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Latin American and Caribbean Ethnic Studies

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Indigenous Territorial Autonomy in Latin America:An Overview

Miguel González

To cite this article: Miguel González (2015) Indigenous Territorial Autonomy in LatinAmerica: An Overview, Latin American and Caribbean Ethnic Studies, 10:1, 10-36, DOI:10.1080/17442222.2015.1034438

To link to this article: http://dx.doi.org/10.1080/17442222.2015.1034438

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Indigenous Territorial Autonomy inLatin America: An OverviewMiguel González

This paper offers an overview of indigenous territorial autonomy in Latin America,focusing on the various forms of recognition, legal characteristics, performance, andprospects in light of contemporary struggles of indigenous peoples in the region. Thepaper traces autonomy debates during the late 20th century and argues that inter-pretations about the origin, salience, and prospects of the autonomy demand ratherthan offer competing views complemented each other by stressing the convergencewithin indigenous social movements on the potential of autonomy as a platform ofpolitical, social, cultural, and territorial rights as well as an avenue for reconstitutingthe relationships between the state and indigenous peoples. Nevertheless, autonomyremains a contentious subject, at times illustrating substantial differences amongindigenous organizations about its meaning, significance, and the best ways for realiz-ing it. Recent constitutional reforms across the region, particularly in the Andeancountries, show a new momentum for the inauguration of indigenous territorialautonomy. The paper observes that the current context is far from being conflict-freeand that the developmentalist orientation, extractive-based economies which nationalgovernments across the region have endorsed, is threatening indigenous autonomy andpotentially deems it irrelevant as a way for advancing indigenous rights.

Keywords: Collective rights; constitutional reform; Indigenous Peoples; LatinAmerica; territorial autonomy

Introduction

We Indigenous Peoples struggle for full autonomy within the national framework.Autonomy implies Indigenous peoples’ rights to control our territories, includingrenewable and nonrenewable natural resources and control over the aerial space. Onthe other hand, autonomy means that Indigenous peoples will be able to control ourinternal affairs, and will be fully entitled to establish our self-government democratically.

CONAIE-ECUARUNARI-CDDH (1990)

The meaning of indigenous territorial autonomy as an expression of self-determinationand its centrality for indigenous organizations gained momentum in the early 1990s,and, by the end of that decade, it was clearly established in the discourse, agendas, andactivism of indigenous social movements in Latin America. This paper explores theorigins of the autonomy demand, its various interpretative approaches, and offers a

Latin American and Caribbean Ethnic Studies, 2015Vol. 10, No. 1, 10–36, http://dx.doi.org/10.1080/17442222.2015.1034438

© 2015 Taylor & Francis

comparative analysis of implementation cases in countries where autonomy has madethe greatest impact. An overview of autonomy processes in the Latin American regionis important in order to identify common patterns as well as distinctive sociopoliticaland cultural dynamics that can help us explain their relative effect and currentchallenges.The discourse of the indigenous social movements in Latin America has not

associated indigenous territorial autonomy with the constitution of a sovereignstate. Rather, it posits the right to self-determination within the juridical and politicallimits of the existing state. It demands guarantees from the state for the exercise ofcertain rights in indigenous territories (Assies, Van Der Haar, and Hoekema 2000). Inthe perspective of most indigenous organizations, this implies the creation of anautonomous political-administrative regime. This means a legal regime that, accord-ing to Díaz-Polanco and Sánchez (2002, 42), requires a reform of the state toguarantee ‘two great recognitions: of individual rights—synthesized in their ownpowers to be exercised in a jurisdictional territory; and of the rights to institutions,which are concretized in self government. They are necessary to give practical andeffective meaning to any rights.’ Autonomous regimes, according to Sieder (2002, 3),‘comprising a combination of group rights, territorial ambit, indigenous institutionsand specific politico-administrative competencies vis-à-vis the central state, areincreasingly advanced as the most appropriate formulae’ among indigenous organiza-tions and movements. When thinking about indigenous autonomy as a territorialregime of government, the question of who are the subjects of rights cannot beseparated from the question of through which state bodies or political institutionswill rights be exercised. These features might also be considered in light of interna-tional norms pertaining to the rights of Indigenous Peoples.1 In fact, some countriesin Latin America initiated a series of important reforms that reflect changes ininternational legislation concerning the rights of indigenous peoples, including provi-sions of limited self-government. Nevertheless, considerable resistance still exists onthe part of traditional centralist states and political elites to granting autonomousregimes to indigenous peoples.Those who oppose forms of autonomy – whether for indigenous or Afro-descendant

peoples – usually argue that autonomy not only threatens the sacrosanct concept ofstate sovereignty but that it fuels the desire for separation on the part of the subjects ofsuch rights. Likewise, they say that autonomy, far from promoting social harmony,could weaken national-state unity or block the development of links of cooperation andsolidarity between different ethnic groups by promoting ‘self-segregation’ and isolation.Autonomy is even disqualified as a viable alternative for exercising rights by someprofessed allies of the indigenous movement. For example, Moreano (1993, 216) arguesthat ‘Although the dynamic of the indigenous movement strengthens its participationin all aspects of the social and economic life of the country, certain Indian discoursespostulate extreme differentiation, autonomy, and even self-segregation of the commu-nity, or the Andean utopia.’Despite legal progress internationally and the prominence that indigenous

demands have achieved in general, an impasse seems to have been reached inwhich states and current governing elites find it difficult to digest autonomous

Indigenous Territorial Autonomy in Latin America 11

regimes. In a more general way, as the former UN Special Rapporteur on the HumanRights and Fundamental Freedoms of indigenous people put it, ‘there is still an“implementation gap” between the norms and the practice, between the formalrecognition and the actual situation of indigenous peoples, who continue to be thevictims of serious violations of their individual and collective human rights, and whocontinue systematically to show lower indicators of human development’ within theirrespective states (Stavenhagen 2007). In the same vein, some scholars have observedthe scant will shown by political elites in promoting accommodation through effectiveself-government for indigenous peoples, and they have also raised questions regardingthe possibilities of multicultural reforms for democratic cohabitation. As Martí i Puigpoints out:

The lack of will shown by the elites regarding consolidation of local (and effective)spaces for self-government is a potent indicator to which must be added the incapacityto make effective the ‘multicultural’ rights that figure in treaties (such as Convention169) signed by these Latin American governments, and there is also the appearance ofan alarmist discourse, indebted to the ‘clash of civilizations’ that asserts the necessity ofrethinking the matter of multicultural values, painting them as ‘communitarian’ andantidemocratic.

(Martí i Puig 2007, 139)

Notwithstanding this resistance and concern on the part of governing elites towardsthat indigenous territorial autonomy, and due to pressures from indigenous organiza-tions, legal reforms across the region have continued although they show variances intheir degree and concrete powers granted to indigenous self-governments.The following section is devoted to tracing the various interpretations of the

autonomy demand and provides contextual information that shaped the contour ofnational debates surrounding indigenous territorial self-government. The third sec-tion offers a comparative description of juridical and political dimensions of auton-omy arrangements in Bolivia, Colombia, Ecuador, Venezuela, Mexico, Nicaragua, andPanama. Finally, the concluding section reflects upon current challenges and dilem-mas of autonomy in its interactions with national states, the larger societies, and withother relevant actors.

Interpreting Autonomy

Along with the emergence and the national and international visibility that char-acterized indigenous social movements in Latin America during the decade of the1990s, the demand for territorial autonomy was also apparent.2 Even though somelegal agreements existed which had given formal expression to cultural recognitionto indigenous peoples through territorial autonomy, for instance, through theComarcas system in Panama in 1972, and the Autonomous Regions of Nicaraguain 1987, the 1990s was the decade in which the demand for autonomy tookcentrality both in the political discourse of social organizations and in the practicesof indigenous peoples in their relationships with national states (Burguete 2007;Díaz-Polanco 1995).

