The legal rights afforded to Indigenous communities in Bolivia and Chile differ greatly. Val Reynoso investigates.
Bolivia and Chile differ significantly in the ways their governments address issues pertaining to Indigenous peoples. These differences are caused by the neoliberal economic system and legacies from the Pinochet era in Chile, as well as the centering of Indigenous issues and redistribution of wealth in Bolivia.
Bolivia has made huge strides in securing rights for its Indigenous populations, particularly in their new constitution, land-ownership rights and criminal-justice system. Chile, however, has not made progress for its native peoples in any of those aspects.
As of the 2001 census, Bolivia is a majority Indigenous country, with the largest portion of native peoples compared to the rest of Latin America. Sixty-two percent of Bolivians over the age of 15 identified as Indigenous on the census, with 30 percent being Quechua, 25 percent Aymara, and the rest belonging to 34 other smaller tribes.
Moreover, Bolivian President Evo Morales is recognized not only as the nation's first Indigenous head of state, but also for having passed a new constitution in 2009 encompassing comprehensive rights for Indigenous communities and an entire chapter dedicated to Indigenous rights. Said rights include the explicit recognition of native cultural identities and practices; the right to collective ownership of land; expanded regional and local autonomy, and the right of natives to organize community justice with their own legal system.
Morales' new constitution was approved in a referendum by 61 percent of voters, the majority of whom were from the predominantly Indigenous-populated western highlands, in January 2009.
Despite this, there was opposition to the constitution by the white and multiracial Bolivian elite concentrated in the lowland regions because redistribution of wealth and land rights to indigenous people means that the white and multiracial populations would resultantly be deprived of said assets.
Along with the provision of collective land-ownership and more political autonomy, the new constitution also permits agrarian land reformation through limitation of the size of rural landholdings in future sales. Additionally, the new limit on land ownership is 5,000 hectares, although measurements are not retroactive.
In terms of the criminal and judicial systems of Bolivia, particularly in regards to native peoples, Indigenous systems of justice have a status equivalent to the official current system. Also, judges will be elected rather than appointed by Congress. Power has been decentralized in the nation, with four levels of autonomy, including departmental, regional, municipal and indigenous.
On the other hand, Chile's constitution, land-ownership issues and criminal-justice system are regressive, especially when it comes to the rights of Indigenous peoples. As of the 2012 census, over 1.7 million Chileans identify as Indigenous: 88 percent Mapuche, seven percent Aymara, and the remaining five percent consisting of smaller groups such as the Fuegian nations Yamana and Qawasqar.
Five years after the 2012 census, the number of self-identifying native Chileans has increased by 50 percent, with the majority of native peoples residing in urban regions.
Following the War of Independence from Spain in the early 19th century, the newly founded Chilean state recognized the region south of the Biobio River, in south-central Chile, as Mapuche territory. Despite this, Chile expanded further south in the late 19th century to pave the way for more European settlers. It accomplished this through state-sanctioned forced displacement of Mapuche people in the region Araucania.
The Chilean government adopted the United Nations Declaration on the Rights of Indigenous Peoples on September 13, 2007. In modern-day Chile, around two-thirds of the 1.5 million Mapuches reside in poverty in urban areas, with the other third living in poor, rural localities. Natives are among the most impoverished and oppressed ethnic group in Chile, with unemployment and alcoholism rampant in their communities.
Younger generations of Mapuche and other native Chileans are currently fighting for the preservation of their cultures, language and human rights. They have even formed organizations such as the Arauco-Malleco Coordinator, with the purpose of advocating for the restoration of their ancestral lands and autonomy.
Campaigns organized so far have included armed attacks against white farmers; burning their homes and crops; seizing land, and numerous arson attacks against forestry companies.
Furthermore, Chile has not reformed its constitution, but instead has the same one established in 1981 by brutal fascist dictator Augusto Pinochet and his allies. Given that the constitution is the legacy of a fascist regime, existing laws reinforce regression, especially concerning native peoples' land rights.
For instance, Law No. 19,253 of 1993 on indigenous promotion, protection and development is still in effect. However, it fails to meet international law standards regarding Indigenous rights to land, territory, natural resources, participation and political autonomy.
A new legislative bill related to the role of Indigenous peoples has founded the Biodiversity and Protected Areas Service (SBAP), along with the National Protected Areas System (SNAP). The issue with this bill is that it does not address the contribution of native peoples to biodiversity, nor does it protect Indigenous people from public and private conservation proposals.
The failure of these laws to protect natives is evident given that corporate initiatives are responsible for the expansion of extractions, production and infrastructure projects that have threatened the rights of Mapuches in Araucania and Los Rios. Chilean president Michelle Bachelet proposed a bill on January 16 to rewrite the Pinochet-era constitution to establish a better sense of democracy in the nation, but it has yet to come to fruition.
Likewise, given Chile's 1993 Indigenous Law, the state grants Mapuches land in conflicted regions after offering to purchase it from its current white landowners. However, the law does not permit Mapuches who receive land under Article 20B to sell or use their land as secured, so they are ineligible for loans to purchase farm equipment or other assets to assist them in tending their land.
The Mapuche people are being subjected to violent colonial rule by the Chilean state. They were displaced and robbed of their ancestral homeland by white colonizers, who then privatized it as their own, and now the Mapuche are being expected to buy back the same land that was stolen from them.
Matters are worsened because the Chilean government has never fully recognized Mapuche territorial claims, according to the Minority Rights Group International. The Chilean state has encouraged European immigration into Mapuche territory since last century. Under General Pinochet, and agribusiness companies and other corporations were given land and subsidies to operate in indigenous regions, resulting in the ejection of more Mapuche people from their homeland. Since the 19th century, the Mapuche have lost 95 percent of their land.
Ultimately, Bolivia has an outstanding record on Indigenous peoples' rights. The same cannot be said about Chile, especially while it carries so many legacies from the Pinochet era.