INVERSIÓN EN LOS DERECHOS DE NIÑAS, NIÑOS Y ADOLESCENTES

Legal mechanisms of dispossession have affected indigenous peoples in the global South as well as in the global North, although with their specific dynamics but under the same rationale. It is for this reason, that it is important to undertake a brief analysis of the similarities of the dispossession patterns of Latin American countries with countries of the Common Law systems (United States, Canada, Australia, and New Zealand).

This analysis will assist in the explanation of the global indigenous activism and politics elaborated in the later chapters of this thesis.

In 18^th century Australia, terra nullius was a consolidated doctrine because the majority of land titles were based on it, whereas in North America the doctrine had already been denied in 1665 by an English Royal Commission which asserted that North American land belonged to indigenous peoples (Tully, 1994). This decision was reaffirmed by the Royal Declaration of 1763 which established that the only authority that could negotiate with indigenous peoples (considered as nations) and to secure property to the settlers was the Crown.

After independence, however, indigenous peoples were dispossessed using old Vitoria’s theories. In Johnson v. Mintosh (1823), the Supreme Court declared that U.S. title to Indian lands could be obtained simply by discovery, such that the title of the discoverer

2 It must be noted that terra nullius has been used beyond the 18^th century. For example, the Berlin Conference (1884-1885), which fostered the ‘scramble for Africa’ of European colonisers, assumed that most of Africa was terra nullius (Gilbert, 2006).

56 overcame the rights of the plaintiff who bought the land from the Indians (Gilbert, 2006). Then, in Cherokee Nation v. Georgia Justice Marshall developed the “domestic dependent nations” doctrine, which viewed the relationship between indigenous communities and the U.S. as “that of a ward to his guardian” (Fromherz, 2008: p. 1365).

These decisions opposed the interests of many settlers who bought lands from Indians.

The different attitudes of the settlers in North America and Australia can be explained as due to the fact that the British colonisers in Australia were large groups controlled by the Crown. North America and New Zealand colonies, by contrast, were settled by weak expeditions which operated outside the Crown (Short, 2003). They were not able to appropriate land by force and there was initially no official authority that prohibited land purchases (Banner, 2005). However, most transactions celebrated between the settlers and the natives were not fair by being made at highly unfair rates of exchange or they were fraudulent. In New Zealand for example, the government investigated the transactions in the 1840s and found that Maori sellers had no legal authority to make transactions on the enormous areas acquired by the settlers (Banner, 2007).

Similarly regarding contractual transactions, the treaties celebrated with indigenous peoples reflected unequal bargaining power (Short, 2003). Indigenous peoples accepted to make treaties based on their own tradition of treaty-making. For instance, before colonisation, the Haudenosaunee of the eastern Great Lakes in today’s United States developed sophisticated treaty practices that governed the political relations between indigenous nations (Borrows, 2005). However, the treaties proposed by the colonisers were made through an imposition of a Western conceptual framework. In the treaty with the Haudenosaunee (1789), the U.S. recognised six million acres (half of New York) to Indian nations. However, as indigenous land’s purchases by the state were illegal, New York’s state used lease contracts -many of them for 999 years- to control almost the whole indigenous territory (Churchill, 2002). The Haudenosaunee initially agreed because the governor said that this was a way to ensure their property against illegal sales and New York’s high Court of Justice legitimated the state’s illegal leasing contracts (Churchill, 2002).

The treaties and land purchases motivated the U.S. jurisprudence to make a turn.

Although Chief Justice Marshall applied discovery and trusteeship doctrines in earlier cases, he denied them in Worcester v. the State of Georgia (1832). In this case indigenous property and government were legally recognised, though under the imperium of the settler nation (Tully, 1994; Dodds, 1998). Thus, although Marshall recognised American Indian nations as sovereign, this recognition applied only to the relationship between Indian nations and other states, though not with the Federal government.

Therefore, even though some celebrate the Royal Declaration and the Marshall jurisprudence as the basis of a certain kind of intercultural recognition of indigenous peoples’ property (Tully, 1994), in practice, the Common Law has aimed at eliminating indigenous’ territorial rights. Since the imperium on indigenous territories has never been questioned, the U.S. government created the trust system of reservations administered by the Federal government which owns all reservation land inhabited by indigenous peoples (Korman, 2010). Moreover, although the General Allotment Act (1887) recognised that each native had a right on their land, once they received their allotment (private property), the balance of each reserved territory was declared surplus

57 and made available to non-Indian settlers, reducing the indigenous territory by two-thirds (Churchill, 2002). Native people sought fair decisions in U.S. courts and refused to participate in allotments, but the Courts denied them their rights and with their refusal of allotments, the natives were left landless (Churchill, 2002). The policies of this period called the ‘allotment and assimilation era’ were based on the assumption that communal ownership perpetuates Indian’s uncivilised organisation. Similarly in New Zealand, the colonial laws regarding indigenous land (Native title land Act 1862 and Native Lands Act 1865) were directed to eliminate communal lands in order to weaken the Maori social structure (Gilbert, 2006).

In 1946 the U.S. Federal Government founded the Indian Claims Commission (ICC), whose aim was to investigate the unfair treaties, but at the same time provide funds to assimilate indigenous peoples into the modern society. By this time, the Federal Government and the Congress enacted Laws aimed at abolishing native communities and implementing a relocation program for young Indians, creating many Indians ghettos in the country (Wunder, 1998). In Australia, programs for education, employment, and housing of indigenous families in white neighbourhoods were policies directed to eliminate indigenous traditions and communal organisation (Moran, 2005).

In Latin America, things were not any better. After independence from Spain in the 1820s, in countries like Peru, Ecuador and Bolivia the new elites in power faced two obstacles in their view to building a modern society: the existence of large indigenous populations and large extensions of indigenous communal land (Galindo, 2010). The answer the elites found to this impasse was the application of policies of assimilation and exclusion, which included forced conversion to Christianity, compulsory use of Spanish language, or open genocide (Sanders, 1989). The elites sought to construct the new republics as European, Catholic and white countries with no place for indigenous peoples (Arocena, 2008).

These measures converted many indigenous people into servants (peons) of large landowners or estates (haciendas) owners (Galindo, 2010). Although agrarian reforms during the decades of the fifties, sixties and seventies across Latin America, for first time since the colonial era recognised indigenous land claims, the reforms consolidated the process of inclusion by granting them political, social and economic rights, not as indigenous peoples with specific cultural identities, rather as peasants with an economic and homogenous status (Arocena, 2008).

In the global North as in the South indigenous peoples were trapped in the inclusion/exclusion paradox. They were included insofar that they had to be integrated to the major political and economic goals, though excluded if they resisted the implementation of the state’s macro-economic and social policies. By the middle of the last century, the integrationist strategy was consolidated in the Pátzcuaro Agreement (the outcome of the First Inter-American Indigenous Congress in Mexico in 1940), and the International Labour Organisation’s Convention 107 of 1957, the latter ratified by all the independent countries of Latin America and the Caribbean. The Convention 107 established an open integrationist perspective and the mode to ensure indigenous inclusion into the dominant society was to provide education, technical training and economic assistance (Roldán, 2004; Sanders, 1989; Suagee, 1997; Stamatopoulou, 1994; Pitty, 2001). This approach did not represent a fundamental change in the essence

58 of assimilation policies of indigenous peoples but in the form. In other words, assimilation changed from a previously violent to a friendly assimilation.