Ruslan Garipov. Indigenous Peoples’ Rights Protection in Russia and the US / by Ruslan Garipov. Kazan. Published by Tatar State Humanitarian and Pedagogical University. 2010.
In the first chapter, “International Standards on Indigenous Peoples’ Rights Protection,” international legal documents in the sphere of indigenous peoples’ rights protection are analyzed in detail. Emphasis is given to the documents of the International Labour Organization (ILO), which has begun granting specialized protection to indigenous peoples, in particular, in the Indigenous and Tribal Populations Convention № 107 and Indigenous and Tribal Peoples Convention № 169.
The ILO Convention № 107 was the first international document devoted exclusively to addressing indigenous peoples’ rights. It was also the first international document which admitted the right of indigenous peoples to individual and collective property over their primordial lands. This Convention was directed at the integration of indigenous populations into the dominant society, and at their development according to a majority vision. The indigenous populations themselves, however, would completely disagree with such an approach.
The convention was recognized as outdated, and in 1989, the ILO accepted a new document, the ILO Convention № 169. The preamble of this Convention states that adoption of new international standards on the subject with a view to removing the assimilationist orientation of the earlier standards is necessary. Thus, the international community has recognized that original social and economic development, and the cultures and languages of indigenous peoples are part of their cultural heritage and should be protected.
The ILO Convention № 169 has a binding effect for the ratified states and is the only comprehensive document on the coverage of indigenous peoples’ basic rights. It is the only complex international legal document which comprises potentially obligatory minimal standards (political, social, economic, legal, and spiritual) for state-participants. This fact gives the Convention a legal backbone and, accordingly, the question of this document’s ratification in the countries where indigenous peoples live, including Russia and the US requires special consideration.
The second chapter, “Russian Indigenous Small-Numbered Peoples’ Rights Protection” examines the current status of indigenous small-numbered people in Russia, the history of their relations with the state, the domestic legislation that contradicts to international standards, and the problem of ratification by Russia the ILO Conventions № 169.
The first paragraph,“The History of Indigenous Small-Numbered Peoples’ Rights Development in Russia” illustrates the main stages of Russian indigenous small-numbered peoples’ rights development. Provisions of the Charter on Aborigines’ Governance of 1822, a document of imperial Russia, focusing on relations regulation between the native inhabitants of the North, Siberia and the Far East are analyzed. The author comes to the conclusion that the legal rules which regulated the system of control over indigenous people’s territories, for that time were progressive and humane. Such legislation was not present in any other country in the beginning of the nineteenth century.
The author also examines the Soviet authority’s documents and analyzes the contemporary position of aborigines in the Russian Federation. Throughout its history, Russia has used limited and cautious intervention into the northern people’s system of traditional social bonds, culture and economy. The creation of their own social orders and value systems was stimulated, and the aborigines were granted the right to decide for themselves how to integrate into the dominant Russian society.
The author concludes that the indigenous small-numbered peoples’ rights require protection in the context of their territories’ industrial development. The author also emphasizes that imperious-imperative methods were the main relation regulators between the state and indigenous small-numbered peoples. Unlike many colonial powers of the west, however, Russian colonization was not directed at extermination of the local aborigines.
Today indigenous small-numbered people have all the rights and freedoms that other citizens of the Russian Federation enjoy. These expanded guarantees are recognized in the legislature and considered a measure of national revival, preservation and development of these peoples. Specifically noted is value of indigenous people’s age-long experience in environment preservation and protection.
The second paragraph,“The Russian Federation’s Legislation about Indigenous Small-Numbered Peoples”describes issues affecting the protection o the rights of indigenous small-numbered peoples in the North, Siberia and the Far East of Russia. The author specifies a number of wholes in the legislative regulations concerning the rights of indigenous small-numbered peoples in Russia. For example, the numerical criterion in the legal definition of Russian indigenous peoples does not correspond to the definition in international law.
The Constitution of the Russian Federation (items 69, 72), the Federal law on Guarantees of the Rights of Numerically Small Indigenous Peoples of the Russian Federation, the Federal law on General Principles of Organization of the Communities of Numerically Small Indigenous Peoples of the North, Siberia and the Far East of the Russian Federation, the Federal law on Territories of Traditional Nature Use of the Numerically Small Indigenous Peoples of the North, Siberia and the Far East of the Russian Federation are analyzed in the paragraph. The concept of indigenous small-numbered peoples and their attributes fixed in the legislation is investigated in detail by the author. Also, indigenous small-numbered peoples’ rights and guarantees fixed at the Russian Federation subjects’ level are examined.
The conclusion results that in globalization conditionsand natural resources and active development in the North, Siberia and Far East, Russian indigenous small-numbered peoples demand greater attention to their needs. Emphasis is placed on the fact that there is currently no efficient system of legal support and protection for indigenous small-numbered peoples’ interests in Russia and it is necessary to bring the Russian legislation into compliance with international norms.
