INDIGENOUS ISSUES: INDIGENOUS SOLUTIONS

Nani Bath

Indigenous Issues: Indigenous Solutions- A Case of Arunachal Pradesh

 Who are Indigenous Peoples?

The word “indigenous” was used for the first time in the deliberations of the international agencies in 1957 by the International Labour Organisation, and it gained “wide currency after 1993 with the declaration of the year 1993 as the International Year of Indigenous people”1.

Given the diversity of indigenous people and difficulty in providing universal definition of ‘indigenous’ and ‘indignity’, the world body does not provide official definition of “indigenous peoples”. UN Permanent Forum on Indigenous Issues, however, understands the “indigenous peoples” as:

Practicing unique traditions, they retain social, cultural, economic and political characteristics that are distinct from those of the dominant societies in which they live. Spread across the world from the Arctic to the South Pacific, they are the descendants – according to a common definition – of those who inhabited a country or a geographical region at the time when people of different cultures or ethnic origins arrived. The new arrivals later became dominant through conquest, occupation, settlement or other means.

The ILO Convention 107 of 1957 that came into effect in 1959 “refers to tribal and semi-tribal populations and then mentions indigenous populations as a special category within their social orbit”3. Article 1(b) of the Convention states that the Convention applies to “members of tribal or semi-tribal populations in independent countries which are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation and which, irrespective of their legal status, live more in conformity with the social, economic and cultural institutions of that time than with the institutions of the nation to which they belong”. The Convention “naively assumed that entire indigenous and tribal populations would eventually be assimilated into dominant societies”, 4 and unfortunately it reflected the

19th century view that a “tribe represented not only a particular type of society but also a particular stage of evolution”5. The World Bank defines Indigenous Peoples as “distinct communities: the land on which they live and the natural resources on which they depend are inextricably linked to their identities and cultures”6.

According to Roy Burman, the Convention 107 has “patronizing ethnocentric bias” having negative focus on “conformity with western social economic or cultural institutions which in other words implies assimilation”7. The ILO Convention No. 169 of 1989, a revision of Convention No. 107, stipulates self-identification as a fundamental criterion for determining the groups, indigenous or tribal, to which the provisions of the Convention can have application. In this Convention, the concept of indigenous was slightly widened, to include:

People in independent countries, who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political situations.

As per UN Permanent Forum on Indigenous Issues, the term “indigenous” can be understood based on the following:

  • Self-identification as indigenous peoples at the individual level and accepted by the community as their member.
  • Historical continuity with pre-colonial and/or pre-settler societies
  • Strong link to territories and surrounding natural resources
  • Distinct social, economic or political systems
  • Distinct language, culture and beliefs
  • Form non-dominant groups of society
  • Resolve to maintain and reproduce their ancestral environments and systems as distinctive peoples and communities8.

 

Our definition of Indigenous People

Given the heterogeneity of the tribal communities of Arunachal Pradesh, in terms of their history, culture and society, it becomes difficult for us to come to a consensus on a specific definition. However, an attempt has been made to define ‘Indigenous People’ only for academic purpose, and in the context of Arunachal Pradesh.

Any person, which inhabited the territory of the then North East Frontier Tract(now Arunachal Pradesh), inside the “Inner Line” as per Bengal Eastern Frontier Regulation, 1873, as specified in Part B of the table appended to Paragraph 20 (1) of the Sixth Schedule to the Constitution of India.

The Issues

  1. The Refugee Issues: A Systematic ‘Cultural Genocide’?

India inherited undefined and ‘unaccepted’ boundary in the Eastern Himalayas, where present Arunachal Pradesh is located, from the British India. The claims and counter claims between India and China, on the question of legality of Mc. Mohan Line, has  placed state’s politics and  economic development as ‘hostage’ to geo-politics  and ‘military strategy’. The policy of India vis-à-vis Arunachal Pradesh has always been, what Sanib Baruah calls, “……nationalizing a frontier space”. Even with India’s independence, the pre-colonial policy of treating Arunachal Pradesh as a ‘frontier’ continued.

The people of Arunachal Pradesh agreed to work under the purview of Indian Constitution, thinking that all our protective instruments would not be disturbed. The instruments included Bengal Eastern Frontier Regulation, 1873 and Assam Frontier (Administration of Justice) Regulation, 1945.

In complete disregard of such protective instruments, however, refugees in thousands were settled in different strategic locations through the state. There are Tibetan refugees, who had migrated out of their homeland with the 14th Dalai Lama when Peoples Liberation Army of China moved inside Tibet. They are spread in three refugee settlement areas in the state, Tenzingang, Miao and Tezu, with a total population of approximately 10,000. In addition, there are the scattered communities of Bomdila and the settlements of Tuting, giving a total population of approximately 15, 000 Tibetans. Besides, hundreds of retired Assam Rifles families (mostly Nepalees) have been unilaterally settled in Vijoynagar circle of Changlang district.

