Introduction

News headlines in 2021 revealed a troubling trend in Paraguay: “Indigenous communities are violently dispossessed in pandemic times” (La Nación, 2021); “For the second time in one year they have dispossessed the Indigenous community Cerrito from Arroyo Guazú” (UltimaHora, 2021); and “Paraguay: A violent wave of dispossessions batter Indigenous communities” (Movimiento Regional por la Tierra, 2021). Each headline – and there are many more like them – documented a violent conflict in an increasingly challenging context where long-standing land tenure inequality and socio-economic marginalization stoke a heated debate about the elusive promise of Indigenous land rights in Paraguay.Footnote ¹ Although the politics of Indigenous land rights have been contentious for decades, the shocking number of violent conflicts in 2021 cast a new light on the fraught and delicate status of these rights. Across the country, and particularly in areas of extensive soybean production, producers of agro-export commodities, often with state support, forcibly removed Indigenous Peoples from lands they claimed, or they threatened those already titled with displacement (Barrios, Reference Barrios2021). Such events are marked by the burning and razing of homes, direct violence or the threat of it, and the criminalization of land claimants.

The current trends illustrate two related processes evaluated in this chapter. A historical analysis of key moments for Indigenous land rights within Paraguay demonstrates what we call “pendulum policies,” where state actions move from violations of land rights toward the codification and protection of land and territorial rights (justice), and then back to violations again. It is worth noting here that Paraguay has a robust Indigenous rights framework that includes constitutional guarantees, regulatory policy and law, and the ratification of major international mechanisms like the International Labor Organization (ILO) Convention 169 and endorsement of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). This brings us to the second trend we evaluate: the implementation gap. Put simply, the “pendulum policy” pattern illustrates not merely state negligence, but a persistent gap between the juridical and discursive guarantee of de jure rights and the normalized violation of rights through de facto acts that erode Indigenous Peoples’ rights and threaten their wellbeing. We ground these observations in an analysis of the role that international human rights mechanisms have played in supporting domestic struggles for land rights and of the current threats to Indigenous communities that result from acts that undermine territorial integrity, such as direct dispossession and land renting.

This chapter provides a grounding in Paraguay’s historical and current socio-political dynamics. We base our work on literature, an assessment of Inter-American System actions, and consideration of current violent dispossessions. Moreover, we draw from our deep experience and commitment, sharing over forty years of experience working on Indigenous land rights in Paraguay from academic research, direct involvement in strategic litigation before the Inter-American Court, extensive advocacy and activism with Indigenous communities across the country, and the co-production of strategies to support Indigenous autonomy.

History and Evolution of Indigenous Land Rights

Nineteen different Indigenous Peoples, among five distinct linguistic families, have lived, and continue to live, across Paraguay: the Guaraní (Aché, Avá Guaraní, Mbya, Pai Tavytera, Guaraní Ñandeva, Guaraní Occidental), Maskoy (Toba Maskoy, Enlhet North, Enxet South, Sanapaná, Angaité, Guaná), Mataco Mataguayo (Nivaclé, Maká, Manjui), Zamuco (Ayoreo, Yvytoso, Tomáraho), and Guaicurú (Qom). Historically they practiced different forms of a mobile lifestyle from hunting and gathering to small-scale cultivation practices. The rich cultural diversity of Indigenous Peoples remains present today, but many groups and languages are highly threatened due to extensive deforestation and pressures from expanding agricultural and ranching frontiers across the country, in both the Atlantic Forest to the east and Chaco Forest to the west. Due to persistent discrimination and racist policies, Indigenous Peoples are the most marginalized social group in the country; however, they maintain their resistance, demanding land rights and political inclusion despite the multitude of contemporary and historical barriers we discuss in this chapter.

Like the swing of a pendulum, the history of Indigenous territorial rights since Paraguay’s independence from Spanish colonization is one of advances and setbacks. The relationship of exploitation, territorial alienation and genocide of the “colonial Indian” (Bonfil Batalla, Reference Bonfil Batalla1972) is the birthmark of the Paraguayan nation-state that continues to the present, which can be understood as a type of habitus, or what Bourdieu (Reference Bourdieu1992) might call “a structuring structure.” Despite the dynamic events that created the structure of unequal socio-economic relations in Paraguay, these forces remain stubbornly persistent and stable. Broadly speaking, inequality has long marked two prevailing sectors of society: wealthy Spanish encomenderos and colonists on the one hand, and marginalized Indigenous communities on the other, from Guaraní settled on Jesuit missions to those in the Chaco whom colonists long fought. Surprisingly similar social and economic relations continue to be reproduced in Paraguay today and are plain to see in the politics of Indigenous land rights.