Concurrently, Russia made use of progressive international experiences and this is reflected in its domestic legal system. It is written about expediency to distinguish from the concept of indigenous people those peoples who are engaged in hunting, fishery and gathering, i.e. dependent from the environment and requiring in this connection a special protection.
It is necessary to establish legal borders for the indigenous small-numbered peoples’ territories in Russia in order to conserve their environmentand guarantee their territories are preserved for future generations. An analysis of the provisions of the Federal law on Territories of Traditional Nature Use of the Numerically Small Indigenous Peoples of the North, Siberia and the Far East of the Russian Federation shows that many items carry declarative or reference character and some even contradict to the current legislation.
The third paragraph, “The Question of the ILO Convention № 169 Ratification by Russia” is devoted to the actual topic connected with Russian Federation’s refusal to ratify this international legal document. Still, there is now uncertainty regarding ratification of the ILO Indigenous and Tribal Peoples Convention № 169.
There are arguments in favor of its acceptance that prove all the advantages and guaranties which indigenous small-numbered peoples of Russia if this Convention is accepted. Best of all, what is necessary to ensure indigenous small-numbered peoples’ survival is presented. This entails preserving and developing their traditional way of life, culture, language and having their rights guaranteed and the states duties on these rights are fixed.
If this document is accepted, Russia would have the orientation which would allow them to avoid many mistakes during federal legislation development. The ILO Convention № 169 is a unique document, containing international legal standards for indigenous people. And for its ratification in Russia there are all necessary legislative and other preconditions already exist, and the question is only in political will to make such decision.
Modern legislation, in many respects, meets the requirements of ILO Convention № 169. The positions of the convention which contradict the federal legislation are marked and the methods of overcoming these gaps are offered. In particular the gaps concern the definition of indigenous people and their land rights.
Ratification of ILO Convention № 169 will promote increase of indigenous peoples’ trust to the authorities. Also, it will strengthen state control over preservation of appropriate conditions of their life, and will strengthen the lawmaking process in the sphere of indigenous peoples’ rights and freedoms maintenance.
Indigenous small-numbered peoples of the Russian Federation consider Russia’s participation in this Convention as a guarantee of their political rights and a strong base for the Russian legislation’s development on indigenous peoples’ rights. Moreover, the Convention’s ratification will certainly raise the Russian image which has cracked lately in the eyes of the international community and will serve as a strong basis in the system of indigenous peoples’ rights and basic freedoms protection development.
Recommendations to ratify the ILO Convention № 169 are contained in practically all final documents of parliamentary hearings and conferences, and are organized by federal authorities and subjects related to the problems of social, economic and cultural development of indigenous small-numbered peoples. The ratification of the Convention can be an important factor that provides stability and a sequence of the state policy concerning these peoples. The main thing is that basic provisions of the Convention correspond to democratic provisions of the Russian Federation Constitution and its concrete items guaranteeing indigenous small-numbered peoples’ rights.
In the third chapter, “The US Indigenous Peoples’ Rights Protection” the history of indigenous peoples’ rights development in the USA is presented. Moreover, contemporary regulation of their rights is analyzed and the issues connected to their legal status, the history of development and the modern role of American Indians reservations are investigated. The chapter consists of three paragraphs.
In the first paragraph, “The Main Stages of the US Indigenous Peoples Fight for Their Rights” the history and main achievements of North American indigenous peoples’ struggle for their rights are illustrated, as well as their relationships with European settlers and federal authorities in the US.
The European colonizer’s policy regarding indigenous inhabitants of the continent, continuously varied. In the beginning, American Indians were not considered at all. They were treated as second-class citizens and not until the second half of the XX century American Indians that they began to be considered equal to others.
Examples are given of US federal policy, from recognition of tribes’ sovereignty to attempts at their removal, liquidation and assimilation, and finally, support for tribal self-determination.
Now the tribes can form their own government, determine their own membership, and regulate the issues connected with tribal and private property, and taxation. They can control law compliance and the order, have civil jurisdiction over non-Indians in subordinated territory, the right to hunt, fish, gather, and not only within the limits of the reservation, but in some cases, behind those limits.
The special role of earlier signed agreements with American Indians is noted. One of the first agreements of the young American state, which was negotiated with American Indians, was the treaty of 1776. This treaty accorded a Delaware tribe the opportunity of separate state creation, and American Indians were granted the right to have a representative in Congress. Many of these agreements are working, and frequently, American Indians use them in order to return their lands.
Substantial attention is given to the genocide of North American indigenous populations. Examples are given of white people destroying American Indians’settlements, expelling them from native places, depriving them of food, destroying their buffalos, deceiving them, and breaking their treaties, etc.
