La
articulación de la tierra communal y los regímenes de propiedad privada
en
los resguardos de Colombia
Comentario:
La Constitución colombiana de
1991 reconoce los resguardos como formas de propiedad colectiva e inaienable,
en el marco de otros derechos otorgados a los pueblos indígenas. El autor
analiza el origen histórico y el sinificado de la reforma constitucional. A
partir del estudio de un caso (Guambí) se explicitan la tensión y conflictos entre el régimen protector constitucional y
el régimen de propiedad privada. Dicho caso ilustra problemas pendientes a
resolver para armonizar el régimen de resguardos con el de propiedad privada.
. Nota: Documento enviado por el autor a ALERTANET.
Para cualquier reproduccion comunicarse con el autor.
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The articulation of communal tenure and private property
regimes,
a framework for future research in Colombian resguardos[i]
Ponencia presentada en el Congreso Internacional de
Pluralismo legal y derecho popular, Arica, marzo 2000.
J.J. van de Sandt,
MSc. sandt@jur.uva.nl
Introduction
In Colombia, the 1991 Constitution recognizes indigenous resguardos as inalienable communal
property and estipulates that these territories are to be governed by
indigenous councils in accordance with the customs and traditions of local
communities. This official recognition of indigenous territorial rights poses
various practical problems related to the harmonization (articulation) of
communal property (tenure) regimes and the legal order of the state, which is
oriented towards private property. This paper will address some of these
problems. It begins with a brief outline of the history of the resguardo institution up to the present
day. Then, after the specification of some theoretical concepts and a
methodological perspective, an analysis of communal land tenure in the particular
case of Guambía, an Andean resguardo
in southwestern Colombia, has been made with the explicit aim to identify some
relevant questions for future case study research.
The resguardo: context, history and current
status
In recent years, new constitutions have been proclaimed in a series of
Latin American countries. Even though the constitutional reforms were intended
primarily to deal with issues such as democratization, the legitimacy crisis,
the fiscal (debt) crisis, structural adjustment policies and the move to
neoliberalism, one of the most salient features of these new constitutions is
the fact that they all have come to acknowledge the multicultural and
pluriethnic character of the state and in different ways and degrees recognize
indigenous peoples’ rights (Assies, 2000: 3). In the case of Colombia,
representatives of national indigenous organizations, who had gained some
experience in the political-legislative field in the previous decades, came to
play a prominent role in the reform process and managed to achieve considerable
results. In fact, the 1991 Constitution opened up an unprecedented space for
indigenous peoples (roughly 2% of the population[ii])
as it unequivocally recognizes their cultural identity and autonomy in the
language of self-determination (cf. Field, 1996: 101).[iii]
In territorial terms this implies a confirmation and expansion of indigenous resguardo lands, which by the mid 1990s
already covered almost a quarter of the national territory (Hoffman, 2000:
123).[iv]
Throughout the past century, but particularly from the 1970s onward,
indigenous peoples’ activism in Colombia has centered round land and territory,
more particularly the institution of the resguardo
(Findji, 1992; Rappaport, 1992; Kloosterman, 1994 and 1997). The resguardo was introduced by the Spanish
during colonial times (as early as 1549) in the Andean region. In an effort to
concentrate dispersed Indian populations, pieces of territory were vested in
the hands of a community as permanent, inalienable communal property in
exchange for the payment of tribute to the Crown. Today, its main
characteristics are a communal land tenure in which individual farmers are
assigned usufruct but not ownership rights, and governance by an elected
council, the cabildo, which
administers the land and natural resources. Indigenous communities living in resguardos have always enjoyed a certain
degree of autonomy with respect to internal matters, whereby the cabildos play an important mediating
role between the community and the outside world (Field, 1996: 101; Jackson,
1996: 123). To understand why the institution of the resguardo through time has come to define communities as
indigenous, one has to take a closer look at the long history of indigenous
struggle and resistance in Colombia.
After independence (1810), the resguardo
was in continuous danger of disappearance as it became a major issue in the
power struggle between, on the one hand, conservative forces wishing to
maintain the institution as a source of cheap labor and tribute, and, on the
other hand, progressive forces pushing for the immediate dissolution of resguardos in the name of progress and
‘civilization’. At first, laws were established allowing the sale of resguardo land. Other legal measures
effectively legitimized their violent expropriation. However, when policies
designed to privatize communal lands appeared to have failed – not least
because of resistance from indigenous communities – this ‘progressivist’
legislative trend was reversed by Law 89 of 1890. In a renewed attempt by the
state to gain direct control over indigenous territories, this discriminatory
law declared all Indians to be ‘minors’ and effectively recognized and
protected resguardos and cabildos until their eventual
assimilation into national society. Paradoxically, Law 89 – which is, with a
few minor changes, still in effect – would become the primary means by which
indigenous peoples were able to defend their communities and traditional
authority in the 1970s and 1980s (Avirama & Márquez, 1994: 92; Kloosterman,
1994: 160; Jackson, 1996: 123). But this was not to happen yet.
