chapter  5
26 Pages

Access to justice and indigenous communities in Latin America

ByJULIO FAUNDEZ

Indigenous communities in Latin America are among the poorest, most excluded and socially discriminated groups in the region. Their present economic predicament was brought about by centuries of plunder and economic oppression, which originally benefited colonial powers and today contributes towards enhancing the wealth and profits of local and international elites. Political and legal marginalization complements and sustains the exploitation of indigenous communities. While in the past, political exclusion was concealed by the policy of assimilation, legal marginalization has been less subtle, since courts and other legal institutions consistently take the side of local bosses, large landowners or foreign companies, thus neglecting communities’ rights to their culture, land and natural resources. Given these circumstances, the indigenous communities’ views about legal institutions bear little resemblance to liberal views about law. Instead of seeing them as friendly institutions that empower and liberate individuals, they regard them as the cause and symbol of their longstanding economic and political oppression. Developments during the past three decades suggest, however, that, at long last, the vicious circle of economic, political and legal exclusion of indigenous communities may be coming to an end. From Chiapas in Mexico to Temuco in Chile, and including virtually all the countries in Central and South America, indigenous communities are beginning to make their voices heard. In some countries, such as Bolivia and Ecuador, they are beginning to have a decisive impact in shaping national policies (Albro 2005; Hernández Castillo 2006; Jung 2003; Quijano 2005; Reñique 2007; Richards 2004; Sawyer 2004; Sieder 2002; Sierra 2005; Van Cott 2007a; Yashar 2005). In general, these encouraging developments can be attributed to the complex interaction of two processes: democratization at the national level and globalization at the international level. The combined effect of these two processes has pushed the issue of indigenous rights to the top of national and regional political agendas and has greatly enhanced the capacity of indigenous communities to demand that state institutions protect and respect their rights. Recent developments in international law are also contributing to legitimizing indigenous communities’ demands for political autonomy, control and restitution of ancestral land and greater access to justice.