Mayagna Awas Tingni and Indigenous Land Rights in Nicaragua
By Ted Macdonald and Julie Wetterslev
Photos courtesy of Ted Macdonald and Julie Wetterslev
In August 2001, the Inter-American Court of Human Rights pronounced a landmark decision on indigenous peoples´ rights in the case Mayagna (Sumo) Awas Tingni v. Nicaragua. The case brought about international and national recognition of indigenous land rights and sparked a wide-ranging process of demarcation and titling of lands as indigenous property on Nicaragua’s Caribbean Coast. But while the Mayagna community in Awas Tingni eventually received a collective property title on 181,249 acres (73,349 hectares) of land in 2008, this land title has not prevented their continuous loss of control over the lands and resources.
The small indigenous Mayagna community of Awas Tingni in the interior forest of Nicaragua’s Caribbean Coast made legal history in the 1990s when they faced an incursion by an international lumber company. The community mapped its land claims and brought a case - first before national courts and then before the Inter-American Court of Human Rights.
In the Inter-American Court, the community won a “territorial” rights claim based on its cultural and historical land use patterns. The decision not only supported Awas Tingni, it also expanded the concept of “property” in Latin America to include indigenous territories traditionally used for hunting and fishing as well as agriculture and residence. Since then the decision has influenced numerous related cases in the indigenous jurisprudence developed by the highest human rights tribunal in the Americas.
Yet, despite the court’s support, the Mayagna community’s ability to realize its rights has been stifled by delays in titling, settler incursions, and deficient responses from authorities. Consequently, non-indigenous colonists have poured across permeable borders, settled, argued, and sometimes even sold off parts of Awas Tingni’s territory. While land and resource rights have been recognized and adjudicated, both government and other actors have continued to argue that the people in Awas Tingni have “too much land” and that “it’s not really theirs.” Representatives from Awas Tingni disagree. Such differences are common, and most would see them as simple state opposition to minorities’ rights. But perhaps it’s also a cultural misunderstanding.
After traveling and talking to local people, we — anthropologist Ted Macdonald and Ph.D. researcher Julie Wetterslev — review and contextualize the current conflicts over land in Awas Tingni and the North Caribbean region. Along with human rights lawyer James Anaya who became the lead counsellor for the Mayagna community before the IACtHR, Ted Macdonald was an official observer during the peace negotiations in Nicaragua in the 1980s. Macdonald later assisted the Mayagna community in mapping its claims in the 1990s. Here he details the cultural perceptions grounding Awas Tingni’s “traditional use and occupancy,” that were accepted under international law. Then the story shifts to compliance. After traveling about and talking more recently with residents, Julie Wetterslev discusses the problems brought on by the Nicaraguan government’s compliance delays, by issues that arose through the titling process and by colonists’ invasions. We suggest the need to respect community rights and recommend dialogue and public participation in realizing such rights. We tell the story about how the lands were accepted as indigenous property and show what that has meant, by highlighting the differences between the situation in the Awas Tingni community fifteen years ago and now.
Indigenous Land Claims on Nicaragua’s Culturally Distinct Caribbean Coast
In Nicaragua, indigeneity has often been linked to the Caribbean Coast peoples, while the Mestizo culture dominant on the Pacific Coast has been promoted as the Nicaraguan culture per se. To illustrate, in 1979 Sandinista rebels toppled the government of General Anastasio Somoza, ending one of Latin America’s longest standing and most corrupt dictatorships. Much of the world was delighted. But shortly thereafter, right-wing groups known as the contras began violent political opposition, supported by the U.S. Reagan administration. Though most of their attention was directed towards the densely populated western uplands, combat also affected the eastern forested woodlands occupied mainly by indigenous peoples, who lived in relative autonomy. Confusion and conflict developed as indigenous leaders sought to retain a degree of autonomy and land rights, while the Sandinista government worked towards broad national political and economic control.
Leading Sandinistas were mostly from the Pacific Coast, and by their own account they didn´t know much about the groups on the Caribbean Coast and their languages, forms of life and land use systems. When indigenous groups resisted land policies promoted by the FSLN (Frente Sandinista de Liberación Nacional), the Sandinistas began treating and fighting them as if they were contras. In October 1984, however, formal peace discussions began in Nicaragua, and continued in Colombia and Mexico. Eventually, by the late 1980s, the Sandinista government was ready to recognize that indigenous interests were not simple political opposition. The peace negotiations led to the 1987 constitution which created coastal autonomous regions and recognized not only the distinctive nature and organization of the Caribbean coastal communities, but also their rights to communal land and natural resources. However, like so many such formal laws and agreements with indigenous peoples anywhere, compliance and consultation were often absent—and so was genuine understanding and acceptance of cultural differences, particularly when these took the shape of land claims. Awas Tingni is an excellent example of this, both then and now.
