Demarcating Indigenous Territories in Nicaragua: The Case of Awas Tingni
The Mayagna (Sumo) Indian community of Awas Tingni currently is attempting to attain formal recognition of its broad territorial rights. Over the last several years a norm has developed internationally that affirms the right of indigenous communities to the lands they have traditionally used and occupied. This norm is incorporated in the 1985 Constitution of Nicaragua and in the 1987 statute adopted by the Nicaraguan National Assembly that established a system of autonomy for the country's Atlantic Coast region. However, like the vast majority of indigenous communities of Nicaragua's Atlantic Coast, Awas Tingni lacks specific recognition of the boundaries of its territorial rights.
With insecure territorial boundaries and precarious land tenure, Awas Tingni and other coastal communities are vulnerable to the rush, often uncontrolled, to develop the region's natural resources. Despite the constitutional and statutory provisions unholding indigenous land rights, the Nicaraguan government itself has taken no definitive steps toward demarcating indigenous lands. Under the Nicaraguan civil code, all lands not titled to private owners belong to the state. Thus, the Nicaraguan government, particularly its agencies charged with natural resource development, has approached the issue of indigenous land democration primarily from the standpoint of a party interested in securing its own property interests in the resource-rich Atlantic Coast. On a number of occasions the government has proceeded to grant concessions for natural resource exploitation on lands claimed by indigenous communities, on the assumption that the absence of a private land title sufficiently establishes in the government the relevant rights and powers.
Awas Tingni was faced with such a situation when the natural resources ministry, known by its Spanish acronym, MARENA, granted a concession to a joint Nicaraguan-Dominicna company for lumberign on 43,000 hectares of lands, most of which were lands claimed by the community. MARENA eventually suspended the concession, but only after the community protested through attorneys functioning as part of the Iowa with funding from the World Wildlife Fund (WWF). The intervention by the Iowa project led to negotiations that culminated in a trilateral agreement signed by the community, the company and MARENA. Under the agreement, harvesting of timber in the 43,000-hectare area is to go forward under specified environmental safeguards and annual planning procedures that involve the community. MARENA recognizes the community's right to the timber within the area; thus, the community receives the stumpage values of the timber harvested according to a pricing schedule to be negotiated annually.
The agreement, however, does not settle the largest issue of the outer boundaries of Awas Tingni's territorial rights. Moreover, by its own terms MARENA's recognition of Awas Tingni rights over the 43,000-hectare area is but a provision measure to be superseded by later official demarcation of Awas Tingni lands. Consequently, to strengthen compliance with the trilateral agreement and to deal with a range of anticipated future disputes, the community is currently working toward formal resolution of its territorial claims. This is not easy, for there are few precedents upon which to build internationally, and none in Nicaragua. Furthermore, Awas Tingni faces entrenched attitudes and political interests that have strongly tended against recognition of broad territorial rights on the basis of traditional patterns of use and occupancy, notwithstanding the status now accorded those rights in Nicaragua's legal system.
In a pioneering effort to demonstrate their territorial claims and, thus, to provide a basis for negotiating any use or exploitation, community members have undertaken a unique land tenure initiative in which broad claims are based on applicable legal norms and substantiated by anthropological and geographical research.
In the remainder of this article we describe the regional political and economic environment in which the Awas Tingni land demarcation project evolved. We then review the legal, anthropological, and geographical methods used by the community in its on-going effort to establish territorial rights. Our aim in examining this methodology is to assess the manner in which it may facilitate a just resolution of Awas Tingni territorial claims. Finally, we indicate the broader value of this pilot project.
Changing Regional Patterns: Indigenous "Territories"
In Nicaragua's Atlantic Coast, as in numerous other regions of Latin America (particularly the lowland forests), indigenous communities are working to secure rights to broad "territories" based on traditional or long-standing patterns of use and occupancy as formal, Latin American land tenure category "territories" are unique. Geo-graphically, they are larger areas, rather than the smaller parcels ordinarily associated with individual or communal titles. Awas Tingni lays claim to around 160,000 hectares of land. This contrasts with the plots that were titled to some indigenous communities in Nicaragua earlier i this century, which average less than 10,000 hectares. Perhaps more importantly, indigenous territorial rights - i.e., access, re-source use and revenues, royalties, and similar benefits - may be more readily open to negotiation and do not necessarily exclude any particular agreement to define the parameters of land use. On the contrary, the legal mechanisms that follow formal "territorial" recognition might include a combination of various arrangements, such as exclusive or shared use rights, easements for commercial or other activities, reserves or protected zones, or some form of cooperative management regime.
