The Struggle Between Indigenous Folkways and National Law: Resolving the Past and the Present

Over the last twenty years, almost all applicable Latin American countries have been moving toward full recognition of their multiethnic citizenship. Peru codified indigenous rights in 1993, Ecuador legalized them in 1998, and Bolivia passed a new constitution including embedded indigenous rights in 2009. However, despite a favorable movement in the direction of increased equality for indigenous peoples, an opposing trend of violence and discrimination has persisted between the state and indigenous populations in these three countries. Last year in Bagua, Peru, for example, a violent clash occurred between indigenous protesters and the national police, resulting in thirty-four deaths and one hundred wounded. In Ecuador, an indigenous group recently prosecuted a man for murder, punishing him with public humiliation and beatings, a sentence many Europeanized Ecuadorians saw as barbaric. In May, indigenous peoples lynched four police officers in the Amazonian region of Bolivia. As these three cases show, the lack of a clearly defined process to mediate often hostile interactions between indigenous custom and Western law has left room for tension, conflict, and violence to brew between indigenous people and the state. Thus, national laws concerning the links between indigenous and state justice must be better developed to prevent conflict and human rights abuses from breaking out.

Indigenous Law and National Constitutions

Defining indigenous justice is a complex issue because each of the many different indigenous groups in Latin America has its own customary laws. The ever-changing nature of oral tradition further complicates such a definition. Rachel Sieder, author and professor at the Centro de Investigación y Estudios Superiores en Antropología Social in Tlalpan, Mexico, points out that “indigenous law is dynamic, not fixed, and often there is internal contention about its nature.” This constant change makes it difficult to create a definition which would help modern governments decide what does and what does not constitute indigenous justice. Guisela Mayén, as quoted in the Latinamerica Press, describes indigenous law as “a series of unwritten oral principles that are abided by and socially accepted by a specific community.” She goes on to state that “indigenous law aims to restore the harmony and balance in the community…whereas the Western system seeks punishment.” Compensation for wrongdoing in indigenous communities usually takes the form of community service or some type of finite retribution made available to the victims. Indigenous law, while practiced somewhat differently by each group, is almost always based on principles of oral tradition and community consensus.

Beginning in the 1980s and throughout the 1990s, mass indigenous movements led to the codification of indigenous rights in a number of Latin American countries. One of the first Latin American countries to legally incorporate indigenous rights was Peru. According to the CIA World Factbook, 45% of those dwelling in Peru are indigenous, providing them with a plurality. The colonial culture that persisted from the 1820s until 1993 allowed the minority white population (15%), to effectively control the national government. Today, indigenous people almost always have jurisdiction within their territory, the right to practice customary law, and veto power over any development of the land upon which they live and work. These rights were propelled by and heavily based on the Indigenous and Tribal People’s Convention of 1989, which was created with the backing of the International Labor Organization (ILO). Referred to as C169, this ILO agreement establishes a template of basic rights for indigenous groups. Peru signed and implemented the treaty by means of a constitutional reform in 1993.

In 1998, Ecuador also legalized indigenous rights through a constitutional reform. Like Peru, Ecuador has a substantial indigenous population; it currently makes up about 25% of the country’s inhabitants. This first manifestation of rights was poorly defined, which led to confusion and conflict. When a non-indigenous person committed a crime on indigenous territory, it was unclear whether indigenous or state authorities had the right to intervene. The new Ecuadorian Constitution of 2008 provides a more articulate definition of indigenous rights and their areas of jurisdiction. This document establishes the indigenous right to practice customary law, provided that punishments do not conflict with fundamental national laws or international human rights obligations. Ecuador instituted an indigenous jurisdiction that applies only to indigenous territories and to persons who identify themselves as being indigenous. These new laws now better define what constitutes indigenous justice in Ecuador.

Bolivia codified indigenous rights in the country’s 2009 constitution, which was passed under the governance of President Evo Morales, the country’s first purely indigenous president. While indigenous rights were first written into law in 1994, the 2009 constitution expands upon these rights and gives more autonomy to indigenous authorities. Bolivia has one of the largest indigenous populations in the Americas, making up around 55% of the population, according to the CIA World Factbook. Bolivian law gives equal standing to customary indigenous law and state law. Legal deference to human rights abuses does not exist in Bolivia as it does in Ecuador, and in Bolivia state courts cannot overturn rulings issued by the indigenous authorities. The state has largely left the indigenous population alone; very few state police are present today in Bolivia’s traditional indigenous territories.

