The Zapatista Army of National Liberation made indigenous autonomy a national issue. Autonomy burst onto a national scene that was historically marked by the absence and exclusion of the indigenous peoples from all arenas, beginning with the constitution, according to the idealized vision of National Identity and Unity that presupposes cultural homogeneity. History tells of numerous rebellions and acts of resistance which have rejected this State policy and its corresponding legal order, which by attacking the existence of these social collectivities has provoked diverse forms of ethnocide.
The Zapatista watershed highlighted the need to rethink the national question through a multitcultural lens and to abandon the traditional approach, which has defined the indigenous world as a "problem" that is separate from process of transition to democracy and the reform of the State.
To address the relationship between indigenous autonomy and the strengthening of national identity and sovereignty from a legal perspective, I will review the context for the constitutional reform proposal currently at the center of a national debate which is pressuring the country's political forces as never before. Neither the Federal government nor any of the states can ignore this issue, and at the same time claim with any legitimacy that it is offering viable responses to the nation as a whole.
The Indigenous Peoples, the State and the Law
The nation-state and the constitutional order were conceived and organized around the principle of legal equality, which ignores diversity in order to promote the ideal of homogeneity.(1) The corresponding State policy was based on the promotion of integration and assimilation. During the 1950s, the indigenous policy goal was to promote the substitution of the indigenous peoples' basic cultural traits for those considered "national," and this approach continued with some nuances and variations for almost two decades. This offensive paternalism justified by the goal of redeeming the indigenous by "civilizing them."(2)
This legal and constitutional vacuum began to be filled with the 1990 ratification of the Convention 169 of the International Labor Organization and the reform of the first paragraph of the 4th Article of the constitution on January 29, 1992. Although this reform recognized the multicultural character of the Mexican Nation, it relegates the protection and promotion of the "development of their languages, cultures, traditions [usos y costumbres], resources and specific forms of social organization" to the level of laws [a lower order than the constitution - eds.]. In the process it takes away the force of other, unmentioned rights that would require direct recognition in the Constitution, such as the right to autonomy, political rights, and rights relating to internal systems of conflict regulation, among others.
At the constitutional level, the VII fraction of the new Article 27 [the agrarian reform provision, changed by Salinas - eds.] indicates that "the law will protect the integrity of the indigenous groups' lands," and the agrarian law declared in its Article 106 in the chapter on the [agrarian] community that "the lands corresponding to indigenous groups should be protected by the authorities, in the terms of the implementing law for Article 4 [which was supposed to follow up on the Salinas era indigenous reform - eds.] and its second paragraph of the VII fraction of the Article 27 of the constitution." It turns out that this law does not exist. Meanwhile, until very recently criminal cases involving indigenous people were handled in a language that they do not understand and dealt with issues that are often understood differently in their community. Now the legal process allows for the possibility of a translator or a cultural assessment, though in practice they are often not available.
Indigenous Autonomy and Sovereignty
Over the last two years, our country has experienced its broadest debate over indigenous rights and their constitutional recognition. The Indigenous Peoples' fundamental demands and the wealth of proposals that emerged process of negotiation between the Zapatista National Liberation Army and the Federal government raise a wide range of issues, framing indigenous rights in terms of a deep reform of the State. The parties agreed to an unprecedented process, one which encouraged the participation and influence of many sectors in addition to the direct participants in the peace talks.(3)
One of the main obstacles to the complex process of dialogue in Chiapas has been the delayed compliance with the February 16, 1996 Indigenous Rights and Culture agreements, which made the commitment to promote a constitutional reform that would recognize and guarantee indigenous rights and demands. The national indigenous movement and the EZLN back the accords, but the federal government's attitude has been erratic, eventually questioning the constitutional reform proposal that was prepared by the [multiparty congressional] Peace and Concord Commission (COCOPA). The COCOPA proposal was supported by the EZLN, but the federal government unexpectedly prepared a counter-proposal, which was rejected by both the EZLN and the indigenous movement. Then, on March 15, 1998, the federal government unilaterally presented a constitutional reform proposal that differs from what was signed. For example, it recognizes the "indigenous community" rather than the "indigenous people" and subordinates their access to and use of natural resources to Article 27 of the Constitution [the agrarian provisions revised in 1992 - eds].
