 RELATIONSHIP BETWEEN STATE AND INDIGENOUS PEOPLE
1. The indigenous peoples of Mexico have consistently suffered from
state policies that attempted to integrate and assimilate them into the
nation’s social, economic and political processes. These relations, however,
were always asymmetrical and marked by ideologies that denigrated indigenous
culture and systematic exclusion from the mainstream benefits of the nation.
At the foundation of Mexico as a republic in 1825, indigenous peoples were
given the same rights as other citizens under the law, eliminating in principle
the social differences of the Colonial period. From the indigenous peoples’
perspective, however, this legal equality signified that their own cultures
could not have their own processes of economic and cultural development.
In fact, the indigenous peoples were integrated as Mexican citizens but
kept and guarded their own cultural forms.
2. The Mexican Revolution of 1910 modified this relationship in part,
with Article 27 of the Constitution of 1917. This Article recognizes the
indigenous peoples’ collective rights to their lands and permitted them
to recuperate many of their ancestral territories taken from them during
the Nineteenth Century to form the great haciendas. This Article has the
drawback, however, of not recognizing ethnic groups as legal persons.
3. After the passage of this legislation, subsequent actions focused
on the processes of schooling and Hispanicising the indigenous groups.
Yet these policies were also underpinned by thinking that recognized the
need to respect racial and cultural differences among the world’s peoples
and those of the American continent with their special historical and regional
characteristics in particular. In order to carry this out there were institutions
created to attend to the needs of indigenous peoples. Some of these are
the Autonomous Department of Indigenous Affairs, the National Institute
of Anthropology and History, the Inter-American Institute, and finally,
in the decade of the 40’s the Instituto Nacional Indigenista.
4. Nevertheless, the legal relations between the state and the indigenous
peoples were never modified. In other words, while the policies and institutions
to service the special needs of the indigenous people were founded on a
recognition of cultural differentiation, the official relations were oriented
to deny these differences and create one homogeneous nation. The assimilation
of many indigenous peoples had the result that they themselves began to
assert their claims for an official recognition of their ethnic uniqueness
and in 1992 Article 4 of the Constitution was modified to reflect the nation’s
multiculturalism.
Mexican Constitution
ARTICLE 4°- The Mexican nation has a multicultural composition based
on its original inhabitants. The Law will protect the development of their
languages, cultures, customs, resources, and specific forms of social organization,
and will guarantee its citizens the effective access to the state jurisdiction.
In legal decisions and agrarian related processes that they are a part
of, their special practices and legal norms will be taken into account
in terms established by the law.
Article 27, Section VII, Second paragraph. The law will protect the
integrity of the lands of the indigenous groups.
5. Although Article 27 specifies the protection of indigenous peoples’
lands, the new agrarian law does not establish the implementing regulations
and the forms to be adopted by indigenous peoples in the administration
of their communal and ejidal lands. In other words, it offers no
recognition of a community as a legal entity that would permit them to
act as a group to defend their interests against pressures of land
markets, to organize themselves for productive activities, and to derive
benefits from financial and credit institutions.
The Mexican Government ratified ILOs Convention 169 in 1989, which makes
this Convention and all its provisions as law of the country.
6. An alternative proposal for a new relationship between the state
and its indigenous peoples was formulated in the Peace Accords of San Andres
Larrainzar in the state of Chiapas in 1996, which propose.
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Recognition of the indigenous peoples in the Constitution.
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Widen political participation and representation.
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Guarantee full access to justice.
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Encourage and promote the cultural manifestations of the indigenous peoples.
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Ensure access to education and training
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Guarantee the satisfaction of basic needs.
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Develop and promote the creation of jobs and production.
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Protect the indigenous peoples.
7. At the individual state level, there have been important changes and
modifications to the constitutions and specific laws. Oaxaca, for instance,
incorporated several new articles into its state constitution in 1989,
and in 1997 passed the law on the Rights of the Indigenous Peoples and
Communities of the State of Oaxaca.
Law on the Rights of the Indigenous Peoples and Communities of the State
of Oaxaca
Article 12. The municipal and communal authorities preserve the tequio
as an expression of community solidarity, according to the customs of each
ethnic region. The law will determine the cases where the tequio
will be considered as a form of payment of taxes as well as the authorities
and procedures related to the resolution of conflicts or controversies
arising as a result of the execution of the tequio.
Article 16. The State of Oaxaca has a plural ethnic composition based
on its peoples and indigenous communities making up this state. The right
to free determination of the indigenous communities and groups are expressed
as autonomy on their part as integral part of the State of Oaxaca and in
agreement with the existing legislation. As such, the indigenous peoples
of the state are considered to have a legal personality under public law
and as such enjoy full social rights as determined by public law. The law
will determine the indigenous peoples and communities recognized officially
by the state whose rights it will recognize and respect.
The implementing regulations to the law will establish the norms and
procedures required to ensure the recognition and respect of the indigenous
peoples and communities in their social and political organization, their
forms of traditional government, their internal norms, the governance within
their territories, their access to natural resources, their participation
in the design of the educational system, their forms of religious and artistic
expression, and in general all the elements which contribute to the formation
of their ethnic identity.
The social rights recognized and given to the indigenous peoples and
communities will be exercised exclusively and directly by the people and
their authorities, to the specific exclusion of external agents or intermediaries.
