Revista de Filosofía Jurídica, Social y Política

Transcription

ppi 201502ZU4644
Esta publicación científica en formato digital es
continuidad de la revista impresa
ISSN 1315-6268 / Depósito legal pp 199402ZU33
Vol. 22, No. 2
Mayo - Agosto de 2015
Universidad del Zulia
Facultad de Ciencias Jurídicas y Políticas
Instituto de Filosofía del Derecho “Dr. José Manuel Delgado Ocando”
FRONESIS
Instituto de Filosofía del Derecho Dr. J.M. Delgado Ocando
Universidad del Zulia. Dep. legal pi201502ZU4644
Self-Determination, Sovereignty
and Autonomy:
A Comparative Analysis between Venezuela
and the U.S. (1)
Ricardo Colmenares Olívar
Tenured Professor and Researcher with the Legal Anthropology Section.
Institute of Philosophy of Law.
University of Zulia
Maracaibo - Venezuela
rcolme@gmail.com
Abstract
This legal and socio-political research attempts to determine the scope of
the terms of self-determination, sovereignty and self-government (autonomy) and
their implications in Venezuelan and American domestic law. This work also aims
to evince whether the standards set out in international instruments of the United
Nations on the matter are being met in both countries or not.
Keywords: Self-determination; sovereignty; autonomy; civil participation;
political control; indigenous jurisdiction.
___________________
Recibido: 07-07-2015 • Aceptado: 28-07-2015
Frónesis Vol. 22, No. 2 (2015) 87-118
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Autodeterminación, Soberanía y Autonomía:
Un Análisis Comparativo entre Venezuela y
EE.UU.
Resumen
Esta investigación jurídica y socio-política intenta determinar el alcance de
los términos de la autodeterminación, la soberanía y la autonomía (autogobierno)
y sus implicaciones en el derecho interno venezolano y estadounidense. Este
trabajo también pretende evidenciar si en ambos países se están cumpliendo o
no las normas establecidas en los instrumentos internacionales de las Naciones
Unidas en la materia.
Palabras clave: Autodeterminación; soberanía; autonomía; participación
ciudadana; control político; jurisdicción indígena.
1. Introduction
The analysis of the right to self-determination recognized in international
law for States and its interrelationship with the concept of sovereignty used in
American legislation is one of the most controversial points in international law.
This right to self-determination is key in deciding whether the indigenous are
considered “peoples” rather than populations or ethnic minorities. Moreover, it is
necessary to establish the difference between self-determination, self-government
(or political autonomy) and self-management, (2) since the last two terms are
often used with the same connotation as the first, although each one represents a
different concept.
The right to self-determination for all peoples, as a global concept,
becomes a right for all human beings to pursue their material, cultural and
spiritual development as a social group; that is, to control their own destiny,
which manifests itself “externally” through the autonomy and self-management
of each people. Autonomy, also called self-governance, refers to the political and
administrative independence of peoples, which includes the right to resolve their
issues directly according to their own laws. Meanwhile, self-management, also
called self-development, is linked to developmental mechanisms implemented by
the creativity of each people, using their own means for economic and cultural
survival. (3)
According to the XIVth National Population and Housing Census of 2011,
conducted by the National Institute of Statistics (INE), Venezuela’s indigenous
Self-determination, sovereignty and autonomy: A Comparative Analysis between
Venezuela and the U.S.
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population is approximately 724,592 persons in 44 culturally differentiated
peoples, representing an increase of 43.1% compared to the 2001 census.
Indigenous peoples constitute 2.8% of the total population. All the indigenous
communities are located in eight states: Amazonas, Apure, Anzoategui, Bolivar,
Delta Amacuro, Monagas, Sucre and Zulia, although 61% is concentrated in the
State of Zulia with the Wayuu people (4), the largest indigenous group. Even
though some peoples could be catalogued as “minorities” from the numeric point
of view (5), this does not imply any lack of recognition of their rights, or much
less, a lack of protection and guarantees.
On the other hand, indigenous peoples in the United States are constituted
by American Indian, Alaska Native and Native Hawaiian peoples. According to
the 2010 U.S. Census, there are 5.2 million identified as American Indian and
Alaska Native, “…either alone or in combination with one or more other races,”
registering a high growth of 39.2 percent since the last 2000 census. Thus, the
indigenous constitute approximately 1.7% of the American population. The
Cherokee Nation (819,105 members) is the largest American Indian population
in the entire territory (6). Furthermore, according to Indian Affairs of the U.S.
Department of the Interior, there are 566 federally recognized American Indian
and Alaska Natives tribes in the United States (7). There is also a complex body
of Federal Indian Law recognized by Congress and the courts, which occasionally
delimits issues inherent in the internal sovereignty of tribes (8).
Several Indian tribes are treated as sovereign nations because some of them
have their own constitutions, possessing the right to “change and growth,” (9)
applying this sovereignty only over tribal members and the territories they occupy.
(10) Regarding the governmental structure of the Indian tribes, some of them have
a tri-partite form of government with executive, legislative and judicial branches,
while smaller tribes have little or no separation of powers, trying to “…reflect
and reinforce their tribal traditions and cultures, and fit with contemporary tribal
needs for political and legal accountability.” (11)
Therefore, this article will focus on the first two terms: self-determination
and autonomy. The most important thing is to use an appropriate term that reflects,
in a clear and indubitable way, the right of the authorities of indigenous peoples to
apply customary law within their territorial spaces, taking into account international
standards and respecting laws and judicial decisions in both countries, Venezuela
and United States.
2. Scope of the Term Self-Determination in International Law
The right of peoples to self-determination appeared in a statement for the
first time as a general principle in the Charter of the United Nations in 1945.
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It was subsequently developed and defined in Article 1of the two International
Covenants on Civil Rights and Political and Economic, Social and Cultural Rights.
(12) There are also two resolutions of the United Nations General Assembly
establishing this right: 1) Resolution 1514 (XV) Declaration on the Concession
of the Independence of Colonial Countries and Peoples, 1960; 2) Resolution 2625
(XXV) of 1970,which addresses the principles of International Law concerning
Friendly Relations and Cooperation among States. These international standards
that recognize this principle as a fundamental right of people are very important
because the existence of other rights and freedoms (13) depends on them.
It is very difficult to talk about different types or categories of rights to selfdetermination. This is a global and integral concept that involves the following: a)
Indigenous peoples have the right to freely determine their political status; b) They
have the right to freely pursue their economic, social and cultural development; c)
They are not subject to forced assimilation or destruction of their culture (Article
8); and d) They are not subject to any form or type of colonial and alien domination
of any nature whatsoever.
Although this right was not conceived regarding claims from Amerindian
peoples,(14) in the U.N. Economic and Social Council Study of the Problem of
Discrimination Against Indigenous Populations of 1983, the Special Rapporteur
recognized the importance of self-determination as a basic pre-condition for
indigenous peoples to enjoy their rights, “…while at the same time preserving,
developing and passing on their specific ethnic identity to future generations”
(Paragraph 269), indicating furthermore, that “…indigenous peoples have the
right to self-determination which will enable them to continue to exist in dignity,
in keeping with their historic right as free peoples”(Paragraph 270).(15)
3. International Instruments that Recognize the Right of SelfDetermination
There are two important international instruments that recognize indigenous
law and jurisdiction as a manifestation of indigenous peoples’ self-determination,
issued in chronological order by the International Labour Organization (ILO) (16)
and the United Nations. There is a third legal instrument on indigenous right, the
American Declaration on the Rights of Indigenous Peoples by the Organization
of American States (OAS) (17), which establishes important rights such as selfdetermination, self-government and ancestral territories. However, this draft
Declaration is still in the process of study and consultation by the Working Group;
therefore, it does not have a binding character for Venezuela and the U.S., since it
has not entered into force, and will not be analyzed in this work.