12 M. González

The salience of demands for indigenous territorial autonomy was closely associatedwith a defining moment in the history of Latin America’s indigenous movements. Asopposed to early peasant movements in the 20th century that espoused class-basedidentities, the end of the century witnessed the outburst of indigenous collectiveidentities as a catalyst for social action, politicization, and transnational organizing(Brysk 1996; Otero 2003, 248). At the same time, this activism was linked both tonational and international forums and networks, which organized multiple eventsthat served as spaces for coalition building and to forge common objectives betweenindigenous social movements and other social actors from Central, South, and NorthAmerica. Finally, the 1980s was clearly the decade in which a new political economywas being created in Latin America as the result of neoliberal reforms, whichproduced critical changes in state–civil society relations and concomitant socialresponses from many actors, including indigenous social organizations across theregion (Gwynne and Kay 2004, 13; Yashar 2005).Initially, observers and scholars of indigenous movements offered preliminary

interpretations of this phenomenon. For some, the mobilization for autonomyemerged as a ‘platform of rights’ with a high territorial content, one which inthe perspectives of indigenous peoples could represent a timely defense strategy forthe preservation of their habitats, their communal lands, the protection of themother earth and the surrounding natural resources without which the veryexistence of indigenous societies would be at risk. This strategy made sense inthe context of rapid and profound changes in citizenship regimes – from corpora-tist to neoliberal – the impact of neoliberal globalization, the centrality of themarket, and the new forms of governance such as decentralization, which LatinAmerican States introduced in the 1980s and 1990s alongside neoliberal reforms(Yashar 2005, 65–66).Another perspective viewed autonomy as the outcome of negotiations between

indigenous peoples and states in a context characterized by the radicalization ofindigenous demands, involving situations of armed conflict, and of a crisis oflegitimacy of the state. Negotiations to address these issues resulted in differenttypes of accommodation and, more specifically, in the inauguration of autonomyregimes with varying degrees of competencies and powers (Díaz-Polanco 1997; VanCott 2001, 32). These interpretations drew from analytical approaches in whichautonomy is presented as a ‘flexible solution’ used by states in their managementand stabilization of ethno-national conflicts (Lapidoth 1997).A third interpretation about the centrality of autonomy in the late 1980s early

1990s emphasized the effect of the trans-nationalization of indigenous social move-ments, the exchange of knowledge and experiences in international forums, the effectof organizational networks over the national agendas of organizations, the construc-tion of common agendas, etc.; all of which were connected to substantive progress ininternational law regarding the human rights of indigenous peoples, and moreparticularly the approval of the 169 ILO (International Labor Organization)Convention in 1989 (Brysk 1996, 39). In this literature, autonomy is represented asa discursive strategy of the indigenous social movement: in its relationship withtransnational networks; in the context of debates with international organizations

Indigenous Territorial Autonomy in Latin America 13

on the rights of indigenous peoples; and in the construction process of new politicalagendas by the global indigenous movement (Burguete 2007).Finally, a fourth approach interpreted the demand for autonomy as a form of natural

resistance, a type of ‘inward’ turn that aimed at reconstituting community-based formsof self-governance. This hacia adentro strategy which indigenous peoples embarked onmade sense in light of rapid and radical changes in the economy and polities experi-enced in the societies in which indigenous peoples were are part of and in whose statesthey remain subject to various forms of control and subordination (Burguete 2010;Esteva 2002, 388; Nash 2001, 248). Examples from these inward shifts in indigenousself-governance came from various contexts, particularly from indigenous peasantcommunities across the region which responded to neo-indigenism policies throughprocesses of indigenizing municipal reforms: by revitalizing indigenous authorities indecision-making (for instance, the role of councils of elders); through reforms in therules for political representation (normas y procedimientos propios adopted in electorallaws and regulations); and, finally, by asserting indigenous justice vis-à-vis nationaljudiciary systems (Burguete 2008).The various interpretations about the rise of the demand for indigenous autonomy,

rather than offering competing perspectives, were in fact complementary and illu-strated that autonomy was becoming a growing expression of a significant number ofindigenous organizations, a kind of programmatic platform through which indigen-ous peoples were seeking to realize the right to self-determination. Autonomy, mostauthors agreed, had the potential to strengthen the legitimacy of the struggles forsafeguarding the human rights of indigenous peoples in a changing and adversemilieu characterized by the negative effects associated with neoliberal transformationsof the 1980s and 1990s. However, this literature also highlighted that indigenousterritorial autonomy beyond its de facto expressions often conveyed an ambiguousmeaning. In many cases was a contentious concept, with few precedents in LatinAmerica, thus representing significant challenges for the process of codifying collec-tive rights within the state’s legal order (Hale 1994; Stavenhagen 2002, 35).Although the public centrality and the overall privileged position autonomy

achieved in the agendas of indigenous peoples, this did not translate into substantivereforms regarding the recognition of territorial self-government in national constitu-tions nor in secondary norms. The constitutional reforms undertaken during the1990s in countries like Ecuador, Venezuela, and Colombia enunciated the aspirationto establish autonomous territorial jurisdictions as governmental units invested withself-governing authority and as distinctive entities from municipalities, provinces, ordepartments. However, these countries failed to develop specific norms to transformthese general principles into operational autonomous regimes granted with functionaland fully fledged enabling legislations. Both conjunctural and structural factors mightexplain this outcome. States (legislatures, executive branches, and the judiciary) didnot commit themselves to fulfill in practice constitutional guarantees to indigenousself-governance. In other cases, indigenous organizations shifted their attention frombroader national debates on territorial autonomy to strengthen newly conqueredlocal/municipal governments (Cameron 2010; Van Cott 2008, 211). In other coun-tries like Panama and Nicaragua, whose experiences predated multicultural

14 M. González

neoliberalism, the functioning and actual exercise of autonomous territorial autho-rities were circumscribed by public policies which largely limited constitutionallyrecognized rights (González 2008; Jordan 2010).In short, the demand for autonomy entered the 1990s with a strong political and

discursive drive, one that succeeded in achieving continental resonance. Nevertheless,at the end of the decade not only specific changes to meet autonomy demands wereminimal, but also, in several cases, progress achieved through multicultural recogni-tion or through limited administrative territorial autonomy accommodation was evenat risk of being reversed.How to explain the apparent stagnation of indigenous territorial autonomy in

terms of constitutional recognition and its limited progress during the 1990s? Someauthors have explained this inertia by reference to the restrictions imposed onindigenous social movements through neoliberal multiculturalism and its associatedforms of control and cooptation within a new global governance regime (Hale 2002,2004). The key to these restrictions, Hale suggests, is to understand that the demandfor territorial control, since it imposes limitations on the regime of capital accumula-tion, also faces the stubborn decisions of states to not grant indigenous peoples theprerogatives of ownership and control over natural resources, which are subjected,each day with greater intensity, to extractive forms of exploitation. Fisher (2007, 8)conceptualizes these relations under the notion of ‘limit points,’ referring to ‘goalsthat foreshorten the possibilities of radical change by concentrating attention andenergy on what is viewed as attainable.’ This is to say, mechanisms that confine themargins of action of indigenous peoples under the logic of state control (2007, 8).Other arguments have focused on the lack of consensus among indigenous peoples

and their organizations regarding the meaning of autonomy as a negotiating plat-form, which often resulted from the absence of in-depth discussions on the applic-ability of autonomy to the diverse indigenous realities (e.g. contrasts betweenhighlands and lowlands, or between rural and urban areas), and eventually weakenedthe standing of the indigenous organizations vis-à-vis national and sub-national stateactors, as well as international organizations (González 2008). This question has beenmost obvious and at the same time frustrating in the context of constitutional reformswhere indigenous people do not only achieve a marginal representation but theyfrequently appear divided or outnumbered by parliamentary agendas promotedthrough political parties.Finally, an additional factor can be discerned in a report of the Special Rapporteur

on the Fundamental Rights of Indigenous Peoples, who noted the existence of an‘implementation gap’ with respect to the rights of indigenous peoples, attributed tothe lack of political will of ruling elites that failed to make concrete progress inenacting already-recognized indigenous rights at domestic level (Stavenhagen 2007).In short, the 1990s was a decade of ambiguous changes in relation to advancing therights of indigenous peoples in general, and more specifically in realizing functionalindigenous territorial autonomy in Latin America.In the following decade at the beginning of the 21st century, a new horizon seemed to

emerge in the struggle for indigenous territorial autonomy. After momentous andhighly polarizing national debates, both Ecuador (2008) and Bolivia (2009) relaunched

