Current Law Journal Content
Washington & Lee Law School
Current Law Journal Content
an index to legal periodicals
Arizona Journal of International and Comparative Law
Volume 21, Number 1, Spring 2004
INTRODUCTION - Saami Council, Swedish Section
Lars Anders Baer
INTERNATIONAL HUMAN RIGHTS AND INDIGENOUS PEOPLES: THE MOVE TOWARD THE MULTICULTURAL STATE
S. James Anaya
Today, indigenous peoples are identified, and identify themselves, by reference to identities that pre-date historical encroachments by other groups and the ensuing histories that have challenged their cultural survival and self-determination as distinct peoples. The subsequent articles in this volume focus on the situations of particular indigenous groups. Written by legal experts who are members of the indigenous peoples they discuss, these articles tell of the continuing vitality and the struggles of the peoples of the Chittagong Hill Tracts in Bangladesh, the Maya of Guatemala, the Maasai of Kenya and Tanzania, the Saami of the European Far North, and the indigenous peoples of the Philippines. Numerous processes in the international system have focused on the common set of problems that are central to the demands of indigenous groups, such that there are discernible patterns of response and normative understandings associated with the rubric of indigenous peoples. These international processes now reveal a contemporary body of international human rights law on the subject. This Article sets forth the broad contours, and many of the sources of the international human rights regime, as it concerns indigenous peoples. It demonstrates that this regime advances a multicultural model of political ordering and incorporation of indigenous peoples into the fabric of the state. Under this model, indigenous peoples are able to join others in the states in which they live on the basis of equality — in terms of cultural identity and not just individual citizenship. Indigenous peoples are not to be forced or pressured to assimilate and thus, lose their distinctive cultural attributes to dominant cultural patterns. Rather, the terms of integration of indigenous peoples into the social and political orders of states must allow them to continue to live with their cultures intact. For indigenous peoples, such cultural integrity means the continuation of a range of cultural patterns; these patterns include those that establish rights to lands and natural resources and are embodied in indigenous customary law and institutions that regulate indigenous societies.
INDIGENOUS PEOPLES' CULTURE, CUSTOMS, AND TRADITIONS AND CUSTOMARY LAW - THE SAAMI PEOPLE'S PERSPECTIVE
This Article assumes that no valid reason exists to value statutory law above customary law; it is neither legally necessary nor possible to justify one legal system's per se subordination to the other. Still, states constantly fail to respect and uphold indigenous customary law, with detrimental effects on indigenous societies. The disrespect is a lingering sentiment that indigenous cultures, from which the law originates, do not give rise to legal rights. The Article uses Saami customary land management law to illustrate how colonizing societies' failure to respect Saami customary law has effectively allowed Finland, Norway, and Sweden to take control over the Saami people's traditional land, waters, and natural resources. Even though the Saami people struggle to preserve their traditional legal system, disrespect for Saami customary law puts the continued existence of their entire Saami culture at risk. The current situation is essentially a clash between two legal systems where conflicts are always settled by applying the legal system of only one society. To remedy this clash, non-Saami societies must: (1) recognize the Saami people as a people, equal in dignity and rights to neighboring peoples, and with a legal system of equal value; (2) acknowledge in practice that the Saami people's way of life gives rise to legal title to land; and (3) harmonize legislation with corresponding Saami customary law.
CHALLENGES FOR JURIDICAL PLURALISM AND CUSTOMARY LAWS OF INDIGENOUS PEOPLES: THE CASE OF THE CHITTAGONG HILL TRACTS, BANGLADESH
Raja Devasish Roy
This Case Study represents an attempt to understand the nature of the changing status and role of customary law among the indigenous peoples of the Chittagong Hill Tracts (CHT) region in Bangladesh. It acknowledges the impact of various socio-economic and political events and processes upon the laws, including British colonization of the region in the 19th century and the conclusion of the "peace" accord of 1997. In the case of customary resource rights, the Study observes that major challenges have historically originated from outside, and continue to do so today. Among these challenges are British colonization, the essentially colonialist land and forest policies of the post-colonial nation states of Pakistan and Bangladesh, and the interests of private capital. The Study also demonstrates that internal socio-economic changes have led to the erosion of customary resource rights, including the growing number of private titles among indigenous people, and the conversion of common forest, swidden, and grazing lands into private landholdings. In the case of customary personal laws, the major challenges emanate from external agencies and actors, and from the changing wants and needs of CHT indigenous society itself. Finally, the Study identifies major challenges in protecting these customary laws, including the strengthening of organizational capacities and networking, limited legal reforms to eradicate anti-humanitarian and anti-human rights practices, and the reduction of gender-oriented and other forms of discrimination.
THE LEGAL PERSPECTIVES OF THE MAASAI CULTURE, CUSTOMS, AND TRADITIONS
G. Nasieku Tarayia
This Article represents a personal attempt to retrace the historical, judicial, and traditional experiences of my community, the Maasai. In its development, much of the information is taken from either secondary sources or my own experiences and as such, it should be noted that the majority of the denoted textual emphasis is my own. Further, the real life illustrations and examples are also personal encounters. It is my sincere hope that this Article opens room and provides a forum for discussion of this sometimes exciting and sometimes annoying subject of historical rights and wrongs — but, at a minimum, I hope it creates an interest in different arenas. The perfection (or otherwise) of the Article is a matter of debate and that is what I want to attract from as many diverse fields as possible, particularly on the subject of the Article's contents — the Maasai of East Africa. I hasten to add that this is by no means limited to or meant for them only. If anything, I am opening a Pandora's box! Entorropilo!
MAYAN SPIRITUALITY AND LANDS IN GUATEMALA
Romeo Tiu López
This Article examines both the historical and current relationship between the State of Guatemala and the Mayan people, particularly with respect to the practice of indigenous spirituality and lands that have historically belonged to the indigenous population. Through proposed acknowledgment and implementation of national and international agreements, the rights of the Mayas must be clearly identified, respected, and recognized by the law.
THE PHILIPPINE INDIGENOUS PEOPLES' STRUGGLE FOR LAND AND LIFE: CHALLENGING LEGAL TEXTS
Jose Mencio Molintas
This Article describes the history of the Philippine indigenous peoples' struggle from colonization to the present to defend their lands and resources. It highlights the experiences of one community in the Cordillera region as representative. The struggle for land has been tantamount to the Philippine indigenous peoples' struggle to defend life itself. Using key informant interviews and document reviews as well as an analysis of relevant literature, this Study examines how indigenous peoples attempt to retain their aboriginal land claims and maintain their culture in the face of state-sponsored land policies and instruments, such as the Indigenous Peoples' Rights Act (IPRA). Implementation of IPRA has yielded mixed results. It stimulated the birth and development of indigenous peoples' organizations and has been credited by some for recognizing rights for at least a few groups of indigenous peoples. However, for other groups of indigenous peoples, IPRA has failed to resolve, and perhaps actually aggravated, conflicts in land administration arising from the contrasting formal state and informal indigenous principles dictating the manners in which land may be owned and ought to be utilized. Conflict between state and indigenous systems of land management dates back to the dawn of the colonial era yet persists, and perhaps has even intensified in the wake of modern state land law. The Philippine Mining Act is a case in point. The Act is a major impediment to the full recognition of indigenous peoples' rights to their lands. In the meantime, indigenous socio-political institutions, while accommodating certain changes in form, remain viable mechanisms for conflict resolution.
CONCLUSIONS AND RECOMMENDATIONS