Socio-Legal Struggles for Indigenous Self-Determination in Latin America

Reimagining the Nation, Reinventing the State

Roger Merino

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000387247
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

This book is an interdisciplinary study of struggles for indigenous self-determination and the recognition of indigenous' territorial rights in Latin America.

Studies of indigenous peoples' opposition to extractive industries have tended to focus on its economic, political or social aspects, as if these were discrete dimensions of the conflict. In contrast, this book offers a comprehensive and interdisciplinary understanding of the tensions between indigenous peoples' territorial rights and the governance of extractive industries and related state developmental policies. Analysing the contentious process pushed by indigenous peoples for implementing pluri-nationality against extractive projects and pro-extractive policies, the book compares the struggle for territorial rights in Bolivia, Ecuador and Peru. Centrally, it argues that indigenous territorial defenses against the extractive industries articulate a politics of self-determination that challenges coloniality as the foundation of the nation-state. The resource governance of the nation-state assumes that indigenous peoples must be integrated or assimilated within multicultural arrangements as ethnic minorities with proprietary entitlements, so they can participate in the benefits of development. As the struggle for indigenous self-determination in Latin America maintains that indigenous peoples must not be considered as ethnic communities with property rights, but as nations with territorial rights, this book argues that it offers a radical re-imagination of politics, development, and constitutional arrangements.

Drawing on detailed case studies, this book's multidisciplinary account of indigenous movements in Latin America will appeal to those with relevant interests in politics, law, sociology and development studies.

1 Introduction

Indigenous peoples’ struggles and the state in Latin America

1. Indigenous peoples’ struggles and the state: the international context

Indigenous rights are today global and embedded in many human rights international regulations and institutions. Amongst declarations and conventions, the most relevant are: the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007); the Organization of American States (OAS)’s American Declaration on the Rights of Indigenous Peoples (2016); and the International Labor Organization (ILO)’s Convention 169 (1989). There are also multilateral forums, such as the UN Working Group on Indigenous Populations and the UN Permanent Forum on Indigenous Issues. Of great relevance are also those policies, guidelines, and codes of conduct of international financial institutions and transnational corporations, such as the World Bank’s Operational Directive 4.10 (OP/BP 4.10), the International Finance Corporation’s ‘Performance Standard 7’, and the International Council on Mining and Metals’ ‘good practice guide’ Indigenous Peoples and Mining (ICMM, 2015).

In addition, legal and policy innovations on Indigenous peoples’ rights have been expanding in regional human rights bodies, such as the African and inter-American human rights systems. Even more, other international law and policy areas, such as the environment, intellectual property, and trade, have included indigenous concerns in key international instruments; for example, the United Nations’ Framework Convention on Climate Change (1992) and the Convention on Biological Diversity (1993) define current environmental arrangements with explicit provisions for indigenous rights. It is not casual that the UN General Assembly proclaimed 1994–2003 and 2005–2015 as the first and second International Decades of the World’s Indigenous Peoples.

These institutions and regulations shape a transnational legal ecosystem that has influenced national legal and policy reforms in the last decades. For example, they have led to the implementation of the standard of free, prior, and informed consent (FPIC) in many Latin American countries. Moreover, no matter the different percentages of indigenous populations in those countries inhabited by ancestral peoples, most of them are implementing comprehensive policies for intercultural health, intercultural education, land titling, and so forth. These policies aim at overcoming those of the last century, which either forcibly incorporated or marginalized indigenous groups.

For some scholars, this trend shows the emergence of an era of indigenous self-determination that incorporates the collective rights of Indigenous nations within the legal and institutional boundaries of the nation-state, challenging in this way classical views of state sovereignty (Wheatley, 2014; Lenzerini, 2006; Corntassel and Hopkins, 1995). However, pro-indigenous policies and regulations are still supported under the umbrella (or the extension) of multicultural ideas and policies of the eighties and nineties. Indeed, without denying post-colonial geopolitical classifications of the different ‘worlds’, the underlying idea of the current era is that those Indigenous nations that metaphorically are members of a ‘fourth world’ should hold special rights, socio-cultural institutions, and collective properties within the territorial and epistemological boundaries of first and third world states. Tolerance, accommodation, and social inclusion of ‘cultural minorities’ are still keywords for international and national indigenous policies.

