Indigenous or Tribal: a "traditional community"

The terms "indigenous" and "tribal" can be understood according to the definition in Art. 1 of the International Labour Organization's Convention 169 on Indigenous and Tribal Peoples in Independent Countries (I.L.O. 169), which states that the Convention applies to:

(a) Tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;

(b) Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.

Art. 1 of I.L.O. 169 also states that: "Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply". These criteria are followed in various other international instruments and by many indigenous and tribal peoples themselves. Official as well as self-appellation preferences for the use of "indigenous" vs."tribal" (as well as others such as "native", "aboriginal", "ethnic minority", etc.) vary from one region of the world to the other. A highly simplified description is to say that there is a general tendency toward the use of "indigenous" (or variants thereof) to refer in particular to the original inhabitants of the Americas, Australia, and the Pacific, while the terms "tribal" or "ethnic minority" are more common in Africa and Asia. The expression "traditional communities" is also commonly used to refer to "local communities embodying traditional lifestyles", as per Article 8j of the Convention on Biological Diversity. (LM)

Only peoples, not minorities or populations or (ethnic or other) groups, have the right to self-determination in international law (see Why is it important whether a group is defined as a minority according to international law or not?). This has led to terminological disputes. The U.N. Group which worked for over a decade with the Draft Declaration on the Rights of Indigenous Peoples, was, for instance, called "U.N. Working Group on Indigenous Populations", not "Peoples". The problem has also led to the formulation of legal exceptions (as in the I.L.O. Convention 169 above) which, though using "peoples", stipulates that the use of the word shall not have any consequences for the rights that lie with "peoples" elsewhere in international law, i.e., indigenous or tribal groups do not have the right to self-determination in the classical sense (= independence).

Gudmundur Alfredsson (1990: 5) sees the criterion of inhabitation of land since "time immemorial" as the critical factor for defining indigenous peoples. Stener Ekern (1998: 7) asserts that the criterion of descent seems "to come out as the least significant criterion", especially because of (a) several consecutive colonisations (Africa); (b) many Asian countries in addition claim that all their peoples are indigenous; and (c) many groups (such as the Basques, Tuaregs, Kurds) reject the status of "indigenous". The decisive factors, according to him, are "a disadvantageous relation with a national community" and "readiness to adopt the status of 'indigenous' or 'tribal' as against the external world. In practice, groups choose to be indigenous if it is politically expedient. If not, it might be better to appear as minorities or colonised nations fighting for self-determination" (ibid.).

Some broad definitions suggest a focus on endo-definitions and on cultural and other differences from the rest of the society, and on the will to transmit them to succeeding generations. These definitions share many characteristics with definitions of minorities (see Minority). One representative example is the definition by José R. Martinez Cobo, Special Rapporteur appointed by the U.N. Subcommission on the Prevention of Discrimination and the Protection of Minorities to study the problems of discrimination against indigenous peoples (1987: 4). "[I]ndigenous communities, peoples and nations are those which, in having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems" (emphases added; the focussed characteristics are in bold). Not surprisingly, the U.N. Draft Declaration on the Rights of Indigenous Peoples does not contain a definition of indigenous peoples.

Since virtually all indigenous peoples are also at the same time minorities in terms of both numbers and power (less than 50% of the population and non-dominant), they can in principle make use of all the rights that minorities have in international law. Still more important is that most of them have never properly surrendered or abandoned their sovereignty as a people -- it has been forcibly taken from them. This is also true in most cases where there have been treaties with the colonisers. Therefore they should be seen as sovereign entities, with the right to negotiate self-determination.

For further references, see Clark & Williamson's edited volume Self-Determination: international perspectives (1996); de Varennes 1996a, b; Hannum 1988, 1989, 1990; Martinez Cobo 1987; Alfredsson 1990, 1991; Thornberry 1987, 1991, 1995, 1997. Patrick Thornberry is also finishing a substantial book on the rights of indigenous peoples, due out in 2001. (TSK).

Source: Terralingua