Indigenous Territorial Autonomy in Latin America 15

the debate on autonomy regimes in the context of a new round of constitutionalreforms. In both cases, the reforms included a clearer and comprehensive definitionof indigenous territorial autonomy and proposed general legal principles for realizing it.The new momentum for indigenous autonomies seems to have found a propitiousenvironment in national and international debates concerning the rights of indigenouspeoples (United Nations General Assembly 2007). Observers have noted internationalhuman rights standards concerning indigenous peoples have been progressively appliedby international treaty organs and by supervisory regional organizations – such as theInter-American Human Rights Commission, which have referred to indigenous rightsas part of a corpus juris. In turn, several states of the region have adopted these norms aspart of their constitutional principles, in addition to decisions being made by nationalcourts and the constitutional justice system that have been informed by internationalstandards pertaining to indigenous peoples (Aylwin forthcoming).There was also an initial positive convergence between indigenous peoples and

their organizations, and the ruling coalitions of the Left who were elected to office inseveral Latin American countries. These administrations distanced themselves fromneoliberal policy prescriptions and were originally committed to meet the demands ofindigenous peoples concerning their fundamental rights to land, self-government, andon issues concerning development and the control over natural resources. Forexample, in the case of Bolivia, the notion of the living well (buen vivir, in Spanish;Sumak Kawsay, in Kichwa; and Suma Jakaña or Qamaña in Aymara) and the rightsof Mother Earth were articulated to the Movemento towards Socialism government’sstrategies for building an alternative development model (Gudynas 2013, 23).Interestingly, this enthusiastic convergence has become today the source of misun-derstandings and tensions that very often have resulted in open conflicts betweenindigenous peoples and the states. One of the reasons for this new confrontation,perhaps the central one, is the prominence that the extractive economic model hastaken in these countries – a model of economic development eagerly promoted bythese states, which is threatening the material and cultural survival of indigenouspeoples, and their autonomous forms of governance.3

Legislative Advances and Characteristics of Indigenous Autonomies

This section presents a more detailed compilation of the social context, legal char-acteristics, definitions, and powers granted to indigenous autonomies in a group ofcountries that over the last decade underwent important constitutional debatesconcerning the collective rights of indigenous peoples. It is worth noticing that anemerging literature, particularly in Latin America, has expanded the scope of what isbeing understood by indigenous autonomy.4 While this trend shows an interestingshift and an upsurge in the study of autonomy processes as an expression of culturalaffirmation, it might also fail to notice a key definition of autonomous regimes: aterritorial jurisdiction granted through the state’s recognition in which ethnic com-munities can exercise meaningful rights to self-determination. The fundamentalcriterion to define autonomy used in this paper – internal politico-territorial – isthe formal (legal) recognition of the state to a distinctive community (or

16 M. González

communities) to exercise self-governing rights (Maíz 2008). Thus, with the purpose ofguiding this discussion relative to the scope and content of indigenous territorialautonomy, we propose that an autonomous regime entails, though is not limited to,the following attributes: (i) a significant transfer of independent decision-makingcapacities and administrative competencies to local – indigenous or multiethnic –elected authorities; (ii) the creation of self-governing political structures within arecognized legal jurisdiction; and finally, (iii) the delimitation of a territory in whichcollective rights to land and natural resources are granted and they can be exercised.Transfer of independent decision-making capacities refers in turn to seeking equityand justice through the redistribution of territorial powers granted to autonomousentities (Lapidoth 1997; Maíz 2008, 17–18), thus, the ‘creation of self-governingpolitical structures,’ and it also implies the inauguration of autonomous, representa-tive institutions (Díaz-Polanco 1997). Without suggesting that these criteria should beconsidered a blueprint for assessing indigenous territorial autonomy, they offer thepossibility for a comparative analysis of the various indigenous autonomy agreementsthat can be observed across the region.

Bolivia

Bolivia is perhaps today the country with the most advanced and comprehensiveconceptualization of territorial autonomies in Latin America. Under the principle ofrecognizing the diverse realities of indigenous peoples and those communities claim-ing a peasant or trade union identity, Article 2 of the Constitution states that:

Given the precolonial existence of nations and indigenous originary and peasant peoplesand their ancestral domain over their territories, self-determination is guaranteed underthe framework of state unity, which consists of the right to autonomy, self-government,and to culture, and the recognition of its institutions and the consolidation of itsterritorial units.

The Constitution also recognizes that is a right of Pueblos Indígenas OriginariosCampesinos that ‘their institutions are to be considered part of the overall structureof the state,’ and that they have the right to self-determination and territoriality(Article 30). Article 282 defines Autonomías Indígenas Originarias Campesinas(AIOC), which consist of ‘self-government as the exercise of self-determination ofnations and indigenous originary and peasant peoples, whose population sharesterritory, culture, history, languages, and organization or legal institutions, political,social and economic characteristics.’ The two central qualities of autonomy are theancestral territory and self-government. Self-government, the Constitution states,‘shall be exercised in accordance with its rules, institutions, authorities and proce-dures, according to the attributions and powers, in harmony with the Constitutionand the law’ (Article 290). And in order to establish autonomies, the PoliticalConstitution of the State (CPE) establishes a set of general procedures, includingthe drafting of autonomy statutes by the people and communities interested inbecoming autonomous units (República de Bolivia 2009).The Constitution does not limit indigenous autonomy to the community level. It

further provides that, if they wish, AIOCs may associate with each other through

Indigenous Territorial Autonomy in Latin America 17

referenda and consultations, forming larger territorial units. The same is mentionedfor the municipal, departmental, and regional autonomies, for all the CPE contem-plates is that they can become autonomous through public referendums. The possi-bility for creating indigenous autonomous regions is referred to in Article 295.II,which states:

The aggregation of municipalities, municipal districts and/or indigenous originarypeasant autonomy to form an indigenous originary peasant region, will be decided byreferendum and/or according to its rules and procedures for consultation as appropriateand according to the requirements and conditions established by the Constitution andthe law.

Finally, the CPE opens up the possibility that Originary Community Lands (TCO, forits Spanish acronym), recognized in a prior constitutional reform, can transition to anIndigenous Originary Peasant Territory (TIOC), and if their population are able to doso, they can also form an AIOC (República de Bolivia 2009).In terms of the powers granted to autonomy, the Constitution refers to an

‘Autonomy and Decentralization Framework Law,’ which was approved in July2010. This legislation provides the operational rules to establish autonomy andstates-specific criteria for

the territorial organization of the state, the types of autonomy, procedural guidelines toaccess autonomy and to the process of drafting the Statutes and Organic Laws, regimesof powers and financial and economic competences, coordination between the centralstate level and autonomous territorial entities, and the general framework of participa-tion and social control in the autonomous territorial entities.