The Chakmas who hail originally from Chittagong Hill Tracts, Bangladesh are reported to be displaced indigenous people. The Chakmas and other non-Muslim tribal communities were forced to move out because of religious persecution and the construction of the Kaptai hydro-electric dam. The Hajongs are Hindus from Mymenshing district of Bangladesh. The 2001 Census has listed 39,920 Chakma population and 2,413 Hajongs. Our own estimation is that the current refugee population would not be less than one hundred thousand.

Jawaharlal Nehru, who favoured a policy of retaining a distinctive identity of the tribals while integrating them into national mainstream, envisaged Panchshell for tribal development. The principles envisaged by Pt. Nehru were, however, ignored while settling the Chakma and Hajong refugees in this territory.

The settlement of Chakma and Hajong refugees took place in total disregard of the principles and guidelines, and the local authorities (traditional tribal Village Councils) were never consulted.

Many perceive that ‘transporting’ of the refugees, particularly the Chakmas and Hajongs in this protected territory is a deliberate policy of the government with an aim to assimilate local culture with mainstream India by diluting the population composition.

The recent decision of the State’s Cabinet to adopt the Tibetan Rehabilitation Policy, 2014 for the state of Arunachal Pradesh, is being strongly criticised by various civil society organisations. The Policy, inter alia, provides for extension of the benefits of Central Government schemes and to provide employment to the Tibetan Refugees for various state government jobs.

 

Centre’s Fallacious Contention

The contention of the successive governments in New Delhi, that the decision to settle the refugees was taken after discussion with the North-East Frontier Agency Administration,  is based on fallacious premise and historically inaccurate facts.

The then North East Frontier Agency (Arunachal Pradesh) was under the direct control of the Government of India, through the governor of Assam as an agent to the president of India. Until 1965, the territory was administered under the Ministry of External Affairs. The duly elected/representative government was constituted only after the first general elections to Legislative Assembly in 1978.

Further, the Union of India contends that under the Indira-Mujib Agreement of 1972, the Chakma/Hajong refugees who came to India from the erstwhile East Pakistan before 25.3.1971 will be considered for grant of Indian Citizenship. Neither the Treaty of Friendship, Cooperation and Peace (India and Bandladesh) nor the Joint Statement on the Talks Between the prime Minister of India and Bangladesh did mention about the granting of citizenship to the Chakma/Hajong refugees. This statement, again, is misleading which can only be termed as contemptuous of the indigenous communities.

Arunachal Pradesh is a Protected Area

After the independence of India, under the Constitution of India, Arunachal Pradesh had been granted special status to be administered under Part X read with the Sixth Schedule of the Constitution of India. The Government of India did not want to bring about any change to disturb the cultural and social life of the tribal communities.

Our customary laws have been violated and traditional rights encroached upon by allowing settlement of Chakma and Hajong refugees by the Central Government much against our wishes. The ethnic tribes of Arunachal Pradesh have distinctive culture, traditions and customs. They have been following their customs and traditions, evolved over ages from time immemorial.

The political history of Arunachal Pradesh remains witness to the fact that the area has been enjoying a special status under the Bengal Eastern Frontier Regulation, 1873. As per this Regulation no person or persons other than the indigenous people have the right to settle in Arunacjhal Pradesh permanently, and have interest in land and its products.  

The traditional self-governing institutions institutions work within the general framework of Assam Frontier (Administration of Justice) Regulation, 1945. Under this Regulation Gaon Buras (village elders) are appointed as Village Authorities, which still maintain the law and order in the tribal society of Arunachal Pradesh. The Regulation empowered the Village Authorities to handle the social, cultural and legal affairs at the village level with great degree of freedom. The existing traditional laws are such that no any member of a tribal community is permitted to settle down in the territory belonging to other community. Therefore, settlement of non-natives/foreigners in the tribal territory defeats the very essence of such customary laws.

By the Foreigners Protected Area Order, 1958, the territory of Arunachal Pradesh was declared as protected area. The civilian authority may, by an Order, may prohibit any foreigner or any class of foreigners from entering or remaining in the area, and impose restrictions on the acquisition of land or any interest in the land within the area.

Questionable Action of the Supreme Court of India and ECI

The hon’ble Supreme Court of India (WP No. 510 of 2007) has issued a direction to the Government of India and the State of Arunachal Pradesh to finalise the conferment of citizenship rights on eligible Chakmas and Hajongs.

