13 Indigenous Jurisdiction as an Exercise of the Right to Self-determination and its Reception in the Chilean Criminal Justice System

Elsy Curihuinca N. and Rodrigo Lillo V.

Introduction¹

The international human rights system has made progress in strengthening and protecting the rights of Indigenous peoples, making it a good time to revisit debates about the recognition of, respect for and guarantee of Indigenous jurisdiction in Chile.² In recent decades, Indigenous peoples in Latin America have seen some of their demands met as their collective rights were recognized in international legal instruments and in some Latin American constitutions. Indeed, of the 22 countries that have ratified International Labour Organization (ILO) Convention 169, 15 are in Latin America and the Caribbean. In 2007, the United Nations General Assembly approved the United Nations Declaration on the Rights of Indigenous Peoples, and in 2016 the Organization of American States followed suit and adopted the American Declaration on the Rights of Indigenous Peoples. Similarly, during the last two decades of the 20^th century, several countries in the Americas modified their constitutions to recognize the rights of Indigenous peoples.³ Nonetheless, although this issue has been the subject of debate and concern since the beginning of the 21^st century,⁴ Chile has seen scant progress.

With the social and ethnopolitical processes underway since the late 20^th century, there has been a revitalization of the struggles of Indigenous societies, which seek self-government and self-determination in an increasingly explicit fashion and have grown to include the exercise of some collective rights such as Indigenous jurisdiction. The question about which legal system Indigenous peoples are fighting for has been part of discussions by legal anthropologists and sociologists since at least the 1960s and has led to the issue of legal pluralism, further discussed below. For now, it is sufficient to say that it deals with the exercise of a certain legal institutional structure, which has been maintained — though not intact — since the pre-colonial era. In most countries in Latin America, processes of European colonization⁵ prevented Indigenous peoples from exercising their right to self-determination. However, drawing on Indigenous resistance and the appropriation of certain foreign and colonial elements, Indigenous peoples have maintained legal structures and practices that differ from those of States. These structures have been identified by some scholars as true systems of law, though they do not form legal systems equivalent to those of modern States (Borja, 2006, p. 663; Villegas & Mella, 2017, pp. 71–72; Melin et al., 2016, p. 14; Yrigoyen, 1999, pp. 129–42). Now, characterizing these systems of law as synonymous with legal systems does not mean trying to revive pre-colonial law; rather, as has been explained since the 1980s, it means exploring how Indigenous peoples currently apply their justice systems in an autonomous manner (despite lacking State authorization), made up of their own recovered and/or reworked elements or created and appropriated from existing State laws (Stavenhagen, 1990, pp. 34–35). Moreover, these systems do not consist merely of formulas for resolving local conflicts; they include their own norms of public law related to the designation and powers of authorities, the administration of territory, the safeguarding of natural resources and so on.

In debates about the legal recognition of Indigenous law, those who oppose it have suggested that it goes against individual human rights as it requires members of a society to subject themselves to sanctions not set forth by law. This, as Emiliano Borja explains, “seems barbaric and cruel from a Western perspective” (2006, p. 680), and is applied without the filter of due process.⁶ This statement, however, can also be applied to those submitted to the State’s criminal justice system,⁷ revealing an ethnocentric view that sees the law as an absolutely true and naturally given phenomenon. It is, in short, the old dispute between universalists and relativists — between those who believe that human rights are of identical value regardless of the latitude or political stripe in question (human rights arose as a universally applicable concept) and those who maintain that an institution born in the West cannot be applied uniformly because it cannot be applied in certain contexts, and doing so would be a form of imperialism. For Boaventura de Souza Santos (1998, p. 195), both extremes are universalist, mistaken, and unjust, and in their place he proposes an intercultural dialogue on human rights and a global transformation of their practice.

Along similar lines, Colombia’s Constitutional Court attempted in some emblematic judgments in the 1990s to establish this dialogue between the collective rights of Indigenous peoples (particularly the right to special jurisdiction) and human rights based on a recognition of the principle of cultural diversity.⁸ This work of the Court was obviously not completed decades ago, and we might say that the dialogue has become increasingly complex. Nonetheless, we might expect that this dispute should occur within each society without the false premise of some societies (or legal systems) being morally superior to others. This is a process that must take place, furthermore, in inequitable situations with high levels of conflict. In this context, recognizing special Indigenous jurisdiction and the exercise of this jurisdiction is not a matter of idealizing Indigenous peoples and their legal systems; it is directly linked to the survival of Indigenous peoples as ethnic collectives that are culturally distinct from the rest of the population, with the right to determine and protect their own cultural systems — in other words, with the right to self-determination. Jurisdiction, then, is based on the right to self-determination, as it is part of the forms of organization that Indigenous peoples grant themselves. They organize themselves and administer and apply justice through a normative system with their own institutions and procedures. According to James Anaya (2009, p. 197), “human beings, individually and as groups, are equally entitled to be in control of their own destinies, and to live within governing institutional orders that are devised accordingly.”

