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Full text of 'MAX-PLANCK-GESELLSCHAFTMAX-PLANCK-INSTITUTFUR EUROPAISCHE RECHTSGESCHICHTEMAX PLANCK INSTITUTEFOR EUROPEAN LEGAL HISTORYMax Planck Institute for European Legal Historyresearch paper seriesNo. 2017-02. DuveIndigenous Rights in Latin America:A Legal Historical PerspectivePublished under Creative Commons cc-by-nc-nd 3.0©SSfcs®®®Electronic copy available at: Rights in Latin America:A Legal Historical Perspective 1Thomas DuveAbstractAccording to international and national constitutional laiv, indigenous peoples in most LatinAmerican countries have the right to maintain and strengthen their distinct political, legal,economic, social and cultural institutions. As a consequence of this and of a long and ongoingprocess of political debate and recognition, ever more indigenous peoples are practicing theirown laws, following their oivn cultural traditions and customs. In doing so, they often drawon history, recreating their identities and reconstructing their distinct legal pasts. At the sametime, historical research has increasingly pointed out the intense interaction betiveen indig-enous peoples and European invaders during colonial period.
It has become clear that it isdifficult to draw a clear line between purely ‘indigenous’ and ‘colonial’ legal traditions due tothe hybridisation of indigenous and colonial laws and legal practices. The aim of this paper isto introduce this historiography and its relevance to law and to present some methodologicalchallenges in writing the history of indigenous rights in Latin America resulting from thisshift in (legal) historiography.According to international and national constitutional law, indigenous peoples in most Lat-in American countries have the right to maintain and strengthen their distinct political,legal, economic, social and cultural institutions.
As a consequence of a long process of recog-nition of their (limited) legal autonomy, many indigenous peoples now practice their ownlaws, their own cultural traditions and customs. In doing so, they draw on history, recon-structing their legal pasts, recreating - or even creating - their identities, a process intenselyrelated to what is sometimes called ‘ethnogenesis’.
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At the same time, historical research hasincreasingly pointed out the intense interaction between indigenous peoples and Europeaninvaders during colonial period. Thus, it has become clear that many of the so-called ‘indig-enous’ or ‘colonial’ legal traditions are more properly seen as hybridisations of indigenousand colonial laws and legal practices. What does this mean for the current debate on therights of indigenous peoples?1 This paper is a draft for a chapter on ‘Indigenous Rights - Latin America’, to be published in: The OxfordHandbook of Legal Research OUP.Max Planck Institute for European Legal History Research Paper Series No.
201 7-02Electronic copy available at: Dave2The aim of this chapter is to introduce this historiography and its relevance to law and topresent some methodological challenges in writing the history of indigenous rights in LatinAmerica resulting from this fairly recent shift in (legal) historiography. It starts with a shortintroduction into the recognition of indigenous rights in the present and the past (1). Sec-ond, it surveys the legal historiography of indigenous rights in Latin America, emphasisingthe changing context of historiography, the new interpretation of the indigenous peoples’histories, especially in the overall colonial period, and recent research on the history of therights of the indigenous peoples in Latin America (2). Finally, it addresses some methodolog-ical problems of doing research on the legal history and the rights of indigenous peoples (3).1. The recognition of indigenous rights in the present and the pastAccording to Art.
5 of the UN Declaration on the Rights of Indigenous Peoples from 2007(A/RES/61/295), indigenous peoples have the right to maintain and strengthen their distinctpolitical, legal, economic, social and cultural institutions, while retaining their right to par-ticipate fully, if they so choose, in the political, economic, social and cultural life of the State.This UN Declaration is the culmination of a long process of growing recognition of indige-nous peoples’ rights on an international level as well as on the level of many national consti-tutions (for this process, see Anaya 2005; Bengoa 2007). As a consequence, many indigenouspeoples of Latin America are now claiming and exercising their right to self-determination.They are practicing their own laws, their own cultural traditions and customs.In going about such practices, many indigenous peoples look back to millenary legal tra-ditions that originated centuries before European invasion. However, these legal traditionshave evolved in continuous processes of translation of previous beliefs and practices into thepresent.