(Article 3)

Regarding indigenous autonomy, the Autonomy Law includes a general competenceto ‘promote the integral development as nations and peoples and territorial manage-ment.’ Likewise the Law also identifies three possible ways to transition to AIOCs:through TIOC, via municipalities, and through an indigenous originary peasantregion (or regions). So far, the 11 initiatives to become AIOC have proceeded viamunicipalities. Some researchers have mentioned that the regulatory procedures tocreate autonomies are extremely bureaucratic, which in practice has impeded anddelayed the formation of AIOCs throughout the country (Cameron et al., in thisissue). The entangled state contours in which the initiatives to constitute autonomieshave to operate is probably a consequence of what authors like Garcés (2011) call the‘domestication’ of indigenous autonomy which resulted from the contentiousConstitutional process. In his view, ‘transforming the density and complexity ofdemands for indigenous self-determination and self -government into a managerialproblem primarily allows the subtle re-establishment of mechanism of state coloni-ality that continue to show signs of vigor and creativity’ (2011, 65). Yrigoyen (2011,150) has referred to this as a tension that exists between pluralist concepts and thelimiting norms within the Bolivian Constitution, which in her view reflects politicaland theoretical resistance to juridical pluralism and indigenous autonomies.Another issue worth mentioning is the prerogative of the state contained in the

CPE as a sole owner of non-renewable resources. Article 356 states that ‘the

18 M. González

exploration, production, refining, processing, transportation and marketing ofnon-renewable natural resources have the character of state need and publicgood.’ Being an exclusive power of the state, the CPE ensures that indigenouspeoples have the right to be consulted and that ‘the right to prior mandatoryconsultation by the state will be respected and guaranteed in good faith’(Article 30).In short, Bolivia qualitatively raised the parameters established in the Latin American

region regarding the formation of indigenous territorial autonomy, extended the rangeof their powers, and opened up the possibility of including them into mutuallycomplementary and functional autonomous regimes within the political organizationof the state (Cameron and Sharpe 2010, 73). However, despite the innovative legisla-tion, and partly due to the restrictions imposed under the constitutional provisionsthrough secondary/enabling legislation, the actual operation of autonomies, theirconcrete progress in order to be created from a bottom-up process by the concernedindigenous peoples, claiming communities and their organizations, has been an uphilland a winding terrain (see Cameron et al., in this issue; also Garcés 2011).

Colombia

The Colombian Indigenous resguardos, around 50 across the country, comprise 24per cent of the total national territory, and are inhabited by 84 per cent of the nationalIndigenous population. According to Van Cott:

The 1991 [Colombian] Constitution recognized the rights of resguardos to elect theirown authorities according to their own customs, to design and implement developmentplans, to exercise indigenous customary law to resolve disputes within the community,to raise and administer taxes, and to receive a portion of national income comparable tothat allocated to Colombian municipalities.

(Van Cott 2002, 50–51)

The indigenous resguardos are comparable to municipalities in terms of adminis-trative functions, political autonomy, and share of national income. Decree 2164issued in 1995 defines the resguardo as a

legal and socio-political institution of a special nature, consisting of one or moreindigenous communities, which possess its territory through a title of communalproperty, and it rules itself and organizes its internal life through an autonomousorganization that is protected by the indigenous jurisdiction and its own normativesystem.

(Ministerio de Agricultura de Colombia, Article 21, Decree 2164 (1995))

Where the resguardos are contiguous, the Constitution opened up the possibility forthe creation of extensive autonomous units through the establishment of theIndigenous Territorial Entities; however, the enabling legislation needed to inauguratethese entities still awaits approval (Aylwin forthcoming; Van Cott 2002). In light ofthe absence of such legislation and in the context of mounting violence, indigenouspeoples of Colombia have remained subject of increasing violence, all sorts of humanrights violations, and displacement (Roldán 2006; Stavenhagen 2007, 61).

Indigenous Territorial Autonomy in Latin America 19

Increasingly, indigenous peoples across the country have resorted to forms of de factoautonomous organizing and territorial control within a pragmatic approach that is bothrelational – because it seeks recognition and working relationships through negotiationswith multiple agents – and strategic – since at the end of the day it seeks to advance therealization of rights towards indigenous self-determination (Caviedes 2007; Ulloa 2011,81). As in other contexts in Latin America, indigenous autonomy in Colombia is notlimited to demands for recognition of territorial rights and self-government, but it alsoincludes a vast array of issues that concerns the survival and self-determination ofindigenous peoples. For Ulloa (2011, 80), struggles for autonomy also include ‘localjurisdiction, environmental management, food sovereignty, and political control byindigenous authorities.’ Caviedes (2007) documents how authorities of the Nasa Weshresguardo in the municipality of Gaitiana, Department of Tolima, strengthened thelegitimacy of its council in order to negotiate a peace strategy with the FARC (theColombian Armed Revolutionary Forces), which resulted in substantial gains for theindigenous autonomy. It is within these circumstances that state-led policies toward thecreation of new resguardos in various regions of Colombia, even in the absence of acoherent enabling legislative framework of self-governing capacities, should be under-stood. These experiences have shown a great capacity for resistance and creative adapta-tion to adverse social and political conditions; they have resulted in operationalagreements with state agencies and forged alliances with local, national, and internationalactors that have proven to be promising in empowering indigenous peoples in their questfor self-determination (Berman and Ros-Tonen 2009; Ulloa 2011, 88).

Ecuador

The Ecuadorian Indigenous Territorial Circumscriptions (ITC) were establishedin the 1998 Constitutional reform. According to this reform, ‘Indigenous andAfro-Ecuadorian authorities may exercise a number of autonomous functions,which include the administration of justice and the formulation and execution ofeconomic development plans, within ethnically defined territorial circumscrip-tions to be established by law’ (Van Cott 2002, 60). However, as in the case ofthe Colombian resguardos, enabling legislation has yet to be formulated, andscholars have pointed out the ‘ambiguous’ language that permeated the descrip-tion of the nature of the ITCs in the 1998 Constitution regarding the specificdegree of autonomy. Indeed, there was an important level of disagreement as towhether ‘the ethnic territorial circumscriptions are a separate level of govern-ment, whether they correspond to a specific sub-national level, or whether theymay correspond to multiple levels’ (Van Cott 2002, 61). While disagreementabout the scope of the ITC pervaded among key political actors at the nationallevel, including the indigenous social movements, various innovative practices ofde facto autonomy at local levels – that is, without formal state consent – havebecome prominent in the political landscape of the country (González 2008).In 2008, Ecuador reformed its political constitution. The reform introduces the

possibility for the creation of decentralized autonomous regions, and furtheradvanced the definition, competencies, and legal mandate of the Indigenous,

20 M. González

Afro-descendant, and Montubias Territorial Circumscriptions (IAMTC).Autonomous regions could be formed voluntarily through legal initiatives sub-mitted by two or more provinces. The law requires minimum conditions regard-ing population size and geographical extension. For IAMTC, the Constitutionstipulates that

Within the context of the political and administrative organization of the state, indi-genous territorial or Afro-Ecuadorian Territorial Circumscriptions might be constitutedin order to exercise the jurisdiction of the autonomous territorial government, and theyshall be governed by principles of interculturality, plurinationality and in accordancewith collective rights.