Although legally protected, in the first half of the twentieth century resguardo lands continued to be usurped
through the fabrication of false title deeds, the classification of resguardo territory as public land
suitable for resettlement by non-Indian farmers and the outright stealing of
land under the threat of violence (LeGrand, 1986; in Rappaport, 1992: 204).
Despite organized resistance from 1910 to 1940, the hostile legislation aimed
at indigenous peoples’ assimilation finally took effect when modern
infrastructure reached the Andean region in the 1950s. This development made
the area easily accessible to commercial markets, which in turn accelerated
cultural change in indigenous communities. As a consequence, cabildos lost authority and many
inhabitants of resguardos started to
show a preference for private ownership of land. By the late 1960s, many resguardos had fallen into decline
(Kloosterman, 1994: 161). Then, the 1970s suddenly saw the reemergence of
indigenous consciousness. Dispossessed and humiliated, indigenous communities
became active in reclaiming territory through land occupation, guided by
historical documents and backed up by juridical means, notably Law 89 of 1890.
The recovered land, or recuperación,
was reincorporated into the resguardo
and placed under cabildo
jurisdiction. The process of reclaiming land strengthened communities and
reconstituted cabildo authority.[v]
It became a central objective of most indigenous organizations as it permitted
communities to transform recovered lands from private to communal property. In
a way, this signified a return to the territorial autonomy of the past (Findji,
1992: 119; Rappaport, 1992: 205).
Even before 1991, the Colombian government officially recognized resguardos and the authority of the cabildos in response to persistent
indigenous organization and demands for territory.[vi]
Decree 2001 and Law 30 of 1988 made it possible for INCORA, the Colombian Institute
for Land Reform, to buy private land from individual owners and adjudicate
these to indigenous communities as communal property under the administration
of cabildos. It also allowed the
creation of new resguardos in other
regions of the country (Arango, 1992: 236; Roldán, 1993: 65-66). The 1991
Constitution has taken the status of the resguardos
and cabildos much further. The cabildos have been attributed with a
range of functions such as to watch over the application of legal norms
regarding the use of the land, to design policies and programs for development
within the territory, in line with national policies, and to identify and
distribute resources and to safeguard natural diversity. Following programs of
state decentralization, resguardos
are given the status of municipality and increasingly participate in national
revenues. The legal position of the resguardos
was further consolidated in various verdicts by the Constitutional Court, which
was created to assure the effectiveness of rights included in the new
constitution (Assies & Hoekema, 2000: 251). In time, a new Organic Law of
Territorial Order should foresee in the creation of Indigenous Territorial
Entities (henceforth referred to by the Spanish acronym ETIs), large-scale
territories governed by indigenous councils with greatly increased local
control of jurisprudential and administrative matters. Being a highly
controversial subject, the ETIs have not yet materialized however (Assies 2000:
12).
Conflict rules and the articulation of communal tenure and private
property regimes
In Colombia, the adoption of a new constitution and the recognition of
the internal self-determination of indigenous peoples has resulted in a
situation of ‘juridical or official legal pluralism’: the inclusion within the
national legal order of a principle of recognizing ‘other law’[vii],
in this case the indigenous normative structures operating in resguardos (Hoekema, 1998: 61-63). What
before was an empirical fact has thus been made official (or legal, from the
government’s point of view).[viii]
This state of affairs calls for ‘conflict rules’, which can be defined as those
legal rules that allow for the peaceful coexistence of two or more distinct
systems of law and authority within one sociopolitical whole (Hoekema, 1998, 2000)[ix].
These rules define the nature and content of the legal orders, delimit the
spheres of competence of the authorities concerned, and specify procedures with
which to solve potential questions of applicability between the dominant legal
order of the state and that of a particular community with a certain degree of
autonomy or internal self-determination (cf. Hoekema, 2000: 6-7). These
conflict rules have also been referred to as ‘metarules’ (Ibid.), or ‘laws of coordination and compatibility’
(Yrigoyen, 2000: 214). Following from this definition, a search for conflict
rules involves the exploration, demarcation and harmonization of the boundaries
between the diverse legal orders in various domains, such as jurisdiction
(national law vs. special jurisdiction and individual vs. collective rights),
government (national vs. local authorities), property regimes (private vs.
communal property), and the management of natural resources and development
(national vs. indigenous forms), to name some of the more important ones. One
could also refer to this process as the articulation of indigenous legal orders
and the dominant legal order of the state.
In an attempt to get a grasp of this process, I would like to limit
myself to the domain of property (tenure) regimes with regard to the resource
land. A property regime can be understood as a complex of rules, principles and
procedures regulating the legitimate access to, control over, and use and
management (including acquisition and transfers) of property resources (F. von
Benda-Beckmann, 1995: 311), in my case land or territory. In fact, the use of
the term territory is preferable here as communal tenure regimes of indigenous
peoples usually include both land for productive purposes and those areas that
are essential for the reproduction of their social and cultural identity.
