35.
The Commission argued that the fact that the Community is made up of families
that belong to different ethnic groups “does not constitute […] an obstacle for this
indigenous community to possess the right to its ancestral territory.” It stressed that
the “multi-ethnic composition of the Community […] is due to its history” and that the
indigenous peoples are dynamic human groups whose cultural composition “is
restructured and reconfigured with the passage of time without this giving rise to the
loss of its specific indigenous status.” It maintained that, irrespective of the different
ethnic groups that make up the Community, “it is clearly identified as regards its
location and general composition.”
36.
The Court observes that the alleged differences regarding the identification of
the Community refer, on the one hand, to the multi-ethnic nature of the Community
and, on the other, its name.
2.1.
Multi-ethnic nature of the Xákmok Kásek Community
37.
First, the Court emphasizes that it is not for the Court or the State to determine
the Community’s name or ethnic identity. As the State itself recognizes, it “cannot […]
unilaterally assign or deny names of [the] indigenous communities, because this action
corresponds to the Community concerned.” The identification of the Community, from
its name to its membership, is a social and historical fact that is part of its autonomy.
This has been the Court’s criterion in similar situations.16 Therefore, the Court and the
State must restrict themselves to respecting the corresponding decision made by the
Community; in other words, the way in which it identifies itself.
38.
Despite the foregoing, this Court observes that, in Paraguay, there are 20
indigenous ethnic groups belonging to five linguistic families, namely: Enlhet-Enenlhet,
formerly known as Lengua Maskoy, Mataco Mataguayo, Zamuco, Guaicurú, and
Guaraní.17 In the Chaco region there are up to 17 different indigenous ethnic groups
representing all five linguistic families.18
39.
The Enlhet-Enenlhet19 linguistic family is composed of six peoples: Enxet
(Lenguas or Enxet–Sur), Enlhet (Enlhet–Norte), Sanapaná, Angaité, Toba Maskoy, and
Guaná. The Enlhet-Enenlhet have traditionally inhabited the Paraguayan Chaco,20
particularly the eastern central region,21 and are a historical people that have
16
Cf. Case of the Saramaka People v. Suriname. Preliminary objections, merits, reparations and costs.
Judgment of November 28, 2007. Series C No. 172, para. 164.
17
Cf. Expert testimony of Rodolfo Stavenhagen authenticated by notary public (merits file, tome II,
folio 620); Notarized expert testimony of Sergio Iván Braticevic by affidavit (file of attachments to the
State’s final arguments, tome X, folio 4238); testimony of Rodrigo Villagra Carron provided during the public
hearing on April 14, 2010, during the forty-first special session held in Lima, Peru, and testimony of Lida
Acuña provided during the public hearing on April 14, 2010, during the forty-first special session held in
Lima, Peru.
18
Cf. Expert testimony of Iván Braticevic, supra note 17, folio 4238; testimony of Rodrigo Villagra
Carron, supra note 17, and testimony of Lida Acuña, supra note 17.
19
Cf. Testimony of Rodrigo Villagra Carron, supra note 17; Testimony of Lida Acuña, supra note 17,
and Kalish, Hannes and Unruh, Ernesto. 2003. “Enlhet-Enenlhet. Una familia lingüística chaqueña,” in Thule
Rivista di studi americanisti, No. 14/15, April/October 2003 (file of attachments to the pleadings and motions
brief, attachment 16, tome VII, folio 2915).
20
Cf. Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, reparations and costs.
Judgment of March 29, 2006. Series C No. 146, para. 73(5), and Case of the Yakye Axa Indigenous
Community v. Paraguay, supra note 5, para. 50(1).
21
Kalish, Hannes, and Unruh, Ernesto. 2003. “Enlhet-Enenlhet. Una familia lingüística chaqueña,”
supra note 19, folio 2915.
10