(Article 257)

The law also recognizes communal property rights of indigenous peoples and theresponsibility of the state in safeguarding the integrity of these territories. As in thecase of Bolivia, the legislation also proposes that IAMTC are to be formed throughlocal consultation, and they require the approval of two-thirds of the population thatresides in the concerned territory. Finally, the constitution also states that: ‘Two ormore circumscriptions administered by indigenous or pluricultural territorial govern-ments may be integrated to form a new circumscription’ (Article 257). In sum,indigenous autonomy in Ecuador has progressed towards a flexible regime of terri-torially based self-government, which has been granted an extensive array of compe-tencies, similar to those granted to autonomous regions.

Venezuela

Some observers have considered Venezuela as having inaugurated what might beinterpreted as an indigenous autonomy regime (Assies 2005). Article 169 of theVenezuelan constitution reads:

the legislation enacted to implement the constitutional principles relating toMunicipalities and other local entities shall establish various regimes for the organiza-tion, governance, administration and resources, taking into account conditions relatingto population, economic development, ability to generate their own tax revenues,geographical location, historical and cultural elements and other relevant factors. Inparticular, such legislation shall establish options for organizing the regime of govern-ment and local administration that shall correspond to municipalities with indigenouspopulations.

(Biblioteca 2008; emphasis added)

It is noticeable that the Constitution frames indigenous territorial autonomy withinthe institutional contours of existing municipalities. For this reason, legal scholars inthe country have pointed out that Constitutional provisions left indigenous territorialautonomy ambiguously defined and in fact reinstated the municipality as the pre-ferred option for realizing indigenous self-determination (Colmenares 2002). Thepossibility exists, however, that flexible and innovative forms of municipalitiesmight be formed as a result of indigenous initiatives of territorial associations.According to one observer,

Indigenous Territorial Autonomy in Latin America 21

the proposed constitutional precepts do not establish a unique form of municipalgovernment but they open up the possibility for establishing a different regime for theorganization, government and administration of municipalities that might be createdthrough legislative development, based on the communities’ cultural characteristics.

(Colmenares 2002, 17).

Even in light of relative progress concerning the recognition and titling of indigenouslands, which have advanced through state-sponsored programs, indigenous self-government in Venezuela has been limited and constrained within municipal jur-isdictions (Caballero and Zent 2006, 7; Ruette 2011).

Mexico

Mexico’s national public debate on indigenous territorial autonomy might be creditedto the irruption of the Zapatista Army of National Liberation (EZLN) into politicallife in 1994. Although the EZLN maintained its de facto autonomy strategy in theterritories since the beginning of the levantamiento, it also promoted a proposal forautonomous regions in the negotiations with the government, which began at the endof 1995. The EZLN created the conditions for a broad convergence of organizationsand intellectuals who were sympathetic to the indigenous cause in order to articulatea proposal for autonomy to present to the negotiating table. Four aspects of the EZLNproposal can be identified that clearly define the concept of autonomy for which itdemanded legal recognition: (i) its regional character; (ii) the territory in whichspecific rights would be exercised; (iii) jurisdictional powers; and (iv) local self-governments with their respective powers (Burguete 2004). Thus, autonomy wasdefined as internal political self-determination to be attained through a constitutionalreform that would eventually create a new, regional level of government.5 Theagreements reached between the EZLN and the government at the San AndrésAccords on the issue of autonomy enable one to see how far the two parties hadadvanced in the discussion of autonomy, what had been agreed upon at the negotiat-ing table, and to identify their differences.The discussions on autonomy were held in a Mesa (Table or Panel) called

Derechos y Cultura Indígena (Indigenous Rights and Culture). The agreementbetween the EZLN and the government on that point stated that

autonomy is the concrete expression of the exercise of the right of self-determination,expressed as a framework erected as a part of the national state. Indigenous peoples maytherefore decide on their forms of internal governance and the ways in which theyorganize themselves politically, socially, economically, and culturally. Within the newconstitutional framework of autonomy, the exercise of the indigenous peoples’ right toself-determination in each of the spheres in which they choose to make use of it shall berespected, and this right may cover one or more indigenous peoples in accordance withthe particular and specific circumstances of each state.

(EZLN and Federal Government Commission, 1996)

More concretely, the agreement stipulated that constitutional reforms would beproposed leading to

22 M. González

Legislating on the autonomy of indigenous peoples and communities to include recog-nition of those communities as bodies under public law, the right to freely combine intomunicipalities with a majority indigenous population, and the right of several munici-palities to join together in order to coordinate their actions as indigenous peoples.

(EZLN and Federal Government Commission, Section V (a) 1996)

The EZLN considered the above-mentioned contents to represent a minimumframework for autonomous rights. Some of their advisors believed that the parti-cular language of the agreement would restrict autonomy to the communities,which would acquire legal recognition as subjects of public rights. But the regio-nal–territorial character of autonomy remained imprecise since, although it wasaccepted that indigenous municipalities could associate with other municipalities,the agreement did not recognize such association as having any regional juridicalcharacter (Díaz-Polanco and Sánchez 2002, 140). Moreover, the inter-municipalassociative concept did not represent a novelty in legislation on local governmentin Latin America. It left the traditional state structures intact (e.g. the municipality)and attached to the central state. This is a point of discord in the indigenousmovements’ struggle for a more equitable and democratic distribution of localpolitical power.The EZLN suspended its participation in the dialogue in August 1996 during the

talks in Mesa 2 on Democracia y Justicia del Diálogo (Democracy and the Justice ofDialogue). According to the EZLN, in this Mesa the government ‘affirmed its standon state reform: discuss abstractions and reform nothing.’ The EZLN also questionedthe failure to set up the Comisión de Seguimiento y Verificación (Verification andFollow-up Commission), ‘the fundamental basis for fulfilling the accords’ reached inMesa 1 on Indigenous rights and culture (EZLN (Zapatista Army of NationalLiberation) 1996).At the end of 1996, based on those agreements, theComisión de Concordia y Pacificación

(Commission for Concord and Pacification (COCOPA)), composed of national deputiesfrom different political groups, elaborated a constitutional reform proposal to be presentedto Congress. This commission was interested in unblocking the interrupted dialogue andchanneling the proposed reforms to Congress. The COCOPA proposal proposed theconstitutional recognition of the right of indigenous peoples to self-determination andautonomy, without restricting that right to the community level. The COCOPA documentstated that

The free determination of indigenous peoples will be respected in each of the areas orlevels where they assert their autonomy; it can involve one or more indigenous peoplesaccording to particular and specific circumstances of each federative entity. Indigenouscommunities, as entities enjoying public rights, and municipalities that recognize them-selves as forming an indigenous people will have the faculty to freely associate in orderto coordinate their actions.

(COCOPA, 1996)

Although a territorial–regional autonomous regime also remained diluted in theCOCOPA proposal, the proposed reforms opened the possibility that indigenouspeoples could form associations that would enable them to form territorial units on

Indigenous Territorial Autonomy in Latin America 23

a regional scale. In summary, the proposal struck a difficult balance on the mostcontentious themes of the San Andrés negotiations. The COCOPA initiative signifieda step ahead on what had been agreed to regarding self-determination and anautonomous regime for indigenous peoples, but it did not define this or describe itscharacteristics. As a result, the possibility of forming autonomous regimes – as apolitical entity distinct from the municipality and the community – remained impre-cise and subject to different interpretations. Even so, the EZLN not only accepted theproposed reforms but also made government accept one of its conditions for renew-ing the dialogue with the government. It is clear that the EZLN had shown its interestin constructive dialogue, although in this battle it had to yield ground on centralaspects of its initial vision of autonomy.The government of Vicente Fox sent the COCOPA proposal to the Mexican