However, another dilemma in the recognition of Indigenous legal systems is the enormous gap between their normative recognition and what occurs in practice. To what extent has the legal recognition of autonomies allowed Indigenous peoples to resolve their affairs and exercise their institutions effectively? This dilemma is more complex in the current context of disputes over territorial control, affected by, among other things, the significant expansion of extractive industries and the implementation of infrastructure and investment projects promoted by States. These activities, which occupy a central place in the development strategies of several countries in the region, exacerbate the unequal distribution of power in society and have negative effects on Indigenous peoples’ right to determine their own development priorities.

In this context, the exercise of Indigenous law is highly complex, as it runs the risk of being reduced to resolving minor local conflicts, like justices of the peace. Its applicability is thus directly related both to the relation of forces between Indigenous peoples, transnational companies and States and to how this struggle unfolds in the battleground that configures the law.

We may wonder: Who makes the decisions in Chile about matters of justice that affect Indigenous parties? Are there practices of Indigenous jurisdiction such as the exercise of self-determination? Is it possible to progress toward mechanisms of recognition and/or toward mechanisms for coordinating between Indigenous and State systems of jurisdiction?

This chapter addresses how conflicts that occur in some communities of different Indigenous peoples in Chile, who maintain their own normative systems, are taken over by the State justice system due to accusations of a criminal offence. Each jurisdictional system (Indigenous and State) attributes to itself the authority to resolve such issues, producing a conflict of powers in a Chilean legal system that lacks mechanisms of coordination.

Although the cases described do not reveal a recognition of the exercise of Indigenous jurisdiction in Chile, they do allow us to see how Indigenous law remains in effect in diverse community spaces (outside of the State), suggesting that certain elements or practices of this system can be incorporated into institutional spaces to the extent that the Indigenous actors themselves so demand. This chapter also presents some advances and difficulties observed in the exercise of Indigenous jurisdiction in Peru and Ecuador. These situations make it possible to see how the de facto failure to recognize Indigenous law has overshadowed constitutional norms which years ago promised a broad recognition of Indigenous rights in the region, and they reveal the urgent need for a new dialogue between States and Indigenous peoples.

Cultural Diversity and Justice in the Corpus Juris of Indigenous Law

The rights of Indigenous peoples both in the justice system and to access the justice system are recognized in several general international instruments currently in effect, such as the International Covenant on Civil and Political Rights (1966) and the American Convention on Human Rights (1969). But Indigenous peoples also have other, specific international instruments that consider their special characteristics. These include ILO Convention 169 (1989), the United Nations Declaration on the Rights of Indigenous Peoples (2007), the American Declaration on the Rights of Indigenous Peoples (2016), the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the Brasilia Regulations Regarding Access to Justice for Vulnerable People (2008) and the Ibero-American protocol on legal action to improve access to justice for people with disabilities, migrants, children, youth, communities and Indigenous peoples (2014). All these instruments include provisions that cover diverse aspects of the sphere of justice, depending on whether they refer to procedural or substantive aspects of prosecution. This cluster of norms can be summarized in the following statement: Indigenous peoples possess a series of specific rights that, among other purposes, seek to guarantee appropriate access to justice under equal conditions.⁹

In the case of Indigenous peoples, considering access to justice on an individual basis is insufficient; it is essential to attend to the collective dimension, as they are a distinct group.¹⁰ In this context, equality involves the recognition by States of Indigenous peoples’ traditional and/or own methods for resolving conflicts, prosecuting infractions, and applying sanctions (Villegas & Mella, 2017, p. 71). This includes recognizing their own procedures and institutions and is closely related to recognizing their right to self-determination.

According to article 3 of the United Nations Declaration on the Rights of Indigenous Peoples (2007), self-determination is a right held by all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural determination. Political determination consists of the pursuit of their own aims, which in turn requires organization and institutional structure. This is, in generic terms, what we call law.¹¹ Law does not only constitute a set of norms. Following Santos (2002), it is:

a body of regularized procedures and normative standards, considered justiciable in any given group, which contributes to the creation and prevention of disputes, and to their settlement through an argumentative discourse, coupled with the threat of force. (Santos, 2009, p. 56)

Indigenous law, then, cannot be understood without Indigenous jurisdiction, which can be defined as follows:

[T]he power of Indigenous peoples to turn to their authorities and internal institutions to solve the controversies that occur in their territories, as well as the power to make decisions, judge and enforce in accordance with their traditional norms. (Moreno, 2011, p. 117)

More precisely, we can say that the rights of Indigenous peoples to justice are dual; they have an individual dimension, which guarantees Indigenous people’s access to state justice on an equal footing with the rest of society, and a second dimension, which consists of the right of peoples to have their own jurisdictional mechanisms, in equivalent terms and in coordination with the State justice system. The first dimension consists of the rights that Indigenous peoples can present to the State to access State justice. These rights are established in different human rights instruments for all persons, including, for example, the right to due process, to the presumption of innocence and to have recourse to a competent court.¹²