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3.1. The 169 International Labour Organization Convention
The 169 International Labour Organization Convention on Indigenous and
Tribal Peoples in Independent Countries (ILO 169) (18) was the first international
document that recognized the customary law of indigenous peoples and the power
or legal authority of indigenous authorities to apply justice in their territories. Of
course, it should be highlighted that both Venezuela and the United States are
members of the ILO.
The most controversial points of the 169 ILO Convention were use of the
terms “peoples” and “territories” because of their involvement in the concept of
sovereignty outside of Constitution and the possibility of a right of secession, as
will be discussed in the next chapter. (19) S. James Anaya, Former U.N. Special
Rapporteur on the situation of human rights and fundamental freedoms of
indigenous peoples, stated:
A momentous step in the consolidation of the contemporary international
regime on indigenous peoples, Convention No. 169 provides significant
recognition of indigenous peoples’collective rights in key areas, including
cultural integrity; consultation and participation; self-government and
autonomy; land, territory and resource rights; and non-discrimination
in the social and economic spheres.(20)
Thus, article 8.1 of Convention 169 establishes that, in applying national
laws and regulations to indigenous peoples, their customs or customary laws shall
be taken into consideration. Also, article 8.2 establishes the right of indigenous
peoples to “conserve their own customs and institutions,” and imposes a
limitation“…as long as they are not incompatible with the fundamental rights
defined by the national legal system or with internationally recognized human
rights…”
Likewise, article 9.1 establishes the possibility of employing social control
methods that belong to the peoples in question, when their members commit
crimes, as an alternate route for the punitive function, but always respecting the
human rights recognized in internal and international orders. In penal matters,
disposition 9.2 expressly orders the authorities and tribunals to take into account
the customs of the aforementioned peoples. Finally, article 10 expresses that, in
cases of imposing penal sanctions foreseen in the law, the economic, social and
cultural characteristics of the indigenous members submitted to jurisdictional
power should be taken into account, giving preference to types of sanctions that
differ from imprisonment; this directly affects the penitentiary regime and the
execution phase of the sentence.
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The 169 ILO Conventions was ratified by the Venezuelan government on
May 22, 2002. (21) In this case, it is binding for all public authorities, including
the Judicial Branch, according to the provisions of Article 38 of the Convention.
Therefore, this convention constitutes a treaty in the strict sense, since it is a
multilateral instrument emanating from a specialized international organization
(ILO, as an official agency of the United Nations), which creates legal obligations on
States that have agreed to be part of it.(22) Moreover, Convention 169 was used to
guide drafting of the Organic Law of Indigenous Peoples and Communities 2005.
(23) Likewise, it has been mentioned in different court decisions concerning the
rights of indigenous peoples in the last ten years since its approval.
Meanwhile, the U.S. government has not ratified ILO 169in accordance
with the procedure laid down in international standards for incorporation, alleging
that this international instrument is not legally binding.(24) According to opinion
in this country, the text of the Draft Declaration of Indigenous Rights “…is not
a reasonable development in the evolution of human rights” in the context of
international law on the subject.(25) Notwithstanding this, no demerit is implied
regarding the important role the U.S. has played in the development of the ILO
on the subject, especially due to the significant number of existing indigenous
populations in their respective territories, as well as the treatment that this
northern country has given to the so-called “Indian nations” and other Native
tribal communities.
3.2. The United Nations Declaration on the Rights of Indigenous
Peoples, 2007
In the General Assembly of the United Nations, held on September 13, 2007,
the U.N. Declaration on the Rights of Indigenous Peoples (26) was approved. It
confirms the paradigms of legal pluralism, multiculturalism and collective identity
that have been progressively consolidated since their inauguration in international
standards as the undisputed result of the 169 ILO Conventions. The Declaration
also “…provides for fair and mutually acceptable procedures to resolve conflicts
between indigenous peoples and States, including procedures such as negotiations,
mediation, arbitration, national courts and international and regional mechanisms
for denouncing and examining human rights violations.” (27)
The Preamble of the UN Declaration 2007 affirms the fundamental
importance of the right to self-determination for all peoples for their integral
development, ordering that “…nothing in this Declaration may be used to
deny any peoples their right to self-determination, exercised in conformity with
international law.” In the same sense, Article 3 of the UN Declaration enshrines the
right to self-determination, and Article 4, the right to self-government (autonomy)
in the following terms:
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Article 3
Indigenous peoples have the right to self-determination. By virtue of that
right they freely determine their political status and freely pursue their
economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination, have the
right to autonomy or self-government in matters relating to their internal
and local affairs, as well as ways and means for financing their autonomous
functions.
As R. Perry says, commenting on Article 3 of the Declaration, “The
Declaration is an attempt to codify effectively, at least in declaratory form, the
meaning of the right to self-determination as it relates to indigenous peoples.
The rights set out in the Declaration are organized thematically as positive and
negative rights pertaining to threats to the survival of indigenous peoples”.(28)
No doubt, Articles 3 and 4 of the UN Declaration 2007 constitute a
profound difference from the ILO Convention 169, which only recognizes in its
Preamble a general aspiration of indigenous peoples to “…exercise control over
their own institutions, ways of life and economic development and to maintain
and develop their identities, languages and religions, within the framework of
the State in which they live.” In addition, the UN Declaration does not set the
“saving clause for reasons of territorial security” provided in article 1.3 of 169
ILO Convention, whereby the term “peoples” used in the Convention does not
have the same connotation that it has in international law, which limits application
of the right to self-determination for indigenous peoples.
Besides, Article 5 of the UN Declaration establishes the right for indigenous
peoples to maintain and strengthen their distinct legal institutions, which could
be interpreted as covering the power to dispense justice according to their legal
traditions. Furthermore, Articles 34 and 35 of this international legal instrument
recognize expressly the juridical systems -or customary law- and jurisdiction
belonging to indigenous peoples:
Article 34: Indigenous peoples have the right to promote, develop and
maintain their institutional structures and their distinctive customs,
spirituality, traditions, procedures, practices and, in the cases where they
exist, juridical systems or customs, in accordance with international human
rights standards.
Article 35: Indigenous peoples have the right to determine the
responsibilities of individuals to their communities.
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Article 35 above can be interpreted as recognizing the power of the
authorities of these peoples to resolve conflicts, that is, competence (jurisdiction)
to settle any kind of dispute, and punish or impose sanctions on people within their
communities. Rodríguez-Piñero sustains that the U.N. Declaration establishes
the right of these groups to determine the responsibilities of members of their
communities; it “(…) presupposes naturally the existence of regulations and forms
of organization within said communities, and the determination of responsibilities
can include both the attribution of responsibilities via the culture, to the attribution
of responsibility through internal jurisdictional mechanism.”(29) Also, it is very
important to know that Article 40 of the Declaration has taken in consideration
the customs, traditions, rules and legal systems of the indigenous peoples in those
conflicts with States or other parties, in order to guarantee just and fair procedures.
During the approval process of the UN Declaration, the U.S. Mission
denied their vote, saying that “What was done today is not clear. The way it stands
now is subject to multiple interpretations and doesn’t establish a clear universal
principle” and issued a document titled “Observations of the United States with
respect to the Declaration on the Rights of Indigenous Peoples”,(30) setting out
its objections to the Declaration. Most of these are based on the same points as the
three other countries’ rejections but, in addition, the United States drew attention
to the Declaration’s failure to provide a clear definition of exactly whom the term
“indigenous peoples” is intended to cover.
For these reasons, the Former U.N. Special Rapporteur for Indigenous
Peoples, in its Report on “The situation of indigenous peoples in the United States
of America” of 2012, recommended the need to ratify the U.N. Declaration 2007
to serve as a reference in the decision making of all state governments:
The United Nations Declaration on the Rights of Indigenous Peoples is
an important impetus and guide for improving upon existing measures
to address the concerns of indigenous peoples in the United States,
and for developing new measures to advance towards reconciliation.