What’s Our Property? Mapping Indigenous Territory (Ted Macdonald)
In March 1995, four Mayagna men and I paddled and poled up and down the Wawa River from Awas Tingni to reach the former settlement of Tuburús. Along the way we visited, discussed and marked with a GPS device the sites which the Mayagna regarded as culturally and historically important. We were preparing a territorial study and a related map, as background for community land titling, fleshing out part of a government agreement signed following the dispute below.
In 1992, a joint Nicaraguan-Dominican lumber venture, MADENSA, obtained a concession from the Ministry of the Environment and Natural Resources (MARENA) to log hardwoods in a 106,255 acres (43,000 hectares) area across the river from Awas Tingni, ignoring constitutional recognition of indigenous organizations and rights to land and natural resources. By contrast to Nicaragua’s northern Caribbean coastline, with savannah lands inhabited largely by the indigenous Miskitu, the lands inhabited by the Mayagna lay in the forested interior, isolated and sparsely occupied. Faced with concessions granted on the lands they occupied and used, community leaders sought assistance.
With support from the World Wildlife Fund (WWF) and indigenous-rights lawyers James Anaya and Todd Crider, residents negotiated a fair and mutually acceptable agreement for sustainable forest management and equitable distribution of profits and signed the agreement in May 1994. As part of this process, Awas Tingni leaders then sought formal title to their lands to avoid future disputes. Anaya asked me to help document, ethnographically and geographically, how Awas Tingni residents defined and justified their borders.
Having lived with forest-dwelling indigenous peoples in the Ecuadorian Amazon, I had seen how they defined territory and dealt with outsiders, not simply as a means to confront extractive industries, but rather to secure, culturally and spiritually, their access to fish and game, define community, and deal with movement across borders.
After walking in from the closest road to Awas Tingni (a two-hour walk at the time), I was met with a warm greeting and lively conversation. We reviewed the sketch map prepared earlier by Awas Tingni leaders (see figure 1). Since this map had no directional indicators, scale, or lines of latitude and longitude, we used a tool that was new and rare at that time, a hand-held Magellan GPS device, to provide accuracy. Villagers quickly understood the link to satellite signals. Though limited to elementary education, they watched the night skies regularly and had already differentiated the glimmer of steady stars, fast-moving planes, and slower satellites which beaconed the GPS signals.
To see how the GPS recorded movement, a large and curious group walked with me from the school to the church and the flagpole, taking waypoints with the GPS. When I suggested that we then simply walk the sketch map’s perimeter, marked by a broken line, they politely informed me that it was too far to walk and that there were no paths. The perimeter had been determined by their collective mind and by strategic locations like river junctions. The size of the area was not clear, but subsequent mapping showed that the territory would be approximately 280 square miles…hardly a walking space.
How then should we map? Initial conversations led to relatively little useful detail, except to point out the symbols for hills, rivers and houses they had marked. House symbols of course included the cluster of homes along the Awas Tingni creek, but also a smaller grouping upriver, Tuburús, close to the designated boundary. Residents explained that most of the village had lived there until 1945, when a measles epidemic hit, and the local Moravian Pastor had recommended that they move to unoccupied lands downriver. Most did, but a few kin families remained in Tuburús and others retained seasonal residences. So, to get a sense of territorial limits, community leaders Charlie McClean and Jaime Castillo suggested that we head upstream for a few days. From then on, simple conversations led to an outpouring of ethnographic information and clear explanations of how land and resources had been claimed and secured.
Before departure, we did our final walk around the village with the GPS. For some reason, the device stopped. Then a teenage boy, William Simón, tapped me on the shoulder and told me that I had forgotten to press the proper password. Having watched and easily learned, he then asked if he and his good friend, Vicente Salomón, could accompany us. We agreed, and they were both easily trained to use the device.
The following morning, a bit of history emerged as we descended the riverbank. Two AK-47s (assault weapons) were sitting in the dugout canoes. Charlie and Jaime explained that they were leftovers from the 1980s conflict. At the time Charlie had stayed in Awas Tingni, but Jaime had crossed the Rio Coco to join the insurrection planned from Honduras. Despite their different affinities during the war, they said that the community was now stitched back together, and the weapons were simply for hunting.