Research into the articulation of a regime of communal land tenure and the
dominant regime of private property should not be construed as having to deal
with relations between a certain indigenous community and the national society
only – ‘external’ relations from the point of view of the indigenous community.
These external relations are to a high degree determined by the socioeconomic
and political relations ‘internal’ to a particular indigenous community, and
vice versa. Clearly, the legal orders of indigenous communities, including
their characteristic forms of communal land tenure, are not closed and
self-contained. In fact, as the history of the resguardos demonstrates, they are the very result of an age-long
interaction between indigenous communities and the national society and state,
a process that has gained renewed momentum with the new constitution. Research
into the articulation of property regimes with regard to land and territory should
therefore focus on the interplay between external and internal property
relations (Ibid.: 314). Moreover, it can be assumed that a sustained effort at
the political level to reach a peaceful coexistence of two legal orders will
lead towards a reconfiguration of both. The official recognition of communal
land tenure regimes compels indigenous communities as well as the national
state to reevaluate their respective legal orders in this domain. In an
endeavor to understand the dynamics of this complicated process, I would opt
for a legal anthropological perspective in combination with an actor-oriented
approach (Van Velsen, 1967; Moore, 1978; Giddens, 1984; Long, 1989 and 1992; F.
von Benda-Beckmann, 1992, 1995 and 1997). In this way, it is possible to direct
attention to social actors (both individuals and collectivities) as agents in
the production and reproduction of social and legal arrangements, whereby their
actions are at the same time facilitated and constrained by different, and
often conflicting, institutional structures and processes.
With regard to this articulation process, I would now like to concretize
my future research in Colombian resguardos
at least on some points. If one takes the vantage point of a particular form of
communal land tenure, it seems that first attention must be directed towards
the different ways in which this regime operates, the ‘rules of the game’ so to
speak. As indigenous forms of communal tenure are deeply embedded in social
relations, a study of this kind certainly also has to deal with matters related
to the effectiveness of the authority systems involved, notably the cabildo (but conceivably also other
forms of authority), degrees of internal differentiation with respect to access
to power and resources (particularly land), and the issue of the social
cohesion and continuity of indigenous communities (a good framework for a study
of this kind is provided by Depew, 1994). Finally, if possible leads for
conflict rules are to be found, one has to look for the concrete situations in
which the communal regime comes into contact with the predominant private
property regime. I will henceforth refer to these situations as (juridical)
‘interfaces’ (a concept borrowed from Long, 1989: 232). In order to identify
some of these interfaces, I have tried to analyze the particular form of
communal land tenure as practiced in the indigenous community of the Guambía resguardo in southwestern Colombia. For
lack of research material of my own, this description builds extensively on
data assembled by the legal anthropologists Perafán, Azcárate & Zea (1996)
and to a lesser extent on the ethnographic work of Pachón (1987).[x]
The Guambía resguardo
Located in the municipality of Silvia (Cauca), Guambía is a resguardo of colonial origin and the
place of abode for about 17,000 Guambiano Indians. It is surrounded by the resguardos Quichaya (Páez[xi]),
Pitayó (Páez) and Ambaló (Guambiano) in the northeast and east, Totoró
(Guambiano) and Quizgó (Guambiano) in the south and southeast, and by haciendas
of non-Indian (mestizo) landowners
living near and among the 5,000 or so mestizo
inhabitants of the small town of Silvia. The municipality is part of the
central region of the Cauca department and has a population of no more than
30,000 people, of which approximately 20% lives in the urban area and 80% in
the countryside.[xii] With a
surface area of 18,529 hectares and altitudes ranging from 2,500 to 3,800
meters above sea level, the Guambía resguardo
stretches across the western slopes of the central Andean mountain range
(Cordillera Central). At this altitude, the average temperature is fairly low
(12° C) and rainfall high (1370 mm/y). The rugged territory is intersected by
numerous rivers, the river Piendamó being the most important, and two secondary
roads, one of which ultimately converges with the Cali-Popayán highway. The
Guambianos have their settlements situated in the low-lying parts of the resguardo, using the adjacent lands for
agricultural production (Pachón, 1987: 235; Perafán, Azcárate & Zea, 1996:
182).
The local minifundista economy
is dominated by the production of potatoes and onions, which are largely
destined for commercial markets outside the resguardo.
These commodities are primarily cultivated in the more elevated areas, called tierra fría by the Guambianos. Maize and
wheat are typically planted in the lower parts of the resguardo, commonly referred to as tierra tibia. Except for onions and garlic, all these crops are
cultivated in rotation with a variety of other crops, such as ulluco, broad beans (elevated areas),
beans, peas, cabbage and arracacha
(lower parts).[xiii] Although
most of the arable land is set apart for the cultivation of potatoes, maize is
considered to be the principal produce. Highly valued for its taste and social
role in community life, it is used exclusively for domestic consumption. Most
families also keep some head of cattle, one or more horses and small domestic
animals like sheep, chickens and guinea pigs. Milk is sold on local markets. In
Guambía, almost three out of every four hectares is used as grazing land, which
can be explained by the high costs of putting land under cultivation. The local
diet is rich in carbohydrates but poor in proteins, as the practices of both
fishing and hunting are practically nonexistent. Artisanship and the local
production of handicrafts is diminishing due to competition from the industrial
production of textiles, hats and footwear, products which the Guambianos buy on
local markets. Guambía’s economy stands out from those of neighboring resguardos by its high degree of
incorporation into the market economy (Pachón, 1987: 238; Perafán, Azcárate
& Zea, 1996: 183, 191, 193-196).
