3][7]
There are various formulations of these defining characteristics in existence. Most are commonly drawn from a few widely-acknowledged authorities, in particular the Martínez Cobo – WGIP statement. These several definitions are recognised and employed by international and rights-based non-governmental organizations, as well as among national/sub-national governments themselves. The degree to which indigenous peoples' rights and issues are accepted and recognised in practical instruments such as treaties and other binding and non-binding agreements varies, sometimes considerably.
Many organizations advocating for indigenous rights, and the indigenous communities themselves, seek to particularly and explicitly identify peoples in this position as indigenous. This identification may also be made or acknowledged by the surrounding communities and nation-state, although there are some instances where the identity claim is the subject of some dispute, particularly with regard to recognizing assertions made over territorial rights. Even if all the above criteria are fulfilled, some people may either not consider themselves as indigenous or may not be considered as indigenous by governments, organizations or scholars.
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