Moreover, the globalization of indigenous rights encounters the globalization of investors’ rights and national and international institutions that support extractive industries and infrastructure projects in the terrain of everyday social practices over the territory. Free trade agreements that liberalize the forests for land exploitation; laws for promoting transnational investments in infrastructure within indigenous land; even the creation of natural protected areas that exclude indigenous groups – all trigger a new wave of social conflicts and disputes on the meaning of indigenous self-determination. They emerge in different contexts marked historically either by settler colonialism or external colonialism (Veracini, 2011; Churchill, 2002). In the former, the colonizing power exported a sufficient portion of its own population to supplant rather than subordinate Indigenous nations, whose survivors are encapsulated within the resulting settler state (such as in the United States, Canada, Australia, and New Zealand). In the latter, indigenous populations were subordinated to external colonial powers (such as in Latin America and Africa). Although since the middle of the last century, these different contexts were labeled as developed and developing countries, they similarly exerted ‘internal colonialism’ as the post-colonial expansion of the nation-state domain over indigenous territories (Fenelon and Hall, 2008; Whall, 2005).

For example, in Australia, Courts of Justice recognized indigenous land rights for the first time in 1992 in favor of the Meriam people, but still the government has the right to exploit indigenous land on behalf of the national interest (Cronin, 2017; Ritter, 2009), triggering conflicts around mining activities (Altman and Martin, 2009). In New Zealand, despite the legal recognition of Maori territory, free trade agreements signed by the government in recent years promote policies that give rights over Maori resources to large corporations (Eureti, 2017; Bargh, 2007; Banner, 2007; Stewart-Harawira, 2005). In Nigeria, the Ogoni have been claiming compensation due to the damage to their health and livelihoods produced by Shell’s oil exploitation over decades (Tamuno, 2017; Cayford, 1996). In the Central African rainforest, around 300,000 Batwa are facing intense pressures on their territories because the forests are cleared for agribusiness (Adeola and Viljoen, 2018; UN, 2009).

In Mexico, the North American Free Trade Agreement with the United States and Canada (NAFTA, 1994) promoted a legislative modification directed to dispossess indigenous land. This fact triggered the Zapatistas’ uprising: Indigenous peoples occupied the main towns of the State of Chiapas and demanded territorial rights and the respect of their own forms of governance (Dinerstein, 2015; Holloway, 2010; Esteva and Pérez, 2001; Ceceña and Barreda, 1998). In the Ecuadorian Amazon, Texaco’s oil exploitation caused acute environmental damage, and affected many Indigenous peoples with disease and displacement, including the Huaorani, Secoya, and Cofán, who have been involved in transnational litigation against the company (Lu and Silva, 2015; Sawyer, 2004; Rodríguez-Garavito and Arenas, 2005). In Colombia, the U’wa have been struggling against Shell, Oxy, and Ecopetrol (the national oil company) over the oil exploitation undertaken within their territory (Rodríguez-Garavito and Arenas, 2005). In Chile, Mapuche communities have protested national and international timber companies that affect local agriculture by extracting water from Mapuche soil (Gaitán-Barrera and Khalid, 2018; Richards, 2010). Similar cases have emerged across Latin America and the Caribbean (Strecker, 2017), where Indigenous peoples struggle through street protest, lobbying, and national and transnational litigation against the state and corporations that affect indigenous territories and livelihoods.

Conflicts also emerge in response to infrastructure projects such as the construction of dams or the building of roads. For example, in India, Adivasi peasants opposed the construction of dams on the Narmada River that would inundate their riverbed fields (Doma et al., 2018). Brazilian Amazonian Indigenous peoples opposed the Belo Monte dam project and obtained a favorable decision from the Inter-American Court of Human Rights (Jaichand and Andrade, 2013). In Bolivia, Indigenous peoples defended the TIPNIS – an indigenous and natural protected area – against a highway project implemented by President Morales (Laing, 2015). Most of these conflicts are connected in one way or another to the political economy of extraction by facilitating the exploitation or commercialization of natural resources.

The state’s defense of extractive activities and infrastructure projects vis-à-vis indigenous territorial rights rests on economic and political grounds. The economic grounds refer to the necessity of modernization and development for the whole country, whereas the political grounds appeal to the need to respect state sovereignty and defend the higher interest of the ‘nation’. Ultimately, what is at stake is how Indigenous peoples and national elites deploy different imaginations and projects of national development and state sovereignty.