Today, large landowners, ranchers, soybean farmers, and transnational agro-commodities companies largely comprise the elite and upper class of Paraguayan society. The inequity is illustrated by the fact that 4.3 percent of existing landowners control 90 percent of the land in Paraguay, or roughly 29,500,000 hectares of land (Güereña & Rojas Villagra, Reference Güereña and Rojas Villagra2016). Meanwhile, the nineteen different Indigenous Peoples across Paraguay have collectively secured 1,143,945 hectares of land (i.e., returned for possession and occupation or in the process of being titled but still in the name of another entity). To be clear, this is the total amount of land currently recognized as under Indigenous possession, which is twenty-five to thirty times less than the total area that corresponds with the ancestral and traditional territories of Paraguay’s Indigenous Peoples (Villagra, Reference Villagra and Chirif2021).

Implementation Gaps for Rights and the Role of International Human Rights Mechanisms

Indigenous land rights in Paraguay are tenuous despite a well-established legal framework that has failed due to little institutional support that undermines the effective protections of the law (Villagra, Reference Villagra and Chirif2021). Reporting on his work across the Americas, former United Nations (UN) Special Rapporteur on the Rights of Indigenous Peoples, Stavenhagen (Reference Stavenhagen2006), noted that challenges to Indigenous rights like those in Paraguay can be described as an “implementation gap,” where states fail to ensure that de jure rights to land and other protections are enforced in practice (see also Rodriguez & Kauffman, Reference Rodriguez, Kauffman and Rojas2015). In fact, the gap between de jure and de facto Indigenous rights is widespread in the Americas (Wright & Tomaselli, Reference Wright and Tomaselli2019). This dynamic is plain to see in Paraguay when viewed through the lens of Indigenous efforts to reclaim portions of their ancestral territories (Ayala & Cabello, Reference Ayala, Cabello and Ayala2006).

Numerous studies show that Indigenous communities with de jure land rights in Paraguay experience de facto land dispossession (Ayala, Reference Ayala and Dobreé2013; Villagra, Reference Villagra2018). Several factors contribute to this: deforestation driven by expanding agricultural industries (Glauser, Reference Glauser2018), exploitative land renting schemes that undermine the Indigenous tenure (Bogado et al., Reference Bogado, Portillo and Villagra2016), state refusal to enforce Indigenous land rights after restitution (Correia, Reference Correia2019a), and myriad forms of violence from direct physical harm (Correia, Reference Correia2019b; Cabello Alonso & Ayala Amarilla, Reference Cabello Alonso, Ayala Amarilla and Paraguay2020) to exposure to agrochemicals associated with soybean production (Ezquerro‐Cañete, Reference Ezquerro‐Cañete2016; Hetherington, Reference Hetherington2020), among others. Given the overwhelming influence of export commodity crops on the national economy and history of land tenure, state institutions seem more inclined to uphold private property rights for agribusiness producers, like soybean farmers and cattle ranchers, than to restore lands to Indigenous Peoples (Barrios, Reference Barrios2021 Schvartzman & Oviedo, Reference Schvartzman Muñoz, Oviedo and Palau2019). The effects of such de facto policy choices are discriminatory along clearly racial lines, whereas Indigenous Peoples are regularly subject to harms of ineffectual policy or direct state actions against them in ways that large-scale non-Indigenous landholders rarely, if ever, experience.

Discrimination against Indigenous Peoples in Paraguay manifests in many ways that intersect with land rights (Quiroga & Ayala, Reference Quiroga and Ayala2014; Glauser, Reference Glauser2018). Lack of secure land rights generates myriad challenges that can be seen across many aspects of Indigenous People’s daily life: from sanitation and basic health care to access to formal and traditional education and the ability to create meaningful livelihoods and maintain cultural practices. Land tenure insecurity coupled with compromised living conditions due to dispossession perpetuates marginalization – trends evidenced by the fact that Indigenous Peoples experience the highest rates of infant mortality and official unemployment, as well as the lowest levels of access to formal education and health services in Paraguay (DEEGC, 2012; United Nations Human Rights Council, 2015). These conditions persist regardless of more than thirty years of policy and legal framing to support Indigenous rights. Thus, the denial of land rights – both through resisting restitution and the enforcement of land rights after restitution – is a site where discrimination, racism, and human rights violations are clear to see (Mendieta, Reference Mendieta2018; Correia, Reference Correia2019a; Glauser & Villagra, Reference Glauser and Villagra2021).