All three of the previously cited constitutions are based on C169; all three countries are also signatories of the treaty. Article nine of C169 establishes that “the methods customarily practiced by the peoples concerned for dealing with offenses committed by their members shall be respected” within the bounds of human rights codes and the national legal system. This allows the indigenous peoples to carry out their own form of justice. C169 also authorizes the national government to be responsible for any conflicts arising between the two forms of governance: article eight states, “Procedures shall be established, whenever necessary, to resolve conflicts which may arise in the application of [indigenous customs and institutions].” However, the governments of Peru, Bolivia and Ecuador have been slow to implement procedures to resolve such conflicts. The lack of an established procedure to resolve differences has led to tension, conflict and violence in these countries.

Tension, Conflict and Violence

In 2009, Peruvian authorities allowed multinational organizations to explore for oil in indigenous areas of the country. C169, to which Peru is a signatory, states explicitly in article six that the government must consult the indigenous people on any legislation directly affecting them. Peru clearly ignored this facet of the treaty when they allowed multinational corporations into the Amazon. At times these actions have led to resistance on the part of the indigenous people. Those adversely affected by oil exploration in the past have reacted by shutting down the road near La Curva del Diablo, which is the main supply route into the Peruvian Amazon. In June 2009, after almost two months, the national police were sent in to break up the protests and open the supply route. These actions resulted in official reports that thirty-four had died and one hundred were wounded as a result of the standoff, although indigenous protestors claim that the government is ignoring the deaths of hundreds more. This incident, one of many, exemplifies President Alan Garcia’s dismissive neglect of the Constitution and C169 and his disregard for indigenous rights despite the fact that they are codified in international and national law.

Ecuador has also seen tension and conflict regarding the relationship between the country’s indigenous justice system and that of the state. In May of this year, an indigenous man named Orlando Quishpe was sentenced to death by the indigenous community for killing another man. The Ecuadorian government managed to get the punishment reduced because Quito does not sanction the death penalty. This process worked smoothly, resolving the conflict between indigenous law and state law. However, when the corporal punishment inflicted on Quishpe was revealed in the media, Ecuadorians rose up in outrage. Many considered what happened to Quishpe to be an abuse of his personal human rights. However, as Professor Sieder pointed out in an interview with COHA, “Certain procedures have always been – and probably always will be – condemned by non-indigenous groups as ‘barbaric’.” For this reason, the state must respect indigenous customs as mandated by both the constitution and C169.

Bolivia has seen the idea of customary law and indigenous justice devolve into vigilante justice. This past May, indigenous members of the population lynched four police officers based on accusations of extortion and blackmail. The indigenous group then refused to return the officers’ bodies to their families until the people responsible for the lynchings were guaranteed they would not be charged with murder. Again, at the beginning of June, an accused murderer was lynched. Latin News has reported that in 2005 there were ten lynchings, while by 2008, the number had increased to forty-two. This palpable increase in violence and vigilante justice creates difficulties for those indigenous communities who want to practice customary ancestral law in an entirely responsible manner.

The Need for Reform

The conflict and violence that episodically persists in Bolivia, Peru, and Ecuador illustrate the gap that continues to exist between indigenous and state law. The constitutions and other organic laws of these three countries require the harmonization of state and indigenous legal systems, yet little has been done to make this requirement a reality. On June 8th, James Anaya of the United Nations called for increased cooperation between the government of Ecuador and the country’s indigenous in order to resolve conflicts such as the one created by the prosecution of Quishpe. Bolivia is attempting to pass a new law currently under review in the Senate. The measure, if passed, would establish a clear demarcation between vigilantism and indigenous customary law. Bolivia’s indigenous hope that this new law will refocus the country’s customary law on a truly indigenous basis, and move away from vigilante justice as reflected in the public lynchings that have prevailed in the last five years.

Constitutions and treaties are not enough to change how indigenous customs and state law interact. The governments of Peru, Ecuador, and Bolivia must find a way to create procedures that will bring the two legal systems into concert. Professor Sieder has pointed out that “Constitutions are a first and important step, but they alone won’t resolve conflict or guarantee individual and collective rights.” The governments of these nations must remember that effective legislative action alone is not enough to change the fundamental ideas and practices of a country. It is the responsibility of these governments to work with the indigenous authorities to create congruence between the two systems. Only when the gap between indigenous and national law is closed will there be an end to the domestic tension, conflict and violence that currently plague these affected countries.