In addition, the Inter-American Court of Human Rights (I/A Court H.R.) has indicated that, in the case of Indigenous peoples, State courts must consider the subject of law’s particular protection needs, whether due to their personal condition or to the specific situation in which they find themselves.¹³ This right thus includes access to justice, by virtue of which Indigenous peoples must be protected in cases of violations of their rights and must be able to initiate legal proceedings either personally or through the bodies that represent them. This requires that their ability to understand and make themselves understood in legal proceedings be guaranteed, through the provision of interpreters or other effective means if necessary. It further requires the right to special sanctions, as their economic, social and cultural characteristics must be taken into account when applying criminal penalties — preferably non-custodial penalties,¹⁴ with forced labour being prohibited (unless set forth in the law for all citizens). Finally, it entails respect for their own law, as not only must their customs and customary law be considered in general; rather, the methods Indigenous peoples traditionally use to control crime must also be respected, as long as they are compatible with the national legal system and with human rights (Melin et al., 2016, pp. 75–86).

The Inter-American Comsission on Human Rights (IACHR) has also spoken on several occasions about Indigenous law, using the expressions “custom,” “traditions,” and “customary law.” Specifically, it has addressed legal custom with respect to decision-making.¹⁵ For example, in the case of the Kichwa de Sarayaku People v. Ecuador, it indicated that “consultation must take into account the traditional decision-making practices of the people or community.”¹⁶ The following paragraph refers to a different case in the I/A Court H.R. indicating that:

regarding large-scale development or investment projects that would have a major impact within Saramaka territory, the State has a duty, not only to consult with the Saramakas, but also to obtain their free, prior and informed consent, according to their customs and traditions.¹⁷

In both cases, the Court clearly tied Indigenous custom to Indigenous or traditional internal decision-making processes — that is, to their own law.

The Court has also addressed the recognition of customary law in its broader sense, relating it to cultural identity and cultural rights. In the Awas Tingni case, it established that:

Indigenous peoples’ customary law must be especially taken into account …. As a result of customary practices, possession of the land should suffice for Indigenous communities lacking real title to property of the land to obtain official recognition of that property, and for consequent registration.¹⁸

Similarly, in the 2007 Saramaka People case, the Court indicated that Indigenous peoples have the right to:

hold collective title of the territory they have traditionally used and occupied, which includes the lands and natural resources necessary for their social, cultural and economic survival as well as manage, distribute and effectively control such territory, in accordance with their customary laws and traditional collective land tenure system.¹⁹

The I/A Court H.R. has also recognized Indigenous custom with respect to other matters, such as traditional family structures,²⁰ non-discrimination²¹ and freedom of conscience and religion.²²

In any case, these Indigenous structures are not absolute forms totally separated from State law.

Legal custom is often developed and modified as a function of its relation to dominant (national positivist) law and can be seen as an attempt by subordinated societies to adapt and reinterpret positivist state norms in accordance with their own structures, values, interests and needs. (Stavenhagen, 1990, p. 34)

Indeed, this relation of domination and resistance between State law and Indigenous law is a way to understand legal pluralism (Sieder, 1996).

The second dimension, in contrast, refers to the exercise of special Indigenous jurisdiction — that is, the exercise of self-determination independently of State justice. This pertains to the control and punishment of offences committed according to their own systems, regulated by their institutions and in accordance with their own procedures.²³ Both dimensions form part of the same right. Access to justice, therefore, cannot entail the imposition of one dimension over the other.²⁴ When Indigenous peoples file claims or are compelled to appear in the jurisdiction of courts of State justice, they are not renouncing their own justice system. Similarly, by exercising their own justice for some cases, they are not necessarily eschewing turning to ordinary courts of justice.²⁵

Indigenous peoples themselves have understood the exercise of jurisdiction as an application of their right to self-determination. In Peru and Bolivia, for example, some communities have chosen the strategy of protecting their territory by exercising their own jurisdiction. This was evident in a judgment by the Plurinational Court of Bolivia on 29 August 2018, ruling favorably on the consultation presented by the Chief (Curaca Cobrador y Corregidor) of the Jatun Ayllu Santa Isabel community, belonging to the Sud Lípez Council of First Ayllus in the department of Potosí. The consultation referred to the resolution adopted in his community on 21 December 2017 that applied penalties to the La Candelaria mining concession and owner, including their expulsion from the territory without any financial compensation due to damage to the fauna, the environmental contamination caused “and the constant discrimination, labour exploitation [and] failure to recognize the right to self-determination and self-government.” This community decision was declared legitimate by the Court, as it was in line with the jurisdictional powers of First Peoples and peasant nations.²⁶