The basic social unit in Guambiano society is the domestic group, which
is generally composed of a nuclear or extended family. Affinity is determined
by cognatic descent and marital residence usually is virilocal. In practice,
this means that family groups connected by patrilinial ties mostly live
together in one vereda, a quarter or
neighborhood.[xiv] However,
this does not necessarily have to be the case. Increasingly, families can be
found scattered over different veredas,
which is the result of a limited occurrence of uxorilocal residence as well as
internal migrations caused by the widespread practice of mortgaging, leasing
and selling of usufruct rights to land among community members (this latter
phenomenon will be dealt with in more detail in the subsequent paragraph).
Nonetheless, Guambianos identify strongly with their vereda of origin. Community relations – relations of affinity and
friendship between persons and families as well as the ties that exist between veredas – are being worked out and
reproduced during labor exchanges and, occasionally (less than in former
times), mingas, collective work
festivities organized by the cabildo.
Labor exchanges are based on relations of reciprocity and basically oriented
around the needs of families that need periodically to call upon a larger work
force, for example in the beginning of the growing season and during harvest
time or house construction. The mingas
fulfil a very important social role as they guarantee both the revitalization
of a sense of community and the strengthening of ethnic identity (Pachón, 1987:
241-243; Perafán, Azcárate & Zea, 1996: 196, 198-199).
The cabildo of
Guambía has gained in authority along with the rise of ethnic mobilization
since the early 1970s, in which the Guambianos historically have played a
prominent part (Findji, 1992: 122-125; see also Kloosterman, 1997: 66-73).
Politically, the resguardo is divided
into 8 zones composed of 4 to 7 veredas.
Each zone is allowed to elect one alcalde
(mayor), one secretary and one or two alguaciles
(custodians), who are all included in a central cabildo. This institution furthermore includes the governor, a suplente (assistant), a secretary
general and a treasurer. The central political figure is the governor, who has
the principle task of representing the resguardo
in relations with the outside world. The suplente
attends to the governor’s duties in his absence. The secretary general, who is
appointed by the governor, also is a key figure in Guambiano political life as
he is responsible for the formalization of (internal) land transfers and
keeping up official relations with national authorities. The alguaciles are the lowest functionaries
in the cabildo hierarchy. The cabildantes – as a rule all men – are
elected for a one year term.[xv]
Although the cabildo ostensibly is a
democratic institution, this image conceals a certain asymmetry in power
relations (not least between men and women). It appears that over the past
decades, most of the governors came from the more elevated veredas in the east of the resguardo,
home of the ‘oldest’ families in Guambía. This principle of spatial
distribution of power, ‘high over low’ and ‘east over west’, is predominant and
appears to stem from pre-colonial times (Pachón, 1987: 244-245; Perafán,
Azcárate & Zea, 1996: 261-262; compare with Kloosterman, 1997: 78, 80). The
cabildo organizes assemblies once
every three months, an occasion on which community members have the opportunity
to review its performance.[xvi]
Particularly concerning the adjudication of land, the cabildantes are often confronted by accusations of prejudice in
favor of their relatives and to the detriment of persons opposing their
administration. There is also criticism of a lack of resolution and clarity in
solving conflict cases and the ease with which recourse is being sought to
legal institutions of the state (Perafán, Azcárate & Zea, 1996: 259-260).
As regards relations with neighboring resguardos, Guambía has a history of ardent boundary disputes with
Ambaló (Guambiano), Quizgó (Guambiano) and Pitayó (Páez).[xvii]
This fact and the endogamous character of the indigenous communities in Silvia
are said to be the main reasons for the limited sense of solidarity between
these resguardos. These rather
antagonistic relations between the indigenous communities are reflected in
their being associated with different and often opposing national indigenous
organizations. The relations with the López and Mosquera families, owners of
several of the haciendas adjacent to Guambía, are generally strained. The cabildo maintains multiple relations
with the alcaldía (mayoral offices)
in Silvia. In the political sphere, especially during municipal elections, the cabildo tries to steer a middle course
between the conservatives and the left-wing M19[xviii],
in a municipality that is by tradition liberal. On the administrative level,
contacts most frequently have a bearing on intergovernmental transfers of tax
revenues assigned to the resguardo
population. The central element in contacts with various other state entities
is the drafting of a so-called ‘plan for ethno-development’, also known as Plan de Vida Guambiano, a process in
which the cabildantes receive
technical assistance of CENCOA, a federation of farmer cooperatives, and of
various other NGOs and governmental agencies (Ibid.: 258).
