PROPOSED AMERICAN DECLARATION ON THE
RIGHTS OF INDIGENOUS PEOPLES
(Approved by the Inter-American Commission on Human Rights on February
1997, at its 1333rd session, 95th regular session)
1. Indigenous institutions and the
strengthening of nations
The member states of the OAS (hereafter the states),
Recalling that the indigenous peoples of the Americas constitute an
organized, distinctive and integral segment of their population and are entitled to be
part of the national identities of the countries of the Americas, and have a special role
to play in strengthening the institutions of the state and in establishing national unity
based on democratic principles; and,
Further recalling that some of the democratic institutions and concepts
embodied in the constitutions of American states originate from institutions of the
indigenous peoples, and that in many instances their present participatory systems for
decision-making and for authority contribute to improving democracies in the Americas.
Recalling the need to develop their national juridical systems to
consolidate the pluricultural nature of our societies.
2. Eradication of poverty and the right to
Concerned about the frequent deprivation afflicting indigenous peoples
of their human rights and fundamental freedoms; within and outside their communities, as
well as the dispossession of their lands, territories and resources, thus preventing them
from exercising, in particular, their right to development in accordance with their own
traditions, needs and interests.
Recognizing the severe impoverishment afflicting indigenous peoples in
several regions of the Hemisphere and that their living conditions are generally
And recalling that in the Declaration of Principles issued by the
Summit of the Americas in December 1994, the heads of state and governments declared that
in observance of the International Decade of the World's Indigenous People, they will
focus their energies on improving the exercise of democratic rights and the access to
social services by indigenous peoples and their communities.
3. Indigenous culture and ecology
Recognizing the respect for the environment accorded by the cultures of
indigenous peoples of the Americas, and considering the special relationship between the
indigenous peoples and the environment, lands, resources and territories on which they
live and their natural resources.
4. Harmonious Relations, Respect and the
Absence of Discrimination
Reaffirming the responsibility of all states and peoples of the
Americas to end racism and racial discrimination, with a view to establishing harmonious
relations and respect among all peoples.
5. Territories and Indigenous Survival
Recognizing that in many indigenous cultures, traditional collective
systems for control and use of land, territory and resources, including bodies of water
and coastal areas, are a necessary condition for their survival, social organization,
development and their individual and collective well-being; and that the form of such
control and ownership is varied and distinctive and does not necessarily coincide with the
systems protected by the domestic laws of the states in which they live.
6. Security and indigenous areas
Reaffirming that the armed forces in indigenous areas shall restrict
themselves to the performance of their functions and shall not be the cause of abuses or
violations of the rights of indigenous peoples.
7. Human Rights instruments and other
advances in international law
Recognizing the paramouncy and applicability to the states and peoples
of the Americas of the American Declaration of the Rights and Duties of Man, the American
Convention on Human Rights and other human rights instruments of inter-American and
international law; and
Recognizing that indigenous peoples are a subject of international law,
and mindful of the progress achieved by the states and indigenous organizations,
especially in the sphere of the United Nations and the International Labor Organization,
in several international instruments, particularly in the ILO Convention 169.
Affirming the principle of the universality and indivisibility of human
rights, and the application of international human rights to all individuals.
8. Enjoyment of Collective Rights
Recalling the international recognition of rights that can only be
enjoyed when exercised collectively.
9. Advances in the provisions of national
Noting the constitutional, legislative and jurisprudential advances
achieved in the Americas in guaranteeing the rights and institutions of indigenous
SECTION ONE. INDIGENOUS PEOPLES
Article I. Scope and definitions
1. This Declaration applies to indigenous peoples as well as peoples
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.
2. Self identification as indigenous shall be regarded as a fundamental
criterion for determining the peoples to which the provisions of this Declaration apply.
3. The use of the term "peoples" in this Instrument shall not
be construed as having any implication with respect to any other rights that might be
attached to that term in international law.