In the case of Chile, while all the norms sustaining the validity of special Indigenous justice are part of the country’s domestic justice system (ratified international treaties), their application and enforcement have given rise to a constitutional debate that features several different positions. In a 2000 judgment on a declaration of the unconstitutionality of Convention 169,²⁷ the Constitutional Court established that in a country’s domestic system, treaties can contain two types of clauses — executable and non-executable:

The former are those with sufficient content and precision to enable their application as a source of domestic law without requiring any other procedures. In other terms, they are self-sufficient and enter into national legislation when the treaty that contains them is incorporated into the existing body of law. The former are those that, to enter into effect, require the enactment of laws, regulations or decrees to implement them and, ultimately, make them applicable as a source of domestic law. In other words, they make it the duty of the state, in exercise of its public powers, to sanction the necessary regulations so the laws can be effectively enforced. (Judgment of the Constitutional Court, 2000, Recital 48)

This issue is not uncontentious. Meza-Lopenhandía, with whom we concur, suggests that by virtue of that set forth in article 5 paragraph 2 of the Political Constitution of the Republic, ILO Convention 169 and its norms are unquestionably mandatory at a domestic level, at least since ratifying the treaty that contains them. The author adds that this is different from the diverse ways the norms can be applied: there are self-executing norms, programmatic norms and principles that require a reinterpretation of the legal system to conform to the international standard or the tacit derogation of incompatible norms and/or the enactment of new laws (2013, pp. 343–44). In contrast, Millaleo (2016), in line with the thesis of the Constitutional Court, suggests that the standard of article 8 of the Convention is self-executing but of a programmatic nature, “because it is not fully applicable in internal law: as it requires specific legislative recognition” (2016, p. 32). Valdivia (2011) holds a more limiting position, affirming that “the specificity that seems to characterize certain provisions of an international instrument does not alone guarantee their unambiguous application” (2011, p. 51).

Beyond the legal debate about the constitutional value of the norms regarding Indigenous law, Indigenous peoples exercise their law every day in what Villegas and Mella call “coordination from below” (2017, p. 183). The relation between Indigenous justice and State justice is not without conflict, as the law becomes a dialectic field marked by power struggles and disputes over knowledge, where the tension between Indigenous law and State law is dynamic, ongoing and susceptible to diverse social changes. In the recognition of collective rights, States “tend to see the creation of an internal legal competition, a challenge to the State monopoly on the production and distribution of the law” (Santos, 1998, p. 159).

From this perspective, modern law has two main shortcomings that, along with other factors, account for why it has become more an instrument of regulation than of emancipation. First, especially since the codification processes in Europe, law has been identified with the nation-state, as if the nation-state were the only center of normative production. The law has also always been associated with the notion of being scientific, as if it were a neutral zone. This law, State-based and supposedly neutral, rules out the possibility of legal pluralism, hence it resists the idea of Indigenous justice, which is different from and outside the State. If law is only produced by the State, then it is inconceivable to understand law as a “plurality of legal orders, interrelated and socially distributed in the social field in different ways” (Santos, 2002, p. 63).

Legal pluralism arises mainly in a context of colonialism — that is, the domination of one society by another — and in the way of articulating social relations between a colonizing State and traditional legal systems. Legal pluralism can also be identified in “countries with predominantly or exclusively non-European cultural traditions, which adopt European law as an instrument for modernization and the consolidation of State power” (e.g., Turkey, Thailand, Ethiopia) (Santos, 1991, p. 70), as well as in contexts of socialist revolution, such as in the former Soviet Union, and in Islamic countries, where “revolutionary” law has come into conflict with traditional law. This situation is also present in different countries in Latin America, where the law and social forms of control acknowledged and used by Indigenous peoples were first ignored by the Law of the Indies (derecho indiano) and then by State law (Yrigoyen, 1999, pp. 129–42). Legal pluralism, then, describes a legal phenomenon and is not necessarily an emancipatory or counter-hegemonic tool. Legal pluralists thus distinguish between classical (or weak) legal pluralism and current (or strong) legal pluralism (Santos, 2009, pp. 54–55).

Currently, in industrialized societies,²⁸ these articulations are marked not by the correlation of forces between the colonized and the colonizer (Santos, 2009, p. 55) but by the coexistence of diverse legal orders. While classical pluralism was configured at the intra-state level, legal orders today are interwoven across the diverse scales of law, both at the level of the nation-state and globally. The discourses of social movements and international law, among others, shape a more complex legal system than simple State law (Santos, 1998, p. 80). Santos describes legal pluralism in current society as an interrelation of different legal orders at the three scales (local, national and global) and across the six space-time dimensions (domestic, production, community, market, citizenry, global) at which law operates. While these spaces produce and transform their own systems of law, they are related to the others in either a complementary or conflict-infused manner.

Each of these spaces has its own power relations and its own struggles. As the legal field is plural, the struggles will tend to be plural, although they are based predominantly in one space as a single space has competence in different systems of regulation. (Ardila, 2002, p. 59)

The problem of legal or juridical pluralism lies in describing and defining the relation between two sub-fields of law. Ultimately, it lies in how we resolve the question of legal systems coexisting in the same geopolitical territory.