When policies aim to support non-Indigenous landholders and consistently create challenges for Indigenous Peoples seeking formal land rights, such policies perpetuate discrimination. Paraguayan rights organizations have recorded and denounced the Paraguayan state for not acting on the issue of structural discrimination, exploitation, forced labor, and racism against Indigenous Peoples in Paraguay historically and in the present day (International Working Group on Indigenous Affairs, 2008; Iniciativa Amotocodie, 2009; Tierraviva a los Pueblos Indígenas del Chaco, 2013; BASE IS, 2018; Tierra Libre, 2021). The prevalence of discrimination against Indigenous Peoples in general and the racialized enforcement of land rights in specific raises many questions. What happens when the state denies its rights-bearing citizens the benefit of their rights? What recourse do people have in those instances and where do they turn?

After exhausting all domestic legal options, often the only choice left is to scale up struggles for rights by appealing to international solidarity organizations and human rights organizations with the goal that international pressure will drive local change (Keck & Sikkink, Reference Keck and Sikkink1998). International human rights organizations have played an important role in shaping the terrain of Indigenous land rights in Paraguay. Numerous international NGOs, like El Centro por la Justicia y el Derecho Internacional (CEJIL), the International Working Group on Indigenous Affairs and Amnesty International, have advocated for Indigenous land rights in collaboration with local Paraguayan organizations. However, we only highlight work by the United Nations (UN) and the Inter-American System in this chapter due to space constraints.

Barriers and Threats to Indigenous Land Rights

The current situation of Indigenous Peoples in Paraguay illustrates a systematic violation of their rights and shows an implementation gap in the recognition and enforcement of land rights. The policy pendulum has swung from justice back to violation. Given the historic and contemporary trends we traced earlier, Indigenous Peoples continue to be excluded from an economic model that privileges agrarian sectors, which have become increasingly violent and humiliating for Indigenous Peoples (Cabello Alonso & Ayala Amarilla, Reference Cabello Alonso, Ayala Amarilla and Paraguay2020, p. 50). The dispossession and the prevailing economic model not only impact Indigenous wellbeing in many ways but also result in a profound socio-economic inequality, where 65 percent of Indigenous Peoples now live in poverty and more than 30 percent in extreme poverty (DGEEC, 2017). As Imas et al. (Reference Imas, Serafini and Zavattiero2020) show, 97.9 percent of Indigenous Peoples in Paraguay have at least one unmet basic need, like adequate water access, health care, or sanitation. Foundational to these needs is land tenure. In this section, we illustrate the land inequity in Paraguay, with those lands already secured for Indigenous Peoples being patently insufficient. In addition to titling, demarcation and delimitation delays, we suggest that land leasing and evictions are among the most important challenges to Indigenous land rights today.

There is a clear discrepancy between the amount of land that the constitution guarantees to Indigenous Peoples and that which Indigenous Peoples actually possess or claim because state officials ascribe to the strict limits outlined in Law 904/81 instead of the constitutional view of land rights. The exact quantity of land under Indigenous control is difficult to ascertain because there is no consolidated registry of such data, despite improved land registries at the state and private levels. According to the first official national population census conducted in 1981, 38,703 people were identified as Indigenous. Of the three main peoples in the Eastern Region – the Paĩ-Tavyterã, the Mbya Guaraní, and the Ava Guaraní – 20, 80, and 30 percent respectively had nowhere to settle because of land reforms and historic dispossessions (Brunn et al., Reference Brunn, Chase Sardi and Ángel Enciso1990, p. 14). However, some ten years later the state registered 471,655 hectares of land to 254 recognized communities throughout the country (Brunn et al., Reference Brunn, Chase Sardi and Ángel Enciso1990) with an Indigenous population that totaled 49,487 (Melià & Telesca, Reference Melià and Telesca1997). The 2002 census provided a more comprehensive count through a participatory methodology and estimated 87,099 Indigenous Peoples among 414 Indigenous communities (see Table 2.1). This survey also included land conflicts and tenure data (DGEEC, 2003) that showed deforestation impacted 120 of the identified communities and 185 (44.7 percent) had no land of their own (Kretschmer & Rehnfeldt, Reference Kretschmer and Rehnfeldt2005, pp. 44–46). In 2006, Indigenous organizations estimated that a total of 717,952 hectares were now guaranteed across the whole country (Ayala & Cabello, Reference Ayala, Cabello and Ayala2006, pp. 362–363). The most recent census in 2012 recorded 493 communities where 357 had land title and 134 did not; two communities did not report data (DGEEC, 2015) (see Table 2.1). According to Villagra (Reference Villagra2018), there are currently some 521 communities, plus 272 villages and neighborhoods and 47 family groupings across Asunción and the Metropolitan Area of the Central Department – that is, 840 groups or collective units.