The implementing regulations will determine the punishment for the various
forms of social discrimination, resettlement and involuntary displacement,
and sacking of cultural patrimony of the peoples and communities of the
state.
It will determine as well the cases and conditions to accompany and
displacement or resettlement of indigenous peoples and communities and
the rights and obligations derived from these.
In the conflicts concerning land delimitation of communal or municipal
lands, the State will encourage conciliation and consensus to achieve a
definitive solution with the participation of the traditional authorities
and indigenous groups.
The State recognizes the internal normative systems of these peoples
and indigenous communities, as well as the jurisdiction of traditional
authorities in the implementation of these norms. The law will establish
the cases and procedures where these authorities will prevail and the procedures
to incorporate and validate the actions of traditional authorities in the
case of political processes, judgments, decisions, and resolutions.
The State, within its mandate recognizes the rights of indigenous peoples
and communities to the usufruct of natural resources within their lands
and territories according to the terms established by the law. Similarly,
and according to budgetary programming the State will establish measures
to encourage and promote economic, social and cultural development of its
indigenous peoples and communities.
The implementing regulations will establish the norms and procedures
that will enable the efficient access of the indigenous peoples and communities
to services of Civil Registry and other institutions linked to these services
as well as the sanctions to be taken for non-compliance.
Article 94. The municipalities and indigenous communities of the State
can freely associate, taking into account their ethnic origin and historic
links in order to form associations with other indigenous groups and communities
that will have as objectives:
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The study of local problems
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The execution of common development projects
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The establishment of special technical assistance and training bodies
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The training of bureaucrats and other employees
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The design and execution of urban development programs
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Other objectives that will promote and encourage the well being and progress
of their respective communities.
Article 151. The State authorities will promote and give preference to
tourist activities that will take advantage of the attractions of all kinds
in the State of Oaxaca. It will be responsible for their vigilance so that
these activities contribute to the preservation of the cultural patrimony
of the indigenous peoples and communities, and to ensure that these activities
do not contribute to environmental degradation nor diminish the tourist
attractions.
In the same manner, other states have made legal provisions in their
constitutions although in a more limited way, as in the case of Jalisco
and Veracruz.
Political Constitution of the Free and Sovereign State of Jalisco
(P.O.E. 17-Jul-94)
Article 15. The institutions of the State’s public power will provide
the conditions for the full execution of individual and group rights of
its citizens and will encourage and promote their participation in the
State’s social, economic, and cultural life. To this end:
III. The laws will promote social economic and cultural development
of the communities referred in paragraph 1 of Article 4 of the National
Constitution concerning the respect for the traditions, customs, languages,
resources, values, and specific forms of social organization following
the recognition of the pluralistic basis of the Mexican Nation based on
its indigenous peoples.
Political Constitution of the Free and Sovereign State of Veracruz
(G.O.E. 5-Enero-93)
Article 6. All men have the duty to obey the laws, provisions and rules
made by a legitimate authority and in the execution of their legal role.
The State of Veracruz has a pluralistic composition originally based
on its indigenous population. The Law will protect and promote the development
of their languages, cultures, customs, resources, and specific forms of
social organization and will guarantee its citizens the effective access
and use of the established legal system. In the judgments and procedures
in which they take place, their own customs and laws will be taken into
account as determined by law.
Article 68. Obligations and Roles of the Legislature
XXXVI. Dictate laws referring to section VII, paragraph 2 of Article
27 of the General Constitution and the sections (A) and (F) of the said
Article.
8. The State of San Luis Potosi changed Article 5 of its constitution
in 1992 to establish general definitions on indigenous peoples and human
rights. In 1993 a committee for ethno-development was established in the
state, with the mandate of regulating government budgets in indigenous
areas. The Huasteca Profile includes detailed information on this and points
out the limitations of this committee, due to the lack of participatory
mechanisms for the indigenous organizations so that its effectiveness is
limited and has not reached down to the municipal level. Its effective
radius of action is limited to the coordination of institutions based in
the state’s capital.
There is little doubt that the changes made in Article 4 of the Constitution
constitute a positive step. However, the implementing regulations remain
to be written to transform the recognition of these rights into reality
for each one of the indigenous peoples in their regions.
9. There will be a tendency in the coming decades in Mexico to recognize
the indigenous peoples and their cultural differences and distinctiveness.
This recognition will lead to the construction of new democratic forms
and eventually, to the reform of the Mexican State. The right to equality
before the law must be complemented by an equal recognition of the legitimacy
of cultural differences and their value as a cultural patrimony. There
is a growing public policy whose aim is to devolve and decentralize power
to the state and municipal levels, particularly in actions concerning decisions
about the management of resources at the municipal and community level
to include all the indigenous peoples.
10. Recently, with the foundation of the Peace Accords of San Andres
Larrainzar with the Zapatista National Liberation Army, the Peace Commission
proposed a wider national-level reform of the Constitution. This proposal
was accepted by the Zapatistas and rejected by the Federal Government whose
counter-proposal is under discussion in the Senate. The national political
party PAN (Partido Accion Nacional) made a similar proposal. As
of this date there are three alternatives that will surely result in the
reformulation of the policies and politics and will have an impact in the
social programs and policies for indigenous peoples.
Instituto de Ecología, UNAM
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