They had also decided to travel lightly, gathering garden food, hunting, and fishing along the Wawa River. As we poled upriver, we passed numerous garden plots, easily visible with domesticated plants. Then William landed the canoes, jumped off, picked up plantains and palm fruit from an abandoned house site, and then stayed for a while to clear scrub growth from around the house and garden. This occurred time and again, with a different person leaving the canoe each time. They explained that the sites had been secondary settlements occupied earlier by relatives of the person who stepped off to gather and clean up. They did similar visits during hunting and fishing trips. Each spot was, they explained, marked by a coconut palm, and functioned as a traditional family plot and a gravesite, from which relatives could gather food and, out of respect, clean up the adjacent land. Each location was therefore marked by the GPS as the sacred site it was.
As we paddled, Charlie asked if, in the Amazonian forest, there were any hills like those marked on their map. I told them that there were, and that the hills were important. Forest spirits resided inside. Enthusiastically, they replied that it was the same in their forests. Then they quietly explained that, though they were members of the Protestant Moravian Church, many of the elders still maintained close spiritual ties with the forest spirits, called asangpas muigeni, who, along with some founding ancestors, lived inside the hills. These ties were essential, because the spirits were the masters of the surrounding fish and game. Close and respectful relations between community elders and the spirits determined access to such resources. Each of the neighboring communities, they explained, had similar relations with spirits in nearby hills. Community territories and boundaries were thus defined as coterminous with the domains of each area’s forest spirits. Neighboring Mayagna could enter, hunt, and fish with local permission. But that was not the case, they said, with a disrespectful Miskitu family, who had recently settled on the northern bank of the Wawa. We saw this family gardening on a large plot they had cleared, also cutting down a coconut palm on a gravesite. Further upriver on a high bluff away from the river there were seven to ten Miskitu houses in a cluster referred to as La Esperanza, whose residents were said to be logging nearby.
After arriving in Tuburús, we spent two days visiting relatives of community members and observing agricultural patterns along the adjacent and fertile flood plain. Fourteen house sites, some permanently occupied, others secondary settlements, were nestled near hills, forest spirits and game. In the evenings, residents detailed earlier encounters with asangpas muigeni, who provided access to game but discouraged excessive killing, thus maintaining environmental balances. Returning to Awas Tingni, we measured local garden plots and visited several elders who reviewed their spirit relations in similar ways. They added that younger men also had similar relations, regardless of the arrival and influence of the Moravian Church.
The team, now referring to themselves as Los Elefantes, apparently drawing on imagery from earlier WWF contacts, said that they would like to gather more waypoints before my next visit. So, I decided to leave the GPS and spare batteries with the two boys. They hesitated, explaining that, as community members, they were expected to share things—and that people would undoubtedly ask for the GPS batteries for their radios. I suggested that they simply explain they were holding the batteries for an “outsider” and could not distribute his property. They smiled with agreement. I then gave the boys a notebook to enter and identify any waypoints they gathered.
Upon returning a few weeks later, the Elefantes told me that, through a large community hunting and fishing trip, they had visited many grave sites and traveled inland to the sacred hills, marking and defining them with more than 150 waypoints. Illustrating their relations with the spirits, they added that, while climbing the high hill, Kiamak, the GPS malfunctioned and would not turn on until they descended. Since they had not asked that hill’s asangpas muigeni’s permission, they felt that he must have paralyzed the device. The spirits were clearly real to them.
Then we obtained a detailed map from the regional government and proceeded to mark the waypoints, note their significance and understand the space in a cartographic sense. After more meetings with the elders, the work seemed to be done.
Back in Cambridge, technicians transferred the data to a computer-based GIS map (see map 2), which distinguished territorial sectors according to household clusters and adjacent subsistence garden plots, marking prime agricultural sectors along the river, highlighting the many grave sites and spirit-hill-determined hunting and fishing areas. The territory was, thus, laid out and its logic was detailed in an accompanying ethnographic study. It appeared that the job was done.
