LAND LAWS AND THE ISSUE OF LAND OWNERSHIP AND RIGHTS
This is definitely a global issue for indigenouspeople.
The few success stories generally arise from adetermination within
communities to gain land titles, increasedpublic awareness both at
the national level as well asinternationally and get the crucial exposure
to other groupsinvolved in similar struggles.
Some of the miss representedsolutions to similar problems given
media coverage as solvedbut in the actual sense, far from it are:
The establishmentof the Indian protection service (s.p.i), which was
agovernment agency, commissioned to protect the Indian lives in
theamazon. As a result of the deculturing and destruction through
disease and genocide (supported and contradicted by theconstitutions)
employed (perpetrated by the frontiers ofdevelopment invading the lands
used by the indigenouspeople, Hiring of professional ways tactics)
of killing thepeople. The same (s.p.i), like most of the government
supportedorganizations started to see into the well-being of the
indigenouscommunities and people was found guilty of gross abuse
of thepeople they were meant to protect. In 1967 an investigationcarried
found officials guilty of corruption amongst officials,revealing shocking
testimonies of undesired ,cruelty, ranging frommassacre of whole
tribes to child slavery and further indictmentsincluded the deliberate
introduction of infectious diseases andpoison in the form of "gifts" of
sugar laced witharsenic, Evidence implicated (s.p.i) workers in murders.
Sexualperversions, embezzlement of funds, robbery and fraudulent sale
ofIndian lands (same as what the councils are currently doing inKenya).
The above events led to the formation of the FUNAI,which still exists to
this date. In this we have seensimilar problems arising, one official
(Antonio cotrin) one ofbrazils most dedicated Indian agents, resigned from
FUNAIannouncing that he could not continue and was tired of being agrave
digger of the Indians "I do not intend tocontribute to enrichment of economic
groups at theexpense/cost of the extinction of the "primitive" cultures,
the denunciation of pacification techniques employed by FUNAIagents
served as a turning point, publicizing what contrimclaimed were orchestrated
and brutal tactics against allrecently contacted tribes during that time.
The question weask is how genuine are we in up holding human rights?
Fromour historical backgrounds, most of the governments concernedharbor
hidden agendas and operate back-stage and work as secretagents for what
we are against, thus defeating the whole purposeof our organisations.
The governments are the only unifying bodythat we were hopeful of after independence.
They haveunfortunately betrayed the support of the native indigenous peopleand are
being led and dictated to, by the whims of a few Superwar powers.
......What sets the native cultures apart frommany others is our attitude toward
life. Simply stated, we believewe were not born ON this Earth, we were born OF this
Earth. Inother words, the Earth is our mother and we would no sooner mistreather
than you would the woman who raised you. This is the primaryingredient in the
cultural glue that holds us all together.
LAND AND THE MANY DIFFERENT SOLUTIONS TESTED WITHOUTSUCCESS.
In 1851, the united states
congresspassed the indian appropriations act which authorized the creationof
Indian reservations in modern day Oklahoma. Relations betweensettlers and
natives had grown increasingly worse as the settlersencroached on territory
and natural resources in the West.
Bythe late 1860´s, President Ulysses
s. grant pursued a stated"Peace Policy" as a possible solution to
the conflict.The policy included a reorganization of the Indian Service, with
thegoal of relocating various tribes from their ancestral homes toparcels of
lands established specifically for their inhabitation.The policy called for
the replacement of government officials byreligious men, nominated by
churches, to oversee the Indianagencies on reservations in order to teach Christianity
to thenative tribes. The Quakers were especially active in this policyon
reservations. The "civilization"policy was aimed at eventually
preparing the tribes forcitizenship.
Reservation treaties sometimes included stipendagreements, in which the federal government would grant a
certainamount of goods to a tribe yearly. The implementation of the policywas
erratic, however, and in many cases the stipend goods were notdelivered.
The policy was controversial from
the start.Reservations were generally established by executive order. Inmany
cases, white settlers objected to the size of land parcels,which were
subsequently reduced. A report submitted to Congress in1868 found widespread corruption
among the federal Native Americanagencies and generally poor conditions among
Many tribes ignored the relocation orders at first andwere forced onto their new limited land parcels.
