INDIGENOUS COLLECTIVE PROPERTY AND CULTURAL IDENTITY IN XUCURU INDIGENOUS PEOPLE V. BRAZIL AND IN LHAKA HONHAT ASSOCIATION V. ARGENTINA

Abstract

Xucuru Indigenous People and its Members v. Brazil, and Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina, are the latest cases on indigenous and tribal property settled by the Inter American Court of Human Rights. Both judgments are relevant. The first one, for developing the state obligation of final delivery of indigenous territories and lands, free from disturbance. The second one, for detaching the right of cultural identity of indigenous peoples from their collective property, categorizing it as an autonomous economic, social and cultural right. This work analyzes these judicial decisions, highlighting the most recent one’s potential to overcome the essentialism, that has characterized such case-law. This last aspect is of the utmost importance, for decoupling cultural identity from communal property strengthens the conventional protection of peoples destined to constantly change, like any other collectivity.