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spaces of the territory of the hemisphere to be wastelands, national lands, and they
took upon themselves the right to make their will on those lands, without taking into
account the original rights, the historical rights, and the physical presence of
indigenous peoples organized in different ways on those lands from the times of their
ancestors. Problems arise when the States decide to issue deed titles to those lands
or to grant concessions or to allow the clearing of those lands, to authorize the use of
those lands for other purposes determined by various economic interests. That is
when many indigenous peoples realize that juridically speaking they are not the
authentic owners of the territories which they have occupied traditionally.
In recent decades, indigenous peoples have begun to organize, as they have realized
that they have to do something to juridically protect and safeguard these lands.
What is generically called indigenous customary law is not a structured body of law,
much less a codified one; it is a series of real practices which are carried out in
different ways in various communities, to solve a number of problems of
administrating justice, addressing conflicts, keeping internal order, regulating
interpersonal complaints, managing relations with the outside world, etc. Under
customary law, the land is seen as a spiritual place, insofar as it is linked to human
beings, since it has sacred places, the forest, etc. This linkage of humans with the
territory is not necessarily written down, it is something lived on a daily basis.
As regards ancestral occupation of the land, continuity is established in terms of the
historical continuity of a group which for centuries has maintained an identity from
which, precisely, stems its current situation in the given country. The fact is that due
to historical changes, economic depressions, violence, civil wars, and pressures by
the economically dominant system, which for centuries has applied pressure on the
indigenous peoples and restricted them to those areas which the first invaders, the
settlers and then the large corporations, have not been interested in, indigenous
groups have been forced to seek new habitats, so as to maintain that historical
continuity without the intervention of alien forces, so as to maintain their freedom
and their right to live according to their own understanding of life. There are many
examples of communities which have moved from one place to another in relatively
recent historical times.
All this is part of the indigenous worldview, which currently is being reflected in
substantive law, and an international indigenous law is being constructed. This
process includes work by the United Nations, in the Draft Declaration on the Rights of
Indigenous Peoples; by the Organization of American States, in the Project on
Indigenous Rights; by the International Labor Organization, in Covenant 169. Up to
now, recognition of indigenous rights has been merely formal, as it has not been
possible to attain progress in the development of regulations on those rights. The
ILO Covenant reflects them in general terms and poses the challenge of translating
those norms into effective national regulations.
The report prepared by professor Theodore Macdonald fulfills all the requirements of
a methodologically responsible ethnographic research study, based on multiple
sources and on concepts from various disciplines: anthropology, history, geography,
economics, etc. It is clear from reading the study that the researcher has traveled
extensively throughout those areas, interviewed many people, obtained direct
information, which is what anthropologists generally do, and he has also resorted to
the critical analysis of a large amount of documents that are not always easy to
obtain, so as to substantiate his findings.