Enforcement ofthe policy required the united states army to restrict the
movementsof various tribes. The pursuit of tribes in order to force themback
onto reservations led to a number of Native American Wars.The most well known
conflict was the sioux war on the northerngreat plains, between 1876 and 1881,
which included the battle oflittle bighorn. Other famous wars in this regard
included the nezperce war.
By the late 1870s, the policy
established byPresident Grant was regarded as a failure, primarily because it
hadresulted in some of the bloodiest wars between Native Americans andthe
United States. By 1877, President Rutherford B. Haves beganphasing out the
policy, and by 1882 all religious organizationshad relinquished their
authority to the federal Indianagency.
Most Indian reservations, like the Laguna Indianreservation in New Mexico, are in the
western United States, oftenin arid regions unsuitable for agriculture.
In 1887, Congressundertook a significant change in reservation policy by the passageof the Dawes act, or
General Allotment (Severalty) Act. The actended the general policy of granting
land parcels to tribesas-a-whole by granting small parcels of land to
individual tribemembers. In some cases, for example the Umatilla indian
Reservation,after the individual parcels were granted out of reservationland,
the reservation area was reduced by giving the excess landto white settlers.
The individual allotment policy continued until1934, when it was terminated by
the Indian Reorganizationact.
The Indian New Deal
The Indianreaorganization Act of
1934, also known as the Howard-Wheeler Act,was sometimes called the Indian
new deal. It laid out new rightsfor Native Americans, reversed some of the
earlier privatizationof their common holdings, and encouraged self Government
and landmanagement by tribes. The act slowed the assignment of tribal landsto
individual members, and reduced the assignment of ´extra´holdings to
For the following twenty years,the
U.S. government invested in infrastructure, health care, andeducation on the
reservations, and over two million acres (8,000km²) of land were returned to
various tribes. Within a decade ofJohn Colliers´s retirement (the initiator of
the Indian New Deal)the government´s position began to swing in the opposite
direction.The new Indian Commissioners Myers and Emmons introduced the ideaof
the "withdrawal program" or "termination"which sought to
end the government´s responsibility andinvolvement with Indians and to force
their assimilation. TheIndians would lose their lands but be compensated
(though thosewho lost their lands often weren´t). Though discontent andsocial
rejection killed the idea before it was fully implemented,five tribes were
terminated (Coushattas, Utes, Paiutes, Menomineesand Klamaths) and 114 groups
in California lost their federalrecognition as tribes. Many individuals were
also relocated tocities only to have a full third of them return to their
tribes inthe decades following.
The Canadian Indianstory.
Indian Reserve (19630).In Canada, an Indianreserve
is specified by the Indian act as a "tract of land,the legal title to
which is vested in Her Majesty, that has beenset apart by Her Majesty for the
use and benefit of a band."The Act also specifies that land reserved for
the use and benefitof a band which is not vested in the Crown (for example,Wikwemikong
Unceded Reserve on Manitoulin Islands) is also subjectto the Indian Act
provisions governing reserves. Superficially areserve is similar to an American
Indian reservation, although thehistories of the development of reserves and
reservations aremarkedly different. Although the American term reservation
isoccasionally used, reserve is normally the standard term inCanada.
The terms Native reserve, First nations reserve andFirst Nation are also
widely used instead of Indian reserve.Strictly speaking, however First Nation
more properly designates agroup which may occupy more than one reserve.
For example, theMunsee-Delaware nation in Ontario is only one of three
reservesin Western Ontario occupied by members of the Munsee-Delaware
FirstNation. In all, there are over 600 occupied reserves in Canada, most
of them quite small in area.
The Indian Act gives theMinister of indian Affairs the right to "determine
whetherany purpose for which lands in a reserve are used is for the use
andbenefit of the band." Title to land within the reserve may onlybe
transferred to the band or to individual band members. Reservelands
may not be seized legally, nor is the personal property of aband or
a band member living on a reserve subject to"charge,pledge, mortgage,
attachment, levy, seizure distress or executionin favour or at the instance
of any person other than an Indianor a band" (section 89 (1) of the Indian
Act. As a resultreserves and their residents have great difficulty obtaining
financing. Canada Mortgage and Housing Corporation (CMHC) has,however,
created an on-reserve housing loan program in whichmembers of bands
which enter into a trust agreement with CMHC andlenders can receive
loans to build or repair houses. In otherprograms loans to residents of
reserves are guaranteed by thefederal government.