This discussion focuses on tropical timber. However, the approach to rights can be applied to many non-timber naturally resources as well. Recent studies illustrate that, as sources of tropical hardwoods from Asia and the Pacific have decreased sharply since the 1990s, they are being replaced rapidly and in increasing amounts from three general sources in Latin America. The work is being done either through a) companies from outside of the region, with minimal concern shown to long-term management; b) community based forestry, whereby several recent evaluations of these projects suggest that - for a variety of social, economic and political reasons - many of the region's current community-forestry projects are not yet in a position to manage small or large-scale commercial forestry; or c) community-industry joint enterprises on forests located on territory owned or claimed by indigenous communities. We argue that many future agreements will follow this final alternative. The situation of Awas Tingni, therefore, can be considered representative of much of the region. To a significant extent, then, Awas Tingni is a microcosm of many parts of Latin America. Though their claim to some 160,000 hecratres for 127 families exceeds government allocations under the normal land-titling practices, such practices are challenged by the broad claim to territory. (Current studies indicate that indigenous communities have territorial claims to over 500 million acres of forest lands in the Amazon Basin alone. The Worldwatch Institute estimates an equivalent figure of 13% for the Americas as a whole.)
Increasingly, governments in the hemisphere are responding to indigenous territorial claims through extraordinary procedures that recognize rights over extensive areas of land. In many of these cases (e.g., Colombia's isolated "Predio Putumayo"), formal government recognition of indigenous lands has not yet been tested against alternative claimants. Awas Tingni, by contrast, faces ongoing commercial lumber operations and other imminent challenges to its land tenure security that arise from the government's own interests in maximizing its control over resource use and management. Thus, in its effort to secure territorial rights, Awas Tingni is poised to set precedents amidst direct, immediate competition over resources.
Indigenous Organization to Secure Lands and Resources: Corporate Communities
Indigenous communities such as Awas Tingni are far from the unorganized or unsophisticated entities that many imagine. Historically-rooted, indigenous leadership structures, customary laws, and internal dispute resolution mechanisms are common to indigenous communities throughout the hemisphere. Additionally, since at least the 1980s, indigenous groups have joined in inter-communal or inter-ethnic associations and have obtained international support for efforts to secure lands and resources. Most indigenous communities are formally or de facto constituted as corporate bodies in strategic alliances with others and, as such, are in a position to negotiate a wide range of agreements over lands and resources use.
Despite a hemispheric trend toward increased recognition of indigenous territorial rights, land and resource tenure for many indigenous communities ranges from precarious to non-existent. In numerous places there is widespread misunderstanding (genuine or international) about who holds title to the lands proximate to indigenous communities, particularly those lands used, or potentially used, for for-estry. Meanwhile, resource-hungry squatters, corporations, and government agencies compound a history of economic exploitation. Conflicts over lands and resources, therefore, are inevitable. If these conflicts are not to lead to violence or to another chapter in the long saga in which indigenous peoples are at the losing end, indigenous territorial claims must be adequately resolved.
The Power Disparity
The ability of an indigenous community to resolve its territorial claim through agreement with the relevant authorities depends on a degree of socio-political parity that ordinarily does not exist. In Awas Tingni, the community is disadvantaged in ways typical of indigenous groups. From the government's standpoint, the recognition of board indigenous, territorial rights can only diminish its power and wealth base. The government is, and has been, fare more responsive to industry and non-Indian elites interested in developing the region's natural resources for the own benefit. Second, the government, by virtue of its authority status, necessarily has the upper hand in setting the terms by which negotiations proceed an in defining their ultimate result. Related to this are the government's superior technical and financial resources. Third, the community is disadvantaged by a strong element of government inertia, which favors the status quo as long as it can sustain the position that all lands not titled to individuals or communities belong to the state.
Toward Parity: Intervention and Advocacy
The Awas Tingni land demarcation project is seeking to "level the playing field" between the community and the government, in part, by simply adding an element of accountability to the pro-cess. The government is made aware that its actions, and inactions, are subject to scrutiny by institutions that are linked to an influential flow of information and support by eternal agencies and individuals. In the process of negotiation leading to the 1994 trilateral agreement for timber harvesting. Both the government and the timber company, MADENSA, several times altered their course of conduct in response to close scruinity by the intervening institutions.