SECTION TWO. HUMAN RIGHTS
Article II. Full observance of human rights
1. Indigenous peoples have the right to the full and effective
enjoyment of the human rights and fundamental freedoms recognized in the Charter of the
OAS, the American Declaration of the Rights and Duties of Man, the American Convention on
Human Rights, and other international human rights law; and nothing in this Declaration
shall be construed as in any way limiting or denying those rights or authorizing any
action not in accordance with the instruments of international law including human rights
2. Indigenous peoples have the collective rights that are indispensable
to the enjoyment of the individual human rights of their members. Accordingly the states
recognize inter alia the right of the indigenous peoples to collective action, to
their cultures, to profess and practice their spiritual beliefs, and to use their
3. The states shall ensure for indigenous peoples the full exercise of
all rights, and shall adopt in accordance with their constitutional processes such
legislative or other measures as may be necessary to give effect to the rights recognized
in this Declaration.
Article III. Right to belong to indigenous peoples
Indigenous peoples and communities have the right to belong to
indigenous peoples, in accordance with the traditions and customs of the peoples or nation
Article IV. Legal status of communities
Indigenous peoples have the right to have their legal personality fully
recognized by the states within their systems.
Article V. No forced assimilation
1. Indigenous peoples have the right to freely preserve, express and
develop their cultural identity in all its aspects, free of any attempt at assimilation.
2. The states shall not undertake, support or favour any policy of
artificial or enforced assimilation of indigenous peoples, destruction of a culture or the
possibility of the extermination of any indigenous peoples.
Article VI. Special guarantees against discrimination
1. Indigenous peoples have the right to special guarantees against
discrimination that may have to be instituted to fully enjoy internationally and
nationally-recognized human rights; as well as measures necessary to enable indigenous
women, men and children to exercise, without any discrimination, civil, political,
economic, social, cultural and spiritual rights. The states recognize that violence
exerted against persons because of their gender and age prevents and nullifies the
exercise of those rights.
2. Indigenous peoples have the right to fully participate in the
prescription of such guarantees.
SECTION THREE. CULTURAL DEVELOPMENT
Article VII. Right to Cultural integrity
1. Indigenous peoples have the right to their cultural integrity, and
their historical and archeological heritage, which are important both for their survival
as well as for the identity of their members.
2. Indigenous peoples are entitled to restitution in respect of the
property of which they have been dispossessed, and where that is not possible,
compensation on a basis not less favorable than the standard of international law.
3. The states shall recognize and respect indigenous ways of life,
customs, traditions, forms of social, economic and political organization, institutions,
practices, beliefs and values, use of dress, and languages.
Article VIII. Philosophy, outlook and language
1. Indigenous peoples have the right to indigenous languages,
philosophy and outlook as a component of national and universal culture, and as such,
shall respect them and facilitate their dissemination.
2. The states shall take measures and ensure that broadcast radio and
television programs are broadcast in the indigenous languages in the regions where there
is a strong indigenous presence, and to support the creation of indigenous radio stations
and other media.
3. The states shall take effective measures to enable indigenous
peoples to understand administrative, legal and political rules and procedures, and to be
understood in relation to these matters. In areas where indigenous languages are
predominant, states shall endeavor to establish the pertinent languages as official
languages and to give them the same status that is given to non-indigenous official
4. Indigenous peoples have the right to use their indigenous names, and
to have the states recognize them as such.
Article IX. Education
1. Indigenous peoples shall be entitled: a) to establish and set in
motion their own educational programs, institutions and facilities; b) to prepare and
implement their own educational plans, programs, curricula and materials; c) to train,
educate and accredit their teachers and administrators. The states shall endeavor to
ensure that such systems guarantee equal educational and teaching opportunities for the
entire population and complementarity with national educational systems.
2. When indigenous peoples so decide, educational systems shall be
conducted in the indigenous languages and incorporate indigenous content, and they shall
also be provided with the necessary training and means for complete mastery of the
official language or languages.
3. The states shall ensure that those educational systems are equal in
quality, efficiency, accessibility and in all other ways to that provided to the general
4. The states shall take measures to guarantee to the members of
indigenous peoples the possibility to obtain education at all levels, at least of equal
quality with the general population.
5. The states shall include in their general educational systems,
content reflecting the pluricultural nature of their societies.
6. The states shall provide financial and any other type of assistance
needed for the implementation of the provisions of this article.