The author concludes that an official recognition of authorities’ guilt by the new government for the long-term infringements of indigenous peoples’ rights is necessary. The time has come to convict all those acts of brutality and inhumanity which were accomplished by colonizers during indigenous people conquest, and also the stereotyped theories that consider indigenous peoples as wild and backward, thought up by colonizers themselves to justify their actions.
Also, it is necessary to criticize such well-known legal concepts and institutions as “discovery”, “de-facto settlement”, “terra nullius”, “patronage” etc. It is necessary to agree, however, that an indisputable result of American Indians’ struggle for their rights became the right to self-government, the guarantees of the control over reservations, and the right on preservation and development of their culture and traditions.
In the second paragraph,“Contemporary Regulation of the Indigenous Peoples’ Rights in the US”the modern American legislation regarding indigenous peoples’ rights protection is examined. The United States of America has developed a plural system of acts creation regarding indigenous peoples at the federal level. As a result, the number of acts concerning the legal status of American Indians is impossible to calculate today. They cover all aspects of American Indians life: rights and freedoms, tribes’ organization, public health services, education, managing, transport, and municipal services etc.
The author emphasizes that American legislation carries in itself an echo of the dramatic events connected to American Indians’ land reclamation by immigrants. The special character of the state and indigenous peoples’ relations is reflected by paternalistic principles in the legislation,which means strong guardianship over American Indians.
The United States of America belongs to an Anglo-Saxon legal system; therefore, judicial precedents are the main sources of law regulating the legal status of indigenous peoples. The number of such precedents is huge, but in this work, three cases of 20-30th years of XIX century are emphasized. These are: “Johnsonv. Mackintosh, 1823”, “Cherokeev. Georgia, 1831” and “Worchesterv. Georgia, 1832”. There was given the definition as “domestic dependent nations” to indigenous peoples of America which is contradict to contemporary international law, but is in use in the US till present.
In the end of the paragraph, the conclusion is made that contemporary regulation of the US Indigenous peoples’ rights and basic freedoms occurs at the federal level by virtue of the constitution, federal legislation, signed agreements, judicial precedents, and in part, by a customary law. There is a concept “Federal Indian Law” which is a set of legally obligatory norms regulating the legal statusof American Indian tribes and their special relations with the federal centre.
This legal field is unique in a way, and is called to serve the interests of indigenous peoples, and it can be borrowed for Russia in parts which do not contradict with federal legislation. The author emphasizes some main principles of the federal legislation regarding to American Indians. First, tribes are independent entities and inherently have the right of self-government. Second, tribes’ independence and their legal status can be limited or transformed only by Congress. Third, the rights to have the relations with American Indian tribes have only federal authorities. Finally, American Indians are under the protection of the federal government, which is obligated to protect them from any encroachments. All this should to serve the interests of American indigenous peoples as much as possible, specifically reflecting on their relations with the state.
The third paragraph, “The History of Formation and Legal Status of American Indians’ Reservations”is devoted to researching the US special territorial formations legal status – American Indian reservations. The history of their creation, the development of their relations with the government of the USA, and their legal status at the present time is analyzed. The place of American Indian reservations, in the federal structure of the USA, is characterized.
Federalism in the US has its own special features. Special territorial formations exist inside the state – reservations and the territories of indigenous population of America. The USA also uses such term, as «Indian Country», which includes not only the territory of the reservations, but also American Indiansettlements outside reservations limits, both collective, and individual. The literature points to an example of the territories of East Cherokee in North Carolina.
Today, a reservation is the territory allocated for residing and use, by a group of tribes or one tribe, for their culture, language, preserving traditions, and for internal self-government. Thus, American Indian reservation is a territory inside the USA, which is controlled by a tribe. Some reservationsare placed on their ancestral lands (for example, Navajo in the Southwest of the USA); others are behind (for example, Cherokee and Seminole in Oklahoma). The US recognizes the sovereignty of American Indian tribes. It is similar to intergovernmental relations where Washington, as a federal centre, acts from one side and the governments of the tribes act from another. A wide number of rights were given to indigenous peoples: they create their own governments, legislature, and courts within their territorial limits, and can sometimes act as a side in international trade relations.
The author does a detailed investigation of the US indigenous peoples’ rights on lands, resources, water rights, hunting, fishery, and gathering. Gaming, which is forbidden by the legislation in many states but exists in reservations, is mentioned. The conclusion emphasizes that in the XXI century reservations have changed for the better. The US government has worked actively on improving the position of indigenous peoples’.
The existence of their own territorial formations of American indigenous peoples helps them today in preserving their own traditions, cultures, and language, and promotes the development of self-determination of these unique peoples. The existence of their own territories inside United States of America is considered today, by American Indians, as a heritage left to them by their ancestors in order to keep their posterity alive and according to the traditions, customs, language, and culture.
The conclusion sums up the results of the research, and basic conclusions and recommendations are formulated and questions are stated on the subject of the work.