Due to migration and the imperial expansion of some indigenous peoples, like theInca, in the pre-conquest period, there were processes of hybridisation even before Europeaninvasion (see for example Duverger 2007 and the various contributions in The CambridgeHistory of the Native People, Vol. After the so-called ‘conquest’, the development andexercise of indigenous rights was generally determined by colonial conditions. Europeaninvaders imposed their cultural systems and, simultaneously, their law on the conquered.Yet there were important differences. Some regions have been less affected by the Europeanpresence, in some cases there was intense cooperation and thus a certain respect for indig-enous peoples’ political and juridical systems, and in others the European invaders simplyeradicated what they had found.
The Spanish and Portuguese crowns pursued distinct colo-nial policies, though there might have been more commonalities than traditionally believed(Herzog 2015a).Colonial legal systems were not homogenous and closed. On the contrary, they were struc-turally open. European ins commune, shaped by a multinormative past and, until at least the18 th century, characterised by overlapping jurisdictions, provided an intellectual and institu-Max Planck Institute for European Legal History Research Paper Series No. 201 7-02Electronic copy available at: Dave3tional framework for the integration of different legal traditions.
Moreover, the Castilian andthe Portuguese crowns were not only shaped by this tradition, but had developed their ownpractices of making convivencia possible over the preceding centuries on the Iberian peninsu-la (see on this complex topic the survey by Soifer 2009), with a mixture of what some modernobservers call ‘tolerance’ with oppression and violence (on the legal tradition of dealing withinfideles see Muldoon 1979). These experiences contributed to a process of hybridisation ofindigenous legal traditions with those the conquerors had brought to Latin America. Thestructural openness soon found expression in concrete legislation. The first known decreeon these matters dates from 1530, ordering crown officials to collect information about the“order and way of living” of the indigenous peoples of New Spain, recognizing their rightto live according to their “good practices and customs as long as they were not against ourChristian religion” (see on this Zorraquin Becu 1986). In a later royal decree dating from1555, Spanish King Charles V stated that antecedent indigenous laws as well as those newlyenacted would be respected. Some decades later, reforms of the colonial administration, likeViceroy Toledo’s Peruvian ordinances, granted judicial autonomy to members of indigenouscommunities in their respective settlements.
Another century later, some of these particulardecisions, like Charles V’s royal decree of 1555, were collected in the Recopilacion de Indias(2.1.4), referring to the ‘ laws and good customs’ of the pre-conquest period and the ‘usages andcustoms which had been observed ’ afterwards.Even if this respect has been classified as an example of a (weak) legal pluralism, there wereimportant limits to the autonomy granted to the indigenous peoples: a repugnancy clauseexplicitly excepted those usages and customs that violated the principles of Christianity orroyal legislation. However, as a result of these concessions and some previous royal laws anddecrees dating from as early as 1500 and 1512 ( Leyes de Burgos) that qualified the indigenouspeople as rational persons, later papal documents ( Sublimis Deus) and intense debates on thestatus of the indigenous peoples, which affirmed their condition as human beings and freevassals of the crown, the members of indigenous communities were subject to the normativi-ties of at least two worlds: the general legal regime in the colonial territory as well as to theirown (very heterogeneous) laws. They were integrated asymmetrically into a colonial legalsystem that was itself based on difference.This legal regime changed considerably under the conditions of modern constitutional-ism following the independence movements in the 19 th century. To many indigenous peoplesthe political reforms carried out in this period, especially the aggressive modernising poli-cies of the 19 th and early 20 th centuries, represented existential threats (see on this Clavero1994, 2005). Like other special rights and privileges, those of the indigenous peoples were ex-punged from the official legal landscapes. Seemingly liberal constitutions were enacted andestablished in the centre of national legal orders.
