Indigenous Rights

A woman learns to write and an indigenous child shows pride in her heritage through CONFENIAE, an Ecuadorian Indigenous organization. Photo by Andrew Conrad.

In recent human rights practice, Latin America’s indigenous peoples have fared better than its Army officers. While government efforts to apply the rule of law to military officers have been universally praised, indigenous steps toward defining and practicing multicultural citizenship may be more significant, as they lead to long-term normative development. Truth Commission reports in Peru and judicial challenges to immunity in Argentina and Chile have shown us that reconciliation cannot be achieved simply by official decrees. Yet, new legislation supporting indigenous rights moves beyond singular concerns with violations and efforts to check future abuses of power by elites. New legal and institutional measures—national and international laws, declarations, aid programs, and ratification of human rights conventions—establish standards that advance and secure the participatory democratic processes through which many human rights become established practices. The role of indigenous peoples in crafting them has furthered democratic practice.

SPOTLIGHTS

In early July, The Economist reported that Argentine President Kirchner’s candidate for the Supreme Court vacancy stated that laws excluding further trials of military officials accused the gross human rights violations of the 1980s are unconstitutional. He suggested that they may be struck down later this year. Lower Chilean courts have been attempting similar challenges. Peru’s Truth and Reconciliation Commission’s recently presented a final report documenting more than 69,000 killings between 1980 and 2000, nearly twice the previous estimate. (See page 25.) These recent announcements suggest the vigorous and free flow of sentiments that spurred the “cascade” of human rights legislation after the collapse of Latin American military dictatorships in the late 1980s and early 1990s.

Reining in abuses of power clearly protects indigenous people. As in Guatemala during the 1980s and parts of Colombia today, more than 85% (almost 60,000 men, women, and children) of Peru’s victims of violence during the 1980s were indigenous peoples wedged between the guerillas and the Army.

However, while truth commissions worked to compile testimonies, indigenous peoples continued to alter their status, shifting away from faceless victims to active citizens. On June 20th the Organization of American States’ (OAS) Committee on Juridical and Political Affairs, hardly noted by any media, presented its near-final text for a landmark new “American Declaration of the Rights of Indigenous Peoples.” Such normative advances which, moving less rapidly and visibly than a cascade, are, from an indigenous perspective, carving canyons into the bedrock of Latin America’s political and economic status quo.

BELLWETHERS

Indigenous peoples and their concerns have become bellwethers for many others who feel equally marginalized. By advancing their own human rights project, indigenous peoples are not simply railing against past abuses but are moving formally and proactively toward inclusion in national political and economic life. This is clear as much from the manner in which formal documents are being drafted as in their content.

The June 2003 OAS declaration, Brazil’s July 25 ratification of the International Labor Convention No. 169 on Indigenous and Tribal Peoples, the May meetings of the UN’s Permanent Forum on Indigenous Issues, and the June announcement of the World Bank’s “Grants Facility for Indigenous Peoples” (to be administered through the UN’s Permanent Forum) could be seen largely as symbolic official efforts to acknowledge ancient wrongs, with few teeth to right them. They thus risk, and often gain, cynical interpretations like those that followed the elegantly worded but rarely implemented agrarian reform legislation that marked most Latin American countries during the 1960s. However, some critical differences mark the new standards. These declarations, conventions, and forums are international rights-based initiatives—not the product of State largesse or simple paternalism. They not only protect peoples of relative weakness but also encourage their active participation.

In the same sense, processes by which these documents have been conceived, drafted, and redrafted respond directly to some of the basic rights they proclaim—consultation, participation, and negotiation. For the Declaration of the Rights of Indigenous Peoples, the Inter-American Commission on Human Rights (ICHR) proudly and accurately noted that, since the first drafts in the 1990s, each version has included suggestions, comments, and proposals by indigenous peoples as well as States. When the June 2003 draft was presented the OAS again exhorted its Member States to undertake the wide and formal consultation demanded by indigenous peoples.

DILEMMAS OF PRESCRIPTION

Documents like that of the OAS represent a significant shift away for the nearly exclusive proscriptive approaches—”Stop doing what you are doing.”—to indigenous rights to a more prescriptive—”Do something that you are not doing.”—stance that also provides for citizen input regarding what should be prescribed. One can, and should, always decry violations and proscribe certain actions however, inclusive prescriptive standards may reduce the cries for protections by incorporating indigenous peoples and similarly situated groups into positions where they make or influence the policy and programs that affect them. But any shift in focus from proscriptive to prescriptive rights also raises new definitional problems for implementation. While it is relatively easy to say stop, it is quite another matter to prescribe measures when there are few precedents and when almost any measure must be tailored to specific cases.