Table 2.1Statistics on Indigenous Peoples and land tenure 1981–2020

Table 2.1 Long description

A table with statistics on indigenous peoples and land tenure with five statistical measures for each. The statistical values are arranged in five columns corresponding to each year namely, total indigenous population in the country, total indigenous lands guaranteed, total indigenous communities in the country, total number of communities renting, and percentage renting of the total.

• In the year 1981, the corresponding values are no data, 38,703, no data, no data, no data.

• In the year 1992, the corresponding values are 471,655, 49,487, 254, no data, no data.

• In the year 2002, the corresponding values are 717,952, 87,099, 415, 120, 29%.

• In the year 2012, the corresponding values are 963,953, 117,150, 493, 182, 37%.

• In the year 2020, the corresponding values are 1,143,945, 125,227, 521, 192, 37%.

As discussed earlier, while some land has been returned to Indigenous communities, the returned lands are insufficient even in light of the minimum baseline established by the now outdated Law 904/81. Indigenous land rights outlined in Law 904/81 are clearly influenced by agrarian reforms intended for non-Indigenous campesino families because the law states that each Indigenous family within a recognized community is entitled to twenty hectares of land in the eastern region of Paraguay and 100 hectares of land in the Chaco region. That baseline calculus used to determine land restitution ignores Indigenous territorial relations and reduces them to property relations. However, when using that baseline as a standard to measure state compliance with Indigenous land restitution, the total amount of land returned to Indigenous communities in the eastern region nearly meets the legal requirements. By the same measure, the state has returned less than 50 percent of lands eligible to Indigenous communities in the Chaco. In addition, there are now claims that transcend individual communities and refer to peoples who are seeking to recover and manage their own contiguous territories (Casaccia, Reference Casaccia2009; Inter-American Commission on Human Rights, 2016). And yet the Executive branch has just reduced the 2021 budget for land purchases by 381 percent compared to 2020. The tensions present in the dynamics of land restitution illustrate that policy shifts regarding land restitution are akin to a pendulum, pushed back and forth from the direction of justice through organized resistance for specific cases, or in the direction of violations for repressive acts by prevailing political and economic interests centered on the control of land.

The delay in titling, demarcation, and delimitation is proportional to the pace of progress and expansion of agribusiness, which continues to put pressure on Indigenous territories. Thus, communities that do not have leaders and lawyers to navigate the land restitution procedures end up losing hope of recovering part of their territory, often dispersing in other communities, in urban centers, or roadsides (Tierraviva a los Pueblos Indígenas del Chaco, 2013). Yet these delays continue even after land restitution because it commonly takes years to title land on behalf of communities and to carry out necessary legal requirements. The irregular titling process, coupled with the lack of a reliable cadaster, threatens the legal security of Indigenous communities and hinders the implementation of development projects from both the private and public sectors. Moreover, the common practice of granting environmental licenses that allows the deforestation of areas used by Indigenous Peoples, without a mechanism to review or challenge the issuance of such licenses, runs counter to IACHR’s statements about the implementation of development plans and projects without first fully identifying and guaranteeing communal property rights through titling, delimitation, and demarcation (Inter-American Court, 2006).