Provinces and municipalities mayexpropriate reserve land only if specifically
authorized by aprovincial or federal law. Few reserves have any economic
advantages, such as resource revenues. The revenues of thosereserves
which do are held in trust by the Minister of IndianAffairs. Reserve lands
and the personal property of bands andresident band members are exempt
from all forms of taxationexcept local taxation. Corporations owned by
members of FirstNations are not exempt, however. This exemption has
allowed bandmembers operating in proprietorships or partnerships to sell
heavilytaxed goods such as cigarettes on their reserves at pricesconsiderably
lower than those at stores off the reserves.
Mostreserves are self-governed, within the limits already described,under
guidelines established by the Indian Act.
KENYA ONMINORITY AND GROUP RIGHTS
A majority of the communities inKenya considered as marginalized or
indigenous are normallypastoralists and hunter-gatherers. Their
choice of livelihoodcould be because of the territories they elect
to inhabit. Thepastoralists have traditionally occupied lands
suitable forlivestock grazing, mainly situated in the savannahs,
arid andsemi-arid regions.
The hunter-gatherers are usually forestdwellers relying on the
forests for fruits, roots, honey andhunting such as the Ogiek.
Land and property rights ofMarginalized Communities
From the time of Kenya’scolonization, lands traditionally owned by indigenous
peoples weretreated as being terra nullius
This is a view erroneously adoptedby the state from the colonial law
doctrine of terra nullius andwas applied to mean that ‘indigenous lands are legallyunoccupied
until the arrival of a colonial presence and cantherefore become the
property of the colonial power throughoccupation’.
In Kenya, since colonial times laws have servedto dispossess indigenous
peoples of their traditional lands. TheCrown Lands Ordinance of
1904 and subsequent colonial land lawsand policies were aimed at further
disinheritance andmarginalization of Africans.
Eventually, through the RJMSwynnerton Plan of 1955, the colonial
authorities decided toindividualize land tenure. This discriminatory
land policy wasadopted and retained by the independent State of
Inadequateconsultation and participation of indigenous peoples over
mattersaffecting their lands and resources
In Kenya, theestablishment of the national parks, such as the Manyara,
Serengeti,Maasai Mara and Amboseli, has caused tremendous land
alienationand eviction and a restriction of local communities from
resourcesthat were critical for their survival withoutcompensation,
supposedly in the national interest.
The UNSpecial Rapporteur on Indigenous Peoples in his report on an
officialmission to Kenya notes that in Kenya ’local indigenous
communitiesdo not participate in the management of the parks and
reserves anddo not benefit from the revenue’.
This has often caused tensionand conflict with investors and
government agencies running thereserves.
Access of marginalised communities to justice
and the biased application of the law, resultingfrom the lack of
independence of the judges from the Executive,have been identified
as impediments to the effective enforcementof law and order, with
serious negative consequences forindigenous peoples’ claims for
example the decision of theAfrican Court in the Endorois
case is yet to beimplemented.
Another factor inhibiting indigenous peoples’access to justice is a lack
of comprehension and knowledge of thewestern law, often due to the language
and complexity of acolonial and a criminal inspired law. The first component of theissue is
closely linked to the question of indigenous peoples’access to
education. The languages used in Kenyan courts areEnglish and
Kiswahili. Most indigenous peoples do not speak theseofficial
languages. Their inability to understand the languageused in the
courts jeopardises greatly their access to a fairjustice and can
even inhibit their will to approach a court.
During the colonial
period, the Ogiekwere not recognized as a tribal entity and
therefore excluded fromthe National distribution of Land in 1930s.
They were thus neverplaced nor settled in any specific reserve by
the colonialists butinstead allowed to live in their ancestral lands
within the largerMau Forest complex. Successive Government regimes
have continuedto ignore their rights and have not made any steps in
correctingthese historical injustices.
