ECMI Minorities Blog. Are Indigenous Peoples Minorities? Reflections from an International Human Rights Law Perspective

*** The blog posts are prepared by the authors in their personal capacity. The views expressed in the blog posts are the sole responsibility of the authors concerned and do not necessarily reflect the view of the European Centre for Minority Issues. ***

Author: Noémi Nagy I https://doi.org/10.53779/KAJA0611

* Noémi Nagy is MSCA/ERA Research Fellow at the Institute for Ethnic Studies in Ljubljana, Slovenia, as well as Associate Professor at the Department of International Law, Ludovika University of Public Service in Budapest, Hungary. She holds a PhD in law as well as university degrees in law and psychology. Her main research interests are the international protection of human rights, minority rights and language rights. Currently she is doing research on the Conceptualization and operationalization of minorities in the practice of UN treaty bodies (MINCOOP) and serves as Grant Awarding Coordinator of the PLURILINGMEDIA COST Action project. This paper has been written in the framework of the EU-funded MINCOOP project.

E-mail: noemi.nagy@inv.si

ORCID: https://orcid.org/0000-0003-2870-3456

LinkedIn: https://www.linkedin.com/in/no%C3%A9mi-nagy-b44415329/

Are indigenous peoples minorities?

In March 2025, the UN Human Rights Committee (hereinafter HRC) found that Guatemala had violated the rights of members of several Maya Indigenous communities, who had been forcibly displaced during the internal armed conflict and were prevented from effectively returning to their ancestral lands. The Committee emphasized that decades of deterritorialization and forced assimilation measures had severely affected their ethnic and cultural identity, forcing many to abandon traditional dress, language, and communal practices in order to survive. The Committee examined the case under multiple provisions of the International Covenant on Civil and Political Rights (ICCPR), including – crucially – Article 27, a provision protecting persons belonging to minorities. There are dozens of earlier cases where indigenous applicants have invoked this provision for the protection of their rights. This poses an uneasy question: are indigenous peoples to be understood as minorities under international law?

International law has developed separate normative frameworks for the protection of indigenous peoples and (ethnic, national, religious, or linguistic) minorities. At the universal level, indigenous peoples benefit from a growing body of international instruments – most prominently, the Indigenous and Tribal Peoples Convention (ILO Convention No. 169, adopted in 1989) and the UN Declaration on the Rights of Indigenous Peoples (General Assembly resolution, adopted in 2007) – whereas minority protection has traditionally relied on Article 27 of the ICCPR and the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (General Assembly resolution, adopted in 1992). At the same time, international monitoring bodies have long insisted that minorities are not peoples in the sense of international law and therefore are not entitled to the right of self-determination.

In broad terms, indigenous peoples are understood as “the living descendants of pre-invasion inhabitants of lands now dominated by others”. To be even more specific, under ILO Convention No. 169, indigenous and tribal peoples are defined as culturally distinct groups in independent states who either descend from populations inhabiting a territory prior to conquest or colonisation, or whose social, cultural and economic conditions set them apart from the dominant society, and who retain, wholly or in part, their own social, economic, cultural or political institutions (Article 1).

By contrast, no legally-binding definition of minorities exists. The most frequently cited formulation nevertheless describes a minority as “a group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their cultures, traditions, religion or language”.

Despite the similarities between the two definitions, it is clear that the concept of indigeneity relates to the context of colonization, and thus, is rooted in the moral and political expression of the wrongfulness thereof. This element is missing from the minority concept. On the basis of this distinction alone, the question whether indigenous peoples can be considered minorities may seem absurd.

Indigenous communities themselves have been equally firm in rejecting the minority label (for instance in the Miqmal tribal society and the Whispering Pines Bandcases). Many see it as reflecting a subordinate position within society and as failing to capture their historical continuity, territorial connection, and collective identity. From this perspective, indigenous peoples are not minorities at all, but peoples with a distinct legal and political status. And yet, once we move from (legal) theory to practice – from abstract concepts to the judicialization of rights – these neat conceptual boundaries begin to blur.