The COCOPA proposal would modify various articles, principally 4 and 115. The first one specifies a series of concrete rights for a new legal subject called "Indigenous people," focusing on autonomy and corresponding to elements of indigenous peoples' culture:
a) to exercise the right to develop their specific forms of social, cultural, political and economic organization;
b) to recognize their internal legal systems for regulations and sanctions, as long as they do not conflict with individual guarantees and human rights, especially those of women
c) to gain access to the State jurisdiction in better ways;
d) to gain collective access to the use and enjoyment of natural resources, except for those whose control belongs to the nation;
e) to promote the development of the diverse components of their identity and cultural heritage;
f) to interact with the different levels of political representation, of govern-ment and the administration of justice;
g) to join together their peoples' communities, or those of other peoples, to coordinate actions to best use their resources, to promote regional development projects, and more generally, to promote and defend their interests;
h) to freely designate their representatives, at the community level as well as in municipal government, in accordance with each people's traditions;
i) to promote and develop their languages and cultures, as well as their political, social, economic, religious and cultural customs and traditions.
Just as indigenous peoples' have been translating their demands into legal principles, the government has been producing a list of defenses that, in the name of so-called national unity and sovereignty, and has become increasingly reluctant to accept the need to change the legal order and to accept multiculturality as a basic principle. No doubt there is a great deal of ignorance, prejudice and discrimination behind the official positions, but above all there is an awareness that the commitment to recognize the legal rights and the constitutional autonomy of indigenous peoples to make decisions about the basic issues that affect their lives would contradict their neoliberal and globalizing aspirations.
One of the arguments most often heard against the COCOPA proposal is that it could weaken the integrity of the State, the unity of the Nation, its sovereignty and even, it is said, could provoke its balkanization. Recall that the concept of sovereignty in its traditional, classic sense refers to external sovereignty, in relations with other countries. These issues must be addressed in the appropriate context, however; both the Convention 169 of the ILO and the San Andrés Agreements presuppose the insertion of new rights within the framework of the nation-state, creating space for the concept of multiculturality. This involves recognizing that, in addition to the rights of individuals, there also exist collective rights that relate to a new legal entity called Indigenous People(s). The concepts used in these two documents -- territory and self-determination -- generate mistaken impressions. Once one clarifies that these terms refer to internal public law rather than to international law, the legal implications are substantially different.
Some claim that indigenous autonomy would provoke the balkanization of the country, yet this refers to the fragmentation of certain continental entities into politically separate units. This process has been closely related to decolonization, whose effects in terms of creating new and fragile small states has given way to other processes of domination by powers that intervene in states that are formally free but economically dependent. In the case of Latin America, and in our country in particular, indigenous peoples have not proposed any intention of separating themselves from nation-states. What they demand is recognition of their historic rights as peoples. They demand that our nations reflect cultural diversity understood in the broadest sense, where culture includes forms of social, economic and political organization, as well as different values, cosmovisions, and relations with nature and systems for the administration of justice.
The federal government's response to these demands has been to misrepresent the indigenous proposals in the name of legal technicalities, insisting on precision about the specific effects of the possible impacts of the proposed constitutional reform. Let's not forget that the indigenous peoples demand autonomy over what the concept implies, which means that they want the right to make decisions about issues that are fundamental to their culture but are still today decided by others and often in violation of their interests. It is not enough for the reform to use the term autonomy if it is left as an empty shell, or to use the term territory, if it does not regulate indigenous property in terms of habitat rather than mere land tenancy. The fine-tuning in the name of legal technicalities does not take into account the basic principles of constitutional supremacy and equality among constitutional principles -- they speak of harmonizing constitutional principles when this task should be dealt with in the implementing legislation.
Centralism as a State Policy and Federalism as a Constitutional Project
One of the claims most often emphasized as the great threat posed by the indigenous constitutional reform proposal is the interpretation that it could rupture national unity and sovereignty. Few have analyzed the need for the indigenous reform to advance together with the strengthening of federalism, understood in its deep constitutional sense. Federalism was the result of passionate battles in 19th century Mexico, and continues to be unfinished business in terms of achieving an authentic State of Law. The concerns which are so widely cited in the name of the nation reflect the fear that society would take seriously the practice of the federal constitutional system, exercising the states' internal sovereignty and raising the old demand for strengthening the powers of the municipality.