The Declaration, which is grounded in widespread consensus and
fundamental human rights values, should be a benchmark for all
relevant decision-making by the federal executive, Congress, and the
judiciary, as well as by the states of the United States. (31)
Other recommendations made by the Former Special Rapporteur to the
Federal Government were the following:
94. In keeping with the expressed commitment of the United States to the
principles of the Declaration on the Rights of the Indigenous Peoples and
its related international human rights obligations, the President should
consider issuing a directive to all executive agencies to adhere to the
Declaration in all their decision-making concerning indigenous peoples.
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95. Independently of such a presidential directive, given that the
Declaration has already been adopted as part of United States policy, all
executive agencies that touch upon indigenous affairs should become fully
aware of the meaning of the Declaration with respect to their respective
spheres of responsibility, and they should ensure that their decisions
and consultation procedures are consistent with the Declaration. To this
end there should be a crosscutting executive level campaign to ensure
awareness about the content and meaning of the Declaration.
With the same urgency that requires ratification of the UN Declaration,
President B. Obama recommitted to supporting tribal self-determination, security
and prosperity for all Native Americans and to reviewing the U.S. position on the
UN Declaration 2007, in response to calls from many tribes, Native Americans,
civil society and other American organizations. (32)
4. The Right of Self-Determination in Venezuela
Article 119 of the Bolivarian Constitution of Venezuela (33) (CRBV)
recognizes the social, political and economic organizational autonomy of
indigenous peoples: “The State recognizes the existence of native peoples and
communities, their social, political and economic organization, their cultures,
practices and customs, languages and religions, as well as their habitat and
original rights to the lands they ancestrally and traditionally occupy, and which are
necessary to develop and guarantee their way of life…” In the same way, Article
121 Constitutional establishes that indigenous peoples “have the rights to maintain
and develop their ethnic and cultural entity, world view, values, spirituality and
holy places and places of cult.” However, in the text of the 1999Constitution, the
right to self-determination for indigenous peoples is not expressly recognized.
Nonetheless, the National Constituent Assembly adopted the “safeguard
clause of the sovereignty and territorial integrity” under Article 126 Constitutional,
which is an almost faithful transcription of the provisions of Article 1.3 of the 169
ILO Convention related to the connotation of the term “peoples” in international
law.(34) With this constitutional disposition, the Constituent has highlighted that
indigenous peoples have no self-determination in the strict sense but relative
autonomy through political participation conferred in Article 125,(35) due to
legal limitations set forth therein. Indeed, the preamble of the 1999 Constitution
reaffirms that the Venezuelan people is “unique, sovereign and indivisible” and
that indigenous peoples are part of the national society, understanding that the term
“people” meant only recognition “of their specific social, cultural and economic
identity that are proper and that differ from the rest of society ...” without any
international implication.
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Regarding the interpretation of this safeguard clause, the Constitutional
Chamber of the Supreme Tribunal of Justice, in a decision dated December 20,
2000, stated:
It should be noted in this regard that, while the provisions of Articles 119
and 121 of the Constitution of the Republic recognize the specificity of
indigenous peoples and in particular ,in social, political and economic
matters, their cultures, practices and customs, languages and religions,
and the right they have to maintain and develop their ethnic and cultural
identity, worldview, values and spirituality, the provision contained in
Article 126 eiusdem declares that those people are part of the Nation, the
State and the Venezuelan people as unique, sovereign and indivisible...
In addition, the Organic Law on Indigenous Peoples and Communities did
not mention this important collective right, although Article 5 of this Organic Law
established self-management as an empowerment process for the cultural identity
of indigenous peoples, (36) with some elements that belong to the concept of
autonomy or self-government very similar to the content of Article 123 of the
Venezuelan Constitution. (37)
Therefore, the right to self-determination seems to have been the most
contentious issue between government representatives and indigenous peoples,
and that is why it was one of the forgotten rights in the Venezuelan Constitution.
5. Limitations Imposed on the Implementation of Human Rights in
Venezuela
Regarding the status of the 169 ILO Convention and the UN Declaration
2007 under Venezuelan law: when both international instruments of human rights
are incorporated in the national legislative system via approbatory law, they
are converted into legal instruments of a constitutional rank, with an obligatory
character and for immediate application. On applying the principle of selfexecution in the internal legal order, they prevail over and above internal standards,
according to what is set forth in article 23 of the Great Charter, (38) because they
deal with specific human rights in favor of the indigenous peoples, as long as their
norms are “more favorable” in terms of their enjoyment and exercise, than the
Venezuelan constitutional and legal dispositions.
Thereon, the Inter-American Court of Human Rights, In Advisory Opinion
OC-2/82 on “The Effect of Reservations on the Entry into Force of the American
Convention on Human Rights” (Arts. 74 and 75) of September 24, 1982, Series A No.
2, referred to the special character of human rights treaties in the following terms:
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29. The Court must emphasize, however, that modern human rights
treaties in general, and the American Convention in particular, are not
multilateral treaties of the traditional type concluded to accomplish the
reciprocal exchange of rights for the mutual benefit of the contracting
States. Their object and purpose is the protection of the basic rights
of individual human beings irrespective of their nationality, both
against the State of their nationality and all other contracting States.
In concluding these human rights treaties, the States can be deemed to
submit themselves to a legal order within which they, for the common
good, assume various obligations, not in relation to other States, but
towards all individuals within their jurisdiction. (39)
Furthermore, Article 31 of the CRBV (40) provides a resource for citizens
to denounce violations of human rights in international instances and imposes on
the State to comply with the decisions of such international organizations.
Despite these aforementioned constitutional mandates and the binding
criterion upheld by the Inter-American Court, the Constitutional Chamber of the
Supreme Tribunal of Justice, in decision No. 1.265 dated August 5, 2008, held an
interpretation that destroys the preeminence and self-execution of human rights
treaties in domestic law and contrary to article 23 of the Constitution, arguing that
“... the option for the primacy of international law is a tribute to the globalizing and
hegemonic interpretation of individualist rationalism. The new theory is fighting
for the supremacy of evaluative social order that underlies the Constitution.”(41)
In the judgment of August 5, 2008, in the case of APITZ BARBERA ET
AL. V. VENEZUELA,(42) the Inter-American Court of Human Rights decided to
reinstate the ex-magistrates of the First Contentious Administrative Court, Juan
Carlos Apitz Barbera, Perkins Rocha Contreras and Ana Maria Ruggeri Cova in
their functions and provide fair reparation for the victims. The same Constitutional
Chamber, in decision No. 1.939 of December 18, 2008, declared “unenforceable”
the decision of the Inter-American Court that was mentioned, exhorting the
Executive to denounce the American Convention “…in light of the evident
usurpation of functions,” in conformity with the principles set out by article 78 of
the American Convention on Human Rights (ACHR).(Italics added).