The lease and rental of Indigenous lands to third parties is frequently practiced and constitute one of the greatest de facto threats to Indigenous land rights in Paraguay. The rental of Indigenous lands flagrantly violates the guarantees of Constitution Article 64 that prohibits the lease of Indigenous lands. Many Indigenous communities are effectively forced into renting portions of their lands for cattle pasture, soybean cultivation, and timber extraction because few economic opportunities exist outside of the predominant agro-export development model. Land renting is both a consequence of structural economic and social inequalities as well as a practice that reproduces extreme poverty among Indigenous populations because lands are often severely degraded by agricultural activities with few economic outcomes for community members. Studies also point to other serious effects because renting is often endorsed, if not directly carried out and protected using public force by municipal authorities, corrupt INDI officials, local politicians, prosecutors and police (Villagra, Reference Villagra2018). Such outcomes reveal not only the challenges Indigenous Peoples face to access justice, but also the partiality of government officials.

Finally, forced evictions and the criminalization of Indigenous leaders have become the main threat and a tool for agribusiness to advance its interests in Indigenous territories. While violence has long been associated with the antagonistic relationships between the agribusiness sector and many Indigenous communities in Paraguay (Correia, Reference Correia2019b; Quiroga & Ayala, Reference Quiroga and Ayala2014; Tauli-Corpuz, Reference Tauli-Corpuz2015; Tusing, Reference Tusing2021), an alarming spark in direct violence marks a re-emergence in the undermining of Indigenous land tenure in times of the pandemic. Between May and November 2021 alone, at least eight Indigenous communities were violently expelled from their territory, as noted in Table 2.2. By forced eviction we mean the permanent or temporary removal of individuals, families, and/or communities from the homes and/or lands they occupy, without appropriate means of legal or other protection, or access to such means (ESC Committee, 1997). The increasingly common use of armed non-state agents in the execution of illegal evictions must also be added to this list (Cabello & Ayala, Reference Cabello Alonso, Ayala Amarilla and Paraguay2020).

Table 2.2Indigenous communities dispossessed of land in 2021. Data derived from Barrios (2021)

Table 2.2 Long description

The table lists eight indigenous communities across various districts in Paraguay by the date in the first column followed by the community or people, district or department, and number of families in 3 columns, from left to right in order. The row-wise details are as follows.

• On May 13, 2021, the corresponding data is Cerrito or Ava Guarani, Minga Pora/Alto Parana, 85.

• On June 1, 2021, the corresponding data is Yvy Pora or Ava Guarani, Santa Rosa del Aguaray/San Pedro, 80.

• On June 6, 2021, the corresponding data is Acaraymi or Ava Guarani, Itakyry or Alto Parana, 150.

• On June 16, 2021, the corresponding data is Ka Poty or Ava Guarani, Itakyry or Alto Parana, Unknown.

• On July 7, 2021, the corresponding data is Cristo Rey or Ava Guarani, Yvyrarovana or Canindeyu, 100.

• On July 8, 2021, the corresponding data is Tekoha Ka avusu or Ava Guarani, Itakyry or Alto Paraná, 60.

• On November 18, 2021, the corresponding data is Hugua Poi or Mbya, Raul Arsenio Oviedo or Caaguazu, 70.

• On November 29, 2021, the corresponding data is Cerrito or Ava Guarani, Minga Pora or Alto Parana, 80.

Conclusions: Recognition and the Road Ahead

Reflecting on the swinging policy pendulum of land rights in Paraguay – from violation to justice, and then back to violation – the new era of land dispossession marks a new period of violations against Indigenous Peoples in the country. The politics and practice of Indigenous land rights in Paraguay reveal the limits of the country’s current policy framework, despite major legal victories like passage of Law 904/81, the adoption of Chapter V of the 1992 Constitution, and ratification of ILO 169 that promised more equality. The IACtHR called into question these limits in each of its three rulings against Paraguay (Inter-American Court of Human Rights, 2005, 2006, 2010), and recommended necessary legal and institutional reforms that the state has yet to comply with. More than a matter of creating new laws and mechanisms to support land rights, our work here suggests that the longstanding influence of land-extensive agricultural commodity production has been a key driver of socio-economic inequality and racial marginalization that undermines Indigenous wellbeing.