Article X. Spiritual and religious freedom
1. Indigenous peoples have the right to freedom of conscience, freedom
of religion and spiritual practice, and to exercise them both publicly and privately.
2. The states shall take necessary measures to prohibit attempts to
forcibly convert indigenous peoples or to impose on them beliefs against their will.
3. In collaboration with the indigenous peoples concerned, the states
shall adopt effective measures to ensure that their sacred sites, including burial sites,
are preserved, respected and protected. When sacred graves and relics have been
appropriated by state institutions, they shall be returned.
4. The states shall encourage respect by all people for the integrity
of indigenous spiritual symbols, practices, sacred ceremonies, expressions and protocols.
Article XI. Family relations and family ties
1. The family is the natural and basic unit of societies and must be
respected and protected by the state. Consequently the state shall recognize and respect
the various forms of indigenous family, marriage, family name and filiation.
2. In determining the child's best interest in matters relating to the
protection and adoption of children of members of indigenous peoples, and in matters of
breaking of ties and other similar circumstances, consideration shall be given by courts
and other relevant institutions to the views of the peoples, including individual, family
and community views.
Article XII. Health and well-being
1. Indigenous peoples have the right to legal recognition and practice
of their traditional medicine, treatment, pharmacology, health practices and promotion,
including preventive and rehabilitative practices.
2. Indigenous peoples have the right to the protection of vital
medicinal plants, animal and mineral in their traditional territories.
3. Indigenous peoples shall be entitled to use, maintain, develop and
manage their own health services, and they shall also have access, on an equal basis, to
all health institutions and services and medical care accessible to the general
4. The states shall provide the necessary means to enable the
indigenous peoples to eliminate such health conditions in their communities which fall
below international accepted standards for the general population.
Article XIII. Right to environmental protection
1. Indigenous peoples have the right to a safe and healthy environment,
which is an essential condition for the enjoyment of the right to life and collective
2. Indigenous peoples have the right to be informed of measures which
will affect their environment, including information that ensures their effective
participation in actions and policies that might affect it.
3. Indigenous peoples shall have the right to conserve, restore and
protect their environment, and the productive capacity of their lands, territories and
4. Indigenous peoples have the right to participate fully in
formulating, planning, managing and applying governmental programmes of conservation of
their lands, territories and resources.
5. Indigenous peoples have the right to assistance from their states
for purposes of environmental protection, and may receive assistance from international
6. The states shall prohibit and punish, and shall impede jointly with
the indigenous peoples, the introduction, abandonment, or deposit of radioactive materials
or residues, toxic substances and garbage in contravention of legal provisions; as well as
the production, introduction, transportation, possession or use of chemical, biological
and nuclear weapons in indigenous areas.
7. When a State declares an indigenous territory as protected area, any
lands, territories and resources under potential or actual claim by indigenous peoples,
conservation areas shall not be subject to any natural resource development without the
informed consent and participation of the peoples concerned.
SECTION FOUR. ORGANIZATIONAL AND POLITICAL RIGHTS
Article XIV. Rights of association, assembly, freedom of expression and
freedom of thought
1. Indigenous peoples have the right of association, assembly and
expression in accordance with their values, usages, customs, ancestral traditions, beliefs
2. Indigenous peoples have the right of assembly and to the use of
their sacred and ceremonial areas, as well as the right to full contact and common
activities with their members living in the territory of neighboring states.
Article XV. Right to self government
1. Indigenous peoples have the right to freely determine their
political status and freely pursue their economic, social, spiritual and cultural
development , and accordingly, they have the right to autonomy or self-government with
regard to inter alia culture, religion, education, information, media, health,
housing, employment, social welfare, economic activities, land and resource management,
the environment and entry by nonmembers; and to determine ways and means for financing
these autonomous functions.
2. Indigenous peoples have the right to participate without
discrimination, if they so decide, in all decision-making, at all levels, with regard to
matters that might affect their rights, lives and destiny. They may do so directly or
through representatives chosen by them in accordance with their own procedures. They shall
also have the right to maintain and develop their own indigenous decision-making
institutions, as well as equal opportunities to access and participate in all state
institutions and fora.