Another emblematic decision was No. 1.547 of October 17, 2011, in which
the Constitutional Chamber also declared “unenforceable” judgment No. 233 of
the Inter-American Court of Human Rights dated September 1, 2011, related to the
case of LEOPOLDO LOPEZ MENDOZA (43) who was disqualified politically
in 2008 by the Comptroller General of the Republic, creating binding judicial
precedents that imply an absolute “regressive” in the protection of human rights
in Venezuela. (44)
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All these decisions cited along with others previously issued (45) emanating
from the Constitutional Chamber of the Supreme Tribunal of Justice, encouraged
the Venezuelan government to effectively denounce the American Convention on
Human Rights through official diplomatic note No 000125, dated September 6,
2012, as foreseen in Article 78 of that Convention (46) and, consequentially, to
deny the Commission’s competence to hear new cases of violations of human
rights and demonstrate non-subordination to the jurisdiction of the Inter-American
Court. The negative impact of this political decision is that an international
instance for protecting the human rights of all citizens, including the indigenous,
as individuals or collectives, was eliminated, knowing that both the Commission
and the Inter-American Court have played a great role in promoting and protecting
indigenous rights in the American Hemisphere. (47)
Venezuela’s government ratified the UN Declaration 2007, so this country
must accept its obligations under Article 23 of the Constitution, in accordance
with Article 1, paragraph a) of the Vienna Convention on the Law of Treaties
of 1969. Moreover, Venezuela is subject to the UN mechanisms linked to this
Declaration for promoting indigenous rights, such as: Expert Mechanism of the
Rights of the Indigenous Peoples, the Permanent Forum on Indigenous Issues,
and the Special Rapporteur of the Situation of Human Rights and Fundamental
Freedom of Indigenous Peoples. (48)
6. Sovereignty or Self-Government for Indian Tribes in the U.S.
It is an indisputable historical fact that, before the transcendental event
of the encounter of European culture with the original nations of America, the
northern tribes and other indigenous peoples of the South had absolute sovereignty
to solve their own issues and determine their destinies. (49) This is called inherent
sovereignty, in which the authority “…to govern is not granted by another
government, but by the consent of the people who are governed.” (50) It existed
long before Europeans arrived in North America. Even the Supreme Court has
ruled that the US Constitution does not apply to tribal nations “who derive their
sovereignty not from the American people but from their aboriginal status”. (51)
In general, sovereignty is the right of peoples to make decisions and choices,
as expressed by human rights, self-rule and self-government; more specifically
“the inherent and supreme power from which a people derive their social, political
and economic governance.” (52) For Native Americans, a definition of tribal
sovereignty (53) refers “…to tribes’ right to govern themselves, define their own
membership, manage tribal property, and regulate tribal business and domestic
relations; it further recognizes the existence of a government-to-government
relationship between such tribes and the federal government,”(54) and implies
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inter alia, the following conditions: a) it must be a distinct group of people with
a distinct language, different religion and culture; b) the group must control and
regulate a specific geographic area with its boundaries; c) the people or community
must have its own governmental structure with their governmental authorities to
create and enforce laws; and finally, d) the tribal government must be recognized
by the national government.(55)
There is no explicit recognition of tribal sovereignty in the United States
Constitution; however, it provides an implicit legal justification under which
federal power over Indian tribes is exercised. Thus, Article I, Section 8, Clause
3 (commerce clause) delegates the authority of Congress to regulate trade with
foreign nations, among several states (the Federal Union) and with the Indian
tribes.(56) Furthermore Article II, Section 2, Clause 2 (clause of treaties) gives the
President of the Nation and the Senate the faculty to celebrate treaties with Indian
tribes.(57)
6.1. The Notion of Tribal Sovereignty in American Jurisprudence
During the last 192 years, the Supreme Court of the United States has
played an important role struggling to define the doctrine of American Indian
tribal sovereignty, taking into account the powers of Congress and the President
as well as recognizing, in some cases, the existence of inherent sovereignty, and
in others, imposing certain limitations. In three famous decisions known as the
“Marshall trilogy,” (58) the U.S. Supreme Court recognizes tribal sovereignty.
The first decision, Johnson v. McIntosh, (59) was issued in 1823, in which Chief
Justice John Marshall described the effects of European incursion on Native tribes,
declaring that although the Indians
…were admitted to be the rightful occupants of the soil…their rights
to complete sovereignty, as independent nations, were necessarily
diminished, and their power to dispose of the soil, at their own will,
to whomsoever they pleased, was denied by the original fundamental
principle, that discovery gave exclusive title to those who made it.
In the second decision, Cherokee Nation v. Georgia, (60) the Supreme Court
studied the possibility whether the Cherokee Nation could sue the State of Georgia in
federal court as a “foreign state.” In this case, Chief Justice Marshall ruled that federal
courts had no jurisdiction over the Cherokee Nation because it was merely one of the
“domestic dependent nations,” with a relationship of subordination as a “guardian
ward.” As P. Prygoski has commented:
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The statements by the Court in Cherokee Nation established the premise that Indian
nations do not possess all of the attributes of sovereignty that the word “nation” normally
implies. Indian nations are not “foreign,” but rather exist within the geographical
boundaries of the United States, which necessarily limits their sovereignty. It would be
unacceptable for an Indian nation located within the United States to enter into treaties
with other countries, or to cede Indian land to foreign countries. (61)
In the historic decision, Worcester v. Georgia (1832), Marshall reinforced
the principle of tribal sovereignty, saying that tribes are “distinct political
communities, having territorial boundaries, within which their authority is
exclusive, and having a right to all the lands within those boundaries, which is not
only acknowledged, but guaranteed by the United States.”(62) The most important
thing about these “Cherokee Nation Cases” is that both provide a definition of the
relationship between tribes and the federal government as well as of the scope of
tribal sovereignty: “Tribes are under the protection of the federal government and
in this condition lack sufficient sovereignty to claim political independence; tribes
possess, however, sufficient powers of sovereignty to shield themselves from any
intrusion by the States and it is the federal government’s responsibility to ensure
that this sovereignty is preserved.”(63)
Apart from the three aforementioned decisions, in the1978 case United
States v. Wheeler, the Supreme Court reaffirmed inherent tribal sovereignty again
in the following terms: “Although physically within the territory of the United
States and subject to ultimate federal control, they nonetheless remain a separate
people, with the power of regulating their internal and social relations… The
powers of Indian tribes are, in general, ‘inherent powers of a limited sovereignty
which has never been extinguished.’”For these reasons, the federal government has
a responsibility for protecting Native American tribes as well as their properties,
avoiding intrusion by the States of the Union or its citizens. (64)
6.2. The Plenary Power of Congress over Tribal Sovereignty
Since 1871, the right of sovereignty of the American tribes has been limited
by the plenary powers of Congress or congressional plenary power, also called
the “Plenary Power Doctrine” of the legislative body, with powers to impose
duties even via executive order; this implies, in its legitimate field of the exercise
of authority, the ability to reduce or abolish Indian reservations, even without the
consent of the tribe’s members.(65) This judicially constructed definition was
elaborated in The United States v. Kagama, in which plenary means unlimited
or absolute preempts, it was established that “the Congress has vested in itself,
without a constitutional mooring, virtually boundless governmental authority and
jurisdiction over tribal nations, their lands, and their resources.”(66) According
101
to the criterion of Ericson and Snow, the plenary power of the United States
Government over the Indian and his tribe emanates from: 1) The Constitution
that grants to the President and to Congress special powers over Indian affairs; 2)
the courts applying the theory of guardian and ward to the federal government’s
relationship to the tribe; and 3) federal authority that is inherent in the federal
government’s ownership of the land that the tribal units occupy. These authors said
that, during the search process for tribal sovereignty, there was some confrontation
between the isolation of the tribes on their reservations and assimilating them into
mainstream American society; however, they argue that
Congress has exercised its power over Indians for almost 200 years and
the plenary nature of that power has become an axiom of congressional
Indian legislation. The federal judiciary, which has traditionally
been more sensitive than Congress to the Indians’ problems and more
sympathetic to the goals of separation, has attempted to mitigate the
impact of fluctuating congressional policies. The courts have recognized
the plenary power of Congress to deal with Indian affairs and have never
directly attacked it; but the propensity of the courts to isolate the sources of
federal power in justifying congressional action indicates their resistance
to a congressional “carte blanche” in the field of Indian affairs. (67)
This plenary power of Congress is not absolute, because it has to respect
two important constitutional limitations; both contained in the Fifth Amendment to
the United States Constitution, namely, the due process and the just compensation
clauses. The first limitation prohibits the arbitrary exercise of federal government
powers, that is, without reasonable legal and factual basis and particularities or
discrimination reasons. The second limitation, corresponding to just compensation
and known in French continental law as “exorbitant powers, “recognized in
this case that Congress and the Administration are expressly prohibited from
appropriating private property without the mediation of just compensation. (68)
Such plenary powers of the US Congress have been recognized by several
judicial decisions. In the previously noted case, Worcester v. Georgia, Judge J.
