The Chittagong Hill Tracts (CHT) is comprised of three hill districts, namely: Rangamati, Khagrachari, and Bandarban and it is the most southeastern part of Bangladesh.

It shares borders with the Indian states of Tripura to the north and Mizoram to the east, and Chin and Rakhaine states of Myanmar to the south-east and south.

And it is home to eleven distinct ethnic groups (Paharis), namely: Chakma, Marma, Tripura, Tanchangya, Mro, Lushai, Khumi, Chak, Khiyang, Bawm, Pangkhua and they are collectively known as the Jumma Peoples.^[1]

There’s an debate which still persists, on one hand the Jumma Peoples claim for recognition as “indigenous peoples” but on the other hand the State and a large number of Bangalees deny their claim for such an identity, moreover they counter-claim that they are the actual “indigenous peoples” of Bangladesh rather than the Jumma Peoples.

In this connection the former Foreign Minister, Dipu Moni’s official statement in 2011 during a press briefing is notably mentionable.

Foreign Minister’s Statement:

In 2011, the then foreign minister Dipu Moni during a briefing of foreign diplomats and UN agencies told them that the ethnic groups most probably did not live or exist in the CHT before the 16^th century and were not considered “indigenous peoples” in any historical reference books, memoires or legal documents.^[2] She further said that the ethnic groups of CHT were the late settlers on the Bengal and the Bangalees compared to them were residing there for more than 4,000 years.^[3]

Counter-arguments against Her Statement:

Her such arguments are not only fallacious but also baseless on several grounds.

1. First of all, she said that the ethnic groups most probably did not live or exist in the CHT before the 16^th century.^[4] Such statement is false, as the ethnic groups of the CHT have been living in the CHT from the time immemorial^[5] and they are the original inhabitants of the CHT.^[6]
2. Secondly, she also said that the ethnic groups were not considered “indigenous peoples” in any historical reference books, memoirs or legal documents.^[7] Her such statement is also not true. For instance, the Chittagong Hill Tracts Regulation, 1900 (Regulation 1 of 1900), the first and foremost comprehensive law of the region which regulated the CHT used the terms “indigenous tribe” and “indigenous Hillman” interchangeably to indicate the Jumma Peoples.^[8]

Rule 4 and 52 of the Chittagong Hill Tracts Regulation, 1900 (Regulation 1 of 1900) mentioned, “a Chakma, Mogh or member of any tribe [is] indigenous to the Hill Tracts.”

Furthermore, there are some laws in the schedule to the CHT Regulation, 1900 one of which notably is the Income Tax Act of 1922, reiterated the term “indigenous hillmen” in the following sentence, “shall apply to all persons in the Chittagong Hill Tracts except the indigenous hillmen.”

Several correspondences of the national board of Revenue of the Governments of Pakistan and Bangladesh have also mentioned the Jumma Peoples as “indigenous hillmen.”^[9]

3. Thirdly, she further asserted, “the ethnic groups of the CHT were the late settlers on the Bengal soil and the Bangalees compared to them are residing here for more than 4,000 years.”^[10]

Her such statement is also falsified, misleading and illogical.

Historically, the Chittagong Hill Tracts was not a part of Bengal, moreover, it was an independent territory and before the British annexation of CHT in 1860, it had never been incorporated in a state.^[11] History suggests that the CHT had been a distinct entity both socially and politically.^[12] To support my argument that CHT had been a distinct entity and ruled separately, there are few legal instruments/ special laws, namely: Act XXII of 1860, the CHT Regulation of 1900, the Government of India Act, 1935 that treated CHT as a “totally excluded area.” Later, the excluded area status was changed to the status of “tribal area’ in the 1962 Constitution of Pakistan, although, it was subsequently repealed in 1964.^[13]

Historically, the hill peoples or the Jumma Peoples inhabited the CHT long before the arrival of the Portuguese in Bengal in the 16^th century.^[14] Contrarily, the Bangalees, the majority ethnic group in Bangladesh did not settle permanently in the CHT before the 19^th century.^[15] Special laws like the Inner Line Regulation, 1873, Scheduled Districts Act, 1874 and Rule 52 of the CHT Regulation, 1900 (Act 1 0f 1900) regulated in-migration of peoples not regarded as “native” to the CHT.^[16] Thus, as the Bangalees were not regarded as “native” to the CHT their movements and in-migration were regulated in the CHT according to the aforementioned special laws as long as the laws were in force.^[17] To settle in the CHT the Bangalees had to take prior permission from the DC and the DC had to take approval from Headman or Circle Chief, in this way the CHT Regulation, 1900 restricted the influx of non-indigenous people in the CHT.^[18]