But, on returning to Awas Tingni with the maps, a driver headed in the direction of the village explained that, on the way, he had to drop off some food to a friend who was working alongside the road. There, quite surprisingly, his friend and several other laborers were laying down a cement platform that was, they said, to become a storage area for timber to be logged by a Korean timber company. Even more surprising, hardly anyone in Awas Tingni knew any more details about this. Upon returning to the United States, I phoned James Anaya. Equally concerned and uncertain, he quickly scheduled a trip to Nicaragua. He and Nicaraguan lawyer Maria Luisa Acosta soon learned that, even as the earlier MADENSA negotiations were underway, a Korean lumber project named Sol del Caribe, S.A (SOLCARSA) was talking with MARENA about an even larger (15, 500 acres /63,000 hectares) logging concession in the heart of Awas Tingni territory (see the map, figure 3). This time, however, the government was unwilling to negotiate, arguing simply that Awas Tingni was claiming too much. The lead attorney, Anaya, took the claim to the regional Court of Appeals of Matagalpa, which rejected the claim. The same occurred at the higher Nicaraguan Supreme Court. Meanwhile, hunters from Tingni noted workers marking trees on their land.
Having exhausted all local legal remedies, on October 2, 1995, the community submitted a claim to the Inter-American Commission on Human Rights in Washington, D.C., which accepted it. Since the Commission can neither sanction nor fine, they sought mutual negotiations, and a “friendly settlement.” At that time, Anaya writes, the map and ethnographic report shifted from a simple basis for discussion on land titling to the key argument in a contentious legal proceeding. So, in Cambridge and anticipating challenges, the report was updated with two sorts of historical research: written sources (linguistic and political history) from libraries and regional archaeology was added in collaboration with Harvard Professor William Fash, one of the foremost Mesoamerican archaeologists. No contradictory accounts or competitive land claims were found. In addition, given that the entire local history would have to be constructed through oral accounts, a Harvard Social Studies student (and later Stanford Law School scholar), Brian Shillinglaw, prepared a research paper on the history and legitimacy of oral history, to make sure there was no claims of “hearsay evidence.”
Government officials and community members then met, but came to no agreement. On March 13, 1996, the government, though having read the ethnographic report and the maps, neglected the Commission’s petition to halt logging, and signed an agreement with SOLCARSA, saying that while overlap existed, Awas Tingni claimed “too much” land. Even after SOLCARSA’s concession was nullified by MARENA, the official government attitude at Commission meetings did not change. In March 1998, the Commission delivered a confidential report, stating that Nicaragua had indeed violated Awas Tingni’s human rights. Since Awas Tingni did not have a secure right to their land, Nicaragua was in violation of the American Convention on Human Rights, the Commission found. The government gave no clear reply. So, the Commission sent the case up to the Inter-American Court of Human Rights in San José, Costa Rica.
Before the judges heard the case, it appeared that MARENA was working to turn the neighboring Miskitu communities against Awas Tingni’s claims. Some tensions built. Maria Luisa Acosta from the legal team, and Armstrong Wiggins, a Miskitu member of the Washington-based Indian Law Resource Center, visited the communities and got most of them to sign an amicus curiae that supported Awas Tingni. The government, citing its own state-defined land criteria, quickly responded that the territory was too large and claimed that the Awas Tingni community had only arrived in the mid-1940s. But, during the trial the Commission drew heavily on the ethnographic and historical research and the international conventions on indigenous peoples´ rights. After two and one-half days in the Court (November 16-18, 2000), the hearings ended. During the final summary comments, Nicaragua’s lead attorney Eduardo Castillo asked how it was possible that such a poorly educated community could map their lands with such a technically sophisticated device. I replied by showing him how easy it was to operate, and then one of the lead Commission lawyers stood up and argued that Castillo’s pejorative attitude reflected some of the underlying inter-ethnic sentiments responsible for the case.
About a year later, the court formally judged that Nicaragua had not done what the American Convention on Human Rights and the Nicaraguan constitution agreed to. On August 31, 2001, the Court wrote that it had accepted Awas Tingni’s view of property and thus significantly widened the definition of property in the American Convention of Human Rights. Importantly, the Court also ordered Nicaragua to title all other lands claimed by indigenous communities in Nicaragua.
In brief, Awas Tingni won. Cultural territorial understanding was accepted. The Court gave the Nicaraguan state fifteen months to title the land. But not until seven years later, on December 13, 2008, did the Awas Tingni community receive the title. Meanwhile, many problems arose, as Julie Wetterslev now details.
The Titling Process: Drawing Borders and Turning Land into Property (Julie Wetterslev)
Following the judgement of the Inter-American Court of Human Rights (IACtHR) in 2001, and after extensive mobilization of human rights advocates and civil society, government officials and World Bank technicians undertook the task of demarcating the Awas Tingni territory and all other indigenous and afro-descendent territories on the Caribbean Coast. In consultation with the concerned communities, they strived to forge “a new understanding of property that would correspond better to the worldview of the coastal peoples.” These reflections fed into a legislative process and, two years after the IACtHR judgement had been pronounced, the Nicaraguan legislature adopted a comprehensive law (Law no. 445, Law of Communal Property Regimes of the Indigenous Peoples and Ethnic Communities of the Autonomous Regions of the Atlantic Coast of Nicaragua and the Rivers Coco, Indio and Maíz, 2003). This law prescribes five phases in the process of recognition and formalization of indigenous property rights: demarcation, conflict resolution, marking, titling and title clearance.