To illustrate, land and resource rights have been and remain at the heart of most indigenous rights debates. These rights are now clearly recognized in the OAS declaration (“…for the indigenous peoples their traditional collective forms of ownership and use of lands, territories, resources, waters, and coastal zones are a necessary conditions for their survival, social organization, development, spirituality, and individual and collective well-being”) and treaties such as ILO Convention No. 169 (“…governments shall respect the special importance for cultures and spiritual values of the peoples concerned of their relationship with lands and territories.”). Likewise, in its recent landmark decision in the case of Awas Tingni vs. Nicaragua, the Inter-American Court of Human Rights interpreted the American Convention on Human Rights such that the basic right to property included those indigenous peoples collective right to broad territories defined by “traditional use and occupancy.” (See ReVista Winter 2002) These rights are “special measures,” that the International Labor Organization says are not privileges but rather the recognition of difference, in which “the distinction, as far as indigenous and tribal peoples are concerned, is that they often have their own cultures and ways of life which should be respected, in order not to destroy the societies which they have built up over the millennia.” Building on these differences, political philosopher Will Kymlicka argues that rights for groups such as indigenous peoples—i.e., those “formed functioning societies, with their own institutions, culture, and language, concentrated in a particular territory, prior to being incorporated [usually involuntarily] into a larger state”—are not “unfair privileges or invidious forms of discrimination, but [are] compensation for unfair disadvantage and [are] consistent with, and even required by justice.” In brief, from a legal and philosophical perspective, indigenous peoples have broad and unique land rights.

However, it is one thing to acknowledge a broad set of rights and quite another to specify them. In the case of Awas Tingni vs. Nicaragua, the Court prohibited any further resource extraction or similar development by the government until the tenurial situation was clarified. The Court also laid out a more difficult prescriptive requirement; rights are to be defined in collaboration with community members and by taking into consideration their unique social and cultural situation.

While this requirement is certainly supportive of the community’s claims, it does not lend itself to easy implementation. Even if there were precedents, they could hardly be applied without significant modification, contextualization, and negotiation. One group’s actual and perceived claims and rights to land are not necessarily those of another. Each must be analyzed, reviewed, debated, and subsequently negotiated within the communities and between the communities and the State. This is no easily prescribed process. It is thus no surprise that in many debates regarding the implementation of prescriptive human rights, consultation and participation rank high among indigenous lists of demands.

Until policies and patterns of effective and genuine participation and consultation—essential procedures that respond to highly contextualized rights—are satisfied, these rights may remain unrealized and failure to do so may increase the potential for unrest or violence. Demands for procedural clarity regarding participation and consultation now extend far beyond indigenous communities and form part of the many new Latin American constitutions, most noticeably that of Colombia. However, each group faces many of the same problems with implementation. Advancements in indigenous rights thus serve as bellwethers for democracy and human rights implementation throughout the region.

Demands for consultation and participation are now common, and efforts to respond to them are underway in countries like Peru, Colombia, and Bolivia. But perhaps the most clearly articulated and advanced work has taken place in Ecuador. Rather than wait to opine on or reject government proposals, indigenous peoples there have positioned themselves so as to voice their concerns and launch participatory processes in highly creative and proactive ways.

AN ECUADORIAN INDIGENOUS APPROACH TO REALIZING RIGHTS

In 1993, the Confederation of Indigenous Nationalities of Ecuador (CONAIE), issued a clear proposal for a “‘New Multinational Nation’ with multinational, democratic government attentive to the interests of all of the nationalities…of Ecuador and guaranteeing the material and spiritual well-being of the family, the community, and society in general.” In calling for the recognition of and subsequent exercise of power by all sectors of the ethnically diverse country, CONAIE moved to alter non-indigenous perceptions of indigenous peoples as being somehow “separate” from the national society. Each indigenous group was to be understood as a separate “nationality” with a separate origin, history, tradition, and territory. By redefining themselves as “nationalities,” Ecuador’s indigenous peoples sought to institutionalize diversity through recognition of the differences that exist within the broad categorization of “Indians.”

The lexicon of ethnicity later shifted from “multinational” to “plurinational” in which the organization consistently recognized nine indigenous nationalities—Lowland Quichua, Shuar-Achuar, Chachi, Tsachi, Siona-Secoya, Huaorani, Cofán, Awá, Epera and the largest and previously singular Andean/Amazonian “nationality” Quichua. The Quichua subsequently began to subdivide and identify themselves through a more diverse set of ethnic terms “peoples (pueblos).” Some of these Andean groups have long been recognized as somehow distinct and named, but now existing distinctions were institutionalized and new “ethnic identities” and related territories emerged for groups previously seen simply as Quichua-speaking campesinos. These “new” Andean groups distinguished themselves as smaller, distinct pueblos. To emphasize and conceptualize the point, CONAIE now classifies Afro-Ecuadorians and Hispanic-Ecuadorians as nationalities.