Who are Indigenous Peoples? – According to the International Law:

The first international instrument regarding the indigenous peoples is the ILO Convention No. 107, however, it doesn’t clearly define the term “indigenous peoples”. Later, ILO Convention No. 169 was adopted and it has replaced the ILO Convention No. 107 since ILO Convention No. 107 had an inherent assimilationist approach which was destructive and outdated in nature.^[19] ILO Convention No. 169 also didn’t provide a clear definition regarding the term “indigenous peoples” rather it gave some criteria- both subjective and objective.^[20] “Self-identification” has been given the status of paramount importance in ILO Convention No. 169 so that the indigenous peoples can take counter possible actions in case the “host states” might deny the claims for “indigenous identity” within their borders.^[21]

Now, let’s see whether the Jumma Peoples can fulfill both the subjective and objective criteria of indigenous peoples:

1. The Jumma Peoples self-identify themselves as belonging to an indigenous people (group).
2. History suggests that the Jumma Peoples are descent from populations, who inhabited the CHT at the time of conquest, colonization and before the establishment of present state boundaries.^[22]
3. They retain some of their own social, economic, cultural and political institutions, irrespective of their legal status.^[23]

It is apparent from the above-mentioned discussion that the Jumma Peoples fulfill both the subjective and objective criteria and therefore it can be said that they are rightfully entitled to the identity of “indigenous peoples”.

Non-dominance or Subordination as an Imperative Criterion of International Legal Definition of Indigenous Peoples:

According to Kawser Ahmed, a lawyer of Supreme Court of Bangladesh, state of non-dominance of the indigenous peoples justifies for recognition of the legal rights of indigenous peoples. He argues that “no entrenchment of indigenous peoples’ rights would be necessary had there been no incidences of subordination of the indigenous peoples at the hands of a dominant social or political formation.”^[24] In the case of Bangladesh, Bangalees are in the dominant position but on the other hand, the indigenous peoples (particularly the Jumma Peoples) of Bangladesh are in the position of subordination. Subordination or state of non-dominance of the indigenous peoples results in dispossession of land, expulsion, extermination and their loss of identity and culture.^[25] Kawser Ahmed further opines that the international legal concept of indigenous peoples has opened an alternative avenue for the indigenous peoples to attain their both cultural and political rights perhaps without having a loss of their identity and also without the need of organizing themselves into a new state.^[26]

State’s denial of Indigenous Identity:

The ethnic groups living both in plains and hills of Bangladesh definitely meet the criteria of the international legal concept of indigenous peoples. But despite the fact that the Government of Bangladesh doesn’t recognize the ethnic groups living both in plains and hills as indigenous peoples rather it opposes to do so.

The indigenous peoples of Bangladesh have been seeking recognition for “indigenous identity” since 1993 – the year declared by the UN as the International Year of the World’s Indigenous People.

But Bangladesh has stated that the entire population of Bangladesh had been living on the land for the past several millennia and thus made everyone indigenous to the land and therefore the term “indigenous peoples” was not applicable to her.^[27]

Such a statement has implied monolithic and hegemonic attitude towards the ethnic peoples who have the merit to be recognized as indigenous peoples. The statement also has an assimilationist approach which reflects from the generalization that everyone living in Bangladesh is indigenous peoples.^[28]

Article 6(2) of the Constitution of Bangladesh also expresses the hegemonic and assimilationist approach which denies the multiethnic identities by terming the people of Bangladesh as Bangalees and totally negating the fact that there are other ethnic groups residing in Bangladesh besides the Bangalees.

In 2011 the 15^th Amendment of the Constitution was made, in which the Article 23A of the Constitution termed the indigenous peoples as “tribes, minor races, ethnic sects and communities”, but activists and rights groups representing the indigenous peoples have subsequently denounced the said Amendment.

Indigenous peoples of Bangladesh still demand constitutional recognition as “indigenous peoples” but after the 15^th Amendment the Article 23A isn’t open to amendment as Article 7B restricts it.^[29] Therefore, it is pertinent to say that constitutional recognition as “indigenous peoples” has become very difficult for them, such recognition can only be possible if the 15th Amendment is somehow declared unconstitutional by the Supreme Court of Bangladesh.

