Section Three: Cultural Identity
Article XII. Right to Cultural Identity
1. Indigenous peoples have the right to their cultural integrity and to
their historical and ancestral heritage, which are important for their
collective continuity, and for their identity and that of their members
and their States.
International Indian Treaty Council
January 26, 2004 – First Session
Thank you Mr.
Chairman. I’d like to make a brief commentary on the United States
proposal. We are very gratified that the United States recognizes
that human rights exist, particularly in other obligations
including the International Covenant on Civil and Political
We are a bit confused however, and, actually are gratified that
they believe that tracking language on international standards is
an appropriate thing to do because we are totally in agreement
with that, with that concept. What we’d like perhaps clarify, that
the United States has said that they are tracking the language of
Article 27 of the International Covenant on Civil and Political
Rights. Yet their language states that “Indigenous Peoples, or the
States will not deny Indigenous Peoples the right to enjoy their
own culture.’ Whereas Article 27 says that, “the right to culture
shall not be denied”, quote “shall not be denied” the right. We
believe that that is much more mandatory language, that it is
mandatory language whereas “will not deny”, in terms of my
thinking is not mandatory.
The other concept which I think is more damaging, at least with
regard to the obligations of States, particularly not just under
the International Covenant on Civil and Political Rights, but the
Charters of the United Nations and I believe, the Charter of the
OAS, is that States have the legal and moral obligation, with
regard to the promotion and protection of human rights. And yet,
the United States has proposed that Indigenous Peoples are free to
promote recognition and respect, when in fact, it is the moral and
legal obligation of the States to promote the recognition and
protection of human rights.
So if we are going to track international standards, and I believe
that it is appropriate to do so, then indeed, this Declaration
should be a compilation of the rights of Indigenous Peoples, as
decided not only by other generalized documents, but by the
jurisprudence of the Organization of American States and other
appropriate international bodies.
If we are going to do that, then perhaps we could be true to those
obligations and perhaps we could reflect the obligations of States
as well as the rights of Indigenous Peoples a bit more accurately.
Thank you, Mr. Chairman.
Representative of the Haudenosaunee
January 26, 2004 – First Session
(Greeting in his own
Good morning. My name is Darwin Hill, representative of the
Haudenosaunee. Haudenosaunee again, is a Confederacy of Indian
nations located in north east United States and as well, in the
south eastern section of Canada.
I just have several comments that will echo somewhat my colleague
here, just before me, about several of the comments from the
United States proposal. Number one, is that they did say that
their language tracked, I think they said it came directly from
the ICCPR, but that actually uses the language of the “right to
enjoy culture shall not be denied.” Whereas the US uses the
language “will not be denied.” So we really question that. Why is
the language using “will” instead of “shall?
The second point, the US acknowledged that the Indigenous Peoples
have the right to enjoy culture. Under international law, when a
right inheres in a peoples, States have an obligation to do more
than not deny it. Instead they must take affirmative measures to
ensure its actual enjoyment. So I ask, “does the United States
intend to escape this affirmative obligation under international
law with this proposed language?
One final point, and this again gets back to the use of the word
“shall” or “will”. We have discussed this on numerous occasions
with the United States as well as in the forum. The Universal
Declaration on Human Rights and the Declaration on the Elimination
of Racial Discrimination both use the “shall” language, and not
“will”. So we encourage the Forum here as well as the United
States to continue using this more affirmative language in this
Those are my points here this morning, and again, thank you for
the opportunity to present this.
(Closing thanks in his own language).
2. Indigenous peoples have the right to restitution of the property that
is part of that heritage of which they have been dispossessed, or, when
restitution is not possible, to fair and equitable compensation.
3. The States shall guarantee respect for and non-discrimination against
the indigenous ways of life, world views, usages and customs, traditions,
forms of social organization, institutions, practices, beliefs, values,
dress, and languages.
Article XIII. Logical Conceptions and Language
1. Indigenous peoples have the right to use, develop, revitalize, and
transmit to future generations their own histories, languages, oral
traditions, philosophies, systems of writing, and literature; and to
designate and retain their own names for their communities, members, and
places. The States shall adopt adequate measures to protect the exercise
of this right, in consultation with the peoples concerned.
2. The States shall take measures to promote the broadcast of radio and
television programming by the mass media in indigenous languages in
regions with a large indigenous presence. The States shall also support
the creation of indigenous radio stations and other means of
3. The States shall take effective measures so that the members of the
indigenous peoples can understand administrative, judicial, and political
rules and procedures, and be understood in such proceedings. The States
shall make the necessary efforts for the indigenous languages to be
established as official languages in the areas where indigenous languages
Article XIV. Education
1. The States shall include in their national educational systems content
that reflects the intercultural, multiethnic, and multilingual nature of
their societies. The indigenous peoples have the right to bilingual
intercultural education that incorporates their own world view, history,
knowledge, values, spiritual practices, and ways of life.