Congress, where it not only lacked a legislative majority, but where it would soonbe demonstrated that no multiparty interest existed in supporting the proposedreforms. The reform adopted by Congress in April 2001, known as the LeyIndigena (Indigenous Law), even eliminated some of the minimal agreements reachedin San Andrés. It discarded any possibility of founding autonomous regions underassociative terms that would define a territorial–regional model with its own attribu-tions, jurisdictional capacities, and governments, distinct from either the communitiesor the municipalities. The ‘counter reform,’ as various observers called it, encounteredstrong opposition from the Mexican indigenous movement and the EZLN. Variouscourt appeals were also made to have it declared unconstitutional. To this day, thislaw reached an impasse in the debate on autonomy and constitutional reforms onindigenous rights in Mexico. Beyond a doubt, it constitutes one of the reasons thatprovoked the EZLN to take the initiative to found autonomous processes ‘withoutpermission’ of the state – the Caracoles, or Juntas de Buen Gobierno, that replaced theAguas calientes. Since they were established in 2003, the Juntas have been able tocreate de facto governing spaces, delivered basic public services (such as health andeducation), arbitrate and mediate on judicial disputes emerging within the territoriesunder their control, and have promoted he implementation of ordinances andregulations over their jurisdictions. Observers have pointed out that, despite workingunder restricted economic and political conditions, the Juntas represent alternativegoverning territories in which autonomy and rights are experienced as concretepractices rather than legally recognized by the state. While women are frequentlyexcluded from decision-making processes, Zapatistas’ capacity to reinvent forms ofgovernance and social organization has meant that autonomy ‘constitute a challengeto the neoliberal state, not because the supposedly risk of “separatism” but because itdoes offer symbolic and material alternatives to neoliberal governance’ (Speed2011, 161).Besides de facto experiences of Caracoles launched by the EZLN, in the neighboring

state of Oaxaca (in which indigenous peoples comprise the majority of the state’spopulation) community municipal forms of indigenous territorial autonomy alsogained momentum as the result of the Zapatista uprising and the negotiation thatfollowed (Esteva 2002, 388). In 1998, the state congress of Oaxaca reformed itsConstitution and passed a legislation that recognizes indigenous rights, including

24 M. González

the right to free determination and autonomy. The changes in the legislation alsogrant indigenous communities with juridical personality as entities of public right.Autonomy is defined as

the expression of self-determination of indigenous peoples and communities as integralparts of the State of Oaxaca, in accordance with the existing legal order, to adopt theirown decisions and institute practices associated with their worldview, indigenousterritory, land, natural resources, socio-political organization, administration of justice,education, language, health and culture.

(Article 3.iv)

Autonomy is not restricted to the community level, but it encompasses multi-communaland inter-municipal forms of association:

Each people or indigenous community in consensus with the State and, when relevant,with the municipalities and without prejudice to third parties, shall define the limits oftheir indigenous territory within which autonomy is to be exercised at the municipallevel, in relation to municipal agencies or to the police, based on associations composedof several municipalities, or associations between communities and municipalities.

(Article 8)

In sum, the Oaxacan legal provisions articulate a pluralist legal regime thatensures indigenous territorial autonomy based on the principle of coexistence,respect for cultural diversity, and for the norms and procedures as defined byindigenous peoples themselves (Esteva 2002, 387). Despite the passing of progres-sive legal norms and the creation of self-governing municipalities, Oaxaca remainsethnically fragmented and politically divided, showing contrasting allegiances bothwith regional elites and competing ethnic/territorial identities. Also, colonial prac-tices are still embedded in state’s judicial procedures concerning the resolution ofpost-electoral conflicts involving indigenous municipalities (Martínez 2013, 75;Velásquez 2012). This in turn has meant rising violence and the deepening ofinter-community tensions in various regions of the state. Scholars and humanrights activists have also documented an increase of conflicting conditions in otherregions of Mexico. For instance, the Coordinadora Regional de AutoridadesComunitarias (CRAC-PC) in Guerrero, a self-regulating supra-communal entityresponsible for enforcing justice based on autonomous principles, has been tar-geted and weakened by militarization driving the ‘war on drug trafficking’ and theexpansion of extractive industries (Sierra 2013).

Nicaragua

In October 1987, and after a complex process of negotiations with an indigenousresistance that had organized an armed rebellion against the Sandinista Revolution,Nicaragua adopted the Autonomy Statute of the Communities of the Atlantic Coast(also known as Law 28). This law recognized the constitutional rights of indigenouspeoples and ethnic communities of the Coast to be granted an autonomous regime‘that guarantees the effective exercise of their historic rights.’ Law 28 created twoautonomous regions, each headed by multiethnic regional autonomous councils

Indigenous Territorial Autonomy in Latin America 25

comprised by 45 councilors. This type of autonomy is territorial/administrative, as thelaw confers powers and authorities to the regions, which are defined as legal entities.Some of the powers of autonomous regions are:

to effectively participate in the elaboration and implementation of national developmentplans and programs in the region, to administer health, education, culture, supply,transportation, and community service programs etc; to foster their own social, culturaland economic projects; to promote the rational use and enjoyment of waters, forests,lands and to defend the ecological system; to promote the study, promotion, develop-ment, preservation and dissemination of traditional cultures of the Communities of theAtlantic Coast, as well as their historical, artistic, linguistic and cultural legacy, and tolevy regional taxes according to the laws governing the matter.

(Asamblea Nacional de Nicaragua 1987, Article 8)

The law also recognizes the right of indigenous peoples to the lands they havetraditionally used and occupied, and to preserve their forms of social organizationand authority. In terms of natural resources, Law 28 states that: ‘In the rationalexploitation of mineral resources, fisheries and other natural resources located in theAutonomous Regions, property rights to communal lands are recognized, and theyshould benefit in just proportion its inhabitants’ (Article 9). However, Law 28 did notdefine specific coordination mechanisms between regional authorities and indigenouscommunities, nor did it clarify or delineate a specific procedure to legalize and titleindigenous lands. This legislation came out 15 years later, in 2002, as well as the normrelated to the enabling legislation to operationalize the Autonomy Statute. Despitebeing granted a substantial recognition of collective rights, in the absence of concreteoperational regulatory procedures to preserve the material basis of indigenous peoplesand communities, indigenous autonomy has been substantially weakened.In 2002, the National Assembly passed the Communal Land Act (Law 445),

through which a specific norm was created to demarcate and legalize indigenousand Afro-descendant lands; it also established mechanisms to create, recognize, andlegitimize indigenous territorial governments. Thus, Law 445 formally established anadditional level of government in autonomous regions, which are now coexisting withmunicipalities and regional governments. The law states that ‘communal authoritiesare administration and government bodies representing communities that elect themaccording to their customs and traditions.’ It adds that ‘territorial authorities are theadministrative territorial units that legally represent indigenous communities.’Currently, there are 21 indigenous territorial governments legally constituted in theCaribbean Coast, most of which have also been granted titles to their collective lands(CONADETI 2013, 8).