Law no. 445 also led to the institutionalization of the demarcation and titling process through the creation of two commissions: The National Demarcation and Titling Commission (CONADETI), and the Inter-Sectorial Commission for Demarcation and Titling (CIDT). The Awas Tingni community submitted their titling request to the CIDT in November 2003, the first request to be made under the new law.
Anthropologists, cartographers and government officials worked with many coastal communities to map the lands in detail, in cooperation with community members and in accordance with traditional beliefs and convictions. Detailed maps of the territories claimed by the different communities laid the ground for demarcation, a process in which the limits between territories were defined and marked with cement cairns (boundary stones). This whole process was by no means uncomplicated, as it required neighboring communities, often with permeable and unstable borders between them, to establish more defined territorial lines.
The demarcation and titling process in Awas Tingni was complicated by the overlapping claims to the land made by three neighboring Miskito communities; Francia Sirpi, Santa Clara and La Esperanza (collectively known as Tasba Raya). After a longer dispute settlement process, the Demarcation Commission resolved the problem that concerned over 100,000 acres (41,000 hectares) of land, by granting nearly 50,000 of those acres (20,000 hectares) to the Awas Tingni community and letting the three Miskito communities divide the remaining 50,000 acres equally between them.
During the dispute settlement stage, the shifting governments in Nicaragua were often accused by indigenous communities and indigenous rights organizations of using the inter-communal conflicts as a pretext for not titling the lands as indigenous territories. Developmentalist nation-states often resist losing control over such resource rich the lands.
The end of the Awas Tingni dispute settlement coincided with the Sandinistas’ return to power in Nicaragua in 2007. On the Caribbean Coast, the FSLN had made an electoral alliance with the indigenist YATAMA party, and this provided a new stimulus to the titling process. In December 2008, seven years after the IACtHR judgment, the Nicaraguan state conveyed to Levito Jhonatan McLean, as representative of the Awas Tingni Community, a title to ownership of 181,360 acres (73,394 hectares) of land. The territory was named AMASAU—Awas Tingni Mayagnina Sauni Umani (the land of the Mayagna people in Awas Tingni).
In 2009, an Awas Tingni community delegation travelled to San José, Costa Rica, to confirm in an audience before the Inter-American Court that their lands had been titled. The IACtHR then commended Nicaragua for complying fully with its judgement. By 2017, a total of 23 indigenous and afro-descendent territories were titled on the Caribbean Coast, covering 33% of Nicaraguan territory and 54.7% of the lands on the Caribbean Coast. Formally, things were looking good.
However, despite the land titling, human rights defenders and indigenous leaders have consistently complained about the lack of saneamiento or title clearance…i.e., the process of determining and resolving the legal status of non-indigenous third parties in a given territory. This rang particularly true when I visited Awas Tingni.
Lack of Title Clearance and Accelerated Colonization
In October 2017, I travelled up the Wawa River with leaders from the Mayagna community to visit some of the settlers in the AMASAU territory. I was doing fieldwork related to my Ph.D. thesis about the titling of lands as indigenous territories in Awas Tingni, and the Mayagna leaders had suggested that we travel upriver. Awas Tingni had become my main case study, because of the many references made to the case in indigenous jurisprudence and in academic literature about indigenous land rights, and because of the relative lack of academic writing on developments in the territory post-titling. The leaders had invited me to come on a patrol of the territory with them to better understand the state of affairs.
During the first few miles, we passed other canoes with people fishing in laid-back postures. We greeted them and other members of the community who were working on the riverbanks in small clearings between tall ceiba and ciboa trees.
A bit further upriver, beyond the immediate surroundings of the Awas Tingni village, the ambience became noticeably tense. As motorboats passed us, no greetings were exchanged. Alfons Simmons, the Secretary of the indigenous territorial government and Danelia Pedro Salomón, the representative of Awas Tingni before the Mayagna Nation, explained to me that those in these boats were settlers. From then on, they started pointing to clearings on the riverbank that had not been done by the Mayagna, thus illustrating a main cause of disputes.