Communal land tenure in the Guambía resguardo
The type of communal land tenure which is practiced in
Guambía today shows many similarities with those of other indigenous
communities in the Andean region (e.g. Pachón, 1987b; Perafán, 1995; Field,
1996; Kloosterman, 1997; to name only a few). However, its particularities have
been shaped by local historical developments. The ways in which it currently
operates are to a considerable extent determined by the following realities:
(1) a high population pressure, as a result of which there is an acute scarcity
of arable land; (2) a relatively high degree of incorporation into the market
economy, which has led to disparities of access to land (usufruct rights) and
class differentiation; and (3) the existence of other, more recent forms of
tenure besides the predominant regime of communal tenure within the borders of
one and the same resguardo.
Characteristics of tenure
The Guambianos acquire individual usufruct rights to
communal lands through their membership of the Guambía community. Generally,
this means that a person has to be native to Guambía, be in command of the
Guambiano language and abide by the uses and customs of the community. Men –
and to a limited extent also women – of the age of 18 years or with married
status get access to land by way of cognatic inheritance. In their lifetime,
elder men (and women) divide their rights to land among their children. These
transfers have to be formally endorsed by the cabildo (Pachón, 1987: 238). In accordance with the national law,
in Guambía today no land is being sold, mortgaged, leased or pledged in
relations with people from outside the community (called ‘polig’ by the Guambianos[xix]).
The Guambianos distinguish between three types of arable
land. First, a home garden can be found on the house lot of each domestic unit.
Covering between 0.05-0.1 ha, it is used for the production of small quantities
of food crops and a selection of medicinal plants. In addition, the house lot
mostly also includes a pasture, generally of limited dimensions, used for
tending horses and cows. The house, home-garden and small pasture together are
referred to as ‘namuy guareinog’,
which translates as ‘where we live’. Secondly, stretches of flat or accentuated
terrain are generally used to grow a whole range of crops, but primarily either
maize or potatoes, depending on the altitude. On these fields, which on average
cover 0.5 ha, the characteristic agricultural practice of crop rotation is
still widely practiced. Due to the scarcity of land, a nuclear family usually
has access to only one piece of land in this category. This situation is urging
families to engage in relations of ‘vertical complementarity’, whereby maize
and beans are exchanged for potatoes and ulluco. In the lower parts of the resguardo, people refer to this type of
field as ‘poráh ell'guien tul’,
literally meaning ‘where we grow maize’. Thirdly, portions of even land,
preferably at higher altitudes, are used for the cultivation of onions. This land
– on average 0.5 to 1 ha per family – is usually kept in production
uninterruptedly for periods of about 20 years. The onions are often
intercropped with garlic, and a small section of this terrain is planted with
food crops in order to sustain the people during work. The Guambianos refer to
this land as ‘cebolla tul’, onion
field. Besides arable land, families have access to an average of 5 ha of
grazing land, referred to as ‘guara tul’,
which is generally spread out over 3-7 separate fields. Grazing lands can be
found all throughout the resguardo.
Close to the highland páramo, they
consist of natural permanent grasslands. In the lower parts of the resguardo, they may consist of either
grassland areas (sabanas) or
artificial pastures, both of which were formerly used for the cultivation of
maize or potatoes. Arable land of this kind – never onion fields – may at any
time be converted into grazing land and vice versa, depending to a considerable
extent on the prices for milk on commercial markets (Perafán, Azcárate &
Zea, 1996: 193-196).
As can be seen, all arable and grazing lands are in the possession of
domestic units composed of nuclear families. Although most of the land is in
the hands of men, in some cases women are also assigned individual usufruct
rights to land. However, due to land scarcity they are most often compensated
with animals (Ibid.: 194-196, 199). The Guambianos apparently no longer use a
part of their territory collectively as a commons. Even forests and wood lots (monte) are adjudicated to separate
families. It has been asserted that until 1970 the permanent grasslands of the páramo were used collectively by the
inhabitants of the old (elevated) veredas
for the grazing of cattle and – in some cases – horses. In that year, families
with agricultural fields adjacent to the páramo
started excluding other families by fencing off these lands for individual use.
As the occupation of land on the páramo
is culturally prohibited, this act was met with fierce resistance, particularly
from families who were unable to do likewise, i.e. from lower veredas (Ibid.: 195n32, 200, 202, 211).
This history clearly illustrates that there is a trend of decreasing
availability of land in Guambía. Fields are getting smaller with every new
generation as the expansion of the communal territory – either by reclaiming
lands outside the resguardo or by
bringing more land under cultivation within the resguardo – cannot keep pace with the population growth (see also
Pachón, 1987: 239).
