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ENGLISH

CONTENTS

ACKNOWLEDGEMENTS

PRESENTATION

INTRODUCTION

1. Indigenous peoples and reform of the State in Latin America

Willem Assies

2. Indigenous rights and Latin American multiculturalism: lessons from the Guatemalan peace process

Roger Plant

PATHWAYS OF REFORM

3. Ethnic politics and State reform in Ecuador

María Fernanda Espinosa

4. The debate concerning indigenous rights in Mexico

Moisés Franco Mendoza

5. Indigenous peoples, the Law of Popular Participation and changes in government: Bolivia, 1994-1998

Ricardo Calla

DANCES OF IDENTITY: STATE POLICIES AND PROCESSES OF ETHNOGENESIS

6. From "mixed Indians" to "indigenous remainders": strategies of ethnocide and ethnogenesis in northeastern Brazil

José Mauricio Andion Arruti

7. Titling collective lands of black communities in Colombia, between innovation and tradition

Odile Hoffmann

8. The reconstruction of the Purhepecha nation and the process of autonomy in Michoacán, Mexico

José Eduardo Zárate Hernández

"USOS Y COSTUMBRES" IN LOCAL GOVERNMENT

9. Local government and State formation in nineteenth century Mexico: the case of San Pablo Apetatitlán, Tlaxcala

Yvette Nelen

10. Frontiers of municipal governability in Oaxaca, Mexico : the legal recognition of usos y costumbres in the election of indigenous authorities

María Cristina Velásquez Cepeda

11. Municipalization and indigenous peoples in Bolivia : impacts and perspectives

René Orellana Halkyer

INDIGENOUS JUSTICE AND STATE LAW

12. The constitutional recognition of indigenous law in Andean countries

Raquel Yrigoyen Fajardo

13. The tutela-system as a means of transforming the relations between the State and the indigenous peoples of Colombia

Esther Sánchez Botero

LANDS, RESOURCES AND TERRITORIES

14. Managing resources: between autonomy and partnership

André J. Hoekema and Willem Assies

15. The State and indigenous lands in the autonomous regions of Nicaragua : the case of the Mayagna community of Awas Tingni

María Luisa Acosta

16. Territorial rights and indigenous law: an alternative approach

Patricia Urteaga Crovetto

CONCLUSION

Diversity as a challenge: a note on the dilemmas of diversity

Willem Assies, Gemma van der Haar and André J. Hoekema.

PRESENTATION

A salient feature of the constitutional reforms that have taken place in various Latin American countries over the past years is the recognition of the multiethnic and pluricultural character of these countries. Without doubt this development reflects the new weight of ethnicity in Latin American politics and the emergence of new movements and new forms of organization among indigenous peoples. The constitutional recognition of multiethnicity marks a rupture with the homogenizing and assimilationist policies of liberal republicanism and developmentalist populism.

However, although by itself the recognition of diversity in the constitutions is significant, the real challenge lies in its actual implementation by way of concrete policies and institutional reforms. Research on the efforts in this direction is still scarce and dispersed and the studies that exist often remain superficial in that they fail to go beyond an abstract discussion of declarations of good intentions. Further study of the relations between new legislation and concrete practices is therefore needed.

This book seeks to contribute to this endeavor by offering a series of case studies in order to further the debate over the recognition of multiethnicity. The articles in this volume situate the constitutional enunciations and the reforms they imply in a broader context of political, social and cultural processes. While covering various Latin American countries, full geographical coverage has not been the objective. Instead, we have sought to address some key issues on the basis of diverse experiences. A principal contribution of the studies consists in the contextualization of state reforms and in outlining their imbrications with processes of change at the global as well as the local level. They show how the processes of state reform are the outcome of confrontations and confluences among a variety of social and political actors -indigenous peoples being only one of them- and how they reflect pressures "from below" as well as "from above." The studies also make clear how the recognition of multiethnicity implies a profound questioning of the accustomed model of the nation-state and the notions of democracy and citizenship predicated upon this model.