Without questioning the wisdom of the Apex Court, it is strongly and genuinely felt that its decision did not take into account the social, political, economic and cultural implications of the presence of thousands of refugees in the midst of ‘protected’ tribal communities. The judgment in question throws more questions than answers. The apex court rules that the Chakmas and Hajongs are to be granted citizenship based on an argument that they have been already settled in the state since 1964-69. Its corollary would provide a legal space to the Tibetan refugees and other illegal migrants settled in the state for many years.

The state government has plenary power to regulate the entry of “not being a native” as per the Bengal Eastern Frontier Regulation, 1873. The government is also empowered to sanction acquiring of land or the product of land within the state. Post-independent India retained the Regulation of 1873 even when its certain provisions are in direct contravention to Article 19 of the Indian constitution.

How does the government determine the principles governing eligibility of the Chakmas and Hajongs? It would be an extremely difficult exercise, as there are different categories of the Chakmas. The first group (core group) of Chakmas are those who were settled during 1964-69.  The second group consists of those Chakmas who have shifted from one refugee camp to another within the state. Those who have come/are coming from Assam, Tripura or Mizoram constitute the third group. The fourth group consists of those who have recently migrated/ are illegally migrating from Bangladesh.  Some of the Chakmas are still reported to be sneaking into different refugee champs.

Through an Order of the Election Commission of India, 3rd March, 2004, 1,497 ‘eligible’ Chakma/Hajongs refugees were included in the electoral rolls voters of four assembly constituencies, and were permitted to cast their votes in the elections.  The impugned Order of the Commission contradicts Article 326 of Indian Constitution and Section 16 of Representation of the People Act, 1950. Article 326 reads: “The election to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult franchise; that it to say, every person who is a citizen of India……. ,shall be entitled to be registered as a voter at such election”. Section 16 of the RPA, 1950 says, “a person shall be disqualified for registration in an electoral roll if he- (a) is not a citizen of India……”

Our resolve develops stronger having understood the gravity of the situation where the percentage indigenous tribal population has decreased from 88.50 per cent in 1961 to 64.66 per cent in 2001, as reflected in the table below.

Scheduled tribe population in Arunachal Pradesh during 1961-2001

 

Source: Census of India, Arunachal Pradesh, Director of Census Operation, Arunachal Pradesh, Itanagar.

The All Arunachal Pradesh Students’ Union had gone to the extent of terming the New Delhi’s move as a ‘systematic cultural genocide’.

A Democratic Solution is Possible

As an academician, I would have no objection to the granting of citizenship to the eligible refugees, as rule by the Supreme Court of India. However, it is equally important to remove the apprehensions of the indigenous people of the state by providing constitutional protections with regards to “religious and social practices, customary laws and procedure, administration of civil and criminal justice, and ownership and transfer of land and its resources”, in the line of Article 371(A) of the constitution.

  1. II. Alienation of Land

Because of non-cadastral nature of the land and the land relations being governed by the traditional and customary laws of different tribes, the land holding pattern is not common throughout Arunachal Pradesh.

Land alienation does take place not because of state instrumentalities, but because of lack of specific rules specifying how much land one could hold. The Arunachal Pradesh Legislative Assembly passed “Arunachal Pradesh (Land Settlement and Records) Act, 2000” that calls for recognizing customary rights of the people on land. The land owned by individual has been accorded legal recognition. The forest land, river, canal, watercourse, etc. not owned by individuals are vested with the government. No ceiling of land holdings by individuals is specified in this Act either.

The horticulture activities, such as tea plantation, cardamom, apple, kiwi, etc have increased manifold over the years. It has been noticed that some of the rich ‘farmers’ have acquired hundreds of hectares of land for the purpose of plantation and other related activities. Very often clan/community land is encroached upon, depriving common villagers of their food, fodder and livelihood.

Acquisition of land for hydro power projects takes place in utter disregard of customary rights of the affected persons. Rehabilitation and resettlement are not done in accordance with The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

 

References:

  1. Virginius Xaxa, “Tribes as Indigenous People of India”, Economic and Political Weekly, December 18, 1999, p. 3.
  2. Who are Indigenous People? available at http://www.un,org/esa/socdev, (accessed on 22.10.2011).
  3. B.K. Roy Burman “Indigenous and Tribal Peoples in World System Perspective”, Studies of Tribes and Tribals, July 2003, Vol., 1, no. 1 p. 12.
  4. David Vunlallian Zou, “A Historical Study of the ‘Zo’ Struggle”, Economic and Political Weekly, Vol. XLV, April 3, 2010, p. 56.
  5. Andre Beteille “The Idea of Indigenous People”, Current Anthropology 39 (2), 1998.
  6. World Bank and Indigenous People, available at http://web.worldbank.org (accessed on 20. 8. 2017).
  7. Roy Burman, op.cit., p. 12.
  8. World Bank and Indigenous People, op. cit.

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