Marshall recognized this fact when he stated that the Constitution “confers on
Congress the powers of war and peace, of making treaties, and of regulating
commerce…with the Indian tribes. These powers comprehend all that is required
for the regulation of our intercourse with the Indians. . .” (69) In 1977, the Supreme
Court established the power of the legislative body to leave or even to break
treaties celebrated with the Native tribes, naturally, within the constitutional limits
mentioned. Furthermore, in 1978, the Supreme Court said that “Congress has full
authority to limit, modify or delete local powers of self-government.”In the same
sense, priority of power has been ratified by various federal and district courts in
holding that Congress “... Has virtually unlimited power over indigenous tribes.”
Undoubtedly, such a strong statement is nuanced by significant constitutional
102
Frónesis Vol. 22, No. 2 (2015) 87-118
requirements for so-called common law and by specific legislation pertaining to
indigenous and tribal affairs. (70) All these decisions and judicial measures to
ensure the plenary powers of Congress in the treatment of indigenous and tribal
sovereignty, constitute what is known as the “Rule of Implicit Dispossession,” by
virtue of which federal judges are legally entitled to restrict and define indigenous
rights, securing and establishing the territorial sovereignty of the United States
even on the tribes that coexist in their territory.
7. Definition and Contents of Autonomy for Indigenous Peoples
The autonomy concept is conceived as an internal form of the right to
self-determination for peoples. It constitutes a new form of social and political
participation of indigenous groups, in the establishment of spaces and channels for
representation thereof, within the federal legislative apparatus. For those reasons, it
is also called self-governance, a genuine political right (political autonomy). (71)
According to Willemsen, the issue of autonomy makes it possible to find
the real space where indigenous peoples can be located within different state
structures (Unitary State, Federal, Regional or Autonomous) as political-territorial
entities. (72) Similarly, Ayala Corao argues that the autonomy of the politicalterritorial decentralized entities within the state order, involves the organization
of independent entities through which members of the federation exercise their
powers (legislative, executive and judicial)within the limits established in the
Constitution. Consequently, it may be admitted in the “Federal Theory” that the
structure of the State must respond to the need for integrating autonomous units
within a larger unit. (73)
...The federal organization is particularly suitable to safeguard the
existence of cultural nations under a state organization or political
nation, because each cultural nation has, simultaneously with its
historical heritage, a certain degree of political organization, through
which can be safeguarded its own national existence.(74)
Thereby, indigenous authorities require a clearly demarcated territorial
space (competence) to exercise their function of administrating justice
autonomously to the community’s members (jurisdiction). The Mexican expert,
M. Gomez, states that the capacity indigenous peoples have to apply their own
norms of social control includes the subject of law, sovereignty and autonomy,
as well as territoriality.(75) Both autonomy and territory are political claims that
seek to improve the development of the original nations. D. Iturralde refers to this
aspect:“Autonomy is a concept associated with territorial control in its broadest
acceptance of space for social and cultural reproduction,...a way of sharing the
exercise of sovereignty for all processes which take place therein: such as the
installation of authority systems, the administration of justice...”(76)
103
Thus, the concept of autonomy does not undermine the political unity of
the state and its territorial integrity, but involves the creation of political conditions
of organic rearrangement to share responsibilities for the exercise of sovereignty
as part of the nation. As Willemsen affirms: “Political unity reaffirms itself in
deeper levels if it is based on real and vibrant diversity that exists within the global
society of the State, instead of seeking to sustain an artificial uniformity that does
not correspond to the deep feelings of populations.”(77) Therefore it is essential
that all forms of authority and community management models used by some
indigenous peoples are recognized and respected by the regional and national
political administration. Hence the autonomy of these cultural units implies the
following competencies:
a. Political Autonomy. This implies the possibility that Indians are elected by
their community.
b. Administrative Autonomy. It becomes the power of the indigenous
community to dictate its own laws governing its competence.
c. Tax Autonomy. It implies the possibility for the indigenous community to
create, collect and invest taxes and other contributions, for the purpose of
obtaining income to meet its own needs.
d. Jurisdictional Autonomy. It implies the power of indigenous authorities to
resolve conflicts within their territorial space by applying customary law.
(78)
Therefore, indigenous organizations agree that among the principal rights
arising from autonomy is respect for the organizational structure and functioning
that each of the indigenous peoples assumes, provided they are not contrary to public
order; there is also the right to freely associate in organizations representing their
communities. In short, it is about ensuring spheres of autonomy on administrative
matters and policy for indigenous groups, to assure their effective participation in
all decisions that affect them.
7.1. Citizen Participation and Political Control over Indigenous
Leaders in Venezuela
Some academic research has warned that, although citizen participation
and processes of constructing citizenship at the local level can improve democracy
associated with the strengthening of cultural identity, the political system has been
exerting a political control over indigenous leaders.(79) This type of control was
observed during the participation and performance of actors who competed for
seats reserved for indigenous representation in the Venezuelan elections held
between 2004 and 2010. In this sense, Angosto Ferrández says:
Frónesis Vol. 22, No. 2 (2015) 87-118
104
…political polarization is stimulating the interest of parties (or party
alliances) in increasing their effective influence on indigenous movement
actors who step into the electoral arena. This contributes to understanding
why the elected indigenous representatives adjust their claims according
to what is considered acceptable by conventional political parties and
not to the proposals maintained (at least discursively) by the indigenous
organizations or communities to which they belong.(80)
Another threat to the governmental structure of indigenous peoples and
communities is implementation of the latest Organic Law of Community Councils,
(81) which eliminated the definition of “indigenous communities” and established
a population basis to determine the number of families that can form a community
council (only ten families), creating and imposing a new public structure of civil
participation within indigenous communities.
Some National Assembly Legislators have defended this law. Darío Vivas
said, “What it means is that from now on, the communal councils will act directly
and won’t need the figure of the cooperatives in order to function. They are the
primary cells of popular power, not an appendage of the government.” Rafael
Delgado explained that this organic law has converted popular power into a public
power, so communal councils can govern along with other constituted powers,
being a “…new expression of the government”. (82) Nevertheless, the “collective”
coordinates implementation of the assembly’s decisions, and one of its functions
shall be to “Coordinate with the Bolivarian Militia in relation to the integral
defense of the nation.” Therefore, communal councils are an integral part of the
current national government.
As L. Bello has roundly expressed:
…the establishment and operation of community councils among
indigenous peoples may have strong socio-cultural impacts, especially
on carrying out their own organization (social, political, economic
and cultural) according to article 119 constitutional; in the structure
of the exercise of traditional authorities; and with regard to making
community decisions over their own issues, what is commonly called
internal autonomy. (83)
A critical position has also been assumed by the distinguished professor E.
Mosonyi who has expressed concern regarding the communal councils, considering
they are an “imposed model” for indigenous peoples and communities to the
detriment of their own socio-political structure, paradoxically guaranteed by the
Constitution, that destroys their identity and existence as a people and replaces their
traditional organization and legitimate authorities with a Communal Council. (84)
105
In this sense, the Ministry of Popular Power for Indigenous Peoples
(MINPPIP) (85) was created by the National Government on December 26,
2006, substituting the functions of the General Office for Indigenous Affairs of
the Ministry of Education. The main function of the MINPPIP is to regulate,
develop and monitor policies, strategic planning and implementation of National
Executive activities for indigenous rights; it is committed to promoting and
supporting social development, as well as ensuring the enjoyment of their rights
without discrimination.(86) Among other attributions, articles 24 and 25 of Decree
No. 6.732 relate to strengthening indigenous justice:
24. Promote the strengthening of the legitimate authorities and respect
for the indigenous elders as a source of wisdom and moral reserve of
indigenous peoples and communities;
25. Ensure that the facts considered prejudicial against the respect and
dignity of indigenous peoples, are reported to the Public Ministry, and
compliance with the sanctions arising from such events.