In this context, it is crucial to explore why and how – notwithstanding the success of indigenous activism in influencing international frameworks and national reforms – tensions and conflicts still emerge around the use and exploitation of the territory on behalf of the ‘national interest’. Latin America, in this respect, is relevant to understand these dynamics not only because of its large indigenous population but also because it has made significant steps towards deepening the institutionalization of indigenous rights. Two Latin American countries – Bolivia and Ecuador – are the first in the world to implement a state model of plurinationalism; most Latin American constitutions and legal frameworks recognize some degree of autonomy and collective territorial rights for Indigenous peoples. However, the region is still the setting for deep struggles around territorial rights and the meaning and scope of indigenous self-determination.

2. Plurinationalism encounters legal coloniality: the theoretical framework and contribution

The general research question that guides this book is the following: What are the meaning and implications of indigenous struggles for territorial rights in Latin America in relation to state sovereignty? To answer this question, the book proposes an interdisciplinary approach that includes social theory, political theory, and legal theory. The broader theoretical framework that unifies these different areas of knowledge is inspired by Latin American post-colonial/decolonial theories. Rather than a unified theory, I conceive them as a scholarly position of different groups of thinking that emerged in the last two decades to theorize issues of culture, politics, institutions, and economy from Latin America, acknowledging the permanence of (and resistance to) colonial socio-economic and epistemological structures in the governance of social life.

With an emphasis on cultural studies, decolonial theory is key to understanding the permanence, in current societies and state formations, of colonial patterns of power embedded in the modern paradigms of universalism and rationality (Quijano, 2000; Dussel, 1994; Mignolo, 2011; Grosfoguel, 2009). This theory explains how two global processes inaugurated by the colonialism of the Americas in the fifteenth century – a global process of accumulation (the South–North transfer of resources) and a global process of labeling (the imposition of Indian, black, and mestizo identities as inferior to Europeans) – shaped what we understand as ‘modernity’ and still define the social dynamics of current societies. This ‘coloniality of power’ – in the words of Anibal Quijano – sustains thus racialized structures and imaginaries that define current power distribution in social practices and state actions. Coloniality of power also operates by stratifying knowledge according to the epistemic necessities of colonial and post-colonial powers – namely, the need to control resources and populations. This angle of coloniality is named the coloniality of knowledge, which was born thanks to the colonial justifications formulated by the precursors of illustration and the assumption that European thinkers were rational subjects with no spatial–temporal location in world power relations (Grosfoguel, 2009; Castro-Gómez, 2005). It still works today by labeling non-Western knowledge as primitive to legitimate Western conceptions of – civilized, modern or developed – social and economic institutions (Quijano, 2000).

Decolonial studies are characterized by privileging discursive critiques rather than empirical analysis of concrete case studies. Other groups of scholars, also engaging with the colonial problem, explore in-depth case studies with the scholarly methods of anthropology, sociology, and political economy. With a focus on ‘ontological struggles’, political anthropologists such as Marisol de la Cadena and Mario Blaser explore the meaning of indigenous politics as an expression of a different political ontology that challenges Western universal ontology (de la Cadena and Blaser, 2018). In this view, indigenous ontologies dispute the monopoly of science to define ‘nature’ as a resource, and propose the idea of ‘nature’ as a being, sustaining in this way legal and political epistemic breaks, such as the incorporation of the ‘right of nature’ in the Constitution of Ecuador. With emphasis in socio-legal studies, Boaventura de Sousa Santos’s (2016) ‘Epistemologies of the South’ is an important contribution to recover indigenous knowledges obscured by Western universalism (what he calls the ‘sociology of the absences’) and understand the counter-hegemonic uses of liberal discourses, laws, and institutions by indigenous movements (what he calls the ‘sociology of the ...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of abbreviations
• 1. Introduction: Indigenous peoples’ struggles and the state in Latin America
• 2. Reimagining the nation-state: Indigenous peoples and the making of plurinationalism in Bolivia and Ecuador
• 3. Emerging plurinationalism?: Extractive development and indigenous uprisings in Peru
• 4. Local struggles/global utopias
• Bibliography
• Index