Indigenous Peoples' Perspectives on land, Property, and Ownership

Ondertitel:A Case Study of the Munduruku and Guarani Peoples

The purpose of this Chapter is to analyse the way in which indigenous peoples' land rights have been given content at the international and regional levels and question whether this is in line with how indigenous peoples themselves have traditionally perceived land ownership and property rights.

To do this, the Chapter starts with an overview of how international law sought to legitimise the conquest of indigenous peoples' lands and territories, through the advancement of theories such as terra nullius and through the acceptance of a very restrictive notion of property rights, one which rejected the concept of collective ownership and instead focused on the individual. The Chapter then jumps ahead to the late 20th century in an effort to highlight the evolution of international and regional organisations' receptiveness to what has been understood as indigenous peoples’ traditional approaches to land property and ownership.

Given the plurality of indigenous peoples and indigenous thought one cannot provide an all encompassing indigenous perspective. However, in an effort to gain a general understanding of how some indigenous peoples do traditionally perceive land, property and ownership, case-studies of the Guarani (Brazil, Paraguay, Bolivia) and the Munduruku (Brazil) peoples are undertaken. Through a law and literature approach the case-studies will delve into the corpus of indigenous written sources (indigenous literature, songs, poems, letters, sayings, ways of settling disputes, art, symbols, etc.) in an attempt to reconstruct what they traditionally see as their land, property and ownership. These perceptions of land, property and ownership stand in stark contrast with the 'classical' understanding of property rights, which often only considers property as an individual right linked to the commercial value of the good and is subject to alienation. On the contrary, the indigenous peoples studied for this Chapter consider land rights more as a collective issue, where land is held in usufruct and the indigenous communities are understood to be the past, present and future custodians of the land. Therefore, their land has no real or limited commercial value and is not subject to alienation. This then bears the question: Do notions such as ‘indigenousness’ and ‘traditionally owned’, which are used in recent international and regional decisions and declarations in an attempt to be more receptive to indigenous peoples’ demands, provide sufficient flexibility to accommodate the indigenous peoples’ view on land, property and ownership?

ISBN:978 1 78811 391 5