Distribution of usufruct rights
From the foregoing description, the distribution of land –
at least on the level of the nuclear family – might seem to be equal. This,
however, is by no means the case. Under the influence of the market economy,
pronounced differences in terms of wealth and landholding (possession) have
emerged. This situation has led the Guambianos to divide the social stratum
into the categories of ‘rich people’ (ricos),
‘the reasonably well-off’ (medianos –
the great majority) and ‘the poor’ (pobres
and pobrecitos) and has even resulted
in the emergence of a group of landless farmers performing wage labor for
members of rich families. In particular, this is the outcome of the internal
buying and selling of usufruct rights to land, most often by liability, a
process which has started in the 1930s and continues until this day in
‘secrecy’ (“behind the cabildantes’
backs”). Less affluent people who have become indebted can ask for a loan from
a member of a rich family who in return receives the usufruct rights over a
part of lands of the former. If the debtor is not capable of returning the loan
within the period as agreed on between both parties – and their families cannot
reach a settlement – the ‘mortgaged’ land remains in the hands of the creditor.
In other cases, rights to land are being sold by less affluent or near-landless
families opting for migration to the low-lying regions of the Cauca and Huila
departments – often referred to as tierras
de lo caliente – where land prices are far less high. Although a ban has
been put on both these practices, in the latter case the authority of the cabildo is heavily compromised by the
situation of land scarcity in the resguardo
(Perafán, Azcárate & Zea, 1996: 198, 200, 206-207, 217-219).
Pachón (1987: 239) sheds some light on the magnitude of disparities of
access to land in Guambía. In 1973, 21.1% of the Guambiano families had access
to less than one plaza (0.64 ha) of land, while 50.7% of the families had
between 1 and 5 plazas (0.64-3.2 ha) at their disposal, and 28.2% of the families
was in possession of more than 3.2 ha of land.[xx]
Considering current trends, differences in access to land could be expected to
have grown more pronounced, although successful attempts at reclaiming
territory outside the resguardo after
1973 are likely to have appeased this process. For 1996, Perafán, Azcárate
& Zea estimate that 2% of the total number of families had access to 15 ha
of land (ricos), 84.7% had 3 to 4 ha
of land (medianos) and 13.3% (pobres) had 1 ha of land or less (Ibid.:
207). Moreover, 8% (240) of the 3,000 families in Guambía did not have access
to arable land in the old resguardo –
only in the successfully ‘recuperated’ lands (Ibid.: 194-195n30). The unequal
distribution of usufruct rights in Guambía is reaching the limits of tolerance.
It has recently occurred that lands sold by liability (now in the hands of rich
families) were occupied by the heirs of the former debtor (Ibid.: 247,
259-260).
Other, more recent forms of
tenure
Starting as early as 1963, the Guambianos have been very
active in reclaiming territory outside their resguardo (see Findji, 1992). Officially, however, it was not
before the mid 1980s that national legislation (notably Law 30 of 1988) allowed
INCORA to extend the territories of existing resguardos by adjudicating land as communal property to indigenous cabildos. Under Law 135 of 1961, a
‘progressive-integrationist’ land policy imposed several other forms of tenure
on indigenous communities, which were intended as a transitory phase in the
development towards private property (Findji, 1992: 122). In Guambía, two of
these tenure forms can still be found today.
Firstly, there is the form of the agricultural cooperative
with corporate capacity. In 1963, INCORA allowed 40 Guambiano families to
recover the 250 ha large hacienda Las Delicias, which they were able to buy
with a loan from the Caja Agraria (rural bank). Today, this area is known as
the Santiago cooperative. Probably in much the same way, the San Fernando
hacienda (of unknown size) became the La Campana cooperative in 1964. In the
case of the Santiago cooperative, each of the 40 families has access to 5 ha of
land, which is for the greater part used as grazing land for animal husbandry.
In addition, 50 ha of land are set apart for collective forms of arable
farming, cattle-breeding and reforestation. It remains unclear what kinds of
land use are being practiced in the La Campana cooperative (Perafán, Azcárate
& Zea, 1996: 194-195n30, 201, 205-206n50; see also Pachón, 1987: 240).
Secondly, there is the empresa comunitaria (community enterprise,
henceforth referred to as EC) based on the model of producers’ cooperatives.
When the Guambianos successfully reclaimed the La Marquesa and La Chorrera
haciendas in 1971, INCORA selected two groups of 15 families to become
associates of ECs and granted them joint private ownership of the haciendas
that were recovered by the community as a whole. In effect, these lands were
thereby taken out of the resguardo system,
the associate families were separated from the rest of the community and the
jurisdiction of the cabildo was
eliminated (cf. Findji, 1992: 120; Perafán, Azcárate & Zea, 1996:
194-195n30). Thus originated the ECs El Chimán and La Conquista, respectively.
Apart from individual home-gardens, all of the 250 ha of land in El Chimán are
used collectively for arable farming and animal husbandry. The EC La Conquista
is divided into individual parcels of equal size (roughly 15 ha) among its 15
member-families. However, the kinds of land use practiced on these parcels
remain unknown (Ibid.: 201).