Unfortunately, the MINPPIP has a strong political power control through
the United Socialist Party of Venezuela (USPV), the government’s political party,
because it can designate party leaders as directors for the regional commissions
of demarcation processes throughout the country and indigenous municipalities,
as evidenced in the latest report by the MINPPIP in 2012, which was settled as
follows: “The indigenous base present reaffirmed support for the USPV” (page
197).The ideological influence and political actions of MINPPIP had been exposed
by the expert Luis E. Bello in 2011:
If the Indigenous Ministry is an agency of the National Government, it is
logical that it responds ideologically to principles and purposes thereof,
and that its management is guided by these principles and actions.
The problematic thing is that it imposes actions (for) the political and
ideological control of the indigenous population, even against their
specific identity and cultural life. (87)
Therefore, there is a high risk that indigenous authorities, who must apply
justice in their communities, could be influenced or manipulated in their decisions
for political reasons.
Conclusions
Neither Venezuela nor the United States has established explicitly the right
to self-determination for indigenous peoples in their Constitutions, despite being
recognized in the UN Declaration on the Rights of Indigenous Peoples 2007.
Venezuela only recognizes the terms self-government (or political autonomy) and
self-management.
Frónesis Vol. 22, No. 2 (2015) 87-118
106
Congress and federal courts have plenary control over Indian affairs within
the territory of the United States, at least theoretically, so it is not possible to
say that there is absolute sovereignty for American tribes. It is more appropriate
to mention the term “conditioned sovereignty” for these tribes, while Congress
receives this constitutional faculty over Indian affairs. Besides, the concept of
tribal sovereignty is actually a process that must be defined by the praxis and
consensus from each tribe over time, according to its worldview and culture.
However, there is a conceptual similarity between the terms self-determination
and tribal sovereignty in United States doctrine.
Finally, political participation processes and the empowerment of local
governments, implemented by the current Venezuelan government during the past
fifteen years, have broken the traditional organizational structure of indigenous
communities, producing the effect of a loss of authority for those who apply
justice and resolve disputes within their communities according to customary law.
Notes:
1. This article is part of an academic research project entitled “Special Indigenous
Jurisdiction in Venezuela: A Comparative Analysis of U.S. Federal Laws
and Judicial Praxis,” prepared by the above-mentioned author during his
academic visit at the University of Massachusetts, Boston (USA), Institute
for New England Native American Studies: August 2014-March 2015.
2. This difference was established at the Encounter of United Nations Experts
held in the city of Nuuk, Greenland in September 1991, in which it was formally
recognized that indigenous peoples “...are historically self-governing, with
their own language, culture, laws and traditions.”
3. See Ricardo Colmenares Olivar, “The Right of Autonomy for the Indigenous
Peoples of Venezuela”, in REVISTA CENIPEC No. 21, January-December,
2002.
4. The Wayuu people, whose members are also known as “guajiros / guajiras,”
belongs to the Arawak linguistic family; this group is located on the Guajira
Peninsula in the north of Colombia and the northwest of Venezuela in the
State of Zulia, on the Caribbean Sea, occupying an area of 1,080,336 hectares.
5. See Instituto Nacional de Estadística, La población indígena de Venezuela
Censo 2011, Vol. 1, Núm. 1, Octubre 2013: 1-2. The census was based on
ethnic self-recognition by the respondents.
6. See UNITED STATES CENSUS BUREAU, The American Indian and Alaska
Native Population: 2010. By TINA Norris, Paula L. Vines, and Elizabeth
107
M. Hoeffel, available at: http://www.census.gov/prod/cen2010/briefs/
c2010br-10.pdf
7. This information is available at: http://www.bia.gov/WhoWeAre/index.htm
8. Stephen L. Pevar, THE RIGHTS OF INDIANS AND TRIBES, 2nd Edition.
Southern Illinois University Press, 1992: 283.
9. Jose Paulo Kastrup, “The Internationalization of Indigenous Rights
from the Environmental and Human Rights Perspective,” In TEXAS
INTERNATIONAL LAW JOURNAL, University of Texas School of Law
Publications, Inc., 1997: 105.
10. Stephen L. Pevar, THE RIGHTS OF INDIANS AND TRIBES, supra note 9,
at: 81.
11. Robert T. Anderson, Benthany Berger, Philip P. Frickey & Sarah Krakoff.
AMERICAN INDIAN LAW: Cases and Commentary, Second Edition. West,
a Thomson Reuters Business, 2010: 2-4.
12. Article 1.1. All peoples have the right of self-determination. By virtue of
that right they freely determine their political status and freely pursue their
economic, social and cultural development.2. All peoples may, for their own
ends, freely dispose of their natural wealth and resources without prejudice
to any obligations arising out of international economic co-operation, based
upon the principle of mutual benefit, and international law. In no case may a
people be deprived of its own means of subsistence.3. The States Parties to the
present Covenant, including those having responsibility for the administration
of Non-Self-Governing and Trust Territories, shall promote the realization of
the right of self-determination, and shall respect that right, in conformity with
the provisions of the Charter of the United Nations.
13. See Hector Gros Espiell, “The Right to Self-Determination: Implementation
of United Nations Resolutions.” Special Rapporteur of the Sub Commission on Prevention of Discrimination and Protection of Minorities
(E/CN.4/Sub.2/405/Rev.1), 1980.
14. Daniel O’Donnell, PROTECCIÓN INTERNACIONAL DE LOS DERECHOS
HUMANOS. Perú, Comisión Andina de Juristas, 1988: 342.
15.See José R. Martinez Cobo, Final Report Submitted by the Special
Rapporteur, U.N. Economic and Social Council, Sub-Commission on
Prevention of Discrimination and Protection of Minorities, 36th session, E/
CN.4/Sub.2/1983/21/Add.8, 30 September 1983. 16. In 1946, the ILO became the first specialized agency of the UN; it has been
working in indigenous issues since 1936. Available at: http://www.ilo.org/
global/about-the-ilo/lang--en/index.htm
108
Frónesis Vol. 22, No. 2 (2015) 87-118
17. The Inter-American Commission on Human Rights approved a Proposal for
the American Declaration on February 26, 1997, at its 1333rd session, 95th
regular session, published in Annual Report of the Inter-American Commission
on Human Rights, O.A.S. Doc. OEA/Ser.L/V/II.95.Doc. 7 rev. (March 14,
1996). See http://www.oas.org/en/iachr/indigenous/activities/declaration.asp
18. Approved by the General Conference of the ILO convened at Geneva in
its 76th Session on June 7, 1989, and only 22 countries have ratified it. This
covenant replaced ILO Convention 107, which dealt likewise with the rights
of Indigenous, Tribal and Semi-Tribal Populations in Independent Countries
(Extraordinary G. O. No. 3.253, on 03–08–1983), which had a marked
integrationist tendency.
19. See S. James Anaya, INDIGENOUS PEOPLES IN INTERNATIONAL LAW,
2nd edition, Oxford University Press, 2004: 64, 86.
20.UN doc. A/HRC/9/9, 11 August 2008, par. 32.To learn more about the
implementation and application of Convention 169 in the Latin America
region, see: International Labour Organization, Application of Convention
No. 169 by domestic and international courts in Latin America, ILO, Geneva,
2009.
21. Published in the Extraordinary Official Gazette No. 37.307, dated October 17, 2001.
22. Article 2 of the Convention provides assurance obligations, promotion and
support by the signatories on behalf of the members of these populations’
governments. Also, Article 1, paragraph a) of the Vienna Convention on
the Law of Treaties of 23 May 1969, states: “It is understood by treaty,
an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or
more related instruments and whatever its particular designation.”
