the identity of the indigenous peoples are based, above all, on their unique relationship
with their traditional lands, so that as long as this relationship exists, the right to claim
those lands remains in force. If the relationship ceases to exist, so would this right.
113. To determine the existence of the relationship of indigenous peoples with their
traditional land, the Court has established that: (i) it can be expressed in different
ways depending on the indigenous people in question and their specific circumstances,
and (ii) the relationship with the land must be possible. The ways in which this
relationship is expressed could include traditional presence or use, by means of
spiritual or ceremonial ties; sporadic settlements or crops; hunting, fishing or seasonal
or nomadic gathering; use of natural resources related to their customs, and any other
element characteristic of their culture.135 The second element signifies that the
members of the Community should not be prevented by factors beyond their control
from carrying out those activities that reveal the persistence of the relationship with
their traditional land.136
114. In the instant case, the Court observes that the relationship of the members of
the Community with their traditional territory is manifested, inter alia, by the
implementation of their traditional activities on those lands (supra paras. 65, 66, 74,
and 75). In this regard, the anthropologist Chase Sardi stated in his 1995 report that
the Community continued “occupying its territory and practicing its traditional
economy, despite the conditions [imposed by] private property.”137 It was of particular
relevance that, even in the face of the restrictions imposed on the members of the
Community, “they still enter[ed] secretly to hunt.”138 In addition, some members of
the Community indicated that, when they lived on the Salazar Ranch, they still
practiced some traditional medicine, and the shamans collected medicinal plants in the
countryside;139 also the dead were buried according to the Community’s customs,140 all
this with considerable constraints.
115. In addition, for reasons beyond their control, the members of the Community
have been entirely prevented from carrying out traditional activities on the land
claimed since early 2008 owing to the creation of the private nature reserve on part of
it (supra paras. 80 and 82).
116. Based on the above, the Court finds that the right of the members of the
Xákmok Kásek Community to recover their lost lands remains in effect.
2.1.4. Alleged realization of the right of the members of the Community
to their traditional lands with alternate land
117. The State maintained that the right of the members of the Community could be
realized with lands other than the ones claimed, since the traditional lands are not
limited to those being claimed. However, the State has not identified the alternate
lands of the same size and quality that would satisfy the Community’s claim. Although
it submitted a list of available properties in areas close to the Community’s current
135
Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, supra note 5, para. 154, and Case of
the Sawhoyamaxa Indigenous Community v. Paraguay, supra note 20, paras. 131 to 132.
136
Cf. Case of the Sawhoyamaxa Indigenous Community v. Paraguay, supra note 20, para. 132.
137
Cf. CEADUC Anthropological Report, supra note 55, folio 741.
138
Testimony of Gerardo Larrosa, supra note 75, folio 605.
139
Cf. Testimony of Gerardo Larrosa, supra note 75, folio 607, and testimony of Maximiliano Ruíz,
supra note 28.
140
Cf. Testimony of Maximiliano Ruíz, supra note 28.
28