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Gradually, the countries have been changing their Constitutional norms, to the point
that now a number of nations have norms that recognize the cultural diversity of the
respective national societies, the existence of indigenous peoples, the right of these
peoples to maintain their cultural diversity forever, and the right to legalize their
lands. Nicaragua was one of the first countries in Latin America to undertake such a
process of recognition.
The existence of indigenous peoples as culturally
differentiated societies vis-à-vis the rest of society, with specific rights that refer
primarily to collective land possession, has been accepted at a Constitutional level.
Since the adoption of the 1987 Constitution and the Autonomy Law, which
established that indigenous peoples have the right to recognition of their ownership
of the land, of their possession of the land, since then the indigenous peoples can be
considered full owners of the land, and if they have no written titles, they can
demonstrate their possession through different types of evidence. Adoption of these
norms should force the State to abstain from adopting decisions regarding the
territories occupied by the indigenous.
The Autonomy Statute also states that ownership of indigenous lands by indigenous
communities is non-attachable, imprescriptible, and inalienable. In actual practice
there are some problems because the Agrarian Reform Law, which authorized giving
land to indigenous peoples, was adopted one year before the Constitution and the
Autonomy Law. And that Agrarian Reform Law did not recognize a special nature of
indigenous property, but rather an ownership according to the terms of Nicaragua’s
Civil Code, in other words, that it is an attachable, prescriptible, and alienable
property, located within trade and granted with the same characteristics as land
given to peasant farmers, after studies which are similar to those carried out before
giving lands to peasant farmers.
Indigenous property is private property which belongs collectively to an indigenous
people, community, or group. Transactions disposing of it are restricted, taking into
account that it is property assigned to a group which is a people and wishes to
perpetuate itself as a people, and demands that the population and territory be
maintained.
The lands occupied by the indigenous peoples of the Atlantic Coast have been seen
as national lands, government lands, lands which the State can freely dispose of, and
as such they are being given to peasant farmers who have been settling in those
regions. The indigenous communities have also been given title deeds to land, but
these titles are of the same nature as those to lands given to peasant-farmers.
Certain changes have to be made in the country’s legal system. First, there is a need
to clarify or develop some existing Constitutional norms, to develop them in terms of
the law. A clear procedure must be established to guarantee the indigenous peoples’
access to full ownership of their lands, through a procedure which they can manage
according to their tradition and culture, which recognizes the imprescriptibility and
non-attachability of those lands. There is also a need to further the definition of
certain aspects pertaining to property and natural resource management, since even
though according to the Constitution and in the Autonomy Law they belong to the
indigenous peoples, they contradict certain norms established by the State. Such is
the case, for example, of certain territories which have been defined as “parks”
within the Atlantic Region. There is a need to clarify what rights the indigenous
peoples and the State have over those territories. A system must be set up for
administration of the lands once they are granted by the State.