23. See Ricardo Colmenares Olívar, “Alcance del Convenio 169 de la OIT
en el Ordenamiento Interno y la Realidad Social en Venezuela: Balance y
Perspectivas”. In Revista de Derecho N° 25 del Tribunal Supremo de Justicia.
Caracas, Venezuela, 2007.
24. Since the Convention 169 was approved in 1989, observations of the US
government directed towards the development of a universal declaration of
indigenous rights in the context of the Working Group of the United Nations
on the subject, usually contain statements that reflect the basic precepts
contained in the Convention; and, of course, the comments indicate a growing
consensus toward closer alignment with the demands of indigenous groups.
See Elizabeth A. Pearce,“ Self-Determination for Native Americans: Land
Rights and the Utility of Domestic and International Law,” In COLUMBIA
HUMAN RIGHTS LAW REVIEW, Vol. 22, No. 2, 1991: 13.
109
25. Russel Lawrence Barsch, “Indigenous North American and Contemporary
International Law,” In OREGON LAW REVIEW. Winter 1983, Vol. 62. No.
1, 1983: 788.
26. G.A. Res. 61/295, U.N. Doc. A/Res/61/295 (Sept. 13, 2007). The result of
the vote was as follows: 143 votes in favor, 4 negative votes cast (Canada,
Australia, New Zealand, and the United States), and 11 abstentions.
Available at: http://www.iwgia.org/human-rights/international-human-rightsinstruments/
27. Available at: http://www.iwgia.org/human-rights/international-human-rightsinstruments/undeclaration-on-the-rights-of-indigenous-peoples
28. Robin Perry, “Balancing Rights or Building Rights? Reconciling the Right to
Use Customary Systems of Law with Competing Human Rights in Pursuit of
Indigenous Sovereignty,” supra note 51, at: 93.
29. Luis Rodríguez-Piñero, Justicia Y Derecho Indígena. In LA DECLARACIÓN
SOBRE LOS DERECHOS DE LOS PUEBLOS INDÍGENAS. PUNTO Y
SEGUIDO, Barcelona (España), Editorial Alternativa, 2008: 126.
30. See
U.N.
Permanent
releases/20070913_204.html
Mission:
http://www.un.int/usa/press_
31. United Nations, Report of the Special Rapporteur on the Rights of Indigenous
Peoples, A/HRC/21/47/Add.1: August 30, 2012
32. See http://www.state.gov/documents/organization/184099.pdf
33. Published in Official Gazette No. 5.453 Ext., dated March 24, 2000.
34. Article 126 CBRV: “Indigenous peoples, as cultures with ancestral roots,
are part of the Nation, the State and the Venezuelan people, which is one,
sovereign and indivisible. In accordance with this Constitution, they have the
duty of safeguarding the integrity and sovereignty of the nation. The term
people in this Constitution shall in no way be interpreted with the implication
it is imputed in international law”.
35. See the followings Articles about Political Participation in the Organic Law
on Indigenous Peoples and Communities (OLIPC):
About Political Participation and Protagonism
Article 63 OLIPC: “Indigenous peoples and communities have the right to
participation and political prominence. To exercise this right guarantees
indigenous representation in elected office at the National Assembly in
legislative councils, municipal and parish councils in states with indigenous
population councils, or in any other instance both nationally, state and parish,
Frónesis Vol. 22, No. 2 (2015) 87-118
110
in accordance with their respective laws.”
Article 67 OLIPC: “The rules, procedures and generally everything related
to the exercise of the right of indigenous peoples and political participation
communities will be developed in the laws governing the matter, taking into
account their traditions and customs, as established in the Constitution of the
Bolivarian Republic of Venezuela.”
About Municipal Authorities
Article 73 OLIPC: “The application requirements and the procedure for
election of indigenous municipal authorities, shall be governed by law issued
to that effect and the rules issued by the National Electoral Council, based on
the habits and customs of indigenous peoples and communities.”
36. Article 5 OLIPC. “Indigenous peoples and communities have the right to
decide autonomously and take control of their own institutions, ways of life,
their economic practices, identity, culture, law, customs, education, health,
worldview, protection of their traditional knowledge, use, protection and
defense of their habitat and land and, in general, the daily management
of their community life within their lands to maintain and strengthen their
cultural identity.”
37. Article 123 CBRV: “Native peoples have the right to maintain and promote
their own economic practices based on reciprocity, solidarity and exchange;
their traditional productive activities and their participation in the national
economy, and to define their priorities. Native peoples have the right
to professional training services and to participate in the preparation,
implementation and management of specific training programs and technical
and financial assistance services to strengthen their economic activities within
the framework of sustainable local development. The State shall guarantee to
workers belonging to indigenous peoples the enjoyment of the rights granted
under labor legislation.”
38. Article 23 CBRV: “The treaties, pacts and conventions related to human
rights signed and ratified by Venezuela, have a constitutional hierarchy and
prevail in the internal legal system to the degree that they contain norms
regarding their enjoyment and exercise more favorable than those established
in the Constitution and in the laws of the Republic, and are for immediate and
direct application by the courts and other organs of Public Power.”
39. Available at: http://www.corteidh.or.cr/docs/opiniones/seriea_02_ing.pdf
40.Article 31 CBRV: “Everyone has the right, on the terms established by
the human rights treaties, pacts and conventions ratified by the Republic,
to address petitions and complaints to the intentional organs created for
111
such purpose, in order to ask for protection of his or her human rights. The
State shall adopt, in accordance with the procedures established under this
Constitution and by the law, such measures as may be necessary to enforce
the decisions emanating from international organs as provided for under this
article.”
41. Lorena Rincón Eizaga, “La Sentencia 1265 de la Sala Constitucional del
TSJ a la luz de los tratados internacionales sobre derechos humanos y la
jurisprudencia de la Corte Interamericana de Derechos Humanos,” In
FRÓNESIS, Universidad del Zulia, Vol. 17 No. 1, 2010: 135-146.
42. Seehttp://www.corteidh.or.cr/docs/casos/articulos/seriec_182_esp.pdf
43. Seehttp://www.corteidh.or.cr/docs/casos/articulos/seriec_233_ing.pdf
44. David Gómez Gamboa, “La sentencia No. 1547/11 de la Sala Constitucional
del TSJ en el Contexto del Fallo No. 233 (serie c) de la Corte Interamericana
de Derechos Humanos,” In CUESTIONES JURÍDICAS, Universidad Rafael
Urdaneta, Vol. V, No. 2 (Julio-Diciembre), 2011: 106.
45. See, e. g., Decision No. 1.013 June 12, 2001 and decision No. 1.942 July 15,
2003.
46. Article 78 ACHR: 1. The States Parties may denounce this Convention at the
expiration of a five-year period from the date of its entry into force and by
means of notice given one year in advance. Notice of the denunciation shall be
addressed to the Secretary General of the Organization, who shall inform the
other States Parties.2. Such a denunciation shall not have the effect of releasing
the State Party concerned from the obligations contained in this Convention
with respect to any act that may constitute a violation of those obligations and
that has been taken by that state prior to the effective date of denunciation.
47. For additional information about this issue, see: Davis Sheldon. Land Rights
and Indigenous Peoples. The Role of the Inter-American Commission on
Human Rights. Cultural Survival Report 29. Cambridge Mass, 1988. Also,
see: Ariel Dulitzky, Los Pueblos Indígenas: Jurisprudencia del Sistema
Interamericano de Protección de los Derechos Humanos. REVISTA DEL
INSTITUTO INTERAMERICANO DE DERECHOS HUMANOS Nº
1. Costa Rica, 1997. See Oswaldo Kreimer, La Situación de los Derechos
Humanos de las Personas Indígenas en las Américas. COMISIÓN
INTERAMERICANA DE DERECHOS HUMANOS (O.E.A.), 1999;
Ricardo Colmenares Olívar, La Protección de los Derechos de los Pueblos
Indígenas en el Sistema Interamericano de Derechos Humanos. In REVISTA
TACHIRENSE DE DERECHO No. 11, Centro de Investigaciones Jurídicas,
Universidad Católica del Táchira (enero-diciembre), 1999.