In this context, one of the current challenges appears to be related to the coordination of state and Indigenous systems of justice in matters of conflict resolution. Hence, a fluid intercultural dialogue between authorities of Indigenous justice and state justice is needed for there to be understanding around the issues that operators of Indigenous justice consider they should resolve, and accordingly, their powers should be recognized based on the circumstances of particular Indigenous communities or peoples. This would also provide flexibility in cases in which Indigenous authorities believe that a particular matter should be heard by the authorities of ordinary justice, as part of a process of intercultural coordination and cooperation. (Tauli-Corpuz, 2016, p. 2)

In this regard, case studies allow us to observe how the operators of State justice, as well as Indigenous actors, apply and weave together law in different spaces.

Practices and Elements of Indigenous Jurisdiction and their Recognition in the Chilean Criminal Justice System

Indigenous law varies depending on the collective in question. Its roots lie in local traditions and customs and correspond to the needs of Indigenous communities with respect to maintaining social order and harmony, resolving conflicts of different kinds and punishing offenders,²⁹ all of which involve the existence of their own institutions and procedures.³⁰

Still, as indicated above, Indigenous law is not equivalent to ancestral tradition, as it is eminently dynamic, and in the process of intercultural relations it has appropriated “exogenous elements giving them new values and cultural meanings” (Gómez, 2015, p. 198). At the same time, we know that these relations between different legal systems (legal pluralism) do not occur on equal terms; rather, it is a relation of domination and resistance (Sieder, 1996, p. 33).

Some of the legal systems described remain in effect among different Indigenous peoples in Chile.³¹ In the case of the Aymaras, for example, Chiapa, an Andean town in the Arica and Parinacota region, has historically administered its water resources based on a system of shifts or mandatory public service (mitas). According to customary law, each irrigator who wants to exercise their right is subject to the dictates of the community (the irrigators’ organization) and to that set forth by the mayor of water — the authority who represents the principles of justice and reciprocity of the Andean world (Castro et al., pp. 40–41).

The Mapuche,³² too, have legal forms in effect. The AzMapu is the system that regulates social relations (Antona, 2014, pp. 111–37), consisting of authentic “behavioral guidelines that are transmitted orally from generation to generation and regulate social relationships and people’s connections to the natural environment” (Melin et al., 2016, p. 34). Mapuche justice is directly connected to gvlam, which is an ongoing process of education with the idea of restoring and re-establishing balance and harmony: “the need to maintain balance makes violence-prevention mechanisms work, which are put in place at the first hint of conflict instead of immediate punishment” (Villegas & Mella, 2017, p. 140). This is the type of Mapuche justice that Pascual Coña describes for the 19^th century, where the theft of a waka (cow) was resolved by the logko (leader or head of the community) of the respective lof (communities) (Coña, 2000, p. 140).

The exercise of Indigenous law is a live phenomenon, carried out regardless of normative recognition. Its dynamic nature includes the disputes that occur in the different legal fields in which State law attempts to establish its hegemony.

The following case studies aim to describe the dialectical relationship between Indigenous law and State law, particularly in the judicial field.³³ Although the cases do not necessarily describe a process of juridification of Indigenous social demands,³⁴ they allow us to better understand the context in which struggles for the recognition of the right to Indigenous jurisdiction in Chile take place.

Case studies

Social Structure, Family Organization and Property from an Aymara Cosmovision

Three families, inhabitants of the Chucuyo Estate, were accused of the crime of causing simple damages to the private property of Ms. VMM. The alleged damage consisted of damaging the outer fence installed by the owner. The defence managed to absolve the three accused, emphasizing the Indigenous mechanisms for resolving conflicts and the community use of Aymara property. During the trial, community members testified that “there have never been any fences, and problems have always been resolved in good faith, and Ms. VMM did not want to ….” The Intercultural Facilitator in the Office of the Public Defender made a similar declaration, indicating that “the boundary markers have not been moved in more than four generations, and they cannot be removed because it would threaten the healthy coexistence of the community, it is a system agreed upon among the families” (Judgment of the Arica Court of Guarantee, 2013, RIT 648-2013, Recital eighteen).

The Aymara cosmovision was decisive, in this case. The complainant was occupying a land that was not hers, as she arrived there through an unaccredited succession and was residing there thanks only to the tolerance of the accused. When VMM enclosed a part of the land (without any consultation), in addition to circumventing the existing ancestral demarcation, she deprived the rest of the community of an alternative path, thus the court understood that if one of the three accused knocked down the stakes, it was only to re-establish the social balance.³⁵ This case clearly illustrates the effects of applying the system of private property — effects that continue to have repercussions today.

The imposition of the concept of fiscal ownership and the failure to recognize shared ownership, so characteristic of Andean tradition, triggered this privatization process. The Chilean State introduced a type of State-Individual arrangement instead of a State-Community one, unleashing major disputes among Aymara families (Comisión Verdad Histórica y Nuevo Trato con los Pueblos Indígenas, 2008, pp. 123–26).