The territorial government in Awas Tingni has documented that the clear majority of the AMASAU territory is now occupied by non-Mayagna settlers from other regions of Nicaragua. In 2008, when the lands were titled, only around forty outsider settler families were present in the territory. In 2012, when the community leaders did a large survey in the territory in cooperation with the Spanish development agency AECID, a Colombian human rights organization and various Nicaraguan state agencies, they found 412 settler families.
By 2019, the indigenous territorial government estimates the presence of more than 1,000 settler families in their legally recognised and titled territory. As the Mayagna families in Awas Tingni only number around 200 families, they have been gradually outnumbered, and they are now literally surrounded by settlers. Today, the settlers are estimated to control around 90% of the lands that were titled in favor of the Mayagna community.
The Mayagna leaders often patrolled their territory, carrying weapons because, as they say, the settlers are armed—and you never know what they might do. On our trip we visited only those settlers that the Mayagna leaders have a relatively friendly relationship with. Other parts of the territory have even become almost “off-limit” for the Mayagna, due to security concerns, making it difficult for them to regularly monitor the situation in the entire territory. As they said to me, almost hopefully, “Perhaps you can come back another time, and we can bring the army.”
Emerging Land Rights and Use within the Territory
The Mayagna explained that the onset illegal sale of land and the arrival of settlers in the area coincided closely with the award of the collective land title in Awas Tingni. About two weeks after Awas Tingni received its collective title in December 2008, an ex-combatant (YATAMA) collective who resided in the south of the territory (and were then the only non-Mayagna third parties present in the territory) sold about 30,000 acres (12,000 hectares) of the land to a French timber company named MAPINICSA S. A. in an illegal land deal made on January 1, 2009. MAPINICSA had obtained the funds for their acquisition and investments through the World Bank and the IFC (International Finance Corporation) that were conducting a project to support forestry development in the North Caribbean Region following Hurricane Felix.
Even before the sale of land was deemed illegal and before Awas Tingni leaders had begun negotiations with the company about their presence in the territory, the MAPINICSA project had constructed a road in the southern part of the territory to transport timber. This road soon became a point of entry for other settlers who have since arrived in a steady stream, sometimes by foot, sometimes with vehicles, and often with a herd of cattle. Once one settler family has arrived, they often tell other families in their homeland about the abundance and availability of lands around Awas Tingni. This way a network of settlements has evolved.
The settlers in the AMASAU territory are not a uniform group. Many are families of scarce resources, who enter the territory in search of a better life. However, some third parties are non-residents with greater economic capacities or ties to wealthier individuals, who simply invest economically in the land and employ less wealthy peasant families to protect their investments.
The families that we visited on this trip were humble peasants, but they nevertheless cleared more terrain than the Mayagna do on their smaller family fincas with slash-and-burn agriculture. In the lands occupied by the settlers, numerous black tree stumps lie like dots in the open green fields, with paths leading to houses that are larger than the simpler Mayagna stilt houses. Inside the settlers’ houses, we saw containers with chemical fertilizers and piles of dried corn on the earth stamped floor, destined to feed cattle.
The arrival of the settlers and their subsequent transformation of the land and eco-system has seriously hampered Mayagna possibilities in Awas Tingni to hunt and fish. The rate of deforestation has escalated rapidly as settlers clear forest for pasture and grain planting. Game such as wild boar and monkeys disappear when the forest is cut down and the river is affected by chemicals and the faecal waste of humans and cattle that run into the water.
As we visited the settlers, the Mayagna leaders asked me to convey one of their major concerns…stop clearing forest along the river banks. It increases the risk of the river overflowing its banks during the rainy season, which can result in mud slides that worsen the effects of natural disasters such as Hurricane Mitch in 1998 and Hurricane Felix in 2007. Also, by cutting down trees on the riverbank, the natural filtration system is damaged and the water in the river is polluted. In brief, the biosphere is changing, perhaps for the worse.
The change is not accidental. While the land title was meant to provide security and stability for indigenous communities, conflicts over the land and its resources have in fact intensified both in AMASAU and in other territories on the North Caribbean Coast in the years following the titling of the land. Around forty members of regional indigenous communities have been killed in conflicts between settlers and communities in recent years—and land conflicts are particularly acute in the territories adjacent to Awas Tingni. In AMASAU itself, an especially painful event took place in 2012, when armed settlers killed a community member in Tuburús, which the Mayagna still consider to be their ancestral first settlement. The incident caused the re-location of the Tuburús community to the village of Awas Tingni and the Mayagnas’ abandonment of these ancestral lands. In other areas, the presence of armed settlers has made it too dangerous for the Mayagna to cultivate and harvest their lands.
