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 27, Section VII, Second paragraph. The law will protect the integrity of the lands of the indigenous groups.

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.

The Mexican Government ratified ILOs Convention 169 in 1989, which makes this Convention and all its provisions as law of the country.

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.

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.

  • Recognition of the indigenous peoples in the Constitution.
  • Widen political participation and representation.
  • Guarantee full access to justice.
  • Encourage and promote the cultural manifestations of the indigenous peoples.
  • Ensure access to education and training
  • Guarantee the satisfaction of basic needs.
  • Develop and promote the creation of jobs and production.
  • 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:

  1. The study of local problems
  2. The execution of common development projects
  3. The establishment of special technical assistance and training bodies
  4. The training of bureaucrats and other employees
  5. The design and execution of urban development programs
  6. 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 Ecolog�a, UNAM