Article XVI. Indigenous Law
1. Indigenous law shall be recognized as a part of the states' legal
system and of the framework in which the social and economic development of the states
2. Indigenous peoples have the right to maintain and reinforce their
indigenous legal systems and also to apply them to matters within their communities,
including systems related to such matters as conflict resolution, crime prevention and
maintenance of peace and harmony.
3. In the jurisdiction of any state, procedures concerning indigenous
peoples or their interests shall be conducted in such a way as to ensure the right of
indigenous peoples to full representation with dignity and equality before the law. This
shall include observance of indigenous law and custom and, where necessary, use of their
Article XVII. National incorporation of indigenous legal and
1. The states shall facilitate the inclusion in their organizational
structures, the institutions and traditional practices of indigenous peoples, and in
consultation and with consent of the peoples concerned.
2. State institutions relevant to and serving indigenous peoples shall
be designed in consultation and with the participation of the peoples concerned so as to
reinforce and promote the identity, cultures, traditions, organization and values of those
SECTION FIVE. SOCIAL, ECONOMIC AND PROPERTY RIGHTS
Article XVIII. Traditional forms of ownership and cultural survival.
Rights to land, territories
1. Indigenous peoples have the right to the legal recognition of their
varied and specific forms and modalities of their control, ownership, use and enjoyment of
territories and property.
2. Indigenous peoples have the right to the recognition of their
property and ownership rights with respect to lands, territories and resources they have
historically occupied, as well as to the use of those to which they have historically had
access for their traditional activities and livelihood.
3. i) Subject to 3.ii.), where property and user rights of indigenous
peoples arise from rights existing prior to the creation of those states, the states shall
recognize the titles of indigenous peoples relative thereto as permanent, exclusive,
inalienable, imprescriptible and indefeasible.
ii) Such titles may only be changed by mutual consent between the state
and respective indigenous peoples when they have full knowledge and appreciation of the
nature or attributes of such property.
iii) Nothing in 3.i.) shall be construed as limiting the right of
indigenous peoples to attribute ownership within the community in accordance with their
customs, traditions, uses and traditional practices, nor shall it affect any collective
community rights over them.
4. Indigenous peoples have the right to an effective legal framework
for the protection of their rights with respect to the natural resources on their lands,
including the ability to use, manage, and conserve such resources; and with respect to
traditional uses of their lands, interests in lands, and resources, such as subsistence.
5. In the event that ownership of the minerals or resources of the
subsoil pertains to the state or that the state has rights over other resources on the
lands, the governments must establish or maintain procedures for the participation of the
peoples concerned in determining whether the interests of these people would be adversely
affected and to what extent, before undertaking or authorizing any program for planning,
prospecting or exploiting existing resources on their lands. The peoples concerned shall
participate in the benefits of such activities, and shall receive compensation, on a basis
not less favorable than the standard of international law for any loss which they may
sustain as a result of such activities.
6. Unless exceptional and justified circumstances so warrant in the
public interest, the states shall not transfer or relocate indigenous peoples without the
free, genuine, public and informed consent of those peoples, but in all cases with prior
compensation and prompt replacement of lands taken, which must be of similar or better
quality and which must have the same legal status; and with guarantee of the right to
return if the causes that gave rise to the displacement cease to exist.
7. Indigenous peoples have the right to the restitution of the lands,
territories and resources which they have traditionally owned or otherwise occupied or
used, and which have been confiscated, occupied, used or damaged, or when restitution is
not possible, the right to compensation on a basis not less favorable than the standard of
international law .
8. The states shall take all measures, including the use of law
enforcement mechanisms, to avert, prevent and punish, if applicable, any intrusion or use
of those lands by unauthorized persons to take possession or make use of them. The states
shall give maximum priority to the demarcation and recognition of properties and areas of
Article XIX. Workers rights
1. Indigenous peoples shall have the right to full enjoyment of the
rights and guarantees recognized under international labor law and domestic labor law;
they shall also have the right to special measures to correct, redress and prevent the
discrimination to which they have historically been subject.
