Draft of the Inter-American
Declaration of the Rights of Indigenous Peoples
Draft approved by the IACHR at the 1278 session held on
September 18, 1995
The present draft has been approved by the Inter American
Commission on Human Rights of the OAS for consultation about its text
with Governments, indigenous organizations, other interested
institutions and experts. On the basis of their answers and comments,
the IACHR will prepare its final proposal to be presented to the
General Assembly of the OAS.
INTERAMERICAN COMMISSION ON HUMAN RIGHTS
1. Indigenous institutions and the strengthening of nations.
The Member States of the Organization of American
States (hereafter the States),
Recalling that the indigenous peoples of the Americas constitute
an organized, distinctive and integral segment of their population
and are entitled to be part of the countries' national identity, and
have a special role to play in strengthening the institutions in the
state and in establishing national unity based on democratic
Further recalling that some of the democratic institutions and
concepts embodied in the Constitutions of American States originate
from institutions of the indigenous peoples and that in many
instances their present participatory systems for decision-making and
the internal authority of the indigenous peoples contribute to
improving democracies in the Americas.
2. Eradication of poverty
Recognizing the severe and widespread poverty
afflicting indigenous peoples in many regions of the Americas and
that their living conditions and social services are generally
deplorable; and concerned that indigenous peoples have been deprived
of their human rights and fundamental freedoms resulting inter alia
in their colonization and the dispossession of their lands
territories and resources, thus preventing them from exercising, in
particular, their right to development in accordance with their own
needs and interests.
Recalling that in the Declaration of Principles issued by the
Summit of the Americas. in December 1994, the Heads of State and
Governments. declared that in observance of the International Decade
of the World's Indigenous People, they will focus their energies on
improving the exercise of democratic rights and the access by
indigenous peoples and their communities.
3. Indigenous Culture and Ecology
Appreciating the respect for the environment accorded
by the cultures of indigenous peoples of the Americas, and
considering the special relationship between the indigenous peoples
and the land on which they live.
4. Harmonious relations, respect and the absence of discrimination
Mindful of the responsibility of all the States and
peoples of the Americas to participate in the struggle against racism
and racial discrimination.
5. Enjoyment of community rights
Recalling the international recognition of rights that
can only be enjoyed when exercised in community with other members of
6. Indigenous survival and control of their territories
Considering that in many indigenous cultures,
traditional collective systems for control and use of land and
territory, including bodies of water and coastal areas, are a
necessary condition for their survival, social organization,
development and their individual and collective well-being, and that
the form of such control and ownership is varied and distinctive and
does not necessarily coincide with the systems protected by the
domestic laws of the States in which they live.
7. Demilitarization of indigenous areas
Noting the presence of armed forces in many areas of
the lands and territories of the indigenous peoples and emphasizing
the importance of withdrawing them from where they are not strictly
needed for their specific functions.
8. Human rights instruments and other advances in international
Recognizing the preeminence and applicability of the
American Declaration of the Rights and Duties of Man, the American
Convention on Human Rights and international human rights law to the
States and peoples of the Americas; and
Mindful of the progress achieved by the States and indigenous
organizations in codifying indigenous rights especially in the sphere
of the United Nations and the International Labor Organization, and
in this regard recalling the ILO Agreement 169 and the Draft UN
Declaration on the subject.
Affirming the principle of the universality and indivisibility of
human rights, and the application of international human rights to
9. Advances in the provisions of national instruments
Noting the constitutional and legislative progresses
achieved in some countries of the Americas in guaranteeing the rights
and institutions of indigenous peoples.
SECTION ONE. 'INDIGENOUS PEOPLES'
Art. 1 Definition
- In this Declaration indigenous peoples are those who embody
historical continuity with societies which existed prior to the
conquest and settlement of their territories by Europeans.
(alternative I) [as well as peoples brought involuntarily to the
New World who freed themselves and cultures from which they have
been torn]. (alternative 2) [, as well as tribal peoples whose
social, cultural and economic conditions distinguish them from
other sections of the national community, and whose status is
regulated wholly or partially by their own customs or traditions
or by special laws or regulations].
- Self identification as indigenous or tribal shall be regarded
as a fundamental criterion for determining, the groups to which
the provisions of this Declaration apply.
- The use of the term "peoples" in this Instrument shall not be
construed as having any implication with respect to any other
rights that might be attached to that term in international law.
SECTION TWO. 'HUMAN RIGHTS'
Art. II. Full observance of human rights
- Indigenous peoples have the right to the full and effective
enjoyment of the human rights and fundamental freedoms recognized
in the Charter of the OAS the American Declaration of the Rights
and Duties of Man, the American Convention on Human Rights and
international human rights law; and nothing in this Declaration
shall be construed as in any way limiting or denying those rights
or authorizing any action not in accordance with the instruments
of international law including human rights law.