When definitions meet rights enforcement

Judicialization, understood here as the enforcement of rights before bodies exercising public authority, brings international law down to earth. Courts and treaty bodies are not primarily interested in conceptual purity; they must decide concrete cases brought by concrete individuals. In doing so, they often rely on legal categories that remain strikingly underdefined. This is not a new problem. Despite decades of scholarly effort, there is still no universally-accepted definition of minorities, nor of closely-related concepts such as ethnicity, race, or nationality. International law nonetheless routinely employs these terms when recognizing group-specific rights or providing protection from discrimination – often without clarifying who exactly belongs to the protected group, or on what basis.

The same is true, perhaps surprisingly, for indigenous peoples. While international instruments increasingly recognize their collective rights, UN treaty bodies adjudicating individual complaints rarely pause to define what indigeneity means. Instead, they work pragmatically with the facts before them. Nowhere is this more evident than in the practice of the HRC, which monitors compliance with the ICCPR and decides individual communications under its Optional Protocol. Article 27 of the ICCPR guarantees that persons belonging to ethnic, religious, or linguistic minorities shall not be denied the right to enjoy their culture, to profess and practise their religion, or to use their language, in community with other members of their group. Notably, the provision does not mention indigenous peoples at all. Yet paradoxically, the overwhelming majority of Article 27 cases decided on the merits concern indigenous peoples.

The HRC has repeatedly recognized groups such as the Sámi in Sweden and Finland, the Māori in New Zealand, and various First Nations in Canada as minorities for the purposes of Article 27. This is not because the Committee denies their status as indigenous peoples. Rather, it reflects a functional approach: when indigenous communities find themselves in a non-dominant position within a state, Article 27 becomes one of the few enforceable tools available to them at the international level. This approach has been confirmed in the HRC’s General Comment No. 23 (at paras. 3.2 and 7), which makes clear that indigenous peoples may fall within the scope of Article 27 when they constitute a minority within the state concerned.

Whether or not they are also peoples in the sense of Article 1 ICCPR is beside the point for the purposes of individual communications under Article 27. Yet, the definitional issue becomes even more complicated when the right to self-determination enters the picture. Article 1 of the ICCPR proclaims that “all peoples have the right of self-determination”, but the HRC has consistently held that this provision is not justiciable under the Optional Protocol. It confers rights on peoples as collective entities, not on individuals, and therefore lies outside the Committee’s competence in individual communications.

For a long time, the HRC avoided interpreting Article 1 altogether. This changed gradually around the turn of the millennium. In cases such as Diergaardt v. Namibia (para. 10.3) and Mahuika v. New Zealand(para. 9.2), the Committee signalled that while it could not adjudicate alleged violations of Article 1 directly, it could take the principle of self-determination into account when interpreting other rights, including Articles 25, 26, and 27 (it in fact did so for the first time in Gillot et al. v. France, in the context of minority participatory rights.) However, this move did not resolve the definitional puzzle. The Committee has never offered a definition of “peoples,” nor clarified its relationship to minorities. But it did open a narrow door: minorities – and especially indigenous groups – could invoke aspects of internal self-determination indirectly, through rights to cultural participation, political inclusion, and equality.

State practice: minorities and indigenous peoples as interchangeable categories

States themselves often contribute to the conceptual convergence that we have seen in individual communications. Reporting practice under the ICCPR reveals that many countries – particularly in the Americas – use the terms minority and indigenous peoples interchangeably (see Figure 1). Several states that are parties to ILO Convention No. 169 treat the personal scope of Article 27 ICCPR and the notion of indigenous peoples under that Convention as effectively identical. Beyond the Americas, similar approaches can be observed in countries as geographically diverse as Australia, the Nordic states, Russia, South Africa, and the Philippines. Ukraine, while adopting its own statutory definition of indigenous peoples, still draws a distinction based largely on the absence of a kin-state rather than on fundamentally different rights.