The massive arrival of settlers is thus challenging the ancestral, and quite manageable, family-based property system within the communal territory. The Mayagna work the land and grow food on family fincas. These plots of land as "theirs," despite lack of formal registration. They and their children, in the past and in generations to come, -have communally- accepted usufruct rights to work their land and live off it. These traditional community tenure patterns did not cause problems in the past. As the land was abundant, community members traditionally cleared a small plot in the forest, using old and environmentally sound slash-and-burn horticulture in a rotational system. Plots for this agricultural land use pattern were earlier understood as family-land. Others respected this through community-based (unwritten) usufruct rights. However, with the arrival of the settlers, land is becoming scarce due to crowding and extensive clearing. And it is becoming a commodity, not simply a passion. Consequently, internal conflicts within the Mayagna community have arisen, in addition to obvious disputes with outsiders encroaching on Mayagna land use systems.
On our visits to the settlers upriver, the Mayagna leaders also asked me to politely request that the settlers demonstrate their “titles” to the land. Many did. These “title documents” were often simple handwritten agreements, with variable prices for the land and either real or falsified signatures or stamps from some community authorities.
Other community authorities in Awas Tingni have denounced the illegal selling and buying of community plots of land, filing more than 200 accusations with the police and through claims before the courts. Official response has been limited. Although the government formed an Inter-Institutional Commission lead by the General Prosecutor to investigate these illegal sales. Although state authorities participated in the large survey in AMASAU in 2012, national and regional government responses to the accelerated colonization of the Northern Caribbean region is considered by communities and human rights organizations to be deficient. In fact, some claim that the government actually supports settler communities. For example they allow funds from the Ministry of Education to reach schools in the new settler communities and provide settler communities, as well as indigenous communities, with zinc plates for their roofs and vaccination programs.
The mestizo settlers in the territory buy their unofficial titles to land through a range of different contacts, including municipal and regional officials - and sometimes members of the Mayagna community are also involved in illegal deals. The engagement of some community members in this “title-trafficking” and the engagement of others in the “indigenous human rights discourse” is creating internal tension and disagreement over the meaning of the communal property title and the related norms regarding “indigenous territorial governance.” Often, it appears that the same community member or leader will employ different sets of norms and values in different situations, based on their particular interests.
Community leaders suggested to me that the cultural survival of the Mayagna is now more acutely endangered than before the international legal process began – because the settlers most often represent the Spanish-speaking, Catholic, mestizo culture dominant in Nicaragua on the national level. Nevertheless, it seemed clear to me that neither the divisions within the community regarding how to govern the territory, nor the behaviour of individuals, nor the concepts of private property are so dichotomized to agree with such historically and socially constructed “ethno-racial” categories such as “mestizos” and “indigenous”. Beyond the conflicts, there is so much regular interaction and cooperation between members of the Mayagna community and many of the newcomers in the territory that the cultures and groups are blending.
But, it’s a bit lop-sided. In a meeting of the indigenous territorial government in Awas Tingni, community members explained that some of the settlers attempt to lure the members and leaders of the community with both material and immaterial goods. Sometimes permissions to buy land and settle have been exchanged with weapons for hunting, with a motorcycle, a truck, or fertilizer for crops. Sometimes the settlers offer the Mayagna work on their farms, and sometimes permissions to settle can facilitate sexual relationships or intermarriage between settlers and Mayagna.
Adding to the imbalance, problems over some land sales and invasions result from a lack of response by police and military to the formal complaints made by the Mayagna. Community members have requested compensation from those settlers already present and unlikely to leave, simply to meet immediate and reasonable economic needs such buying school uniforms for their children or paying transportation costs for marketing their produce. In addition, when, unofficially or illegally, land is sold or exchanged for material goods, payments are incredibly low compared to other regions. The Mayagna community members who have sold parts of their were perhaps expecting the state to help them secure better exchanges or evict the settlers.
However, state officials have instead used the illegal conduct of some community members to delegitimize the claims of the entire Mayagna collective and brush off the protests by the leaders. And every time that the “sale of lands” occurs and is mentioned in the region, new land actions appear to become more normalized rather than negotiable. As Jadder Mendoza Lewis from the NGO FADCANIC remarked: “For each time that community leaders and members talk about ‘the land of this or that settler,’ it becomes the norm and the truth.”