Although the work of Perafán, Azcárate & Zea does not
give any indication of the nature of current relations between the Guambía cabildo and the executives of the two
cooperatives (most likely administrative councils) both estates are considered
to form part of the greater resguardo
(Ibid.: 258). As of recent, this also counts for the EC El Chimán. Whereas
these families were not much involved with the Guambía cabildo in former times, since 1990 they appear to draw closer to
the resguardo community in a process
of reintegration (Ibid.: 194-195n30). The EC La Chorrera has been parceled out
in lands with individual title (so-called unidades
agricolas familiares de propriedad individual, or UAFs) in 1993. Therefore
it probably cannot – or no longer – be considered part of the Guambía resguardo (Ibid.: 201, 258).
Tenure
strategies and new directions
In the face of land scarcity, the Guambianos have
developed three basic strategies. Besides increasing agricultural activity on
the páramo, certain families seem to
be drawn into a process of intensification of agricultural practices. This
process involves a shift from subsistence crops like maize to crops with high
(economic) returns such as onions, garlic and even amapola, or ‘poppies’, an illicit crop used for the production of
heroin.[xxi]
This strategy is sure to affect both social relations and the tenure regime in
Guambía as it leads to an increased dependency on outside (illegal) markets and
new agricultural techniques and inputs (fertilizer and fungicides) – (Perafán,
Azcárate & Zea, 1996: 201). In the past decades, out-migration has become a
regular phenomenon in Guambía. An estimated 4,000 Guambianos have sold their
usufruct rights in the resguardo and
purchased so-called tierras de lo
caliente in the municipalities surrounding Silvia (Cauca) or in the Huila
department. Although one small Guambiano resguardo
was founded in Piendamó (named La María), in most cases these lands are held as
private property. This brings legal insecurity as Guambianos with private
property outside the resguardo can no
longer enjoy their indigenous status: to the outside world, they have become
‘peasants’ (campesinos) – (Ibid.:
210, 223). The cabildo has expressed its disapproval of both illegal drug crop
production (poppy) and the selling of usufruct rights to land but seems
incapable of preventing these practices.
Between 1980 and 1984, the Guambía community has recovered 8 more
haciendas bordering their resguardo.
In the end, all were adjudicated as communal property in accordance with Law 30
of 1988. This makes a total of 2,000 ha of land reclaimed through occupation
(Pachón, 1987: 240). Apparently, the cabildo
maintains that newly recovered territory should be for the benefit of landless
or near-landless families. Indeed, these families seem to have been the first
to which an (unspecified) number of land units (of 0.1 ha) was assigned. In
practice, however, the more affluent families have also taken portions of land
in these extensions. Perafán, Azcárate & Zea (1996: 194-195n30) quote one
of their Guambiano informants stating that the wealthy “have more power and
[were thus able to] occupy the most fertile lands”. What is more, in some cases
they took on landless Guambianos as wage laborers to bring their new land into
cultivation. Ironically, in some cases this practice led to a situation in
which these farmers were no longer in the position to get hold of their own
portion of land in the recovered territory because they could not provide
evidence of occupation (Ibid.: 207). The cabildo
has made further expansion of the resguardo
a key priority in their Plan de Vida.
This document unfolds the intention to recuperate 13,500 ha of land in an area
immediately to the east of Guambía in the direction of the Ambaló resguardo (Cabildo Indígena de Guambía
& Universidad de Amsterdam, 1997: annex 2 – In this respect, Perafán,
Azcárate & Zea [p. 195n32] make mention of no less than 20,000 ha!). This
area is usually referred to as Gran Chimán – it has even been named the ‘corredor de Dantzig guambiano’ as it is
the only direction left open for expansion of the resguardo territory. This land currently is the private property of
several members of the Mosquera and López families. However, the cabildantes can substantiate their claim
with an indigenous title from 1912 in accordance with Law 89 of 1890. Some of
these landowners are willing to sell their land. Yet they refuse the
intervention of INCORA, which is actually stalling the bureaucratic process
(Perafán, Azcárate & Zea: 205-206n50, 258). The land situation in Silvia
and neighboring municipalities is very tense. The resguardos Ambaló and Totoró have claims on these lands too.
Without doubt, the struggle for Gran Chimán will bring up new conflicts, among
the Guambianos of different resguardos,
between Guambía and other indigenous communities (Páez) as well as with
neighboring ‘polig’ (non-Indian)
landowners.
To conclude: directions
for future research in Colombian resguardos
To bring this paper to a close, I should return to its central
objective: the search for interfaces for the articulation of indigenous
communal tenure and the regime of private property in the case of Colombian resguardos. Where – at what points – do
these property regimes intersect? Which ‘legal discontinuities’ (cf. Long,
1989: 232) can be distinguished at these interfaces?
Credit facilities
In the analysis of communal land tenure in Guambía at least one
interface – a nodal point – in the contacts between communal tenure and the
regime of private property comes to the fore: the issue of credit. One of the
main reasons for the continuing existence of the informal practices of internal
mortgaging and buying and selling of usufruct rights, resulting in growing
differences in terms of access to land, is the manifest lack of possibilities
for obtaining outside capital. Very likely, for some individuals this has been
a reason to start opting for the cultivation of illicit drug crops (Field,
1996; comes to a similar conclusion). In fact, there are no real alternatives
(for either one of both options). Raising money by mortgaging individual plots
of land in relations with the outside world implies the risk of finally losing
the land. This is inadmissible since it forms part of the inalienable communal
property of the entire community. This observation brings us to a basic dilemma
inherent in the inalienable character of resguardo
lands. On the one hand, this legal condition protects the communal territory
from aggressive land markets. On the other hand, however, it stands in the way
of those communities that want to get beyond their traditional subsistence
economy to get linked up with economic activities in the outside world
(Hoekema, 1998/99: 290). Because of the land scarcity and a high degree of
incorporation into the market economy, for the Guambianos this is no choice but
a necessity.