In his contribution to the introductory section Willem Assies discusses some issues of conceptualization and outlines the emergence of the new indigenous movements, emphasizing the contemporary nature of these movements and their imbrication with broader social processes and debates. He highlights the way in which indigenous demands feed into the processes of state reform which furthermore are marked by structural and social adjustment policies as well as processes of democratization or even pacification. Citing the cases of Bolivia , Colombia and Mexico the author introduces the main themes of the volume: the relation between policies of administrative decentralization and the recognition of indigenous authorities, the scope and limitations of the institutionalization and regulation of legal pluralism and the question of territoriality. In the following chapter Roger Plant compares the various international norms regarding indigenous rights and highlights some differences in orientation. The concrete case of the Guatemalan Peace Process serves as a point of reference for his reflections. This allows him to frame the strategic question of the relationship between forms of autonomy and independent indigenous institutions, on the one hand, and representation and participation in national and societal institutions, on the other.

The second section contains various articles that discuss the entanglements of the reform processes that aim for recognition of multiethnicity at the level of the national state. María Fernanda Espinosa outlines the development of the indigenous movement and its discourse in Ecuador and examines its impact on the recent constitutional reform in that country. She points to some of the challenges ahead in operationalizing the reform, such as the institutionalization of legal pluralism and the recognition and delimitation of indigenous territorial circumscriptions. Moisés Franco Mendoza examines the 1992 Mexican constitutional reform from the perspective of a classical definition of justice as "the continuous will to give everyone his due." If taken seriously, this maxim would lead to a genuine recognition of ethnic and cultural pluralism in the face of the exclusionary ideology of mestizaje of the dominant sectors of society. The analysis shows that despite constitutional enunciates there still is a long way to go. Ricardo Calla's study of the Bolivian Law on Popular Participation, so often praised for its recognition of indigenous rights in the context of a process of municipalization, shows the ambiguities and fragility of advances on this point. He argues that in fact the municipalization process constituted the "hard core" of the Popular Participation Law which in the end takes precedence over its horizon of participation and favoring indigenous peoples.

The section "Dances of Identity" addresses the processes of (re)configuration of ethnic identities and the complex interaction of such phenomena with state policies. From different angles the articles in this section examine the complexity of processes of ethnic reorganization. They show how these processes are not simply generated by an endogenous logic but instead are marked by their situational and relational character. These studies also draw attention to the fact that indigenous societies are not homogeneous. The processes of reorganization imply contradictions and frictions within ethnic groups which often provide for creativity but which also can be destructive. José Mauricio Andion Arruti discusses the permanent reelaboration of indigenous identity in relation to the dominant society in the Northeast of Brazil, an area little studied until now. He shows how, under different conjunctures, such processes can produce a quasi-miraculous multiplication of groups that vindicate their ethnic identity. In Odile Hoffmann's contribution the reconfiguration of identities also is highlighted. She focuses on the processes of ethnic-territorial mobilization of black communities along the Colombian Pacific Coast which were prompted by the process of constitutional reform and, above all, by the subsequent promulgation of a Ley de las Comunidades Negras in 1993. For his part, José Eduardo Zárate Hernández draws attention to the process of reconstruction of the Purhepecha Nation in Michoacán , Mexico , and the way this involves a revitalization of communal forms of organization and the invention of new symbolisms.