Likanantai Assembly as Jurisdictional Body

An Indigenous community in Socaire used to carry out an old tradition every winter solstice involving young people and adults using fire.³⁶ In the middle of this activity, all of a member’s bales of hay were burned — the product of one year of work. He reported the incident to the Public Ministry, which in turn filed an accusation of arson. However, the indictment was not successful, as the parties spoke with the community and decided to reach an agreement. The Calama Court of Guarantee moved to the town of Socaire and recognized the legality of the solution put forward by the parties. A restorative agreement established that the accused had to pay an amount to the victim in two instalments. The first payment was verified at the hearing (Minutes of the Hearing of the Calama Court of Guarantee, dated 29 November 2013, RIT 4657-2012), and the second payment was given to the community manager, who was to pass it on to the victim.

Control of Crimes of Domestic Violence in Mapuche-Pewenche Communities

On the night of 7 October 2008, VVC assaulted his partner with blows to the face and to different parts of the body, cutting the victim on the face and arms with a knife. It was formally reported on 20 December 2012, and the judicial process ended in January 2014 with a sentence of 50 days in prison. Meanwhile, the community held an assembly (more than 200 attendees) led by the Longko to punish the assailant. The punishment consisted of suspending a range of rights to participate in the community indefinitely: 1) cannot represent as a homeowner; ii) cannot receive benefits in his name; iii) the animals belong to his wife, he loses everything; iv) cannot vote in the community; v) cannot be werken (a kind of spokesperson); vi) cannot participate in ceremonies; vii) does not have the right to voice his opinion; viii) cannot hold a leadership position. These kinds of punishments deprived him of his quality of che (person) and as a member of the collective to which he belonged. The ruling also included a group of kimche (wise people) from the community providing ngulam (counselling) to the couple. “I am not the same person I was, for now I am always being humiliated by family members,” said the accused about this punishment (Pérez, 2013, p. 12).³⁷

In the prosecution of the case, the defence argued that the accused had already been punished in accordance with the rules and procedures of his community, thus if the State court also ruled, two punishments would be applied for the same crime.³⁸ The argument of the defence was based on the premise that the punishment adopted by the community was a jurisdictional ruling. However, the court rejected this claim. According to the court, even though the punishment applied by the community was a sentence, it could not be validated by State justice because doing so would violate the right to a natural judge, and furthermore, because it was the State courts that had the exclusive authority to resolve a criminal accusation.³⁹ The judgment also indicated that any other forms of conflict resolution that Indigenous peoples may use to control the crimes committed by their members were incompatible with the national criminal justice system.^40,41

This ruling involves two different arguments that demonstrate (according to the court) that special Indigenous jurisdiction is incompatible with Chilean law.⁴² First, it reaffirms the idea that Indigenous jurisdiction is in contrast with the principle of legality and the principle that everything which is not forbidden is allowed, which reserves the authority to judge for the bodies established in the constitution and the law and holds that whoever takes on such powers without being granted them in a legitimate fashion is acting unconstitutionally. Second, the exercise of Indigenous jurisdiction — that is, the prosecution of an act classified as a crime by bodies other than State courts — constitutes a violation of the right to not be tried by special commissions, contemplated in article 19 no. 3 of the Constitution.⁴³ The first argument is related to the debate mentioned above about whether the norms regarding Indigenous peoples’ access to justice, included in Convention 169, are self-sufficient or require an additional norm to establish special Indigenous jurisdiction. As indicated above, the norms that recognize the right of peoples to grant themselves a system of special jurisdiction to form a part of our national legal system, although it is also true that there are no rules for coordinating with the State justice system, as there are in other countries discussed below. The second reproach in the judgment is based on an error: the prohibition of not being judged by special commissions is aimed at preventing a person from being subject to a criminal trial by an unknown court, appointed specifically for the case, such that the accused cannot properly prepare and is unaware of the court’s interests and possible prejudices.⁴⁴ In this case, the jurisdictional rulings of an Indigenous community possess precisely the opposite characteristics, as they constitute the natural judge in this context: they are authorities who have been traditionally authorized among Indigenous peoples to impose sanctions and resolve legal conflicts that arise in their communities.

Administration of Water Use and Conflict Resolution in Aymara Communities

In the town of Saxamar, two brothers were in constant conflict with their neighbors over a water canal that ran through their land. Without regard for customary practices, they decided to block the waterway, depriving the community of an essential resource. As a result, one of the most affected neighbors filed a complaint with the Public Ministry about the damage caused, and the brothers were accused of the crime of usurpation of water. Given the strong possibility that they would arrive at a restorative agreement, the Arica Court of Guarantee went to Saxamar and listened to the parties as well as to the Elders and other local authorities who were present. An agreement was reached in assembly that the conflict should be resolved through the modality of community work, requiring the two brothers to work, with support from the rest of the community, to repair the damage caused.⁴⁵ As this case shows, the solution to the problem did not only penalize the offending community members; it also involved the whole community as part of the arrangement to re-establish the balance.