Human rights organizations and academic research concerning Awas Tingni and other indigenous communities since the titling of their lands have emphasized the lack of protection and guarantees by appropriate state authorities, the lack of coordination between institutions, and the lack of financial resources to ensure title clearance and prevent indigenous dispossession. While such government inaction is clearly a factor, a broader explanation for land titling problems may lie in new and alternative view of land in the region. While both the 1987 Autonomy statute (Law no. 445), and the 2001 Court decision defined indigenous territories as inalienable, indivisible and communal. Individual land use and actions such as the purchase and sale of land were not addressed. Territorial lands were understood to be part of a “collective dominion” aimed to “protect future generations and communitarian indigenous forms of life.”
However, the idea of land as private property seems to have gained prominence after titling. One possible reason for this is that demarcation and titling brought geographers and state officials to relatively unfamiliar areas. This led to the increased registration of riches contained within these lands…e.g., minerals and valuable timber. Consideration of earlier experiences with MADENSA and SOLCARSA may have instigated some indigenous groups, as well as other actors, to conceive of the land in increasingly economic and market-oriented terms. This does not mean that the land has lost its historical, spiritual, and communal significance for all community members in Awas Tingni. However, the increased commercialization of lands after the titling process has increased the tendency for some to consider land as an economic asset, bringing into friction and sometimes into conflict the different views about what land, title and property relations actually imply . These distinct cultural, legal, and historical differences now need to be negotiated.
For example, Law no. 445 prescribes that non-indigenous third parties within the territories must respect the norms and regulations of the indigenous community. So, if settlers do not wish to leave the territory, they should perhaps pay rent to the indigenous territorial government. While this opens a range of more or less formal negotiations between the indigenous communities and incoming settlers and investors, it also limits the community because they could not simply evict the settlers, which some would advocate as the best solution. The Mayagna would probably lack the power to force relocation, and some may be shifting preferences.
Larry Salomón Pedro, a young lawyer from Awas Tingni, who is the appointed legal advisor to the community, explained to me that, in their new situation, the Mayagna in Awas Tingni have developed a range of norms and regulations for territorial management. They stipulate that poorer mestizo peasants who have come to the territory in search of basic subsistence can be allowed to stay, so long as they agree to accept and respect the norms and rules elaborated by the leadership of the community (e.g. with respect to forestry, agricultural activities and resource exploitation). If settlers and investors are not willing to respect the culture and decisions of the community, however, they should leave the territory. The Awas Tingni community continues to request assistance from state institutions and regional authorities in upholding their communal autonomy and exercising authority, since the titling process has not yet allowed them to consolidate and enjoy their communal property and land use rights.
In sum, since our early visits in the 1990s, the situation in the lands around Awas Tingni has changed in many ways, and in sometimes opposite directions. As the recent visits to the territory demonstrate, there is now a big gap between the legal recognition of territorial property and the practical realization of related rights, due largely to current socio-economic and demographic developments on the lands. And, while the titling process has indirectly accelerated the settlement of outsiders in the land, complete autonomy in a changing world is unlikely under any circumstances.
The Mayagna hesitantly accept some of the demographic changes that have followed their successful international claims to ancestral lands. They can and will make room for some outsiders. But from a spiritual and environmental perspective, they have not abandoned the beliefs, concerns or respect for long term and balanced land use. Many will agree with them, including the asangpas muigeni still remaining in the hills and hoping to protect the surrounding fish and animals. Furthermore, the Nicaraguan state owes a historical debt to the Mayagna nation. Their lands should not be levelled through industrial interest, investment or corrupt sales beyond the control of the indigenous territorial government. The current situation could, once again, draw in international human rights. But certainly and perhaps more efficiently, the situation invites serious dialogue between government officials and community leaders. The Awas Tingni community should be the protagonists in decisions concerning the regulation of their territory, but they may once again require experience, assistance and support from legal and academic actors and national and international organisations, in order to maintain a degree of communal autonomy and self-determination that they have fought so hard for over so many years.
Ted Macdonald is a Lecturer in Social Studies and Faculty Affiliate at DRCLAS, Harvard University. He has worked directly on Latin American indigenous rights issues and cases since 1980. Currently and in collaboration with Kichwa Indian community leaders, he is preparing an ethnographic history of territorial rights and self-determination in the Ecuadorian Amazon.
Julie Wetterslev is a Ph.D. researcher in Law at the European University Institute in Florence. She has worked with social issues and human rights in Latin America for fifteen years, and is currently researching the titling of lands as indigenous territories on Nicaragua's Caribbean Coast.