this respect that the Kuna have developed their own system of organization to negotiate with
international and national public bodies, which proves that they are not genuinely vulnerable or
isolated.
35. The State alleges that the petitioners have not exhausted all the judicial and administrative
actions available under domestic law. They also indicate that the grievances of the alleged
victims regarding the presence of colonists are being addressed by the State because the
petitioners have lodged complaints with the Office of the Attorney General and a criminal
complaint with the Office of the Assistant Public Prosecutor, which has prompted investigations
by the National Environmental Authority of alleged environmental offenses reportedly committed
by colonists. The State also points to the arrest of colonists for environmental offenses.13
36. The State has indicated that the following remedies under Panamanian law have been
available to the petitioners: action for unconstitutionality, the contentious-administrative venue,
actions and appeals that all instances of the administrative and judicial jurisdiction guarantee as
part of due process, the amparo action, and the office of the Ombudsman.
37. In that respect, the Commission finds that the facts alleged in the instant case have to do
with effective protection of the right of indigenous peoples to collective property. The
jurisprudence of the inter-American system for protection of human rights has determined that,
as regards indigenous peoples, it is essential for the States to grant effective protection that
takes into account their specificities, their economic and social characteristics, as well as their
situation of special vulnerability, their customary law, values, and customs.14
38. In this connection, the Commission observes that the alleged victims, through their
representative institutions, have for three decades negotiated with State authorities in order to
address the three central issues of the present petition: the compensation for their relocation,
the legal recognition of their lands and the problems related to the intrusions by colonists. These
negotiations have resulted in the signing of a series of political accords, resolutions, and decrees.
Indeed, the documents submitted by the petitioners as part of the record before the IACHR
include the following decrees, resolutions, and agreements between the Kuna and Emberá
peoples and the State concerning commitments made by the State on the matters of relocation,
compensation, and the colonists: Cabinet Decree 123 of May 8, 1969; Decree Law 156 of July
8, 1971; Agreement of Farallón, October 29, 1976; Agreement of Fuerte Cimarrón, January 29,
1977; Agreement of September 6, 1983; Agreement of Mutual Consent of August 3, 1984;
Record of the meeting with the Indigenous Kuna of Bayano at the Bayano Corporation Inn,
August 7, 1984; Resolution 4, March 16, 1989; Decision of the Committee for the Problem of
Land Invasions in the Bayano Area, Chepo, March 23, 1990; Resolution 002 of January 24, 1992;
Resolution 63 of March 17, 1992; and Law 24 of January 12, 1996, which created the Kuna of
Madungandí Reserve.
39. In addition, the Commission observes that the Emberá of Bayano undertook a series of
actions over the years, particularly before the office of the President of the Republic, in order to
obtain the recognition of their legal personality and the legalization of their lands. In the
documents provided by the petitioners, which are part of the case file before the IACHR, are
contained the following petitions to state authorities in order to obtain legal recognition for the
lands of the Emberá communities of Ipeti and Piriati: Request for Collective Land Title (for the
Emberá community of Ipetí), submitted by Héctor Huertas González to the President of the
Republic of Panama, June 13, 1995; Request for legal personality for the Ipetí-Emberá
Association from Bonarge Pacheco to the President of the Republic of Panama dated January 11,
1999; Brief to the President of the Republic of Panama by Gregorio Carlos Cunampia of January
11, 1999, requesting a property title for the Emberá community of Piriati.
Brief submitted by the State on April 27, 2007, in response to the request for information from the IACHR on account
of the petitioners’ application for precautionary measures.
14
I/A Court H.R., Case of the Indigenous Community Yakye Axa. Judgment of June 17, 2005. Series C No. 125, para.
63.
13
7