- The States shall ensure for all indigenous peoples the full
exercise of their rights.
- The States also recognize that the indigenous peoples are
entitled to collective rights insofar as they are indispensable to
the enjoyment of the individual human rights of their members.
Accordingly they recognize the right of the indigenous peoples to
collective action, to their cultures, to profess and practice
their spiritual beliefs and to use their languages.
Art III. Right to belong to an indigenous community or nation
Indigenous peoples and individuals have the right to
belong to an indigenous community or nation in accordance with the
traditions and customs of the community or nation concerned. No
disadvantage of ally kind may arise from the exercise of such a
Art. IV. Legal status of communities
The States shall ensure that within their legal system
personality is attributed to communities of indigenous peoples.
Art. V. No forced assimilation
The States shall not take any action which forces
indigenous peoples to assimilate and shall not endorse any theory, or
engage in any practice, that imports discrimination, destruction of a
culture or the possibility of the extermination of any ethnic group.
Art. VI Special guarantees against discrimination
- The States recognize that where circumstances so warrant
special guarantees against discrimination may have to be
instituted to enable indigenous peoples to fully enjoy
internationally and nationally-recognized human rights; and that
indigenous peoples must participate fully in the prescription of
- The States shall also take the measures necessary to enable
both indigenous women and men to exercise, without any
discrimination, civil, political, economic, social and cultural
rights. The States recognize that violence exerted against persons
because of their gender prevents and nullifies the exercise of
SECTION THREE. CULTURAL DEVELOPMENT
Art. VII. Right to cultural integrity
- States shall respect the cultural integrity of indigenous
peoples, their development in their respective habitats and their
historical and archeological heritage, which are important to the
identity of the members of their groups and their ethnic survival.
- Indigenous peoples are entitled to restitution in respect of
property of which they have been dispossessed, or compensation in
accordance with international law
- States shall recognize and respect indigenous lifestyles,
customs, traditions, forms of social organization, use of dress,
languages and dialects.
Art. VIII. Philosophy, outlook and language
- States recognize that indigenous languages philosophy and
outlook are a component of national and universal culture and as
such shall respect them and facilitate their dissemination .
- The States shall take measures to see to it that broadcast
radio and television programs are broadcast in the indigenous
languages in the regions where there is a strong indigenous
presence and to support the creation of indigenous radio stations
and other media.
- The States shall take effective measures to enable indigenous
peoples to understand administrative legal, and political rules
and procedures and to be understood in relation to these matters.
In areas where indigenous languages are predominant, States shall
endeavor to establish the pertinent languages as official
languages and to give them the same status that is given to
non-indigenous official languages.
- When indigenous peoples wish educational systems shall be
conducted in the indigenous languages and incorporate indigenous
content and that shall also provide the necessary training and
means for complete mastery of the official language or languages.
Art. IX. Education
- Indigenous peoples shall be entitled to a) establish and set
in motion their own educational programs institutions and
facilities b) to prepare and implement their own educational plans
programs curricula and materials; c) to train, educate and
accredit their teachers and administrators The States shall
endeavor to ensure that such systems guarantee equal educational
and teaching, opportunities for the entire population and
complementary with national educational systems.
- States shall ensure that those educational systems are equal
in all ways to that provided to the rest of the population.
- State shall provide financial and any other type of assistance
needed for the implementation of the provisions of this article.
Art. X. Spiritual and religious freedom
- Indigenous peoples have the right to liberty of conscience
freedom of religion and spiritual practice for indigenous
communities and their members, a right that implies freedom to
conserve them, change them, profess and propagate them both
publicly and privately.
- States shall sake necessary measures to ensure that attempts
are not made to forcibly convert indigenous peoples or to impose
on them beliefs against the will of their communities.
- In collaboration with the indigenous peoples concerned, the
States shall adopt effective measures to ensure that their sacred
sites, including burial sites, are preserved, respected and
protected. When sacred graves and relics have been appropriated by
state institutions they shall be returned.
Art. XI. Family relations and family ties
- Families are a natural and basic component of societies and
must be respected and protected by the State. Consequently the
State shall protect and respect the various established forms of
indigenous organizations relating to family and filiation.
- In determining the child's best interest in matters relating
to the protection and adoption of children of members of
indigenous peoples and in matters of breaking of ties and other
similar circumstances, consideration shall be given by Courts and
other relevant institutions to the views of the those peoples
including individual family and community views.
Art. XII. Health and wellbeing
- The States shall respect indigenous medicine, pharmacology,
health practices and promotion, including preventive and
- They shall facilitate the dissemination of those medicines and
practices of benefit to the entire population.
