Land, treaties and title
Land is the foundation of almost every indigenous claim. You will learn how peoples hold land, what treaties and title are, and how a claim travels through the legal system.
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For most indigenous peoples, land is not a commodity to be bought and sold. It is the source of food and medicine, the place where ancestors are buried, and the basis of law and religion. It usually belongs to the group as a whole, including members not yet born. Losing it means losing far more than property. That is why land sits at the centre of indigenous rights.
Customary tenure
Tenure means the way land is held. Under customary tenure, rights come from the community's own law. A clan or village holds the territory. Families have rights to use particular fields, fishing spots or grazing. Some areas are open to all members. The rules are known to everyone but are seldom written down, and that made them easy for colonial governments to ignore.
- Land held by the group
- Rights come from membership and use
- Usually cannot be sold to outsiders
- Recorded in memory and practice
- Land held by one owner
- Rights come from a deed or register
- Can be sold or mortgaged
- Recorded in state documents
Treaties
A treaty is a formal agreement between nations. In North America, Britain, France and later the United States and Canada made hundreds of treaties with indigenous nations. The United States ratified about 370 before ending the practice in 1871. In Canada, eleven 'numbered treaties' signed between 1871 and 1921 cover much of the west and north. Treaties typically exchanged large areas of land for reserved territories and promises of support.
Treaties are living law. In 2020 the United States Supreme Court ruled, in a case called McGirt v. Oklahoma, that a large part of eastern Oklahoma remains the reservation of the Muscogee (Creek) Nation for the purposes of federal criminal law, because Congress had never clearly cancelled the treaty promise.
Native title
Where no treaty was made, courts have had to decide whether indigenous rights to land survived colonisation. Native title, also called Aboriginal title, is the legal recognition that they did. In Australia the turning point was the Mabo case of 1992, brought by Eddie Mabo and other Meriam people of the Torres Strait. The High Court rejected the idea of terra nullius and held that native title exists where it has not been lawfully extinguished.
From claim to title
Turning a right in principle into a registered title is a long process, and it often takes a community ten or twenty years of patient work. The steps vary by country, but the outline is similar everywhere. The diagram follows a claim from start to finish.
- Map and document. A claim begins with proof of connection. Communities walk their land with GPS units and elders, mapping where they live, farm, hunt and worship. Oral history is central evidence.
- File the claim. The route depends on the country. Under India's Forest Rights Act of 2006, claims start at the Gram Sabha, the village assembly. In Australia they go to the Federal Court.
- Evidence tested. Claims are tested. Courts in Canada and Australia now accept oral history as evidence. The community usually has to show a continuing link with the land since before colonisation.
- Ruling or agreement. The result may be a judgment or a negotiated deal. In 2014 Canada's Supreme Court declared that the Tsilhqot'in Nation holds Aboriginal title to a large area of British Columbia.
- Mark the boundary. Demarcation means marking the boundary on the ground. In Brazil a federal agency studies and marks out an indigenous territory before the President confirms it by decree.
- Title registered. Title is then registered. It is usually collective: the land belongs to the people as a whole, and in many countries it cannot be sold. This protects it for future generations.
- Manage and defend. A title on paper is not the end. Communities still have to patrol boundaries and go to court against illegal logging, mining and land grabs.
India's framework
India protects tribal land in several ways. The Fifth Schedule of the Constitution lets states restrict the transfer of land from tribal to non-tribal people in designated Scheduled Areas. The Sixth Schedule gives autonomous councils in parts of the north-east power over land. The Forest Rights Act of 2006 recognises both individual plots and community rights over forest, and gives the village assembly the first say in deciding claims.
Around the world
- Brazil's 1988 Constitution recognises indigenous peoples' rights to lands they traditionally occupy. Recognised indigenous lands cover about 13% of the country, mostly in the Amazon.
- The Philippines' Indigenous Peoples' Rights Act of 1997 provides for certificates of ancestral domain title.
- In 2001 the Inter-American Court of Human Rights ruled for the Awas Tingni community against Nicaragua, holding that the right to property includes communal indigenous land.
- In 2010 the African Commission on Human and Peoples' Rights found that Kenya had wrongly evicted the Endorois people from their land around Lake Bogoria.
- Canada has signed modern treaties, including the Nunavut agreement of 1993 and the Nisga'a treaty, which took effect in 2000.
What title does and does not give
Titles differ in strength. Some give full ownership, including the right to refuse entry. Others give only rights to hunt, fish and hold ceremonies, and sit alongside the rights of farmers or mining companies. In many countries the state keeps ownership of minerals under the ground, so a community can own the surface and still face a mine.
Even strong titles need enforcing. Illegal miners, loggers and ranchers enter demarcated lands in the Amazon. Rulings by regional courts are sometimes left unimplemented for years. Winning title is a major step. Keeping the land secure afterwards takes constant effort from the community and the political will of the state.