Not long ago, the Ogiek who arehunter-gatherers were forcefully removed
from the Mau forest,through the gazettement of the forest, which in
effect denied themaccess to their traditional lands which formed the
basis of theirculture, spiritual beliefs and livelihood. The
Ogiek claimed thatthey have lived in the forest for hundreds of
years, in harmonywith their surroundings. Their hunter-gatherer
lifestyle, whichdoes not involve either farming or livestock
grazing, has had avery low impact on their environment. They also
practicebee-keeping, which actually aids the propagation of wild
The reasons given for their forceful eviction from theforest was that
the Mau Forest is an important water catchmentarea and the
government of Kenya is concerned that the residentsof the forest are
committing irreparable environmental damage andmust be relocated.
But the Ogiek are not the only currentresidents of Mau; in recent
decades the forest complex has seen aninflux of loggers, tea
planters and other agriculturalsettlers.
For the Ogiek to be singled out as the ones causingdamage to the forest
amounts to discrimination as there are allthese groups and
organizations causing greater harm to the forestthan the Ogiek.
The Maasai Community
that the Maasai constitute about 1.2% of Kenya’spopulation (36.9
Kenya, the Maasai are found inKajiado, Narok, Transmara, Laikipia
and parts of Baringo district.They are also cousins of the Samburu
(since they speak the samelanguage) who in turn reside in Samburu, Marsabit
The Maasai are considered as a marginalised pastoralistcommunity in
Kenyan, their discrimination and marginalisation canbe said to have
began in 1904 when a number of Maasai leaderssigned a treaty with
the British colonial authority according towhich the Laikipia
reserve shall be protected on behalf of Maasai‘as long as the
Maasai as a race shall exist, and that Europeanor other settlers
shall not be allowed to take up land in thesettlement’.15
Despite this clause, later in 1911 the colonialauthority then
administering Kenya managed to conclude anothertreaty with a number
of Maasai local leaders. In terms of this newagreement, the Maasai
were once again asked to move toward thesouth. For most of the
Maasai, in so doing, the colonial authoritydisregarded the terms of
the agreement of 1904 which, as it isquoted above, stated that the
Maasai shall never be moved again aslong as they shall exit. The
Maasai also argued that the secondagreement was obtained by duress
and that it did not receive theapproval of the tribe. These
arguments were particularly echoed inthe 1913 case of Ole
Njogo & Others v The Attorney-General &Others.
In the case, a number of Maasai, claiming to represent allother
Maasai, went to court. The Court of Appeal for EasternAfrica ruled
that the agreements were not contracts, as alleged bythe Maasai, but
treaties which are not enforceable in municipalcourts.
The Nubian Community
been defined as stateless people because their identityis
questioned. They are without doubt one of the country’smost
invisible and under-represented communities –economically,
socially, politically and culturally. This isbecause they have been
silent victims of discrimination, exclusionand violations of human
rights and fundamental freedoms for aslong as they have been in
Urban Settings in Kenya suchas Nairobi (Kibera slum), Kisumu,
Mumias, Kisii, Isiolo, Kapsabet,Migori, Meru and Eldama Ravine
have become hosts to many Nubianfamilies over the years.
Their occupation in Kenya can be tracedback to the reign of the
British colonialists in Kenya in the1900s and now
number to about 100,000. Nubians in East Africa arenot a single
ethnic group but a constellation of people belongingto different
tribes. Nubians live in temporary structuresthroughout Kenya
and often on contested lands. Most Nubians’settlements do not
have title deeds and are only occupied on aTemporary
Occupational Licence (TOL), leaving the presentgeneration of
Nubians as mere squatters.
Originally fromthe Nuba Mountains present day Sudan, many have been bornand
continue to live in Kenya for decades by virtue of beingdescendants
of the Sudanese ex-servicemen conscripted into theBritish colonial
military, the King’s African Rifles (thencalled Askaris)
Following a mutiny in 1897, the British rescindedits decision to
repatriate them and instead dispersed thecommunity into Kenyan
territory. Most of the Nubians in Kenyapractice Islam (are Muslims)
and have acquired a shared identity.
The Nubians have attempted to present their grievances throughthe courts
.with no success.
How we manage to have peacewhile living in such a society, is a clear
miracle and i wonderif it really does exist, if not just peoplepretending.