Samantha Piñeiro Graham† | 4 Regent J. Glob. Just. & Pub. Pol. 171

Since the colonization of the “New World,” indigenous people have struggled with establishing and maintaining their rights as citizens while still keeping to their cultural heritage. There is a continuing struggle even in today’s modern age, regarding the extent of indigenous peoples’ rights, particularly with regard to the maintenance of their cultural traditions and land. However, in recent years, there have been serious movements as well as legislation passed to help secure the rights of indigenous people across the globe. The International Labour Organization (ILO) helped start the trend by passing such legislation in 1989. Many South American countries ratified the ILO’s “Indigenous and Tribal Peoples Convention, 1989,” and since ratification, many of those countries have endeavored to secure and enforce the rights of indigenous peoples, Peru being the prime example. Peru, in particular, has been a model to follow when it comes to passing and enforcing legislation securing the rights of the indigenous in culture and land. But even in Peru, there are still enforcement and recognition issues when it comes to the indigenous people.

It is the purpose of this Note to expound on the development and extent of indigenous cultural rights on the international and domestic plane, focusing on Peru. This Note will also note the shortcomings of law and policy in Peru, regarding the indigenous people. While the ILO and United Nations (UN) have made conscious international efforts to secure change for the indigenous, it is not quite enough because there is still a struggle for recognition and enforcement of indigenous rights on the domestic level. Unless there is a significant change of attitude on the domestic level, the struggle for the indigenous will continue. Passing new domestic legislation or ratifying international conventions will not likely be enough. To really make an impact, continuing positive policies and attitudes towards this issue will have to be adopted, circulated, and accepted.

I. INTRODUCTION

Indigenous people are a culturally unique class of people. 1 “Indigenous identity, though evidently fluid and constantly changing, is linked to a prevailing sense of cultural difference and to discrimination by dominant society.” 2 In other words, the commonality that defines indigenous peoples all across the globe is the desire to adhere to their distinct cultural roots, even if it means being different from and discriminated against by modern society. Being a unique class of people, indigenous people need unique considerations by international conventions and domestic legislation. Unlike most groups or classifications of people, recognition of their individual human rights is not sufficient.3 Indigenous people need their collective human rights to be recognized and enforced to help them continue to exist as they do and have for centuries. The extent of indigenous rights has been at issue for centuries, and it is still at issue even today. 4 This is the continuing struggle.

Every now and again something is seen on TV or read in a newspaper that brings indigenous people and the question of the extent of their rights to center stage. In fact, this was recently a hot topic in United States’ news. When this Note was written in 2016, a pipeline was about to be built in North Dakota near the Standing Rock Sioux Tribe reservation.5 The indigenous people, who lived on the reservation, and many others, were protesting the pipeline’s construction because it was set to be built over sacred Native American burial grounds.6 Further, there was a concern that the pipeline may leak or break and cause environmental damage to the reservation and area surrounding it. 7 Despite the dissent from the indigenous people, the President of the United States gave his stamp of approval to continue construction of the pipeline, believing it would “‘serve the national interest.’”8 Protests of the pipeline escalated to violence.9 This is a classic example of the dominant culture trying to subvert indigenous culture in the name of the “common good,” and it is not just the United States that has had these issues.10 Even Peru, one of the current national leaders in indigenous rights,11 has recently had some troubles with its oil pipeline contaminating and infringing on indigenous lands.12 Two of the most recent spills in 2016 caused the leaders of the indigenous community affected by the spills to meet with Peruvian government officials to discuss fixing the problem.13 The meeting ended at an impasse, which led to protests by the indigenous community a little while later.14 Both this and the United States’ example demonstrate why the extent of indigenous rights needs to be explored. Either indigenous people have the right to live in adherence with their cultural traditions, which include the necessary accompanying land and resource rights, or they do not. If the indigenous do have these rights, then their domestic government needs to honor and enforce those rights.

For the most part, the international and domestic communities are coming to understand and accept that “Indigenous Peoples should remain, nonetheless, . . . interpreters of their own situations and masters of their fates.”15 The indigenous people have as much a right to this as any other human being does. The fact that their culture is different from the majority of the modern world does not negate this. Despite opposition, assimilation attempts, suffering, poverty, and many more atrocities, the indigenous, for the most part, have remained true to their culture and heritage.16 How can anyone deny indigenous people their right to live as they do and have lived for hundreds of years when they have clung to it with such steadfast faithfulness? It is possible for two cultures to occupy the same space without clashing or trying to assimilate each other, and Peru has become one of the best, albeit not perfect, examples of this being possible.