Indigenous ways of "doing politics" is the central theme of the next section. In her essay on the township of San Pablo Apetatitlán Yvette Nelen discusses the complex process of local institutional development after the abolition of the colonial distinction between the República de Indios and a República de Españoles in the wake of Mexico 's Independence in 1821. This reveals the modes of adaptation to and appropriation of the new liberal republican institutionality by the local population and the emergence of new forms of syncretism and dynamic coexistence between new and traditional practices and discourse. A quite different picture is presented in María Cristina Velásquez' analysis of the state of Oaxaca which highlights the process of "indianization" of municipal institutions in this state and the persistence of usos y costumbres (customary practices) that contrast with liberal-republican normativity. As a result, most of the municipalities in this state nowadays are governed according to their usos y costumbres in which the cargo-system plays a key role. The essay discusses the recent formal recognition of this reality through the reform of Oaxaca 's electoral code and illustrates how this officialization of customary practices engenders new paradoxes and dilemmas. In his discussion of the Bolivian municipalization process René Orellana equally calls attention to the stubbornness of custom in the face of state administrative techniques. He demonstrates how the rules of the Law on Popular Participation, which purportedly opens a space for indigenous forms of governance, provide a far too narrow legal framework for such purposes. Political-administrative divisions and boundaries promote the fragmentation of indigenous territories and organizational formats, while the rules that should guarantee indigenous representation through their traditional authorities become new mechanisms of domination. Rather than genuine pluralization, the process seems to imply homogenization and disregard of differences.

While the recognition of pluralism and differentiated sources of legitimacy in the political sphere constitutes one area of controversy and of the search for alternatives, this also applies to the juridical sphere and the recognition of normativities and sources of law distinct from prevailing ones. Raquel Yrigoyen thus scrutinizes the criteria that would make for genuine recognition; that is recognition that does not imply the subordination of indigenous legality. Comparing the normativity of ILO Convention 169 and the constitutional stipulations regarding the recognition of indigenous jurisdiction in various Andean countries, she addresses the question of devising mechanisms of coordination or mediation between the indigenous jurisdiction and the state system as well as in relation to human rights. Esther Sánchez Botero, in turn, examines the paradoxes of the Colombian case where, on the one hand, the 1991 Constitution recognizes the autonomy of indigenous authorities in the exercise of jurisdictional functions according to their own norms and procedures but, on the other hand, stipulates that this may not be "contrary to the Constitution and the laws of the Republic." This leads her to examine the attempts at solving the ethical dilemmas thrown up by a "distinct treatment of the different" in a series of verdicts of the Colombian Constitutional Court . The importance of such verdicts goes well beyond the merely juridical in view of their implications for the social construction of intercultural understanding that would provide the bases for coexistence and respect of diversity.

The question of rights to lands, resources and territories is another critical aspect of the relation between state prerogatives and indigenous rights; a question that, for better or for worse, is often associated with the conservation of biodiversity and the protection of the environment, as André Hoekema and Willem Assies point out in their article on the recognition of indigenous territories in Bolivia and Colombia. María Luisa Acosta analyzes the development of new institutional arrangements in the North Atlantic Autonomous Region of Nicaragua and their consequences for the possession of the traditionally occupied, but untitled, lands of the indigenous communities in the region. In the game of alliances and disputes over competencies among different institutions at the national, regional and local level, the indigenous communities face the menace of being dispossessed of their ancestral lands. "Major" political and economic interests tend to subvert and empty the indigenous rights formally consecrated in the Constitution and the Autonomy Statute. In a study of the Peruvian Amazon region Patricia Urteaga Crovetto situates the fragility of indigenous territorial rights in a context of juridical centralism of the State, the prerogatives the State arogates to itself and the ideology of neutrality of the State which, in the best of cases, only leaves some space for "conceding" or "granting" rights to indigenous peoples. Genuine recognition of indigenous legality, however, suggests a radically different approach in the sense that truly recognized indigenous law would also be a foundation for territorial rights.

By way of conclusion Willem Assies, Gemma van der Haar and André Hoekema present some reflections on the search for new forms of coexistence and respect for ethnic and cultural plurality in the context of reform of the State in Latin America .  

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Same Book in Spanish/ El mismo libro en castellano 

El Reto de la Diversidad. W. Assies, vd Haar y Hoekema (Castellano) 1999

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