Conclusion:

Concededly, despite the fact that the indigenous peoples of Bangladesh can hardly become constitutionally recognized as “indigenous peoples”, the state can’t defeat the rightful claim to their identity as “indigenous peoples”. Since the constitutional recognition of the indigenous peoples (for both of the indigenous peoples from the plains and the CHT) has become very difficult for them, in a sense extensive marginalization of the indigenous peoples is now near irreversible. But the state still with the right will of ‘equality and justice’^[30] which is enshrined in the preamble of our Constitution can make laws and special provisions to protect and safeguard the indigenous peoples and their rights.^[31] It is worth to mention that Article 10 of our Constitution professes the idea of “… attaining a just and egalitarian society, free from the exploitation of man by man”^[32] and such idea which is one of the Fundamental Principles of State Policy can never be achieved without the recognition of the indigenous peoples and their rights.

It is expedient to mention that Raja Devasish Roy, the hereditary chief of the Chakma Circle, a member of the Jumma  Peoples was two times appointed member of United Nations Permanent Forum on Indigenous Issues (UNPFII) and his elder sister Rajkumari Chandra Roy was also appointed as the Chief of the Secretariat of that same Forum, in addition it is also important to mention that numerous persons belonging to the Jumma community and indigenous communities from the plains have been attending the same forum for many years representing the indigenous peoples of Bangladesh. So, it is evident from the involvement, participation and appointment of the Jumma Peoples in the UNPFII and other such international forums and organizations that despite the state’s constitutional non-recognition of its indigenous peoples (particularly the Jumma Peoples) as “indigenous peoples”, the international forums and organizations regarding the indigenous peoples have impliedly recognized the Jumma Peoples as indigenous peoples. The publications from the international organizations regarding the indigenous peoples like  ILO, IWGIA, AIPP also expressly refer the Jumma Peoples as “indigenous peoples”. It is also noteworthy to mention that almost all the scholars who have researched and written regarding the CHT issue have unanimously preferred the Jumma Peoples as “indigenous peoples” rather than by any other terms. Furthermore, it is also mentionable that the High Court Division of the Supreme Court of Bangladesh in a case of 2000 took cognizance of the fact that the petitioner, Sampriti Chakma was an “indigenous Hillman” of the CHT.[33]

Lastly, I would like to say, whether an ethnic group is “indigenous peoples” or not that should be decided according to the international norms, practices, treaties, and laws regarding the ‘indigenous peoples’, so that no state can out of its monolithic and hegemonic character deprive any indigenous group of its rightful claim to “indigenous identity”.

[1] “Chittagong Hill Tracts” (UNPO) <https://unpo.org/members/7867> accessed May 24, 2019.

[2] Correspondent D, “Ethnic Minority, Not Indigenous People” (The Daily Star July 26, 2011) <https://www.thedailystar.net/news-detail-195963> accessed May 24, 2019

[3] ibid.

[4] ibid.

[5] Roy RCK, Land Rights of the Indigenous Peoples of the Chittagong Hill Tracts, Bangladesh (IWGIA, International Work Group for Indigenous Affairs 2000) 22.

[6] Chowdhury K, “Politics of Identities and Resources in Chittagong Hill Tracts, Bangladesh: Ethnonationalism and/or Indigenous Identity” (2008) 36 Asian Journal of Social Science 61.

[7] Correspondent (n 2).

[8] Roy RD, The ILO Convention on Indigenous and Tribal Populations, 1957 (No. 107) and the Laws of Bangladesh: a Comparative Review (ILO 2009) 6.

[9] See, for example, (i) Central Board of Revenue, Memo C. No. 5(3)-ST/65 dated, 06.04.1967; (ii) National Board of Revenue Memo C. No. 4(6) Kar-5/77/589 dated, 04.09. 1980 (iii) National Board of Revenue, Memo 4(6)/Kar-5/77/28 dated 10.03.1988; (iv) Board of Revenue Notification No. 8/Income Tax/92 dated 17.10.1992; (v) National Board of Revenue Memo No. 6(57) Kar-3/94/114 dated 15.12.1994; and (vi) National Board of Revenue Notification No. 7(Income Tax)/94 as circulated through Memo No. 6(54) Kar-3/94 dated 02.01.1995, cited in Roy (n 8) 8.

[10] Correspondent (n 2).