Panama

Panama is the first Latin American country that in the 20th century established somedegree of recognition to self-government and to indigenous peoples’ territorial auton-omy. However, it did so through secondary legislation and therefore indigenousterritorial autonomy is not constitutionally recognized. The first Panamaniancomarca, the Kuna Yala, was established in 1938. In 1972, the comarcas were given

26 M. González

the juridical category of ‘reserves’ under the Omar Torrijos administration, whichgranted them with substantial protections to indigenous ancestral territories (PoliticalConstitution of the Republic of Panama 1972, Article 123). The inauguration of theEmbera-Wounaan comarca in 1982 further galvanized the state’s formal support toindigenous territorial autonomy. The comarca is a ‘politico-administrative unitwherein indigenous political structures are granted legal recognition by the state,which also superimposes politico-administrative structures of the state on Indigenousgovernments’ (see Herrera 1998, 13, cited in Wickstrom 2003, 63). The collective landencompassed in the comarcas is ‘inalienable and imprescriptible,’ thereby safeguard-ing indigenous rights over traditional community land. Nevertheless, the state holdsthe usufruct of natural resources contained in community lands and ‘maintains itsright to exploit all such resources’ (Wickstrom 2003, 45). Due to the lack of inde-pendent decision-making powers granted to indigenous authorities regarding naturalresource exploitation and the limited scope for dealing with economic improvement,some authors have referred to the comarca experience as an ‘encapsulated’ autono-mous regime.In 1996 and 1997, the Kuna Bayano (Comarca Indígena Kuna de Madungandi) y

Ngobe comarcas were respectively established. The most recently established comarcais the Kuna of Wargandiin 2000. Presently, comarcas comprise approximately 20 percent of the national territory, and they are inhabited by 53 per cent of the nationalindigenous population, the equivalent to 6 per cent of the national population (Leis n.d., 5). However, in these new comarcas, the rights to autonomy claimed by theindigenous peoples have been limited. For example, Jordan (2008, 12) states thatArticle 48 of Law 10 from 1997 – which creates the Ngobe comarca – ‘would limit theNgobe autonomy by denying their right to decide on the use of natural resources’;while Article 21 of Act 24 of 1996 ‘guarantees access rights to non-indigenous settlerswho after the Bayano hydroelectric project have invaded the kuna lands.’ During thelast decade, the Panamanian state has continuously resorted to unilateral actions toalter legislation protecting the rights of indigenous peoples, for example, the right tofree, prior, and informed consultation.6 Through these actions a package of develop-ment projects and concessions to extractive industries has advanced in indigenousterritories. However, through legal actions and mobilization, these violations toindigenous rights to autonomy have been challenged by comarca authorities(Jordan 2008).The neoliberal orientation of recent governmental administrations, the develop-

ment of ambitious infrastructural projects across the country, and the wider endorse-ment of resource extraction public policies have acted against existing indigenouscomarcas and have also debilitated proposals to create new indigenous territorialautonomies. Moreover, de facto control over indigenous territories has been wea-kened due to multiple encroachments over indigenous territorial autonomies.In a hearing before the OAS Inter-American Human Rights Commission, repre-

sentatives of Panamanian indigenous peoples explained that:

The authority of indigenous peoples within the comarcas varies substantially becauseeach unit has its own specific law, without a general juridical framework. In

Indigenous Territorial Autonomy in Latin America 27

consequence, some comarcas offer more protection than others, and two indigenouspeoples of Panama, the Naso and the Bribri, have been excluded from this comarcasystem.

(Sánchez and Quiroz 2008, 3)

The absence or presence of this general legal framework is what distinguishesautonomous regimes from other forms of recognition that inaugurate indigenousterritorial autonomy systems, with heterogeneous designs and powers. Jordan (2008,15) concludes that despite the existence of the comarca system and of a system ofindigenous territorial autonomy ‘the Government of Panama has systematicallyclosed off all possibility of inclusion of indigenous peoples in government decisionmaking.’

Conclusions

Indigenous territorial autonomy should not be only subsumed into a governmentalentity that is recognized by the state, which is part of its administrative, political, andlegal structure. In a broader sense, de facto autonomies have existed and resistedthroughout Latin American history, in the Andean highlands, in the Amazonianlowlands, in the Central American isthmus and Mexico, and in the South of thecontinent. Autonomy in a cultural sense has been synonymous with strength andresilience, and is expressed today in many ways in the everyday life of indigenouspeoples (Baronnet, Mora, and Stahler-Sholk 2011; Ulloa 2011, 87). However, in thispaper we have been concerned with presenting an overview of the different types oflegally sanctioned constitutional arrangements that have been recognized over the lastdecades in the Latin American region. These arrangements reflect different types ofrecognition to indigenous self-government, various degrees of control, powers, anddecision-making with respect to their natural resources, and provide specific compe-tencies in the areas of justice, health, education, culture, and territorial and landrights. In many countries of Latin America, indigenous autonomies are now part ofplural legal regimes that have started to configure new relationships between indi-genous peoples and states (Yrigoyen 2011). While in several cases these relationshipsare characterized by tensions and conflicts, including the de facto experiences,indigenous territorial autonomy is a new contested field in the struggle for indigenousself-determination. An obvious conclusion from the analytical exercise presented hereis the realization that diversity characterizes autonomy agreements, but some com-monalities can also be discerned in their characteristics and challenges.In this conclusion, we highlight three issues that we believe will continue to influence

debates on the creation, feasibility, and performance of indigenous autonomies in theirrelations with the national states, with the societies of which they are part, and in theirinteractions with other non-state agents and actors: (i) first, the latitude of indigenousself-government institutions – or the challenges of self-governance – and to what extentgovernance models of indigenous territorial autonomy are to be inserted in traditionalstate institutions, or, if instead institutional innovations will emerge, ones that might beable to reflect the worldviews and identities of indigenous peoples; (ii) threats to self-

28 M. González

determination and self-governance derived by the dominant extractive economicmodel, militarization of indigenous territories, and by the new developmental/univers-alist approach promoted by several states in Latin America, and in which indigenouspeoples are important majorities; and (iii) the significance of the emergence of aparadigm that resembles a type of post-neoliberal governmental pluralism that accom-modates indigenous territorial autonomies while at the same time restricts theirpotential as spaces for social emancipation.Several of the cases examined here reflect a pressing tension regarding the ability of

autonomous regimes to either encompass indigenous-based political institutions andindigenous views of governance, or rather to design a new institutional framework ofgovernance that is rooted in state republican tradition (Assies 2000, 17; Garcés 2011).It has been pointed out, on the one hand, that when indigenous views of governancewere not integrated into the legal frameworks that created the local, municipal, orregional institutions, only limited improvement in political participation and democ-racy was achieved (González 2004). On the other hand, and quite unexpectedly,where autonomous regimes and decentralization policies have been implementedtogether with some degree of recognition of indigenous-based institutions (such asin the case of Panama, Nicaragua, Colombia, and Mexico), a de facto disengagementof local indigenous authorities from regional decision-making processes also hasresulted (within the context of the hierarchical/authoritarian character of the centralstate and its neoliberal govermentalities). This has been accompanied by the generaldisengagement of indigenous peoples from the politics of the new forms of neoliberalgovernance instituted by the policies of accommodation. Incorporation, in the waysin which it has taken place, actually may imply ‘an extension of historically weakstates,’ and the subsequent implementation of ‘new forms of incorporation’ ofindigenous peoples that are functional to multicultural neoliberalism.7

Indigenous autonomy might offer political conditions conducive to minimizing theperverse effect of limited state sovereignty and weak state territorial reach that oftenresults in protracted disputes for legitimacy between state and non-state agents. Theseactors usually compete for the use of the means of coercion, justice administrationand security, which formally follow within states’ responsibility. The experience of theCRAC-PC discussed earlier is a good example of how the right to self-determinationcan be exercised in practice through a multi-communal organization granted with therole of enforcing normative justice systems and vigilance (that includes both indi-genous and non-indigenous peoples). However, the functioning, continuity, andrelevance of CRAC-PC have been impacted by the organized crime, extractiveindustries, and the juridical ambiguities that result from contested domestic normsand jurisdictions (Sierra 2013).As has been made evident in the content and character of indigenous self-government,

legally sanctioned indigenous self-governance might be impregnated by indigenousworldviews on the bases of communal authority, the meaning of leadership, and theprinciples of living well. However, existing autonomy agreements show that if staterepublican logic is imposed, or as Quijano (2000, 236) suggests, if the coloniality ofpower continues to define the interactions between state institutions and indigenouscultures, limiting their life worlds, curtailing their ancestral forms of authority, and