To my knowledge, there is not much literature from other parts of the
world that consistently deals with, or offers practical solutions for this kind
of problem in the articulation of communal tenure and private property regimes.
One example, however, is provided by Arango (1994) with regard to indigenous
communities in Bolivia. In his draft law for the legal (constitutional)
recognition of indigenous territories, he (briefly) goes into the possibility
of pledging not the land itself but the harvest as a security for agricultural
credit – under the auspices of the ‘natural’ (local) indigenous authorities
(Ibid.: Annex I, p. 2, Art. 5.II). When speculating about the situation in
Colombia, one could come up with ideas for an alternative solution. Although
little elaborated, a governmental program for assistance to Colombia’s indigenous
peoples makes mention of difficulties experienced by indigenous communities in
the effective utilization of their shares of tax revenues while at the same
time it (also) signals the need for special credit facilities
(Jimeno/Ministerio de Interior, 1995: 159, 165). Could both problems not be
solved at once if a part of this income would be used to provide for some kind
of credit fund (under the administration of the cabildo)? These are only two very tentative suggestions which need
further investigation. A thorough exploration of possible other legal
arrangements at the credit interface is therefore warranted.
Other interfaces:
statutory arrangements and access to land by outside parties
Although not directly emerging from the analysis of the situation in
Guambía, one can conceive of other interfaces in the articulation of communal
and private property regimes. In the above-mentioned governmental document, an
action plan for assistance to indigenous communities makes provision for
co-financing projects to increase levels of agricultural production in ways
that are ‘in accordance with the social, cultural, economic and political
particularities of these communities’ (Ibid.: 165). The latter additive is of
special interest here, since joint ventures with outside agencies and
enterprises might very well stumble on ‘problems of communication’ due to the
different sociolegal structures that are operative within the resguardo and in society at large – a
second interface (see Kloosterman, 1997: 119-124; for a discussion on suchlike
problems in the case of a milk cooperative in the Muellamués resguardo, Nariño Department – compare
with Wray & Peña, 1996: 117 ff.; for some experiences and examples from the
Amazon). For indigenous communities like Guambía, future rural development
projects may call for a special statute on local organization and
representation in order to avoid their own communal structures being forced
into the mould of existing (private) legal constructs (Hoekema, 1998/99: 289).
Then there is the question of how and under what conditions outside (third)
parties can have or get access rights to resguardo
lands – a third interface. As an ethnically homogeneous community, at first
glance this question does not seem to play a major role in the case of Guambía.
There are no instances of private, individual property (of ‘polig’) to be found within its borders. However, the cooperatives
Santiago and La Campana as well as the EC El Chimán are private legal
constructs and can therefore be considered ‘third parties’. The community as a
whole will have to take a position on the future legal status of the lands that
now fall under the authority of these ‘foreign’ tenure institutions. The need
for legal arrangements at this interface will become more apparent once (in
case) ETIs will be instituted in the region, proposed indigenous state
administrative units which may or may not include non-indigenous territories
and which may or may not comprise the private property of ‘polig’. Although the ETIs still seem to be a far away reality,
this interface already is an issue in most of the relatively young and much
larger resguardos in the lowland
rainforests (see Jackson, 1996: 127 ff.; for a discussion on the relations
between indigenous and non-indigenous groups within the Vaupés resguardo). Both interfaces warrant
further investigation in a comparative sense, in different Colombian resguardos as well as of comparable
situations elsewhere.
As much as these encounters at the interfaces between communal tenure
and private property are concerned with harmonizing problematic ‘external’
relations between indigenous communities and the state and national society,
they will surely also have far-reaching repercussions and consequences for the
socioeconomic and political relations ‘internal’ to these communities. It has
become clear that the situation in Guambía is not as harmonious and socially
coherent as indigenous communities are sometimes presented towards and by the
outside world. The analysis of the tenure regime has highlighted some of the
complex and contradictory social realities that exist in this particular
community. A great responsibility rests on the shoulders of future cabildos. They will have to live up to
many new – and high – expectations, of state and non-state agencies as well as
of their constituency. Among other things, the Guambía community will have to
deal with limits to the accumulation of usufruct rights (internal
differentiation), the effectiveness and legitimacy of the cabildo, the relations with families that have migrated out of
Guambía to other parts of the country, and the problems with neighboring
(Guambiano) resguardos. Throughout
Colombia, this new phase in the process of ethnic reorganization has only just
begun and it leaves much to be investigated.
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