II. THE GENERAL HISTORY AND IMPACT OF THE COLONIZATION OF PERU

To understand this continuing struggle of clashing cultures and fighting for recognition and enforcement of indigenous rights, it is best to start with the history of Spanish exploration and subsequent colonization of Peru. It really began with Christopher Colon’s, more popularly known as Columbus, desire “to exceed the bounds which had limited the most daring and successful navigators.”17 By the late 1400’s, the East Indies had become, by way of trade, very profitable to Europe.18 For this reason, the nations of Europe greatly desired a direct route to the East Indies because it would afford the nation who found it “the richest commerce in the world.”19 Using his knowledge, Columbus conceived of a way to get to the East Indies by sailing west,20 and by doing this, whether he knew it or not, Columbus would become “the initiating agent of a vast and historic transformation.”21

† Samantha Piñeiro Graham received her J.D. from Regent University School of Law in May 2018. She also received her M.A. in Government from Regent University Robertson School of Government in 2018 and her B.A. in Government from Regent University College of Arts and Sciences in 2014. During her time at Regent University School of Law, she served as Editor-in-Chief of the Journal of Global Justice and Public Policy and supervised the publishing of this volume.

1 See MATTIAS ÅHRÉN, INDIGENOUS PEOPLES’ STATUS IN THE INTERNATIONAL LEGAL SYSTEM 83–84 (2016).

2 Rachel Sieder, Introduction to MULTICULTURALISM IN LATIN AMERICA: INDIGENOUS RIGHTS, DIVERSITY AND DEMOCRACY 2 (Rachel Sieder ed., Palgrave MacMillan 2002).

3 Razida Torres, The Rights of Indigenous Populations: The Emerging International Norm, 16 Yale J. Int’l L. 127, 133 (1991).

4 See discussion infra Section III.

5 Dakota Pipeline: What’s Behind the Controversy? BBC (Feb. 7, 2017), http://www.bbc.com/news/world-us-canada-37863955.

6 Id.

7 Id.

8 Id.

9 Id.

10 See Press Release, U.N. General Assembly, Indigenous Peoples Distinct Cultures Erode Without Respect for Rights Over Lands, Territories, Natural Resources, Forum Told, U.N. Press Release HR/4917 (May 14, 2007) [hereinafter Press Release, Indigenous Peoples Distinct Cultures].

11 ANDINA, Peru, Model for Protection of Indigenous Peoples in Isolation, ANDINA –PERU NEWS AGENCY (June 2, 2016) [hereinafter ANDINA] http://www.andina.com.pe/ingles/noticia-peru-model-for-protection-of-indigenous-peoplesin-isolation-615303.aspx.

12 Barbara Fraser, Negotiations and Protests Ongoing in Wake of Oil Spills in Peruvian Amazon, MONGABAY (Sept. 5, 2016), https://news.mongabay.com/2016/09/negotiations-andprotests-ongoing-in-wake-of-oil-spills-in-peruvian-amazon/.

13 See id.

14 Id.

15 Dr. Erica-Irene A. Daes, Equality of Indigenous Peoples Under the Auspicies of the United Nations – Draft Declaration on the Rights of Indigenous Peoples, 7 ST. THOMAS L. REV. 493, 499 (1995).

16 See Elvira Pulitano, Introduction to INDIGENOUS RIGHTS IN THE AGE OF THE UN DECLARATION 5–6 (Elvira Pulitano ed., Cambridge Univ. Press 2012).

17 HON. JOHN M. NILES, HISTORY OF SOUTH AMERICA AND MEXICO: COMPRISING THEIR DISCOVERY, GEOGRAPHY, POLITICS, COMMERCE AND REVOLUTIONS 7 (1838).

18 See id.

19 Id.

20 Id.

21 STEVE J. STERN, PERU’S INDIAN PEOPLES AND THE CHALLENGE OF SPANISH CONQUEST: HUAMANGA TO 1640, at xxii–xxiv (Univ. Wis. Press, 2nd ed. 1993).