Indigenous Territorial Autonomy in Latin America 29

constraining the exercise of meaningful self-governance, autonomy as a venue forrealizing self-determination would be no more than just a declaratory exercise.In Bolivia, as Cameron et al. (this issue) illustrate, although the state has discursively

moved away from a neoliberal model of market-oriented policies, the outcome in termsof the state’s intention in limiting the voices and perspectives of indigenous people fordesigning their own institutions of autonomy has been the same as the one observedwithin neoliberal multiculturalism. A type of ‘domesticated plurinationalism’ emerges,Garcés points out, ‘in which the state and that those who are deemed politically correctdictate the themes to be dealt with, the allowable margins and the limits, and so forth’(2011, 65). Another important governance challenge of autonomy is its capacity toinclude, represent, and promote equality relationships towards indigenous women who,as various analyses have pointed out, are at disadvantage within existing autonomyarrangements (Figueroa 2010; Speed 2013). This is noticeable despite the fact thatwomen are contributing to the design and implementation of autonomy throughactivism, their participation in negotiating processes, and by contributing to the socialreproduction of indigenous communities (Nash 2001, 249).Indigenous peoples are particularly vulnerable to developmentalist discourses that

emphasize the idea of progress, the well-being of the nation, and the common good(Stavenhagen 2007, 60). In the past, these discourses have served to justify displacement,dispossession, and illegal occupation of indigenous territories and to undermine theright to self-determination. This discourse and the practices associated with it, especiallydeployed to support extractive industries and redistributive public policies, are reinfor-cing and legitimizing a new wave of violations to the fundamental rights of indigenouspeoples across the Latin American region and elsewhere, against which domestic legalprovisions, the existing powers of constitutionally recognized autonomous regimes, andeven the rulings of the Inter-American Human Rights Commission show a limitedability to counteract. In particular, extractive industries and their widespread adoption asa strategy for economic development in countries like Peru, Ecuador, Chile, Colombia,Venezuela, and Bolivia are one of the main threats to indigenous territorial autonomy.In all these countries, states have reserved an almost absolute control of ownership anddecision-making powers over non-renewable and underground natural resources, whilethe right to free, prior, and informed consent by the indigenous peoples on thefundamental issues that may affect their cultural and material survival is often violatedin the name of the common good and the national public interest. This issue is furthercomplex and often contradictory since, as recent studies have illustrated in the case ofthe TIPNIS in Bolivia, not all indigenous peoples fully oppose extractive industries, orare against some form of state-led and development interventions in their territories(McNeish 2013, 224).In various countries, indigenous peoples and their organizations have resorted to

domestic courts and to the Inter-American Human Rights system, but this strategyoften results in a long, expensive endeavor and has shown only limited effects onreversing states’ decisions over indigenous territories. This issue remains at animpasse today. As Stavenhagen asks:

30 M. González

How can there be constructive arrangements to reconcile the legitimate concern of statesfor their territorial integrity and national unity with the concern, equally legitimate, ofindigenous peoples for their collective survival as peoples linked to the land in manyways, in an international system composed of sovereign states?

Stavenhagen (2007, 28)

The extractive economic model usually is also accompanied by a universalistapproach that informs nationalist redistributive public policies, especially thoserelated to the access to the benefits of the exploitation of natural resources, whichalso enter into friction with the demands for autonomy and cultural identity and tendto undermine their legitimacy and viability of territorial autonomy demands(Gustafson and Fabricant 2011, 16). However, in Central America, Hale (2011)observes, autonomous regimes might not be totally incompatible with neoliberalismas states have adopted what might be a ‘differentiated spatial logic’ of governance intandem with trends in a globalized capitalist economy. He notes that the

neoliberal state is divesting itself of its mandate for territorial encompassment, optinginstead for differentiated zones of governance fashioned according to entrepreneurialcriteria. These developments are largely compatible with the partial recognition ofcultural rights and with limited notions of territorial autonomy as well.

(Hale 2011, 202)

Finally, it is worth mentioning that despite the challenges, tensions, and obstaclesto indigenous autonomy regimes the Latin American scenario today glimpses theprelude of a new pluralistic regime of governance that interacts with the political andadministrative order of the still undefeated republican state. This might be the basisfor what could evolve into a post-liberal governance framework in the relationshipsbetween indigenous peoples and the states in the region. The post-liberal characterarises from the fact that recent legal reforms that have inaugurated indigenousautonomies, in many cases recognizing and articulating pluralistic political institu-tions, resemble collective/community designs that cohabit and interact in a de facto orde jure mode alongside traditional state institutions, such as municipalities, which arebased on individual citizens’ rights and liberal principles of political representation.That is, novel arrangements of multicultural citizenship regimes and plurinationalprinciples have emerged, within which indigenous autonomies and self-governmentcomprise a central component. It remains to be seen how these regimes and princi-ples are to evolve in the future in all its complexities and contradictions, and to whatextent autonomy would mean the realization of new emancipatory horizons forindigenous peoples in the context of a globalized political economy. Whether auton-omous regimes may result in schemes of encapsulating neoliberal governance or inspaces for pluralistic self-governing units and inclusive citizenship will ultimatelydepend on the specific legal/institutional agreements and the resolve of indigenousorganizations to pursue self-determination in an inherently contested ambiance. Onthe basis of what has been discussed in this paper, we have no doubt that thepreamble of a new chapter has begun to be written in the traumatic-to-constructivehistorical relations between Latin American states and indigenous peoples.

Indigenous Territorial Autonomy in Latin America 31

Notes

[1] The approval of ILO Convention 169 in 1989 and of the UN Universal Declaration of theRights of Indigenous Peoples in September 2007 are important instruments for legitimizingand achieving legal support for the autonomy proposals of the indigenous organizations of thecontinent.

[2] Indigenous territorial autonomy will be used in this paper interchangeably with indigenousautonomy. Nonetheless, indigenous autonomy should be understood as a broader conceptualsociocultural and epistemic category not limited to its expression as realization of territorialrights or its juridical form within state-sanctioned or constitutionally recognized autonomousregimes. In its ultimate form, indigenous territorial autonomy and self-governance might beconsidered one possible way of realizing indigenous rights to self-determination.

[3] In a recent report, the Special Rapporteur on the Fundamental Rights of Indigenous Peoplescriticized that:

the business model that still prevails in most places for the extraction of naturalresources within indigenous territories is not one that is fully conducive to the fulfill-ment of indigenous peoples’ rights, particularly their self-determination, proprietary andcultural rights in relation to the affected lands and resources.

(Anaya 2013, 3)

[4] For a discussion on autonomy’s typologies and comparative works, see López Bárcenas (2007);Francisco López Gabriela Kraemer (2003); Ileana Almeida, Arrobo, and Ojeda (2005); Gabrieland López y Rivas (2005).

[5] The Mexican Constitution recognizes, in addition to the municipal level, the state and federallevels as part of the organization of the state.

[6] Jordan (2008) mentions, in particular, the reform to the General Environment Law passed inJune 2004, which eliminated community consultation on concessions to be granted over theirterritories. He also pointed out to the decision by Congress to prevent the creation of the Nasoregion (2008, 15).

[7] The notion of a ‘weak state’ then relates to a circumstance in which the state is unable toeffectively enforce the rule of law and consistently imposes its political authority over a giventerritory (O’Donnell 1999, 135).

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Miguel González is at the International Development Studies Program, York University, 133Founders College, 4700 Keele Street, Toronto, ON, Canada M3J1P3 (Email: migon@yorku.ca).

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