Recognition of Mapuche Authorities as a Means for Conflict Resolution

After waiting several years for their land fund application⁴⁶ to be processed, a Tokiwe Indigenous community in the Araucanía region was able to purchase a farm. MMHP and AEHP participate in the organizational life of the community, and their family was well known for causing a lot of conflict within the collective. The community thus decided to gather in assembly and fine the family by denying them access to the State subsidies obtained. In response, MMHP and AEHP filed a complaint against the community’s decision for the crime of misappropriation. As the criminal proceedings advanced, relations within the collective became increasingly tense, thus they developed a proposal to resolve the conflict. Through negotiation, they agreed to compensate the family that had been denied the community benefits. This agreement, signed under the authority of the longko, was brought to the court for approval right when the oral hearing was to take place — that is, outside the time limits prescribed by law. Nonetheless, the court approved it.

This case shows several phenomena typical of legal pluralism. First, the application of community sanctions is repudiated by the national legal system, which sees it as a crime, and because it has not been determined in advance which law is to be applied preferentially in such a case, those sanctioned can turn to State law to elude the sanction imposed in the lof. Then, thinking that the conflict can be brought to an end with community cohesion, the traditional authorities decide to re-establish the balance by accepting an agreement that will void the community sanction. Finally, the finding of the State court validates the agreement presented by the community, recognizing its value in putting an end to the legal process and explicitly acknowledging the validity of Mapuche law (AzMapu).⁴⁷

The court cases described here share certain issues. First, they are conflicts that have occurred inside Indigenous communities that, for different reasons, were resolved in the national judicial context. Second, the conflicts arose due to offences committed in the community, and the behavior was later classified as illegal by the State justice system.⁴⁸ In all these cases, furthermore, Indigenous institutions and State entities overlapped, and both sets of institutions claimed responsibility for resolving the matter. That is, in all these cases, Indigenous jurisdiction was activated, whether as a reaction to the judicialization of the case or in advance. In some cases, Indigenous justice operated by applying a punishment or an agreement, but always in pursuit of the composition or restoration of family or community order. The judicial reaction, in contrast, involved the acknowledgement or non-acknowledgement of such solutions. In any case, though, State justice never recognized the exercise of special Indigenous jurisdiction; when there was recognition, it still attributed to itself the quality of being the only body able to issue a ruling. In other words, Indigenous justice was considered only as a prior private conflict-resolution mechanism.

Indigenous Jurisdiction—Progress and Setbacks: Cases from Peru and Ecuador

All the cases from Chile described above take place in a legal context in which there is no constitutional or legal recognition of legal pluralism, much less rules for coordination. However, in other countries in the region, the situation is very different. For example, Indigenous jurisdiction has been recognized constitutionally in Peru since 1993 and in Ecuador since 2008.⁴⁹

Beyond this legal enshrinement, the matter of stating which bodies can exercise justice has entailed an additional complexity: the different institutional proposals and solutions in law range between the extremes of, on one hand, the precision required for a justice system, and on the other, the need for the constitutional design to not wipe out the jurisdictional powers of Indigenous peoples. In Andean countries like those mentioned here, there is an implementation gap (Stavenhagen, 2006, p. 5) between the normative recognition obtained and its effective enforcement. This gap is evident in damaging State practices like the criminal prosecution of Indigenous authorities who exercise their jurisdiction, which in turn leads to contexts of criminalization and stigmatization that affect the balance and social peace of the entire collective.

In this sense, practices of prosecution of Indigenous justice are varied. In Peru for example, Indigenous authorities have been criminally prosecuted for applying a community verdict, adopted in assembly, prohibiting the access of miners to the territory. Another case of infringement of rights involves the prosecution of hundreds of community guards (ronderos) accused of committing crimes of kidnapping, unlawful use of authority, coercion and so on after they have resolved cases of serious injury, homicide and sexual violence that occurred in their territories.⁵⁰ Indeed, even though Peru’s new Code of Criminal Procedure (art. 18 par. 3) sets forth that ordinary criminal jurisdiction does not apply in cases that correspond to Indigenous jurisdiction, there are judges who allow lawsuits and rule on cases already resolved by the peasant rounds or patrols (rondas) instead of declaring them res judicata. This has meant that people have been sanctioned twice for the same offence, going against the principle of non bis in idem.⁵¹ The work of the ronda authorities has also been impacted by protection measures granted by ordinary courts that favor people who do not belong to Indigenous territories, which has facilitated the entry of extractive companies and the resulting territorial devastation.

