1.0 INTRODUCTION
It bears repeating that the process of colonization has left so-called indigenous peoples defeated, relegated to minor spaces, reservations, breadcrumbs of land conceded by the dominant society. Deprived of traditional environments, they were not only politically, but economically, culturally; they are a group of people whose members share a cultural identity has been shaped by its geography.[1] In the late twentieth century, the term refers to a political term, indigenous peoples and ethnic groups with historic ties to groups that have formed in the region before colonization and the formation of national states.[2] The term defines these groups as particularly vulnerable to exploitation and oppression by nation states, and as a result a special set of political rights in accordance with international law have been set forth by international organizations such as the United Nations, the International Labor Organization and the World Bank. Different states designate the groups within their boundaries that are recognized as indigenous peoples according to international legislation by different terms. These include, for example “Native Americans” and “Pacific Islander” in the United States; “Aboriginals (Inuit”, “Métis” and “First Nations)” in Canada.[3]
2.0 A SMALL REVIEW: THE HREITAGE OF INVASION
Contrary to widely held expectations, they and their cultures have survived and are making their presence known in the Americas, Asia, Africa, Australia, the Pacific, and even on the launching pad of colonization, the continent of Europe.
2.1 The United States of America
This United States rationale leaves Indian tribes at the mercy of the federal government, which has exercised its discretion swinging wildly from extreme to extreme. Accordingly, they were recognized implicitly as the so-called “subjects of international law” and the solemn treaties, particularly the friendship and commerce, were concluded with them, and ratified by the Senate on the constitutional process.[4]
2.2 Canada
A Royal Proclamation of 1763 recognized Indian territorial rights as “pre-existing rights.[5] In the early 1980s, important indigenous rights were protected at the level of the Canadian Constitution. In addition, section 35 states, in relevant part:
(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Metis people of Canada[6]
2.3 New Zealand
In New Zealand, the traditional view is that the indigenous people, the Maori,[7] had no legally recognizable rights to their lands and fisheries after the British annexation; Maori property rights, if any, existed “at the sufferance” of the Crown. Still, in 1840, the British Crown, through Captain Hobson, and the “confederated and independent chiefs of New Zealand” signed the Treaty of Waitangi.[8]
2.4 Australia
In contrast to the United States, Canada and New Zealand, Australia has not come into contracts with its indigenous peoples. Aboriginal lands were acquired on the basis of an enlarged terra nullius doctrine, maintaining that the acquisition of New South Wales and other areas of Australia since the first settlement in 1788 were undertaken by occupation, by the very act of British subjects’ taking possession of the territories in the name of the Crown.[9] In its recasting of the common law, emboldened by the 1986 Australia Act, the Court squarely relies on the inspiration of international law, in particular, the United Nations Covenant on Civil and Political Rights[10] and its prohibition of unjust discrimination.
2.5 Brazil
Brazil’s policies regarding the role and functions of tribal communities have set important trends for Latin America. Indians, most of them inhabitants of the tropical rainforest of the Amazon, numbered 1.1 million at the time of conquest. In Brazil, Indians do not enjoy any “inherent right” of “self-government.” They are considered to be “relatively incapacitated,” legally minor under the guardianship of the Brazilian state, and subject to a special regime of tutelage[11].
2.6 Other Areas of the World
The phenomenon of indigenous renascence is not limited to the Western hemisphere. Far too little is known of the indigenous groups in Africa, Asia, the Pacific and even Europe. Asia has its own share of resurgent original inhabitants, in areas ranging from Siberia to China, to the Philippines and Indonesia, to name a few. Even in Japan, a country perceiving itself as monoethnic for a long time, a court has just recognized the Ainu as an indigenous minority group with special rights. In contrast, the Anthropological Survey of India recently recorded 4835 indigenous communities’ scattered over thirty-two states and Union Territories[12]. Fiji, in particular, presents the example of a state in which the indigenous people, originally a strong minority, now a slight demographic majority, have been guaranteed, after the coup of May 14, 1987, pre-eminent political power.[13]
2.7 Bangladesh
“The term Adivasis (see India for etymology), is not confined to any particular geographical or political boundaries but is generally used in the Indian subcontinent to denote indigenous peoples. Like India, Bangladesh has its Adivasis, though their proportion in the population is much smaller, perhaps 1.5 per cent”[14]. Until very recently, the majority of the population in the CHT have been tribal people that since British times, have been identified in three circles (i) the Chakma circle consists of most of Rangamati district and one or two Thana in Khagrachari (ii) the Bomong circle includes all of Bandarban and one Thana in Rangamati (iii) the Mong Circle includes the balance of the Khagrachari district.[15]
3.0 TOWARD INTERNATIONAL INDIGENOUS LAW
Surprisingly perhaps, international law has found little reflection or recognition in the domestic decision-making processes regarding indigenous communities.