112
Frónesis Vol. 22, No. 2 (2015) 87-118
48. Robin Perry, “Balancing Rights or Building Rights? Reconciling the Right to
Use Customary Systems of Law with Competing Human Rights in Pursuit of
Indigenous Sovereignty,” In HARVARD HUMAN RIGHTS JOURNAL, Vol.
24, 2011: 96.
49. Before Columbus arrived on the continent in 1492, Indians tribes had lived
in the Americas for tens of thousands of years. See: Albert Hurtado and Peter
Iverson, MAJOR PROBLEMS IN AMERICAN INDIAN HISTORY, 2nd
Edition, Houghton Mifflin Company, Boston MA, 2001: 18.
50. See “Inherent Sovereignty”, available at: http://www.oneidaindiannation.
com/about/sovereignty/26287439.html
51. David E. Wilkins and Heidi Kiiwetinepinesiik Stark, AMERICAN INDIAN
POLITICS AND THE AMERICAN POLITICAL SYSTEM. 3rd ed., Rowman
& Littlefield Publishers, Inc., USA, 2010: 111.
52. See “Tribal Sovereignty: The place to start, place to continue.” This definition
is available at: http://www.webpages.uidaho.edu/~rfrey/329sovereignty.htm
53. According to P. Prygoski, tribal sovereignty is not a simply an abstract legal
concept, it is part of the military, social, and economic development of the
US. See: Philip J. Prygoski (1995), “From Marshall to Marshall the Supreme
Court’s Changing Stance on Tribal Sovereignty.”This information is available
at:
http://www.americanbar.org/content/newsletter/publications/gp_solo_
magazine_home/gp_solo_magazine_index/marshall.html
54. See at: http://www.civilrights.org/indigenous/tribal-sovereignty/
55. See “Inherent Sovereignty,” supra note 50.
56. In the same way, Article 1, Section 2, which states, “Representatives and
direct taxes shall be apportioned among the several states which may be
included within this union, according to their respective numbers, which shall
be determined by adding to the whole number of free persons, including those
bound to service for a term of years, and excluding Indians not taxed, three
fifths of all other Persons.”
57. Stephen L. Pevar, THE RIGHTS OF INDIANS AND TRIBES, 1992, supra
note 9, at: 48.
58. See Philip J. Prygoski, “From Marshall to Marshall the Supreme Court’s
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59. Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 5L. Ed. 681, 1823.
60. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 1831.
61. See Philip J. Prygoski, “From Marshall to Marshall the Supreme Court’s
113
Changing Stance on Tribal Sovereignty.” Supra note 53.
62. Worcester v. Georgia, 31 U.S. 515, 557, 1832.
63.Deloria and Lytle, American Indian, 33, cited by: David E. Wilkins and
Heidi Kiiwetinepinesiik Stark, AMERICAN INDIAN POLITICS AND THE
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64. Canby, William (Jr). AMERICAN INDIAN LAW. 3rd. ed. St. Paul, MN. West
Group Co., 1998: 1
note 24 at:66.
66. David E. Wilkins and Heidi Kiiwetinepinesiik Stark, AMERICAN INDIAN
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at: 37.
67.Robert Ericson and D. Rebecca Snow, “The Indian Battle for SelfDetermination,” In CALIFORNIA LAW REVIEW, Vol. 58, Issue 2, Article 4,
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edu/californialawreview/vol58/iss2/4
note 24 at: 49.
69. Worcester v. Georgia, 31 U.S. 350, 379, 6 Pet. 515, 559 (1832).
70. Curtis G. Berkey, “International Law and Domestic Courts: Enhancing SelfDetermination for Indigenous Peoples”, In HARVARD HUMAN RIGHTS
JOURNAL. Vol. 5, 1992: 70.
71. See Article 4 UN Declaration 2007: “Indigenous peoples, in exercising their
right to self-determination, have the right to autonomy or self-government in
matters relating to their internal and local affairs, as well as ways and means
for financing their autonomous functions.”
72. Augusto Willemsen Díaz, “Ámbito y ejercicio eficaz de la Autonomía Interna
y el Autogobierno para los Pueblos Indígenas”. In IRIPAZ Review. Nº 7. Año
4. Guatemala: Instituto de Relaciones Internacionales y de Investigaciones
para la Paz, 1993: 142.
73. Carlos Ayala Corao, “El Estado Constitucional y Autonomía de los Pueblos
Indígenas”. In ESTUDIOS BASICOS, Instituto Interamericano de Derechos
Humanos, Costa Rica, 1995: 412.
74.Manuel García Pelayo, DERECHO CONSTITUCIONAL. 5ta. Edic.
Manuales de la Revista de Occidente, Madrid (ESPAÑA), 1951: 199-200.
114
Frónesis Vol. 22, No. 2 (2015) 87-118
75. See Magdalena Gómez, Derecho Indígena y Constitucionalidad, (2000),
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76. Diego Iturralde, Naciones Indígenas y Estados Nacionales en América Latina
hacia el año 2000. In ETNIA Y NACIÓN EN AMÉRICA LATINA. Consejo
Nacional para la Cultura y las Artes, México, 1991: 133.
77. Augusto Willemsen Díaz, “Ámbito y ejercicio eficaz de la Autonomía Interna
y el Autogobierno para los Pueblos Indígenas”, supra note 72, at 127.
78. See Carlos Ayala Corao, “El Estado Constitucional y Autonomía de los
Pueblos Indígenas,” supra note 73.
79.Nila Leal González, “Citizen Participation and the Construction of
Citizenship”, In CUESTIONES POLÍTICAS, Vol. 24, Nº 40 (January-June
2008): 129 – 143.
80. Luis Fernando Angosto Ferrández, “Competition for Indigenous Representation
in Venezuelan Election”, In CUESTIONES POLÍTICAS, Vol. 27 Nº 46 (enerojunio 2011): 13 – 54. The right of political participation is expressly recognized
in article 125 of the National Constitution, which guarantees indigenous
representation in the Assembly National and the deliberating institutions of
federal and local entities with indigenous population.
81. Published in Official Gazette No. 39.335, dated December 28, 2009.
82.Tamara Pearson, “Venezuela’s Reformed Communal Council Law: When
Laws Aren’t Just for Lawyers and Power is Public,” available at: www.
venezuelanalysis.com/analysis/4980, December 4th2009.
83. Luis Jesús Bello, “El Derecho a la Participación Política de los Pueblos
Indígenas y la Representación Indígena en los Cuerpos Legislativos.” In EL
ESTADO ANTE LA SOCIEDAD MULTIÉTNICA Y PLURICULTURAL.
IWGIA, Copenhague, 2011: 203.
84. Esteban Emilio Mosonyi, Balance General de los Diez Años del Proceso
Bolivariano: Pueblos Indígenas, REVISTA VENEZOLANA DE ECONOMÍA
Y CIENCIAS SOCIALES, Vol. 15, Nº 1, Caracas, 2009: 170.
85. Official Gazette Nº 5.836 of January 8, 2007.
86. Article 29.1, Decree No. 6.732 on Organization and Operation of the National
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2009.
87. Luis E. Bello, “Los órganos del Estado y la política indígena nacional”. In EL
ESTADO ANTE LA SOCIEDAD MULTIÉTNICA, supra note 20, at: 325.
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Vol.22 Nº2 (2015)
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