In Ecuador, the implementation gap is also evident in the prosecution of traditional authorities who, in the exercise of their special jurisdiction, have sanctioned members of the community for crimes they committed in the territory. The Constitutional Court of Ecuador, in Judgment No. 113–14 of 2014, found that the jurisdiction and competence to hear, resolve and apply sanctions in cases that put someone’s life at risk is the sole and exclusive power of the ordinary criminal system, even in cases where those allegedly involved are citizens belonging to Indigenous communities, peoples or nationalities. Despite this reasoning, in this same ruling the Court also affirmed that “the administration of Indigenous justice maintains its jurisdiction to hear and resolve internal conflicts among its members” (Constitutional Court of Ecuador, 2014, p. 35). Similarly, in a public hearing held in 2018 by the IACHR, Indigenous representatives and leaders of the Cotopaxi people in Ecuador claimed that different Indigenous authorities were being tried and condemned in criminal court for exercising and administering Indigenous justice inside their territories.⁵² According to the Indigenous people’s claims filed with the IACHR, traditional authorities are being accused of kidnapping.

These situations invite us to reflect on how legal provisions related to Indigenous peoples’ exercise of jurisdiction are being interpreted and applied. In international human rights law, these precepts share a similar formula: they must respect the methods that the peoples involved traditionally use to control the crimes committed by their members, to the extent that this is compatible with the national legal system and internationally recognized human rights (art. 9, ILO C169). This standard, as it is included in a human rights treaty, must be interpreted in a person-centered, dynamic and comprehensive fashion (Medina & Nash, 2010, pp. 38–41). Furthermore, this standard must be applied in concrete cases from the paradigm of interculturality, considering the diverse manifestations of human rights within a context of non-discrimination (Tauli-Corpuz, 2016, pp. 1–4).

Based on the cases described, we note that policies of recognition can contribute effectively to progress in Indigenous rights, yet they may also lead to regression. First, by trivializing diversity, we run the risk of consolidating an essentialist view that, in turn, can reduce manifestations of autonomy to a few spheres of folklore and integration. The second risk lies in seeing recognition as an end in itself.

The coexistence of several legal systems within a single territory is based on an asymmetrical relationship, as all legal systems are subordinated to the State legal system. Law is a field of dynamic disputes, and it is also traversed by tension between regulation and emancipation (which shaped the paradigm of modernity): regulation in terms of State institutions focused on the stability of expectations, and emancipation in terms of the struggle of Indigenous peoples seeking recognition of their rights. Furthermore, law is not neutral, thus the effects of recognition will depend on dominant applications of the development and reconstruction of Indigenous law — on how Indigenous law is shaped in different spaces and at different scales (local, national and global). Pressure exerted by Indigenous movements and peoples through the effective use of their jurisdiction, and the use of this jurisdiction inside the State system, drives the transformations we have seen in the region over the last decades.

Ultimately, normative recognition by States only reflects the contours of how the ongoing dispute between the two legal systems has developed. Even though the legal enshrinement of legal pluralism may constitute progress in the struggle for recognition of Indigenous peoples’ rights, we must not lose sight of the unequal relation that exists between the two systems and the resulting risk that normative advances will end up becoming a mere “State-ification” of Indigenous law.

Conclusions

The right of Indigenous peoples to have their own system of justice, in accordance with developments in international human rights law, constitutes a collective right that follows from the right to self-determination. It is therefore possible to declare that in Chile, the right to special Indigenous jurisdiction (or Indigenous law) is legally recognized and that it forms part of the constitutional block.

While this statement may be controversial, primarily because of the Constitutional Court’s ruling on the exclusive power of Chilean Courts to hear criminal and civil cases,⁵³ the Court’s decision is, as discussed above, based on an interpretation of international legal norms that is not consistent with the standards and methods of interpretation issued by international human rights organizations such as the I/A Court H.R. At the same time, despite this position, the Supreme Court and some of the judicial rulings presented in this chapter are based on an understanding that Indigenous law does exist. The obstacle continues to be the value these judges confer to such law.

The cases analyzed in this chapter suggest that there is a significant gap, evident in the reduced value attributed to Indigenous law in the judicial sphere. Our analysis suggests “a weak consideration of Indigenous peoples’ cultural particularities and the particularities of their legal systems” (Bertini & Yáñez, 2013, p. 160). There are good reasons to believe that underpinning this situation is the supremacy of a notion of law identified with the State and the nation, wherein the values and principles debated and upheld by special jurisdiction are considered to be subordinate to constitutional values and principles.

It is therefore useful to review the comparative experiences of other countries in the region, as the policies recognizing Indigenous law developed over the last several decades have not (necessarily) led to the effective exercise of special Indigenous jurisdiction. In those countries where there has been greater legal recognition, we see a regression underway as evidenced by the prosecution and criminalization of traditional authorities who apply Indigenous law. This process is dynamic, however, and there will be advances and retreats depending on the prevalence and development of the different legal systems and their resulting conflicts. Although the current context is one of retreat, this does not necessarily determine the future of legal pluralism in Chile and the rest of the Americas. It is a debate in progress, and depending on the relation of forces, the context may change in the future.

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