3.1 Treaty Law
March broken treaties, to take the wording of torture Vine Deloria, Jr., is a historical fact in its brutality and lack of respect for the Trail of tears and other acts of genocide to listen to his son and daughter of the sun atak.[16]
3.2 Customary International Law
3.2.1 The Need for Specific Prescription
Traditional international law, in its positivist frame, permitted only nation-states to act and hold legal rights and duties.
3.2.2 The Role of the International Labor Organization (ILO)
Interestingly, it was a specialized agency of the United Nations, the International Labor Organization (ILO), that first addressed indigenous concerns. Its first attempt, however, launched in 1957, proved to be guided by highly questionable policy goals[17]
3.2.3. The Role of the United Nations
In 1982, responding partly to increasing international cooperation between indigenous peoples, through non-governmental organizations such as the World Council of Indigenous Peoples and the International Indian Treaty Council, the United Nations Economic and Social Council (ECOSOC) established a “working group” charged with the task of drafting a universal declaration on the rights of indigenous populations[18]
3.2.4 The Role of World Bank
The World Bank is becoming increasingly concerned about the impact of funded projects for the development of indigenous and tribal peoples. In February 1982, a policy brief describes the operational procedures to protect the rights of “indigenous peoples”.[19]
4.0 RECENT CHANGE OF PROVISION IN THE CONSTITUTION OF BANGLADESH
The principal policy document that set outs the Government’s strategy for redressing past social injustices, creating productive economic conditions and establishing a tribally responsive administration in the Hill Tracts, is the 1997 Peace Accord. The main features of the agreement are [20]
(i) the re-establishment in Bangladesh of tribal refugees who had fled to Tripura State in India during the insurgency war,
(ii) the restructuring of the local government agencies to allow for an equal representation of the indigenous people,
(iii) the creation of a Regional Council which includes circle chiefs in its membership, and gives the Council overall responsibility for development in the area,
(iv) the revision of the composition of the three Hill Tract Districts Councils which provide for a stronger representation of tribals and women and extends the authority of District Councils to cover land and land management, local police and tribal law and social justice,
(v) extension of the revenue base of the District Councils and an increase their development funds and
(vi) the creation of a Land Commission to resolve the disputed land titles which in
part led to the civil unrest.
(vii) the establishment of a Ministry of Chittagong Hill Tract Affairs
Among the laws passed in accordance with the CHT ‘Peace’ Accord of 1997 are the CHT Regional Council Act (1998) and the Hill District Council (Amendment) Acts (1998) in respect of Bandarban, Khagrachari and Rangamati, respectively. Two further acts which specifically recognize the laws, customs and practices/usages of the CHT are the CHT Land Disputes Resolution Commission Act (2001) and the CHT Regulation (Amendment) Act (2003). In a landmark judgment regarding succession to the position of Circle Chief, the Appellate Division of the Supreme Court declared that both the GoB and the Supreme Court should refrain from interfering with tribal customary law and respect the ‘susceptibilities’ of the tribal people (Mustafa J. in Aung Shwe Prue Chowdhury vs. Kyaw Sain Prue Chowdhury and Others (Civil Appeal No. 8 of 1997), Supreme Court of Bangladesh (Appellate Division), 50 DLR (AD) 1998, pp. 73-80 at p. 80 (see also, BLD, 1998 (Vol. XVIII), p. 41.).
5.0 CONCLUSION
Indigenous peoples around the world have come a long way to go. We hope that they just disappear, assimilate and blend in, disappear into the mainstream, or defeat the strudel, “modern” society. First Nations have found their rhythm again, and they grew up to become major players in this “postmodern” social process. Affected by the widespread practice of states, in particular, the problems of the effort to secure the necessary opinion of international standards for the identification of specific rules of customary international law of indigenous peoples. They refer to the following areas:
First, indigenous peoples have the right to maintain and develop their own cultural identity, their spirituality, their language and way of life. Second, they retain the right to political, economic and social development, balance between the rights, interests and needs. Another problem concerns the relationship between Aboriginal groups and its individual members. It seems in line with modern concepts of human rights of individual members of indigenous communities the choice of group membership, allowing them their own traditions, live their lives or to leave and “modern” society to join. All of these issues and their resolution are extremely context-sensitive. Our common goal of constructing a public order of human dignity requires a responsible response to the value aspirations and claims of indigenous peoples as well as to conflicting claims. Social Darwinism cannot be the answer.
