English

The rights of children as a limit to the autonomy of indigenous peoples.


The petitioner filed a tutela on behalf of his minor daughter against the Cabildo Indígena Nasa Central Kwe`sx Yu Kiwe , considering that her fundamental right to have a family and not to be separated from her was violated. He says that the Gobernadora del Cabildo decided that the custody of his daughter would be in charge of his maternal grandparents, although he said he wanted custody also because he was in good economic condition.

The  Court granted the tutela and ordered the Gobernadora del Cabildo to make a new decision, which must take into account the exercise of custody and personal care of the minor, from the model of shared custody, accepted by the uses and customs of the Nasa Kwe`sx Yu Kiwe community. In this regard, the Court  established that the autonomy of indigenous peoples, although they find full protection and constitutional recognition, may be exceptionally limited when the State authorities are certain that there is a situation of violation of the rights of indigenous children. The Court reiterated that the Constitution protects in a special way the best interests of indigenous children, which is not only binding for ordinary judges, but also for the indigenous communities themselves and must be evaluated according to their cultural and ethnic identity.