The warrior psp iso torrent. In theory, all citizens were made equal, andthere was little or no space for differences to be recognised in law, and even less so for thosethe encroaching immigrant societies saw as part of a backward, uncivilised past. If inequalitypersisted not only in practice, but also in law, apportioning rights of political participationunequally, it was to favour powerful groups in the creole elite and Euro-American society. In-Ate Planck Institute for European Legal History Research Paper Series No.
201 7-02Thomas Dave4digenous peoples were the big losers in the process of eradicating a jurisdiction-centred jus-tice system with provisions for limited autonomy. State-building processes, land registration,new property laws, territorial expansion and resettlement policies left only limited marginsof autonomy to the indigenous peoples. Nonetheless, indigenous rights persisted throughpractice and often unwritten transmission. They shaped - or at least influenced - daily life inmany places. Today, as a consequence of the substantial changes in international and nationalregulations as well as in cultural perceptions, some Latin American states officially recogniseindigenous rights and grant judicial autonomy to indigenous peoples. As in earlier colonialtimes, members of indigenous communities are subject to general as well as special legalregimes in modern constitutional legal systems that are trying to respond to the growingdemand for recognition of ethnic, social and cultural diversity. As a consequence, indigenouslegal institutions and indigenous practices of administering justice have gained purchasein much of Latin America.
Vernacular languages have been readmitted in some courts, andsome judicial sentences are being published in indigenous languages.In this fairly recent process of restituting legal autonomy, history has become an importantargument. In Bolivia - the most significant experiment in putting political claims of auton-omy and pluralism into constitutional practice by far - returning to indigenous traditionspredating the colonial period has been the central legitimation for the transformation of thepolitical system. Indeed, article 30 of the 2009 Bolivian constitution defines the ‘rural nativeindigenous people and nationality’ as those human collectives that share a ‘cultural identity,language, historic tradition, institutions, territory and worldview, whose existence predatesthe Spanish colonial invasion’.
Also in other countries, the general tendency is to base legalrecognition of indigenous peoples on successful claims of ancestral traditions, or at least ontheir ability to prove certain practices’ historical roots in their communities’ lives. Collectiveand individual property rights are protected whenever the claims can be historically justified.In many specific contexts of current legal life, tradition and, concomitantly, the history ofthese traditions - in a word, legal history - plays a major role. History has become a constitu-tive element of constructing modern legal pluralism.2. The legal historiography of indigenous rightsIn spite of its importance, the legal historiography of indigenous rights in Latin America hasonly recently been given its due. For a long time, (legal) historians have paid only limitedattention to the fact that indigenous peoples have vivid legal traditions also beyond the limitsrecognized by official law and were not simply practicing outdated customs that were boundto disappear. Not least due to the domination of Euro-American academic traditions andpractices in Latin American academia during large parts of 20 th century, indigenous peoples’rights have remained a blind spot of the discipline. They seemed to be merely a case for an-thropology, not for legal history.
This has changed dramatically in recent decades.Max Planck Institute for European Legal History Research Paper Series No. 201 7-02Thomas Dave5Changing contexts of historiographyTo understand the current debates, it is important to look at least briefly at some aspects ofthe changing contexts of historiography. Since the 1980s, most Latin American countries haveexperienced an intense process of redemocratisation and a wave of new constitutions (‘NewConstitutionalism’, see Nolte/Schilling-Vacaflor 2012; a general picture of the developmentof law in Latin America in this period in Rodriguez Garavito 2015). Many of these constitu-tions incorporated the transcendent reforms in international law regarding the protectionof indigenous rights that took place in the same period. An important step in this processwas the International Labour Organization’s adoption of Convention 169, ‘Indigenous andTribal Peoples Convention’ (ILO 169) in 1989, which was ratified by many Latin Americancountries.