BIBILOGRAPHY
1. Wikipedia: The free encyclopedia. (2011, October 13). Retrieved October 16, 2011, from http://en.wikipedia.org/wiki/Indigenous_peoples
2. Wikipedia: The free encyclopedia. (2011, October 13). Retrieved October 16, 2011, from http://en.wikipedia.org/wiki/Indigenous_peoples
3. Terminology of First Nations, Native, Aboriginal and Metis (NAHO Glossary & Terms),P1-3. Retrieved October 10, 2011, from http://www.aidp.bc.ca/terminology_of_native_aboriginal_metis.pdf
4. Arlene, H. (1993), The Native American Almanac, NY: Wiley
5. Bradford W.(1989)‘ Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada’ Morse (ed.)
6. Brian S, The Constitutional Guarantee of Aboriginal and Treaty Rights, 8 Queen’s L.J. 232 (1982–83).Retrieved on October 10, 2011from http://www.austlii.edu.au/au/legis/cth/consol_act/alrta1976444/
7. David W. (1987), Aboriginal Rights in Aotearoa (New Zealand)
8. Claudine O.(1987), The Treaty of Waitangi, NZ:NZPCC
9. Attorney-General v. Brown, (1847) 1 Legge 312, at 316–18
10. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, reprinted in 6 I.L.M. 368 (1967)
11. L. Roberto Barroso, The Saga of Indigenous Peoples in Brazil: Constitution, Law and Policies, 7 St. Thomas L. Rev. 645, 648 (1995)
12. “So-Called Development” and Its Impact on the Human Rights of Indigenous People in India, in Human Rights of Indigenous Peoples 109 (Cynthia Price Cohen ed., 1998).
13. Nehla Basawaiya, Status of Indigenous Rights in Fiji, 10 St. Thomas L. Rev. 197 (1997).
14. Minority Rights Group International, World Directory of Minorities and Indigenous Peoples – Bangladesh : Adivasis, 2008, Retrieved October 16, 2011 from http://www.unhcr.org/refworld/docid/49749d5841.html
15. Indigenous Peoples Development Planning Document, Indigenous Peoples Development Plan, Document Stage: Final, Project Number: 32467 Retrieved October 16, 2011 from http://www.adb.org/IndigenousPeoples/Rural-Development-Project-IPDP.pdf
16. “As Long as Water Flows, or Grass Grows Upon the Earth”-How Long a Time Is That?, 63 Cal. L. Rev. 601, 610 (1975).
17. International Labor Organization Convention (No. 107) Concerning Indigenous and Tribal Peoples in Independent Countries, entered into force June 2, 1959, 328 U.N.T.S. 247.
18. Douglas Sanders, The Legend of Deskaheh: Indigenous Peoples as International Actors, in Human Rights of Indigenous Peoples 73 (Cynthia Price Cohen ed., 1998).
19. The World Bank and Indigenous Peoples, Retrieved on October 16, 2011 from http://wbln0018.worldbank.org/essd/kb.nsf…860066fc9e418525668f00680803?OpenDocument
20. Indigenous Peoples Development Planning Document, Indigenous Peoples Development Plan, Document Stage: Final, Project Number: 32467 Retrieved October 16, 2011 from http://www.adb.org/IndigenousPeoples/Rural-Development-Project-IPDP.pdf
[1] Indigenous peoples, or Natives, are ethnic groups who are native to a land or region, especially before the arrival and intrusion of a foreign and possibly dominating culture. They are a group of people whose members share a cultural identity that has been shaped by their geographical region.
[2] During the late twentieth century the term Indigenous peoples evolved into a political term that refers to ethnic groups with historical ties to groups that existed in a territory prior to colonization or formation of a nation state
[3] See Terminology of First Nations, Native, Aboriginal and Metis (NAHO Glossary & Terms), P-1-3
[4] Although the U.S. government and Indian tribes entered into more than 800 treaties between 1778 and 1871, the Senate only ratified 372. It is well documented that the Indian tribes believed that each treaty became effective upon the solemn exchange of documents at the end of the negotiations with the U.S. officials. President Washington urged the First Senate to ratify the treaties “to ensure peace on the Western frontier, to provide for an orderly westward expansion, and, most important, to establish the treaty-making authority of the new national government over Indian affairs.” See Arlene Hirschfelder, The Native American Almanac 53, 54 (1993)
[5] For the following account, see Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada (Bradford W. Morse ed., 1989);
[6] Can. Const. (Constituion Act, 1982) sched. B (Canadian Charter of Rights and Freedoms)[hereinafter Canadian Charter of Rights and Freedoms]
[7] Like other First Nations, the Maori population has fluctuated from European contact to the present. Prior to European colonization, there were 125,000 to 135,000 Maoris in New Zealand. By 1840, due to diseases, upon contact, their number had dwindled to 90,000, and, by 1886, to 42,650.