As in so many ways, when indigenous demands are minimized and trivialized, there is a clear tendency to ignore history. Let's read Benito Juárez [then governor of Oaxaca, later elected as the first indigenous president of Mexico in the 1861 - eds.]:
"Since before the establishment of the federal system, the pueblos of this state [of Oaxaca] have, by themselves, been accustomed to democratically electing their officials, who as mayors and councilors took care of the police, the maintenance of peace and the administration of communal funds. This beneficial custom was bolstered by the federal system, which gave the pueblos the power to elect the members of their town councils and republics, and specified the rights and obligations of these bodies. For this reason, the republican system, representative, popular and federal, was well received by the communities of the state, while the centralized system, which abolished those bodies, provoked a universal rejection that contributed to the fall of such a destructive system. Once the federation was reestablished, the pueblos have recovered not only their town councils and republics, but also the right to elect them according to their ancient customs. Local municipal administration, organized this way, expedites rather than obstructs the general administration of the state."(4)
This is why the framework of constitutional federalism creates space for convergence with the multicultural identity of the nation. Although, as noted above, the consensus reached in the San Andrés agreements does not imply the territorialization of autonomy, the Constitution gives the Congress the right to "admit new states to the Federal Union (art. 73, fr. I), form new states within the boundaries of the existing ones, for which requirements will be established (art. 73, fr. III), to define the boundaries between the states and to resolve any conflicts over the demarcations of their respective territories."(5) We also find that the state constitutions establish the possibility and the procedures for remunicipalization [redrawing municipal jurisdictions - eds]. So we might well ask if, from the official point of view, is it anticonstitutional to request the application of the Constitution?
At the same time, in the process of seeking real federalism, one might suggest the review of the division of powers, so that those states with a strong multicultural component could promote locally appropriate reforms. For example, some state constitutions have been reformed to include, with all its limitations, the spirit and almost the text of the first paragraph of Art. Four of the Constitution, as in the cases of the state of Mexico, Nayarit, San Luis Potosi, Sonora and Veracruz. The constitutions of Chiapas, Hidalgo, Oaxaca and Queretaro carried out similar reforms, though before the forrealization of the reform of Art. Four of the Constitution -- under the influence of the debate, a process that took three years. On the other hand, three states have gone beyond the mere declaration of multiculturality and include concepts whose constitutionality is questionable [in the absence of federal reform]. The first such reform was in Chihuahua in 1993, the second was in Campeche in 1996 and the most recent was in Oaxaca in 1998. The first two recognized rights involving territory, natural resources and normative systems, issues of federal jurisdiction, and the third one also speaks of autonomy and self-determination. Yet the state constitutions and laws are not supposed to contradict the Federal Constitution.
Oaxaca's reform is the most complete, and is the only one that was preceded by a serious process of consultation, and even so it is not free from gaps and contradictions. The most serious is that it is being used explicitly as the best model to follow to avoid reforming the federal constitution. Now the governor of Chiapas is trying to present his version, without indigenous participation.(6)
From the Reason of State to State Policy towards Indigenous Peoples
The growing indigenous mobilizations in regions that bring together extreme poverty and social and political exclusion are generating a serious and growing tendency in the State to frame the indigenous issue in terms of national security. Instead of strengthening the rule of law and governability with the broadening of the constitutional framework to permit the direct participation of these peoples in the design and implementation of national policies, we see a growing militarization. Taking indigenous rights seriously would certainly produce important changes in both the legal order and the political life. The issue is whether they will have channels for dialogue and representation at different levels. In the period after a constitutional reform, an orderly and organized process would be needed to review federal and state legislation. Such a reform would demand a rethinking of public policy. This kind of legal framework would permit, for example, a change in the policy approach used to deal with the extreme poverty that affects indigenous peoples. Other countries are trying approaches like the use of compensatory fiscal policies to deal with lagging regions (as in Colombia) or the integration of a national indigenous council that defines a package of priority projects and negotiates them with the federal government (as in Ecuador). This council plans, administers, and implements the approved projects autonomously, the autonomy does not exclude state regulatory mechanisms. By this logic, the Seris, in our country, would be legally authorized to oversee Tiburon island, to assign fishing permits and collect fees that would permit them to finance development or marketing projects. There is also the case of the Mayans who demand the right to practice their rituals in their sacred ancestral sites, and to receive the income generated from fees charged tourists to visit historic and archaeological monuments. Why not take the initiative to create joint trust funds that would guarantee their conservation and restoration, and at the same time include representatives of these peoples in their management? Why not let the resources that come from tourism, or some share of them, finance a Mayan regional development project? Why not let indigenous peoples affected by investment megaprojects participate in their negotiation, as in the case of the Isthmus of Tehuantepec?
