Guest author: Sebastián Hurtado Estrada, advocacy lawyer of the Counsel for Indigenous Peoples’ Rights, Human Rights and Peace of the National Indigenous Organization of Colombia.

The Political Constitution of Colombia defines the country as a pluriethnic and multicultural State, mainly supporting the presence of 115 Indigenous Peoples, including an estimated 60 peoples in cross-border mobility. Despite recognizing the existence of this diversity, Colombia has enormous shortcomings in guaranteeing the rights of this population whose mobility between Colombia and neighboring countries requires a series of measures aimed at their cultural protection, binational ethnic identity and guarantees of living conditions in dignity. 

The lack of agreements between Colombia and neighboring countries for the granting of bi-nationality, as well as the practical impossibility of access to nationality by naturalization, due to the impossibility of meeting requirements for members of cross-border indigenous peoples, add to countless other situations that impose conditions of ignominy. There have been cases of statelessness, undocumented status, discrimination on ethnic and national grounds, lack of access to health services, education, territory, among others.   

Indigenous cross-border mobility is a cultural practice, due to the nomadic and semi-nomadic identity of many indigenous peoples, whose ancestral territory is divided by the boundary lines that constitute the republics. At present, many indigenous peoples living in border areas consider themselves “nomads in cross-border mobility” because they consider that this circulation in their territory is a type of nomadism that involves moving from one country to another, in our case, from Colombia to Venezuela, Brazil, Peru, Ecuador, Panama or even Aruba and vice versa. 

In a non-indigenous analysis of this mobility, in principle one could fall into the error of considering it as a migration since two or more countries are involved, taking into account the presence in Colombia of families or communities that in the immediate past have arrived from abroad. This vision certainly does not correspond to the historical and cultural context of nomadism which, as has been said, is exercised in an occupied or ancestrally possessed territory and does not adopt the concepts of boundary lines.

In order to recognize this context, it is necessary to start from the fact that Indigenous Peoples in cross-border mobility have historically traveled through their ancestral territories for hunting, fishing, gathering and their own economies. These practices are carried out in accordance with the traditions granted by their knowledge systems or “Laws of Origin”, i.e. what in anthropological terms is called “cosmovision”.  Currently, other causes of indigenous mobility between countries that affect the common cycles of cross-border nomadism and accelerated transit can be taken into account, such as forced displacement due to the effects of armed conflict on the borders, displacement due to climate change or the socio-economic conditions they may suffer in the neighboring country.

Despite the diverse causes that justify this activity, the indigenous peoples that inhabit the borders of Colombia consider themselves plurinational, as is the case of the Wayuu, Awá, Sikuani, Cubeo, Piapoco, Curripaco, Yagua, Tikuna, Yukpa nations, among others. For them, before belonging to the Colombian, Venezuelan, Brazilian or any other nationality, they belong to their indigenous nation. Their broad concept of nation goes beyond the formalities of registration with state entities and includes cultural identity, territory, language, system of government, administration of justice and the recognition of their organizational sovereignty, as is also provided for in international human rights instruments, such as Convention 169 of the International Labor Organization, the American Declaration on the Rights of Indigenous Peoples and the United Nations Declaration on the Rights of Indigenous Peoples.

Unfortunately, these characteristics of the plurinationality of Indigenous Peoples in border areas are largely unknown. According to the constant statements that the National Indigenous Organization of Colombia (ONIC) has made to public opinion, this population constantly suffers from double discrimination: racism and xenophobia in the cities where they settle, and in particular they have been treated as foreigners, alien to the territory, from which they must leave as soon as possible for their “return” to the neighboring country. 

In the same way, we have documented discrimination based on indigenous identity, since constant administrative requirements are imposed on them that are insurmountable for the guarantee of fundamental rights, such as the filling out of forms on Internet pages for people who are illiterate or those who do not master the Spanish language without access to Internet services. 

