The “UN Declaration of the Rights of Indigenous Peoples,” (2007) is dedicated to protect the rights of those communities that identify themselves as Indigenous peoples. This document entails a legal representation and, in some cases, it entails restorative justice for Indigenous peoples across nations. However, these rights do not apply to all people. Therefore, the first step for a practical implementation of the UN Declaration is to clear out who are considered Indigenous peoples, and who are not. However, when examining the document more closely the distinction of who are or are not Indigenous peoples is not as strong as one might think. One of the first statements in the Annex, starts by affirming that Indigenous peoples are those who have been victims of colonization. It says: “Concerned that Indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands…” Clearly, we can see that the origin of indigenism starts by taking into account their marginalization state throughout the years. However, this historic approach might not resemble the actual state of different Indigenous communities that claim indigeneity neither of those who do not want to define themselves as victims. This type of argument is also shared by Ronald Niezen, who emphasizes that the concept of suffering is an important distinction for Indigenous peoples1. Another distinguished mark on the UN Declaration is a repeat mention of the word “traditional”, for example: Indigenous peoples have the right “to their traditional medicines”, (emphasis mine) or “ Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands…”(emphasis mine), “distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands” (emphasis mine). From these examples, we can see that part of indigeneity is also based on tradition. This argument is used to refer Indigenous Peoples as “first settlers,” with believes, costumes, and cultures of their own, prior to colonialization and/or neocolonization. So, even though the UN Declaration does not clearly states who are Indigenous, we were able to trace by its rhetoric certain common characteristics that Indigenous peoples should share.
Once established that the UN Declaration does not have a fix concept of indigeneity, we proceed to analyze what rights are protected under its articles. The UN Declaration is divided in 46 articles. Among the rights protected in it, we identified the followings: The right to freedom, the right to self-determination; their right to contribute; if they so choose, in the political, economic, social and cultural aspects of the State; have the right not to be subjected to forced assimilation or destruction of their culture; Indigenous peoples shall not be forcibly removed from their lands or territories; Indigenous peoples have the right to practice; teach and revitalize their cultural and spiritual traditions; the right to the repatriation of their human remains, Indigenous peoples have the right to establish and control their educational systems or assist to school by the Sate if they choose so; Indigenous peoples have the right to participate in decision-making in matters which would affect their rights; Indigenous peoples have the right to the lands, territories which they have traditionally owned and use its resources; Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands; and Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions (UN Declaration, 2007). Our answer will follow up with a comparative approach between the UN Declaration and Willemsen Diaz, in the 1972 and 1975 Martinez Cobo reports.
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