If we know that the political parties' approaches are not in sync with indigenous peoples' cultures, then why not create means through which their could gain political representation in different ways, through different channels? We have the example of Oaxaca, whose electoral reform [permitting nonpartisan indigenous self-governance at the municipal level eds.] is becoming a key factor for governability? These and other legal, institutional and policy reforms require the constitutional breakthrough. The examples mentioned suggest that the inclusion of indigenous peoples in the national process is feasible, that the reform of the State should include them, and the insofar as there is progress towards an authentic federalism, our country will follow the path towards unity in diversity.
Towards a Sovereign State with a Multicultural Identity
Since the reconstitution of the State is now on the agenda, and that requires change in the constitution, as the body of principles that reflects basic rights and that structures the multicultural nation. It makes sense to speak of Indigenous Autonomy in constitutional terms, of core principles; it does not make sense to reduce it to the right to get married in a particular way, or to resolve lesser conflicts at the community level, like the theft of a hen. The great challenge is that we must question concepts and principles that are at the core of our dominant constitutional culture. How can we recognize the self-determination for collective subjects called indigenous peoples, whose members are citizens like everyone else, while at the same time recognizing their collective rights related identity, or to their forms of political participation, without culturally-derived legal pluralism? How can we strengthen the federal pact by including indigenous peoples?
Facing the challenges of globalization, the sovereignty of the State should accept all the implications of national identity. Compliance with international human rights standards is increasingly seen as a reference point for legitimacy for international agencies. Moreover, violations of international norms could legitimately justify international sanctions in other fields or sectors.(7) The reform now on the agenda would promote a strong state to guarantee the citizens and the indigenous peoples the exercise of their rights in the face of political and economic hegemonic interests, nationally and internationally.
Notes:
(1) See Bartolome Clavero, Derecho Indígena y Cultura Constitucional, Mexico City: Siglo XXI, 1994
(2) Guillermo Bonfil, "Las culturas indias como proyecto civilizatorio," Nuevos Enfoques para el Estudio de la Etnias Indigenas en Mexico, Mexico City: UNAM/Porrua, 1991
(3) This negotiation is based on the Law of Dialogue and Conciliation, passed by the Congress in March, 1995. The parties agreed to define an agenda to address the causes of the armed conflict and to define issues related the Indigenous Rights and Culture, Democracy and Justice, Welfare and Development, Indigenous Women, and Reconciliation and Distension. Each issue was to be addressed in successive rounds of negotiation.
(4) Speech to the Sovereign Congress of Oaxaca, July 2, 1848 ("Exposición del Gobernador, Lic. Don Benito Juárez, al soberano Congreso de Oaxaca al abrir sus sesiones. Julio 2 de 1848" Jorge L. Tamayo,. Ed., Benito Juaárez, documentos, discursos y correspondencia, Vol. 1, Mexico City: Editorial Libros de México, 1972, p. 582.
(5) These powers have their antecedents in the federal constitutions of 1824 and 1857.
(6) For further discussion of the limits of state level reforms, see Magdalena Gómez, "La reforma intravenosa," Ojarasca, No. 19, monthly supplement published by La dornada, November, 1998 (see:www.http://serpiente.dgsca.unam.mx/jornada/1998/nov98/981110 /oja-reforma.html)
(7) See Magdalena Gómez, ed., Libro Derecho Indigena, Mexico City: AMNU/INI, 1997
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