By considering the indigenous population in cross-border mobility as a migrant population, dignity, identity and culture are seriously violated and the differential approach to guarantee the right to material equality is not taken into account. The fundamental basis for the effective guarantee of the human rights of this population is to recognize that they are not migrants, much less foreigners, and of course this implies an important challenge in adapting the conceptualization currently assumed by the institutions, which in practice only accepts the provisions of the current national regulations that can be applied in this area: migration and foreign transit without an ethnic approach.

This apparent legal vacuum in Colombia has resulted in a systematic violation of the rights of the plurinational indigenous population, such as the lack of access to the social security system and comprehensive health care, intercultural education, drinking water and basic sanitation, formal work, a legally constituted territory, decent housing, among others.

In fact, the living conditions of many indigenous families in cross-border mobility today settled in cities such as Cúcuta, Arauca, or Puerto Carreño can be considered as very poor. They suffer from extreme poverty and destitution, extreme malnutrition of children and adolescents, consumption of psychoactive substances, crimes against freedom, integrity and sexual education, forced recruitment and a number of human rights violations including the breakdown of the social fabric, and the violation of autonomy and sovereignty over their ancestral territories.

As a representative case, the situation of numerous Amorúa, Sikuani, Sáliva, Piaroa, Puinave, Curripacos and Achaguas families, who are settled near the El Merey garbage dump in Puerto Carreño, Vichada, and who are supplied by the garbage that the collection truck deposits there every day, has been constantly denounced. At this point, indigenous children and adults remove garbage every day, despite the health risks, in order to find food and collect plastic for sale to recycling companies. 

This obviously ignominious situation generated in 2022 a sentence issued by the Court of the Circuit of Puerto Carreño, which ordered various national entities in coordination with the territorial entities, “to protect the fundamental rights to life with dignity, survival of indigenous peoples, health and minimum availability of drinking water for indigenous communities”.

Although this judicial decision protects rights in order to guarantee dignified living conditions, at present these families continue to suffer the systematic violation of their fundamental rights. According to reports submitted by ONIC to the Commission on Human Rights of Indigenous Peoples, the authorities allege that it is impossible to effectively attend to the families given their status as Venezuelan foreigners with irregular stay in the country. 

As mentioned above, other indigenous families in cross-border mobility along the borders of Colombia also endure the same conditions. ONIC has been able to identify with concern a high rate of undocumented persons or those at risk of statelessness, generating an even more adverse effect since it is one of the main causes for which the population does not have access to rights in Colombia.

In light of this new condition, entities such as the Ministry of Foreign Affairs and the Special Administrative Unit for Migration in Colombia, justify the “irregular” entry into Colombian territory due to the fact that cross-border mobility has not been duly registered at the Migration points in the border areas, which ignores the ancestral territoriality that has historically been transited and that in most cases is far away from the offices. 

Thus, the treatment of migrants, foreigners or people from outside Colombia is a constant. This restrictive interpretation of the applicable norms has allowed the adoption of irregular measures publicly denounced by the indigenous people. This brings up processes of massive expulsions, lacking legal support, led by mayors’ offices and accompanied by Migration Colombia and the Ministry of the Interior.  In this type of expulsions, it has been observed that indigenous families are transferred in buses to the border points in exchange for markets or clothes (with conditional willingness), and they have even been made to sign commitments of “no return” to Colombian territory. All these situations constitute unconstitutional processes of banishment, if one understands the indigenous territoriality already illustrated.

Colombia urgently needs to adopt a comprehensive public policy to ensure access and guarantee human rights for the indigenous population in cross-border mobility, a public policy that, with a differential approach, guarantees living conditions in dignity and recognizes the ancestral territory that is currently shared by two or more countries. Likewise, it is imperative to implement measures that grant Colombian nationality to members of this population. Although the Colombian Political Constitution establishes the possibility of binationality, this does not seem to be the most expeditious way, since it can only be achieved through public treaties that are difficult and lengthy to process between neighboring countries. However, the Colombian government also has the possibility of granting nationality by adoption or naturalization, which would be a simpler solution, since it corresponds to a discretionary and unilateral exercise of the State.

As long as the Colombian government does not adopt an adequate policy, Indigenous Peoples in cross-border mobility, especially those living along the Colombia-Venezuela border, will continue to suffer systematic violations of their rights.