Social scientists might question the “lumping” and sharply defined ethnic boundaries between and within “nationalities” that characterize indigenous public discourse. Indigenous emphasis, however, rests on the outcomes of a dynamic, internally debated process, not a definition of nationalities. Boundaries are defined not by geography or ancestry, but rather by the manner in which the various nationalities relate to and work with each other. Despite the complexity, the purpose of the discourse is absolutely clear—indigenous peoples should be included as equals in a plurinational state marked by participatory and discursive democratic processes.

Otherwise, indigenous peoples suggest, the country is a democratic façade, defined and controlled by elites and closed to most social sectors. The State should be one in which the different nationalities have agreed on a constitution and governing procedures. Democracy, in turn, is understood as permanent participation in political and administrative decision-making by all peoples and nationalities. These ideas are radical redefinitions only because they have not been practiced before.

In the 1996 elections, the newly formed Pachacutik indigenous political party promoting plurinationalism and inclusion, won eight congressional seats. But, long-term advances in indigenous rights occurred in the months before the 1998 election, as a constitutional assembly with a significant number of indigenous delegates drafted a new constitution. This drew heavily on International Labor Organization’s Convention No.169, which established indigenous peoples as legal subjects with broad collective as well as individual rights, medical practices, law, identity.

Pachacutik and the indigenous movement in general were presenting themselves not simply as a new and legitimate political party but also as a vanguard for advancing broad popular participation and democratization. During the government of President Jamil Mahuad which followed the 1998 elections and, again after President Mahuad’s sudden removal from office and installation of President Gustavo Noboa, CONAIE regularly pressed for, and often won agreements for regular government dialogues with indigenous peoples and another for a broader national dialogue. These mesas de dialogo would include CONAIE and numerous other civil sector groups. CONAIE thus advanced formal means of participation and inclusion as an official practice.

However, in late January 2001 CONAIE, seeing little progress in the dialogues, began to mobilize indigenous peoples throughout the country for another general strike. This form of direct action had catapulted the indigenous organization over the previous decade to high national and international visibility, garnering wide support for their concerns and needs. Fully aware of CONAIE’s subtle strategic power, Noboa and cabinet members, after several days of intransigence and demands that the strike actions be lifted before any talks could get underway, agreed to meet with CONAIE leaders on February 6. In one day they drafted and signed a 20-point agreement, the main points of which were small but significant gains. For CONAIE, perhaps the more important item was the administration’s commitment, with established dates, to an open dialogue with CONAIE on the solution of Ecuador’s financial, social, commercial, and monetary policies. CONAIE once again had positioned itself for leadership status in the development of national policy. By including other sectors of civil society in the dialogues, CONAIE directly advanced the organization’s broader agenda toward “plurinational” governance. Equally important was the social capital obtained by CONAIE from non-indigenous people sectors of society.

Ecuador’s indigenous peoples continue to open space toward a more inclusive society through their representatives in Congress and local level politics. This has been a consistent pattern. While the organization’s specific actions obviously change, there has been persistent political pushing, all focused on inclusion and participation.

The ideas and aspirations of “plurinationalism” and the related engagement with the State clearly demonstrate CONIAE’s successful rejection and reconfiguration of State-managed corporatism. Any major economic “reforms” will most likely have to be negotiated rather than accepted as inevitable “globalization.”

CONAIE’s proactive approach is certainly not “the” solution to regional human rights issues of participation and consultation, or land rights. It is simply “an” approach taken by one sector of one country. Realizing many such prescriptive human rights will require similar contextualization and resultant negotiation. The Ecuadorian case, nonetheless, illustrates a clear response to some of the concerns and dilemmas of prescriptive approaches to human rights. While consultation, dialogue, and negotiation are often difficult and time-consuming processes, they open the door to effective and approatiate approaches to many other issues. As Michael Ignatieff notes, human rights in general can be understood as a “commitment to deliberation…a willingness to remain in the room, listening to claims one doesn’t like to hear, for the purpose of finding compromises that will keep conflicting claims from ending in irreparable harm to either side.” Many indigenous people seem to agree. Dialogue may be less spectacular that large public displays of outrage, but given the limited formal capacity to enforce human rights violations and oblige compliance, deliberation may be one of the most effective means to many ends.