The Current Situation by Magdalena Gómez

Contents

Introduction

[00:00:00] Currently [1996], the situation of the indigenous communities shows, on one side, an enormous capacity for mobilization and organization but also reveals a much more difficult situation deriving from the uprising in Chiapas of the Zapatista Army of National Liberation (EZLN). In one way it opened an enormous possibility for the recognition of historic rights of indigenous communities. In another way, by prompting a crisis, the indigenous communities are increasingly besieged by the state because now they are not merely forgotten and marginalized, but they are viewed by the entire country with an eye towards national security—they are viewed as a potential danger ever since the uprising in Chiapas.

It’s a difficult moment. We are just finishing four years of dialogue between the federal government and the EZLN, which resulted in the signing of the San Andres Accords regarding indigenous rights and culture. It is in the context of this dialogue and in this crisis of dialogue that the federal government retracted what it had signed with the EZLN generating a feeling of “impasse,” but it’s an impasse that is not solely passive, but active. The military presence has been increased in a signal and massive way, not just in Chiapas, but in other entities of the Republic; particularly in the state of Guerrero. It’s also growing in the state of Oaxaca. There are various levels and degrees of the problem in the rest of the country. We’re in a very difficult moment.

From Today to the Future

[02:00:00] Future changes to the legal system are concentrated in the proposal which resulted from the San Andres dialogue. The importance of these dialogues was that they were not only between the federal government and the EZLN but rather from a round table where indigenous organizations from all over the country participated and brought forth their ideas. What they hoped for in constitutional and legal terms was the recognition of the autonomy of indigenous communities as the subjects of rights; the recognition of their capacity to administer justice; the recognition of access, use, and enjoyment of natural resources; the promotion of their languages and cultures, etc.

Increasingly, it is put forward [by the government and others] that the autonomy of indigenous communities calls into question the sovereignty of the state. They [government officials and others] have gotten to the point of discussing the danger of “balkanization”—that the recognition of these communities will create grave and retrogressive problems. There is a series of complicated points in the debate because it’s a proposal that does touch on structural points in terms of the actual regulation of natural resources and the actual concept of individual rights as currently expressed hegemonically in the constitution, the recognition of individual—not community—rights. This is the climate of the debate, but we in the indigenous movement have seen with such processes in other countries that no reform makes sense that doesn’t recognize collective rights of indigenous communities and which doesn’t clearly demarcate their autonomy.

Current Standards

[04:06:00] The standards and norms, which we can currently enumerate, the formalized and recognized standards, even when they provide only a small opening for the defense of indigenous communities, have enormous limitations. We can count Convention 169 of the International Organization of Labor (ILO), ratified by this country, which gives the possibility of a judicial umbrella for collective rights of indigenous communities. We can count a series of constitutional rulings in 1992, which introduced an initial paragraph to the constitution (to Article 4), where the multicultural character of the Mexican nation is recognized. But it’s a very limited recognition, which doesn’t recognize indigenous “communities” as subjects of rights. Given that it doesn’t recognize autonomy, it doesn’t recognize the possibilities for direct action, but rather delegates through secondary legislation the protection and promotion of development of a series of constitutive elements of the culture of the communities. We can also count standards in civil penal issues providing access to translators, offering anthropological consultations in the courtroom, which obliges judges to consider the customs of indigenous communities to render judgements. Nevertheless, the development of the group of defenders who litigate in the courts employing these elements has been insufficient and spotty.

Their Own Justice

[05:56:00] With respect to the persistence of an indigenous juridical system, I would say they [the Indigenous communities] have a system of their own and the government has its own system, if with different grades of evolution and different grades of observance. We must take into account the many years of siege by the official legal system, which disavows indigenous rights, and we must consider that many years of creating mechanisms of interaction between one system and the other has resulted, in many regions, in the blunting of the force of the indigenous legal system. Nonetheless, by its central traits we can see that indigenous legal systems remain viable, that they have structure, that they have their own organs and norms, and that, quite validly, their recognition could open space for the state to uphold its obligation to give access to justice to indigenous communities in accordance with their culture.

We think that a recognition of their normative system would be important. We’re not speaking here about a romantic idea of indigenous communities, an idealized vision where we imagine that within these spaces there aren’t contradictions, that there aren’t power groups, that there isn’t need for modifications from within of certain practices and norms.

One of the issues in which there are serious contradictions within indigenous communities would be gender rights—particularly the rights of indigenous women. Women have traditionally been marginalized, for example, from official positions. Increasingly, one observes situations marked by domestic violence within indigenous communities. We don’t interpret this so-called “custom” in an idealized or a-critical manner, but we think that internal changes in the communities will advance to the degree that the communities as a whole acquire more legitimacy and to the degree that rearrangements and adjustments are made integrally from within the communities.

Individual or Collective Rights?

[08:29:00] This brings us to the issue, which is polemical throughout this entire field, and that is the relationship between human individual rights and human collective rights. There is consensus that the exercise of collective rights can’t be asserted to the detriment of individual rights, and in particular the rights of women. Further on, when this constitutional recognition of indigenous communities occurs, it must specify and distinguish those cases where collective rights prevail while not violating individual human rights.

I’ll give you an example of this. Currently many indigenous communities have customs that require communal work, which varies with what the community does but which amounts to an obligation for each member to work one day free for the community. From the point of view of the official legal system this is viewed as the imposition of forced labor, which is prohibited by the constitution for all Mexicans. Internationally, it is clarified that “communitarian” work should not be considered “forced labor.” Nevertheless, when these community rights are regulated it will have to be determined which collective activities have priority (as in the case of communitarian work). In the same way that we, in the cities, must pay taxes on our wages earned, the indigenous communities would have the capacity—now legalized by precedent—to impose, let’s say, “contributions” or “taxes,” which is how we, in our parlance, would translate this cooperation and donation of individual work to the collectivity.

But this opens other territories in the strict arena of the rights of the individual like the right to life, for example, or the right to have one’s physical integrity respected, which are rights that, of course, don’t allow exceptions, and in this way will impact the indigenous legal system.

My Own Story

[11:10:00] I studied law, and when I finished my degree, given that I had practiced in lower-middle class firms, I was a little disillusioned with the Mexican judicial system, and I decided to turn to the discipline of education. I spent a number of years in the education field, and it was in this capacity that I was invited to work at the National Indigenous Institute (INI) on a project of an educational nature. In the countryside, I began to observe that there were many problems of the violations of the rights of indigenous communities, and in those places when they learned that I was a lawyer, they began to ask that I explain to them the national system of rights. I told them no, because “national rights” did not include them (because of all this discourse we had regarding the “special” rights of the communities). Nevertheless, they said to me, “you have to teach us national rights because that’s what they [the officials] employ with us.” This is how I began a process, theoretically, of capacity building, on my part of them, regarding national rights, but in reality they built my capacity regarding their own normative system.

In this interaction we began to coincide with other people who had the same uncertainties with the indigenous movement and who were regularly attending meetings in Geneva of the working group of the Project of the Declaration of Rights of Indigenous Groups. In the middle of all this activity a current began to form, and in fact, I said I would return to my previous career at the prompting of the indigenous communities. I pursued the field of indigenous rights from a self-taught point of view, because the universities, even now, do not take seriously the concept of juridical systems which respond to multiculturalism. My case is not an isolated one: my lawyer colleagues in other countries of Latin America are in the same situation; they are autodidacts who educate themselves in the field of practical relationships with the indigenous communities. From there we have made recourse to theoretical, juridical knowledge to try to rethink juridical responses in such a way that opens space for indigenous rights.