2. Indigenous peoples have the right to:
a) define and implement their own educational programs, institutions, and
facilities; b) prepare and apply their own plans, programs, curricula, and
teaching materials; and, c) educate, train, and accredit their teachers
The States shall take the necessary measures to ensure that the indigenous
education systems guarantee equal educational opportunity and teachers for
the general population and complementarity with the national educational
3. The States shall guarantee that the indigenous educational systems have
the same level of quality, efficiency, accessibility, and in every other
respect as those provided for the general population. In addition, the
States shall facilitate access for indigenous children who live outside of
their communities to learning in their own languages and cultures.
4. The States shall take measures to guarantee for the members of the
indigenous peoples education of equal quality as for the general
population at all levels. The States shall adopt effective measures to
provide adequate resources for these purposes.
Article XV. Indigenous Spirituality and Freedom of Conscience
1. Indigenous peoples and their members have the right to freedom of
expression, conscience, spirituality, and religion or belief, and to
express them both in public and in private, individually or collectively.
2. The States shall take the necessary measures to prohibit efforts to
convert or impose beliefs on the indigenous peoples or their members
without their free and informed consent.
3. The States shall adopt the necessary measures, in consultation with the
indigenous peoples, to preserve, respect, and protect their sacred sites
and objects, including their burial grounds, human remains, and relics.
4. The States and their institutions shall guarantee that society as a
whole respect the integrity of indigenous symbols, practices, sacred
ceremonies, expressions, and spiritual protocols.
Article XVI. Family Relations and Ties
1. The indigenous family shall be respected and protected by society and
the State. The State shall recognize the various indigenous forms of
family, particularly the extended family, matrimonial union, filiation,
family name, and all other rights of the indigenous family. These
indigenous forms of family organization shall be respected by public and
private persons, including cooperation and development agencies. In all
cases, the criteria of gender and generational equity shall be recognized
2. In determining the best interest of the child in matters related to the
adoption of indigenous children, severance of the ties, and other similar
circumstances, the courts and other relevant institutions shall take into
account the customary law and shall consider the points of view, rights,
and interests of the respective people, including the positions of
individuals, the family, and the community. The indigenous institutions
shall have primary jurisdiction for determining the custody of indigenous
Article XVII. Health
1. Indigenous peoples have the right to the exercise and legal recognition
of their traditional indigenous medicine, pharmacopoeia, health practices
and promotion, including those aimed at prevention and rehabilitation, as
well as the right to use, maintain, develop, and administer their own
health services; all in accordance with internationally recognized
2. Indigenous peoples have the right to the use and protection of the
plants, animals, and minerals for medicinal use in their ancestral lands
and territories, as necessary for the practice of indigenous medicine.
3. The States shall take measures to prevent indigenous peoples from being
subject to programs of biological or medical experimentation without their
free and informed consent.
4. Indigenous peoples have the right to use, without any discrimination
whatsoever, all the health and medical care institutions and services
accessible to the general population. The States shall promote an
intercultural approach in the medical and health services provided to
indigenous persons, including the formation of indigenous technical and
professional health care personnel.
5. The States shall provide the necessary means for the indigenous peoples
to improve the health conditions in their communities insofar as they fall
short of the standards accepted for the general population.
Article XVIII. Right to Environmental Protection
1. Indigenous peoples have the right to live in harmony with nature and to
a healthy and safe environment, which are essential conditions for
enjoyment of the right to life, to their spirituality, and to collective
2. Indigenous peoples have the right to conserve, restore, make use of,
and protect their environment, and to the sustainable management of their
lands, territories, and resources.
3. Indigenous peoples have the right to be informed and consulted with
respect to measures that may affect their environment, as well as to
participate in actions and decisions that may affect it.
4. Indigenous peoples have the right to participate fully in the
formulation, planning, organization, and implementation of government
programs and policies to conserve and exploit their lands, territories,
5. Indigenous peoples have the right to assistance from their States for
the purpose of protecting the environment, and from international
organizations, in keeping with the procedures established in the national
legislations, and without discrimination.
6. The States shall prohibit, punish, and prevent, in conjunction with the
indigenous authorities, the introduction, abandonment, or deposit of
radioactive materials or waste, or toxic substances or waste, in violation
of legal provisions in force; as well as the production, introduction,
transit, possession, or use of chemical, biological, or nuclear weapons on
indigenous lands and territories.
7. When the State declares an indigenous territory to be a protected area
or subject to wildlife reserve conditions and in the case of lands and
territories claimed by indigenous peoples, the conservation areas shall
not be subject to any natural resources development without the informed
participation of the peoples concerned.
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