From the perspective of UN treaty bodies, these practices reinforce a simple reality: what matters is not the label, but the vulnerability. Groups that are culturally distinct, historically marginalized, and non-dominant are likely to be treated as minorities under Article 27, regardless of whether they also qualify as indigenous peoples under other legal regimes. This approach aligns well with the practice of the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights, where an expansive concept of indigeneity includes not only the criteria of self-identification, territorial connection, and cultural distinctiveness, but also notions of social marginalisation, discrimination, and non-dominance.

Why definitions still matter

One of the most striking features of indigenous cases before the HRC is how little attention they devote to conceptual classification. In cases such as Whispering Pines Band v. Canada(para. 2.1), the Committee simply accepted that the authors belonged to an indigenous people based on uncontested factual descriptions: “[t]he Whispering Pines Indian Band belongs to the Shuswap Nation in south-central British Columbia. The Shuswap are the indigenous people of the region and constitute a single social, cultural, political and linguistic community distinct both from Euro-Canadians and from neighbouring indigenous peoples.” The focus was not on whether the group was a minority or a people, but on whether the challenged measures interfered with the enjoyment of culture under Article 27. Similarly, in the context of minority affiliation, in Poma Poma v. Peru(para. 7.3), the Committee found it “undisputed that the author is a member of an ethnic minority […] the Aymara community”.

This pragmatic stance has important implications. It suggests that, in practice, international protection is driven less by abstract status and more by concrete impacts on cultural life. Indigenous cases thus become a testing ground for the operationalization of minority rights, even if the groups concerned reject the minority label at the political or symbolic level.

Does all this mean that definitions are irrelevant? Not quite. As the HRC’s case law shows, definitional flexibility can be empowering, allowing indigenous communities to access minority rights without renouncing their distinct identity. At the same time, ambiguity carries risks. The absence of clear boundaries leaves room for states to manipulate categories, to recognize or deny status selectively, or to frame collective claims as merely individual interests. Furthermore, definitional ambiguity may also create space for various forms of identity appropriation or fraudulent self-identification, often described in literature as pretendianism, ‘playing Indian’, race-shifting, self-indigenizing, or fraudulent identity claiming. Similar phenomena have been observed in other regional contexts as well, such as forms of ethnobusiness in Central and Eastern European election processes.

Moreover, as indigenous peoples increasingly assert rights to land, resources, and political autonomy, the limits of minority protection become apparent. Article 27 is a powerful tool, but it was never designed to accommodate the full spectrum of indigenous self-determination claims. Treating indigenous peoples simply as minorities may secure short-term protection, but it can also obscure the structural dimensions of their claims.

Conclusion and broader implications

So, are indigenous peoples minorities or not? From a doctrinal perspective, the answer remains contested. From a practical perspective, international human rights bodies have already given their response. When indigenous communities find themselves in a non-dominant position within a state, and when individual members seek international remedies, they are very often treated as minorities, regardless of how they define themselves and regardless of how international law categorizes them elsewhere.

This does not deny their status as peoples, nor does it collapse the distinct legal regimes that have developed around indigeneity and minority protection. It reflects, rather, a functional logic of protection: international law uses the tools it has. The practice of the HRC shows that definitions do matter, but not always in the way we expect. They matter not as abstract truths, but as gateways to protection. And in that sense, the uneasy overlap between indigenous peoples and minorities may be less a conceptual flaw than a pragmatic response to the realities of rights enforcement in international law.

Seen from a broader perspective, the overlap between indigenous peoples and certain types of minorities may point to a deeper structural issue. Rather than asking whether indigenous peoples qualify as minorities, perhaps we should reverse the question and ask ourselves whether some (traditional, autochthonous, or national) minorities can occupy a “people-like” position in international law. (I thank Professor Gaetano Pentassuglia for this helpful comment.) If so, the interpretative interaction between Article 1 and Article 27 suggests that aspects of internal self-determination – particularly autonomy and meaningful participation – may be relevant beyond the indigenous context. While this remains a contested terrain and a fuller exploration thereof lies beyond the scope of this post, the practical evolution of minority protection appears closely intertwined with the logic of collective self-governance – an area that offers fertile ground for future debate.