- The Washington Times - Thursday, November 22, 2001

Some 40 million Native Americans in the Americas have a little more to celebrate this Thanksgiving, following a recent decision by the Inter-American Court of Human Rights (IACHR) to recognize and protect a Nicaraguan tribe's legal rights to its traditional lands, natural resources and environment.

In an age in which U.S. policy-makers are focusing attention on the need to drain "swamps" of neglect and despair around the globe that are potential breeding places for terrorists and their supporters, the court's verdict the first such dispute addressed by the court has far-reaching implications for the well-being of some of the region's most desperate peoples. It also serves as a warning to other governments that they need to act now to protect the rights of the first Americans.

In the Nicaraguan case, the IACHR declared just days after the September 11 attacks that Nicaragua had violated the human rights of the Awas Tingni community of eastern Nicaragua. The decision by the hemisphere's highest human-rights tribunal came after decades of struggle by the tribe to protect their traditional lands from both the neglect of the government and the encroachment of foreign timber companies. The case is the first of many similar land disputes set to be decided by the court, and is the first time the Costa Rica-based tribunal has ruled on a land dispute between an Indian group and a government.

"It is a triumph of some of the region's poorest people against powerful interests. And for that reason, it is an important milestone in the establishment of the rule of law," said Steve Tullberg, the director of the Washington office of the Indian Law resource Center, the group that took the principal outside role in pressing the Awas Tingni's case before the IACHR.

The Indians' landmark victory in the major international court battle is likely to have an important effect in numerous other land disputes throughout Latin America from Mexico, home to some 10 million Indians, to Tierra del Fuego at the tip of South America.

Like most Latin American countries, Nicaragua nominally recognizes the rights of its indigenous communities in its constitution and laws, but in practice those rights have not been respected. During the 1980s, Daniel Ortega's ruling Sandinista government waged war against the traditional peoples' of the eastern coast. The outgoing government of conservative President Arnoldo Aleman, meanwhile, was so indifferent to native rights that many Indians seriously considered voting for Mr. Ortega to replace him, despite the Sandinista regime's own bloody record. Although the Aleman government claimed it offered the indigenous communities autonomy, what that meant in practice was abandonment and neglect.

In the decision handed down by the IACHR, an independent body of the Organization of American States whose interpretations of human-rights law are binding throughout the Americas, the Aleman government was found to have granted licenses to foreign logging companies for the exploitation of Indian communities' ancestral lands without consulting their original inhabitants. The case centered on an agreement between the Awas Tingni and the World Wildlife Fund and the government of Nicaragua to create a forest management and sustainable logging program in tropical jungle land held by the community. Without seeking the Awas Tingni's permission, the government granted a South Korean timber company logging rights to 153,000 acres of Awas Tingni's lands, an area that contained sacred religious sites and that was still used for hunting.

Finding that Nicaragua's legal protections were "illusory and ineffective," the court ordered the government to demarcate the traditional lands of the Awas Tingni community and to create new legal procedures to delineate and establish legal boundaries for all traditional lands held by all the Indian communities in the country.

"The customary law of indigenous peoples should especially be taken into account because of the effects that flow from it," the court ruled. "As a product of custom, possession of land should suffice to entitle indigenous communities without title to their land to obtain official recognition and registration of their rights of ownership.

"For indigenous communities the relationship with the land is not merely a question of possession and production, but also a material and spiritual good which they should fully enjoy, as well as a means to preserve their cultural heritage and pass it on to future generations."

Mr. Tullberg and other Indian-rights activists say that the court victory offers some of the hemisphere's most traditionally marginalized peoples the hope they too can successfully use the inter-American legal system to protect their rights, offering a forum for views their own governments prefer to ignore or to deny, and press to make effective rights that heretofore have lacked real remedies.

After September 11, said Mr. Tullberg, the head of one of the most effective Indian advocacy offices, "it is clear that the 'swamps' of disaffection and radicalization can only be drained by offering the poorest and most neglected peoples real access to legal systems that recognize their human rights under the rule of law."

Martin Edwin Andersen is the author of the 1992 Cranston amendment, which requires the State Department to include indigenous rights in its annual human-rights report to Congress


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