- Indigenous peoples have the right to the protection of vital
medicinal plants, animal and minerals.
- Indigenous peoples shall be entitled to use, maintain, develop
and manage their own health services, and they shall also have
access, without any discrimination, to all health institutions and
services and medical care.
- The states shall provide the necessary means to enable the
indigenous peoples to eliminate such health conditions in their
communities which fall below international accepted standards.
Art. XIII. Right to environmental protection
- Indigenous peoples are entitled to a healthy environment,
which is an essential condition for the enjoyment Or the right to
life and well-being.
- Indigenous peoples are entitled to information on the
environment, including information that might ensure their
effective participation in actions and policies that might affect
- Indigenous peoples shall have the right to conserve restore
and protect their environment and the productive capacity of their
lands, territories and resources
- Indigenous peoples shall participate fully in formulating and
applying government programmes of conservation of their lands and
- Indigenous peoples shall be entitled to assistance from their
states for purposes of environmental protection and may request
assistance from international organizations.
SECTION FOUR. 'ORGANIZATIONAL AND POLITICAL
Art XIV. Rights of association, assembly, freedom of expression
and freedom of thought.
- The States shall promote the necessary measures to guarantee
to indigenous communities and their members their right of
association assembly and expression in accordance with their
usages, customs, ancestral traditions, beliefs and religions
- The States shall respect and enforce the right of assembly of
indigenous peoples and to the use of their sacred and ceremonial
areas, as well as the right to full contact and common activities
with sectors and members of their ethnic groups living in the
territory of neighboring states.
Art. XV. Right to self government, management, and control of
- States acknowledge that indigenous peoples have the right to
freely determine their political status and freely pursue their
economic social and cultural development and that accordingly they
have the right to autonomy or self-government with regard to their
internal and local affairs including culture religion education
information media health housing employment, social welfare,
economic activities, land and resource management, the environment
and entry by nonmembers; and to the ways and means for financing
these autonomous functions.
- Indigenous populations have the right to participate without
discrimination, if they so decide, in all decision-making, at all
levels, with regard to matters that might affect their rights,
lives, and destiny. They may do so through representatives elected
by them in accordance with their own procedures, They shall also
have the right to maintain and develop their own indigenous
decision-making institutions, as well as equal opportunities to
access to all national fora.
Art. XVI. Indigenous Law
- Indigenous law is an integral part of the States' legal system
and of the framework in which their social and economic
development takes place.
- Indigenous peoples are entitled to maintain and reinforce
their indigenous legal systems and also to apply them to matters
within their communities including systems pertaining to ownership
of real property and natural resources resolution of conflicts
within and between indigenous communities crime prevention and law
enforcement and maintenance of internal peace and harmony.
- In the jurisdiction of any State procedures concerning
indigenous peoples or their interests shall be conducted in such a
way as to ensure the right of indigenous peoples to full
representation with dignity and equality before the law. This
shall include observance of indigenous law and custom and, where
necessary, use of the native language.
Art. XVII. National incorporation of indigenous legal and
- The States shall promote the inclusion in their national
organizational structures. of institutions and traditional
practices of indigenous peoples.
- The institutions of each state in areas that are predominantly
indigenous or that are serving in those communities, shall be
designed and adapted as to reflect and reinforce the identity,
culture and organization of those populations, in order to
facilitate their participation.
SECTION V. 'SOCIAL, ECONOMIC AND PROPERTY
Art. XVIII. Traditional forms of ownership and ethnic survival.
Rights to land and territories
- Indigenous peoples have the right to the legal recognition of
the various and specific forms of control, ownership and enjoyment
of territories and property by indigenous peoples.
- Indigenous peoples have the right to the recognition of their
property and ownership rights with respect t to lands and
territories they have historically occupied, as well as to the use
of those to which they have historically had access for their
traditional activities and livelihood.
- Where property and user rights of indigenous peoples arise e
from rights existing prior to the creation of those States the
States shall recognize the titles of indigenous peoples relative
thereto as permanent exclusive inalienable imprescriptible and
indefeasible. This shall not limit the right of indigenous peoples
to attribute ownership within the community in accordance with
their customs traditions uses and traditional practices nor shall
affect any collective community rights over them. Such titles may
only be changed by mutual consent between the States and
respective indigenous people when they have full knowledge and
appreciation of the nature or attributes of such property.
- The rights of indigenous peoples to existing natural resources
on their lands must be especially protected. These rights include
the right to the use management and conservation of such
- In the event that ownership of the minerals or resources of
the subsoil pertains to the State so that the State has rights
over other resources on the lands the governments must establish
or maintain procedures for the participation of the peoples
concerned in determining whether the interests of these people
would be adversely affected and to what extent before undertaking
or authorizing any program for tapping of exploiting existing
resources on their lands. The peoples concerned shall participate
in the benefits of such activities, and shall receive compensation
in accordance with international law, for any damages which they
may sustain as a result of such activities.