[11] Uddin I, “Conflict between Government and the Indigenous People of Chittagong Hill Tracts in Bangladesh” (2013) 16 IOSR Journal Of Humanities And Social Science 97; Schendel WV, “The Invention of the ‘Jummas’: State Formation and Ethnicity in Southeastern Bangladesh” (1992) 26 Modern Asian Studies 97.

[12] Mey, 1981 cited in Chakma B, “The Post-Colonial State and Minorities: Ethnocide in the Chittagong Hill Tracts, Bangladesh” (2010) 48 Commonwealth & Comparative Politics 283.

[13] Roy RD, “Challenges for Juridical Pluralism and Customary Laws of Indigenous Peoples: The Case of Chittagong Hill Tracts” (2004) 21 Arizona Journal of International & Comparative Law 118.

[14] ibid 116.

[15] See (i) Lewin, 1869 (ii) Serajuddin, 1968 (iii) Chakraborty, 1977 (iv) Van Schendel, 1992 (v) Van Schendel, et al, 2000, cited in Roy (n 8) 9.

[16] See Ishaq (1975:256) cited in Roy (n 8) 9.

[17] Rule 4 and 52 of the Chittagong Hill Tracts Regulation, 1900 (Regulation 1 of 1900) mentions, “a Chakma, Mogh or member of any tribe [is] indigenous to the Hill Tracts.” In the Chittagong Hill Tracts Regulation, 1900 (Regulation 1 of 1900) there is neither any mention of the Bangalees as “indigenous to the Hill Tracts” nor there’s any historical document regarding the CHT that refers the Bangalees as a “tribe” of the CHT.

[18] Uddin (n 11) 97-98.

[19] See generally Barsh RL, “Revision of ILO Convention No. 107” (1987) 81 The American Journal of International Law 756; Swepston L, “A New Step in the International Law on Indigenous and Tribal Peoples: ILO Convention No. 169 of 1989 ”15 Oklahoma City University Law Review 687; “International Labour Standards Regarding Indigenous and Tribal Peoples” (International labour standards regarding indigenous and tribal peoples July 22, 2016) <https://www.ilo.org/global/topics/indigenous-tribal/WCMS_502755/lang–en/index.htm.> accessed May 24, 2019.

[20] See Article 1 of ILO Convention No. 169.

[21] Corntassel J, “Who Is Indigenous? ‘Peoplehood’ and Ethnonationalist Approaches to Rearticulating Indigenous Identity” (2003) 9 Nationalism and Ethnic Politics 75.

[22] See Roy (n 5); Chowdhury (n 6); Uddin (n 11); Chakma (n 12) and Roy (n 14).

[23] See generally Roy (n 13) 113-182.

[24] See Ahmed K, “Defining Indigenous in Bangladesh: International Law in Domestic Context” (2010) 17 International Journal on Minority and Group Rights 54.

[25] ibid 56.

[26] ibid 56, 73.

[27] See U.N. Doc. E/CN.4/Sub.2/1995/24, para 57 cited in Ahmed K, “Defining Indigenous in Bangladesh: International Law in Domestic Context” (2010) 17 International Journal on Minority and Group Rights 50.

[28] For detailed analysis, see Mohsin A, The Politics of Nationalism: The Case of the Chittagong Hill Tracts Bangladesh (2nd Ed) (University Press 2000) 49-75.

[29] Article 23A has become a provision of Part II of the Constitution of Bangladesh and Article 7B expressly identifies all Articles of Part II as one of the part of the basic structures of the Constitution and moreover it expressly restricts any amendment of the basic structures of the Constitution in the following words, “the basic structures of the Constitution… shall not be amendable by way of insertion, modification, substitution, repeal or by any other means”.

[30] The preamble of the Constitution of Bangladesh states, “it shall be a fundamental aim of the state to realise through the democratic process a socialist society, free from exploitation- a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens.”

[31] Article 29(3)(a) of the Constitution of Bangladesh states, “Nothing in this article [Article 29(3)] shall prevent the State from- making special provision in favour of backward section of citizens for the purpose of securing their adequate representation in the service of the Republic.”

[32] Article 10 of the Constitution of Bangladesh is one of the Fundamental Principles of State Policy which states, “A socialist economic system shall be established with a view to ensuring the attainment of a just and egalitarian society, free from the exploitation of man by man”.

[33] Sampriti Chakma v. Commissioner of Customs & Others (5 BLC, AD, 2000, 29) cited in Roy (n 8) 7.