[8] The English text is to be found in the Treaty of Cession between Great Britain and New Zealand, signed at Waitangi, 5/6 February 1840, 89 Parry’s Consolidated Treaty Series 473 [1839–1840] [hereinafter Treaty of Waitangi]
[9] Chief Justice Stephen of the Supreme Court of New South Wales stated this proposition most clearly in Attorney-General v. Brown, (1847) 1 Legge 312, at 316–18, referred to in Mabo v. Queensland.The Australian High Court’s 1992 decision of Mabo v. Queensland, marked a revolutionary departure from this foundational reasoning.
[10] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, reprinted in 6 I.L.M. 368 (1967)
[11] Estatuto do Indio (Statute of the Indian), Law No. 6.001 of December 19, 1973 cited in Barroso, Interestingly, if an entire indigenous community has “demonstrated its integration into the national community,” the President may, upon request of its members, declare its “emancipation.” Individual Indians who fulfill the same criterion, may also request their emancipation before a court.
[12] Anthropological Survey of India, People of India Project, cited in Deepak Kumar Behera, “So-Called Development” and Its Impact on the Human Rights of Indigenous People in India, in Human Rights of Indigenous Peoples 109 (Cynthia Price Cohen ed., 1998).
[13] Under the Constitution of 1990, the President of Fiji is appointed by the Bose Levu Vakaturaga, the Great Council of [Indigenous] Chiefs; the President appoints the Prime Minister, another Fijian; and the Fijians hold the absolute majority of seats in both Houses of Parliament. Eighty-three percent of the land in Fiji is still owned by Fijians, and the Native Lands Trust Act provides for its inalienability. At the time of the indigenous coup, the Fijian population was 46.0% Fijians, 48.7% descendants of immigrants from East India, and the rest others. According to the latest census of August 25, 1996, the Fijians now constitute 51.1%, the Indo-Fijians comprise 43.6%, with Chinese, Solomon Islanders, Rotumans, Europeans, and people of mixed race making up the balance.
[14] “The term Adivasis (see India for etymology), is not confined to any particular geographical or political boundaries but is generally used in the Indian subcontinent to denote indigenous peoples. Like India, Bangladesh has its Adivasis, though their proportion in the population is much smaller, perhaps 1.5 per cent”.
[15] he majority of the population in the CHT have been tribal people that since British times, have been identified in three circles (i) the Chakma circle consists of most of Rangamati district and one or two Thana in Khagrachari (ii) the Bomong circle includes all of Bandarban and one Thana in Rangamati (iii) the Mong Circle includes the balance of the Khagrachari district. The circles are divided into Mouzas and the Mouzas into hamlets. There are 11 hill communities and they have their own language and culture and tradition and there are around 5 languages. Most of the
Chakmas, Marmas, Tanchangya and Murangs are Bhuddists, the Tripuras are Hindus and the rest have individual religions including some Christian. The other tribal groups are Bawn, Pankhua, Khyang, Chal/Sak, Khumi and Lushai.
[16] The sad history of broken treaties between the United States and Native American tribes is chronicled in Vine Deloria, Jr., Behind the Trail of Broken Treaties (1974).See also Charles F. Wilkinson & John M. Volkman, Judicial Review of Indian Treaty Abrogation: “As Long as Water Flows, or Grass Grows Upon the Earth”-How Long a Time Is That?, 63 Cal. L. Rev. 601, 610 (1975) (“There are numerous accounts of threats, coercion, bribery, and outright fraud by the negotiators for the United States.”)
[17] See International Labor Organization Convention (No. 107) Concerning Indigenous and Tribal Peoples in Independent Countries, entered into force June 2, 1959, 328 U.N.T.S. 247.
[18] For background on the development of the “indigenous voice” in the world social and constitutive processes, Franke Wilmer, The Indigenous Voice in World Politics (1993).
[19] See Tribal Peoples in Bank-Finances Projects, Operational Manual Statement 2.34, February 1982, cited in Shelton H. Davis,
[20] Indigenous Peoples Development Planning Document