More importantly, however, adivsors to Awas Tingni land demaraction project,like the earlier timber project, do not function as neutral parties but rather as instrumentalities of the community. The project attorneys, one of whom is Nicaraguan, have entered into an attorney-client relationship with the community; the project's anthropolgical work and mapping, although guided by objectively defined parameters, are part of the advocacy that is done in the community's behalf. By having a legal advisory and technical team the government otherwise would have to defend its own interests, which in many respects compete with the interests of the community. Effective advocacy-as much as any other single factor - on behalf of the community may help overcome government interia or other obstacles to the governments readiness to recognize broad territorial rights.
The attorney-client relationship between the project advisory team and the community aries in the context that has posed certain challenges. The legal advisory team first worked with the community in the negotiation of the timber contract. The community did not actually initiate contact with the advisors, although it did enthusiatically accept their offer of assistance and ceremoniously approve of their retention. Professor Anaya was sought out by the WWF, he selected the advisory team. Over the last three years, the advisory team, organized by the University of Iowa, has gone to great lengths to solidify its role as an instrument of the community and to ensure that its positions and strategies have been those preferred and determined by the community itself through its leadership. This process involved a time-consuming effort to build trust and maintain lines of communication between the community and the advisors.
Community leaders and members initially had difficulty in understanding the nature of their relationship with the advisory team. Like other indigenous people throughout the world, they had experienced the ingrained, paternalistic tendency of government agents, anthropologists, missionaries, and others to act on their behalf or dictate decisions according to the outsiders' views of what is best. It was at first difficult for the community to grasp that the project advisors came under a different ethic. Currently, however, community members appear to understand that they are ultimately in charge of setting the course of the project advisory team.
More problematic complicating were the initial attitudes of the government and the timber company toward the advisory team. When the advisory team first raised the community's concerns over aspects of the company's proposed timber contract, the company reacted angrily and characterized the advisors as obstructionists, and the government questioned the advisors' credentials.
A necessarily complicating factor was that the advisory team, despite the funding from the WWF, has attempted to insulate itself from environmental policy-driven decisionmaking of the WWF, and subject itself entirely to the decision-making apparatus of the community.
The relationship bet-ween the community's advisors and the WWF created, without doubt, ambiguity for the timber company and the government. The negative, early reactions of the company and government officials and the occasional unwillingness to negotiate openly and honestly, however, appeared driven a strong initial resistance against a shift in the balance of power vis-à-vis the community. This shift and its effect on the the on-going negotiations was clearly related to the presence of legal and technical advisors, advocating the community's interests with vigor and backed by an influential international environmental organization.
The Awas Tingni Territory: Toward Secure Tenure
The land demarcation project's effectiveness depends on the utility of its methodology: legal advocacy, ethnography, and mapping technologies.
Legal Advocacy The project's legal study first established that the government is legally obligated to recognize and secure Awas Tingni land rights; second, it develops and articulates the legal benchmarks for defining the geographic extent and character of the rights. The project is invoking both international human rights bodies, particularly those of the United Nations and the Organization of American States. (See Anaya, 1991; Anaya, 1996). Domestic legal standards, which reflect the international ones that uphold indigenous land and resources rights are articulated in the Nicaraguna constitution and the 1987 Statute of Autonomy for the Atlantic Coasts Regions.
In brief, the relevant legal standards confirm that Nicaragua's indigenous peoples have land or territorial rights according to traditional patterns of land tenure. In addition to rights to occupancy, indigenous peoples' territorial rights include, at a minimum, the rights to use and benefit economically from the natural resources within their traditional lands, and the right to participate in the planning for the commercial development of those resources. A corresponding duty exists on the part of the government to effectively and consistently recognize and indigenous territorial rights in concrete cases.
The use of international and domestic legal standards is a central part of the project's strategy to prompt the government from its status quo orientation and to limit the range of government discretion in the manner favorable to the community. The legal standards establish both a duty of resolve a Awas Tingni's claim. The argument is that for the government to continue to do nothing in response to Awas Tingni's claim, or to act inconsistently with the claim, it itself a violation of the law, and that in responding to the claim the government is constrained to follow the identified legal parameters.
Governments usually prefer to follow the law, or to at least give the appearance that they are law-abiding. To do otherwise is to risk illegitimacy in the eyes of the public and may result in real costs to government officials, even in countries with weak judicial systems. Norms of constitutional stature can be especially powerful catalysts within the realm of public decision-making. For their part international standards have weight, particularly in so far as their breach may provoke criticism or more serious action by members of the international community. The Nicaraguan government appears to understand that its risk damage to its prestige and perhaps to its relations with donor agencies and countries if it is seen as violating accepted international standards concerning the rights of indigenous peoples.
