Awas Tingni V. Nicaragua Reconsidered: Grounding Indigenous Peoples' Land Rights in Religious Freedom
Neihart, Bryan, Denver Journal of International Law and Policy
The Inter-American Court on Human Rights ("IACHR") decided the Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua ('Awas Tingni") over twelve years ago. (1) Since then, the decision has been the subject of many notes and articles focusing primarily on the decision's impact on the collective land and property rights of indigenous peoples. (2) Indeed, the Awas Tingni decision has been celebrated as a "landmark decision." (3) It prompted the IACHR to form a distinct body of jurisprudence for indigenous peoples, elaborated a canon of legal interpretation uniquely for indigenous peoples, and was the first legally binding decision by a regional court to recognize collective land rights. (4)
However, despite the A was Tingni decision and the more recent adoption of the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP"), a celebrated declaration recognizing the collective rights of indigenous peoples, (5) indigenous peoples continue to lose access to and possession of their land, territory, and resources due to state expansion. For instance, within the last year, Mayan leaders governing thirty-eight villages in Belize were excluded from discussions between government officials and a U.S.-based oil company for oil concessions on traditional Mayan lands; (6) San communities in Namibia have had difficulty gathering food for themselves because commercial cattle farmers erected illegal fences on their lands while the government ignores the problem; (7) and the Nez Perce Tribe of northern Idaho protested the transportation of oil equipment on the grounds that it damages historic and cultural resources and violates treaties. (8)
These recent examples illustrate that while the Awas Tingni decision and international instruments like UNDRIP articulate the right of collective land ownership for indigenous peoples, actual protection remains aspirational.
This note offers a new understanding of the A was Tingni decision. Other notes have focused exclusively on the majority opinion in the Awas Tingni decision and its influence on conceptualizing collective ownership as a property right. (9) By contrast, this note centers on the concurring opinion by Judges Trindade, Gomez, and Burelli and offers a freedom-of-religion-based defense of collective land ownership. The concurring judges agreed with the court's decision on the merits but jointly filed a separate opinion highlighting how the Awas Tingni Community's land, territory, and resources must be understood as a part of their spiritual existence because the Community believed that certain landscape features were divine and performed their religious rituals on their land.
Based on the concurring opinion, this note argues that collective ownership rights for many indigenous peoples should also be grounded in the right to religious freedom. This approach strengthens collective ownership claims because religious freedom has been recognized as a basic human right since the Reformation while the right to collective land ownership has only been recognized recently. (10) Because of its history, religious freedom is codified throughout the world in many international instruments, regional documents, and domestic laws. Defending collective property rights in terms of religious freedom is also effective because even countries without collective rights most likely do have strong jurisprudence protecting religious liberty. (11)
Part II describes the Awas Tingni Community's spiritual relationship with their land, briefly discusses the background of the Awas Tingni decision, and reviews the court majority's decision while emphasizing the concurring opinion. Part III addresses some of the most prominent critiques of collective rights generally and responds to these criticisms through cases involving religious minorities to illustrate the broader point that concepts of religious freedom are a helpful lens through which to view indigenous peoples' claims to collective land ownership. …