- The States shall not transfer or relocate indigenous peoples
except in exceptional cases, and in those cases with the free,
genuine and informed consent of those populations, with full and
prior indemnity and prompt replacement of lands taken, which must
be of similar or better quality and which must have the same legal
status; and with guarantee of the right to return if the causes
that gave rise to the displacement cease to exist.
- Indigenous peoples have the right to the restitution of the
lands, territories and resources which they have traditionally
owned or otherwise occupied or used, and which have been
confiscated occupied, used or damaged, or the right to
compensation in accordance with international law when restitution
is not possible.
- The Stales shall take all measures, including the use of law
enforcement personnel to avert prevent and punish if applicable
any intrusion or use of those lands by unauthorized persons or by
persons who take advantage of indigenous peoples or their lack of
understanding of the laws, to take possession or make use of them.
The States shall give maximum priority to the demarcation of
properties and areas of indigenous use.
Art. XIX. Workers rights
- Indigenous peoples shall have the right to full enjoyment of
the rights and guarantees recognized under international labor law
or domestic labor law; they shall also be entitled, where
circumstances so warrant, to special measures to correct, redress
and prevent the discrimination to which they have historically
- Where circumstances so warrant, the States shall take such
special measures as may be necessary to:
a. protect effectively the workers and employees who are
members of indigenous communities in respect of fair and equal
hiring and terms of employment, insofar as general legislation
governing workers overall does not provide;
b. to improve the work inspection service in regions,
companies, or paid activities involving indigenous workers or
c. ensure that indigenous workers:
i. enjoy equal opportunity and treatment as regards
all conditions of employment, job promotion and
ii. are not subjected to racial, sexual or other forms
iii. are not subjected to coercive hiring practices,
including servitude for debts or any other form of
servitude. even if they have their origin in law, custom
or a personal or collective arrangement which shall be
deemed absolutely null and void in each instance;
iv. are not subjected to working conditions that
endanger their health, particularly as a result of their
exposure to pesticides or other toxic or radioactive
v. receive special protection when they serve as
seasonal, casual or migrant workers in agriculture or in
other activities and also when they are hired by labor
contractors in order that they benefit from national
legislation and practice which must itself be in
accordance with firmly established international human
rights standards in respect of seasonal workers, and
vi. ensure that indigenous workers or employees are
provided with full information on their rights consistent
with such national legislation and international
standards and on recourses available to them in order to
protect those rights.
Art. XX . Intellectual property rights.
- Indigenous peoples shall be entitled to recognition of the
full ownership control and protection of such intellectual
property rights as they have in their cultural and artistic
heritage, as well as special measures to ensure for them legal
status and institutional capacity to develop use share market and
bequeath that heritage on to future generations.
- Where circumstances so warrant indigenous peoples have the
right to special measures to control develop and protect and full
compensation for the use of their sciences and technologies.
including their human and genetic resources in general, seeds,
medicine, knowledge of plant and animal life, original designs and
Art. XXI. Right to development.
- The States recognize the right of indigenous peoples to decide
democratically what values, objectives, priorities and strategies
will govern and steer their development course, even if they are
different from those adopted by the national government or by
other segments of society. Indigenous peoples shall be entitled to
obtain on a non-discriminatory basis appropriate means for their
own development according to their preferences and values, and to
contribute by their own means, as distinguishable societies, to
national development and international cooperation.
- The States shall take necessary measures to ensure that
decisions regarding any plan, program or proposal affecting the
rights or living conditions of indigenous people are not made
without the free and informed consent and participation of those
peoples, that their preferences are recognized and that no such
plan, program or proposal that could have harmful effects on the
normal livelihood of those populations is adopted. Indigenous
communities have the right to restitution or compensation in
accordance with international law, for any damage which, despite
the foregoing precautions, the execution of those plans or
proposal may have caused them; and measures taken to mitigate
adverse environmental, economic, social, cultural or spiritual
SECTION SIX. 'GENERAL PROVISIONS'
Art. XXII. Treaties agreements and other implied arrangements.
Indigenous peoples have the right to the recognition
observance and enforcement of treaties agreements and other
arrangements concluded with States or their successors according to
their spirit and intent and to have States honor and respect such
treaties agreements and other constructive arrangements. Conflicts
and disputes which cannot otherwise be settled should be submitted to
competent international bodies (agreed to by all parties concerned).
Nothing in this instrument shall be construed as
diminishing or extinguishing existing or future rights indigenous
peoples may have or acquire.
Nothing in this instrument shall be construed as
granting any rights to ignore boundaries between States.
September 19, 1995