As pointed out at the beginning of this article, the Nicaraguan government, granted a lumbering concession to MADENSA, the timber company, on lands claimed by the community, before the community was able to establish its own arrangement with the company. The government immediately backed down and suspended the concession, after the project attorney's invoked the community's legal rights and threatened to initiate proceedings through available domestic on the strength of the legal rights invoked, the World Wildlife Fund had also weighed-in with its disapproval of the government concession. The current land demarcation project is proceeding on the assumption that the government will continue to feel compelled to conform its conduct to the relevant legal standards, at least when those standards are forcefully invoked.
Ethnography Awas Tingni's territorial claim ultimately rests on demonstrating traditional patterns of land use and occupancy, and this draws an anthropological research. In the village of Awas Tingni, and throughout its broad territory, that claim began with its most obvious, subsistence-based land uses and included information on the indicators such as size and location of past and present garden plots, households and village sites, and "culturally modified landscapes" (such as indentifiable trees, plants, and hunting trials established on the landscape by members of the community). Spiritually significant land, landmarks, scared sites and associated natural resources also illustrated how aspects of the Awas of land and territory. The anthropologist, aided by members of the community who were trained in the use of GPS, traveled to sites-sacred, agricultural and residence - and plotted the coordinates.
The resulting ethnographic data illustrates that the Mayagna of Awas Tingi established and continue to maintain a land use system and related settlement pattern which extends from their current main settlement to agricultural and hunting lands (even farther upriver than a previous settlement over 20 miles upriver). The upper limits of their territory are understood to be marked by a set of rapid/falls and to extend laterally into hunting lands in an around the clearly-identified "sacred" hills drained by the upper tributaries of the WaWa River. These far-raning sites are well known, regularly visited, and easily identified by the presence of domesticated palms or other easily recognized trees or objects planted or placed as markers. a spiritual sense of place is further established by a sense of the community's historical relations with spirit beings who are understood to reside inside easily identified hills and to control access to fish and game.
Mapping Technologies Inexpensive, user-friendly, yet sophisticated tools, such as Geographic Positioning Systems (GPS), provided the community with a means to level the field of negotiation and subsequent compliance with land use agreement. A small, portable GPS device helped to support their narrative claims to territory, through precise marking of coordinates, and will enable the Awas Tingni community members to approach current and future claimants or stakeholders as "information-holding equals." This will improve their ability to negotiate boundaries under conditions of parity.
Aided by a preliminary sketch-map prepared by community members and augmented by the sites identified through conversation, the researcher team (including the indigenous community members) precisely recorded all geographical sites deemed significant to either the anthropologist or the community members. Approximately 150 way-points have now been placed onto a 1:50,000 scale map that locates and identifies significant territorial and community land use markers - burial plots, remains of old household and/or garden markers, existing domesticated palms, or other markers, community hunting trails, markers of sacred sites or spirit dwellings, and other sites defined as significant by community members. The map, however, is considered a "map for discussion" rather than a specific territorial claim. In form and content, it provides the ethnographic and geographic information needed to substantiate legal claims rights, enabling negotiated settlement of land and resources.
Significance of this case
Negotiation is often contrasted to straight-forward legal action. In many cases, existing legal norms and mechanisms, as well as potential sanctions, remain peripheral to the actual process of negotiation. Consequently, in situations characterized historically by an imbalance of power relations and competition over valuable natural resources, even if an agreement is obtained, compliance (or lack of it) reveals underlying power structures rather than the power of negotiation. The Awas Tingni case illustrates that, by simply adding legal assistance and invoking legal sanctions, traditionally less powerful groups can begin to level the field and, thus, enable genuine negotiation. Likewise, the case demonstrates that some forms of technical assistance serve largely to buttress legal arguments and strengthen the power of negotiation.
This case study illustrates the on-going evolution of a conflict over land and resources within a single isolated community. However, its significance extends far beyond its current or even its future boundaries. As regional economies now move toward a "Free Trade ARea of the Americas," several related issues arise-the ethnic violence and political instability which followed the January 1994 inauguration of the NAFTA accords; regular national and international expressions of concern regarding the sustainable management of natural resource products as they move from north to south; fears that this flow of resources will be dominated by interests ranging from foreign corporations to large national companies, or to joint ventures which link foreign and national (private or public) capital, producing few benefits for small communities. Though the Awas Tingni case does not pretend to provide a ready-made model for implementation throughout the region, it nonetheless illustrated how legal and technical support to traditionally weak members of any negotiating situation can utilize existing, but often ignored, standards and basic research to allow them to sit more comfortably and securely within any negotiation session.
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