2. To the extent that they are not effectively protected by laws
applicable to workers in general, the states shall take such special measures as may be
a. effectively protect the workers and employees who are members of
indigenous communities in respect of fair and equal hiring and terms of employment;
b. to improve the labor inspection and enforcement service in regions,
companies or paid activities involving indigenous workers or employees;
c. ensure that indigenous workers:
i) enjoy equal opportunity and treatment as regards all conditions of
employment, job promotion and advancement; and other conditions as stipulated under
ii) enjoy the right to association and freedom for all lawful trade
union activities, and the right to conclude collective agreements with employers or
iii) are not subjected to racial, sexual or other forms of harassment;
iv) are not subjected to coercive hiring practices, including servitude
for debts or any other form of servitude, even if they have their origin in law, custom or
a personal or collective arrangement, which shall be deemed absolutely null and void in
v) are not subjected to working conditions that endanger their health
vi) receive special protection when they serve as seasonal, casual or
migrant workers and also when they are hired by labor contractors in order that they
benefit from national legislation and practice which must itself be in accordance with
established international human rights standards in respect of this type of workers, and,
vii) as well as their employers are made fully aware of the rights of
indigenous workers, under such national legislation and international standards, and of
the recourses available to them in order to protect those rights.
Article XX. Intellectual property rights
1. Indigenous peoples have the right to the recognition and the full
ownership, control and protection of their cultural, artistic, spiritual, technological
and scientific heritage, and legal protection for their intellectual property through
trademarks, patents, copyright and other such procedures as established under domestic
law; as well as to special measures to ensure them legal status and institutional capacity
to develop, use, share, market and bequeath that heritage to future generations.
2. Indigenous peoples have the right to control, develop and protect
their sciencies and technologies, including their human and genetic resources in general,
seed, medicine, knowledge of plant and animal life, original designs and procedure.
3. The states shall take appropriate measures to ensure participation
of the indigenous peoples in the determination of the conditions for the utilization, both
public and private, of the rights listed in the previous paragraphs 1. and 2.
Article XXI. Right to development
1. The states recognize the right of indigenous peoples to decide
democratically what values, objectives, priorities and strategies will govern and steer
their development course, even where they are different from those adopted by the national
government or by other segments of society. Indigenous peoples shall be entitled to obtain
on a non-discriminatory basis appropriate means for their own development according to
their preferences and values, and to contribute by their own means, as distinct societies,
to national development and international cooperation.
2. Unless exceptional circumstances so warrant in the public interest,
the states shall take necessary measures to ensure that decisions regarding any plan,
program or proposal affecting the rights or living conditions of indigenous peoples are
not made without the free and informed consent and participation of those peoples, that
their preferences are recognized and that no such plan, program or proposal that could
have harmful effects on those peoples is adopted.
3. Indigenous peoples have the right to restitution or compensation no
less favorable than the standards of international law, for any loss which, despite the
foregoing precautions, the execution of those plans or proposals may have caused them; and
measures taken to mitigate adverse environmental, economic, social, cultural or spiritual
SECTION SIX. GENERAL PROVISIONS
Article XXII. Treaties, Acts, agreements and constructive
Indigenous peoples have the right to the recognition, observance and
enforcement of treaties, agreements and constructive arrangements, that may have been
concluded with states or their successors, as well as historical Acts in that respect,
according to their spirit and intent, and to have states honor and respect such treaties,
agreements and constructive arrangements as well as the rights emanating from those
historical instruments. Conflicts and disputes which cannot otherwise be settled should be
submitted to competent bodies.
Nothing in this instrument shall be construed as diminishing or
extinguishing existing or future rights indigenous peoples may have or acquire.
The rights recognized herein constitute the minimum standards for the
survival, dignity and well-being of the indigenous peoples of the Americas.
Nothing in this instrument shall be construed as granting any rights to
ignore boundaries between states.
Nothing in this Declaration may be construed as permitting any activity
contrary to the purposes and principles of the OAS, including sovereign equality,
territorial integrity and political independence of states.
Article XXVII. Implementation
The Organization of American States and its organs, organisms and
entities, in particular the Inter-American Indian Institute, the Inter-American Commission
of Human Rights shall promote respect for and full application of the provisions in this
OAS, Inter-American Commission on Human Rights
PROPOSED AMERICAN DECLARATION
ON THE RIGHTS OF INDIGENOUS PEOPLES