Despite having a clear process to recognize Indigenous communities and adjudicate land restitution – as indicated in the national constitution and Law 904 – the actual process of returning lands and securing them after restitution is riddled with problems. Those problems often emerge when communities that have gained legal personhood in accordance with the law demand restitution of lands that are privately held and often used for agricultural production by non-Indigenous Peoples. Given the Paraguayan state’s strict interpretation that “rationally exploited” land cannot be expropriated or returned to Indigenous communities without voluntary landowner permission (Correia, Reference Correia2018b; Inter-American Court of Human Rights, 2006), the political economy of agricultural commodity production effectively takes precedence over Indigenous rights and the minimum guarantee of land restitution that recognition should ensure. Given this situation, looking forward, the most important safeguard of Indigenous land rights in Paraguay will be robust cross-sector alliances, led by Indigenous communities in collaboration with local rights-focused NGOs and international advocacy organizations; these alliances will have to work with sympathetic lawmakers to advance and safeguard land rights and, if necessary, appeal to international human rights bodies to bring further pressure on the state to act consistently with the law.

The chapter highlights that legal recognition has been used to appeal to international human rights bodies where violations of due process have been addressed in IACtHR judgments, IACHR friendly settlements, and a recent UN Human Rights Committee decision. In this regard, strategic alliances between Paraguayan NGOs, advocacy organizations, and Indigenous communities have used recognition to bridge the gap between de jure and de facto rights in specific cases discussed earlier. Although it is undeniable that implementing the Inter-American System recommendations and judgments has been challenging (Correia, Reference Correia2021; Open Society Justice Initiative, 2017), Indigenous Peoples and their allies use strategic litigation, advocacy, negotiation, and direct actions to push the pendulum further in the direction of justice. The road ahead is uncertain, as new legislative initiatives further threaten to undermine Indigenous land rights and the current wave of violent dispossessions continues unabated. However, our Indigenous collaborators and interlocutors have not lost faith in the promise of land rights and their ability to recover and rebuild their relations with their ancestral territories. We too maintain that the struggle for Indigenous land rights in Paraguay must continue until each community has its land back and is able to determine the path of its own future.

Introduction

Today, some 1.7 million Indigenous Peoples, belonging to 305 tribes (povos), and speaking 274 different languages, have broad national and international legal protections in Brazil (United Nations, 2014).Footnote ¹ According to Brazil’s international and domestic legal obligations, Indigenous Peoples are descendants of peoples that pre-existed invasion and colonization in their territory; that fully or partially preserved their social, political, cultural, legal, or other institutions; that self-identify as Indigenous; and that are recognized by their communities as members (following the Cobo definition of Indigenous Peoples).Footnote ²

In addition to being subjects of nationally and internationally recognized human rights, equally and without discrimination, Indigenous Peoples in Brazil are entitled to certain collective rights based on the right to conserve and maintain their own territories, cultures, traditions, and customs. These rights include: the right to occupy their traditional lands;Footnote ³ the right to self-determination;Footnote ⁴ and the right to free, prior, and informed consultationFootnote ⁵ or consent, on measures that may affect their territories or ways of life.Footnote ⁶

The 1988 Constitution represents the first and most powerful recognition of Indigenous Peoples’ territorial and cultural rights in Brazil’s history. Since its enactment, Indigenous Peoples not only have had the right to occupy their traditional lands, but also have had the right to the exclusive use and enjoyment in ways consistent with their traditional and distinct ways of life.Footnote ⁷ Additionally, the state generally is prohibited from removing Indigenous Peoples from their traditional lands and must seek Congressional authorization before extracting resources or carrying out any infrastructure projects on Indigenous lands.Footnote ⁸ In all cases, Indigenous communities must be consulted in good faith with the aim of obtaining consent when state or private actions may affect their rights, including and especially land rights.

Before 1988, Brazil’s official policies toward Indigenous Peoples aimed to integrate and assimilate Indigenous communities into what the legislation called “national communion,”Footnote ⁹ representing an erasure of many groups’ distinct cultures and practices. While the post-1988 constitutional provisions included broader legal protections for Indigenous Peoples, as Benatti et al. (Reference Benatti, Rocha and Pacheco2015) emphasizes, Brazil has consistently failed to implement and enforce these rights in practice – an experience shared across most of the chapters in this book. Recent power shifts have led to Brazil partially reversing the trend toward dismantling Indigenous Peoples’ rights. However, Brazil’s executive and judicial branches have intentionally curtailed many of these constitutional guarantees, or have impeded the full enjoyment of these rights in recent years. Brazil’s legislative branch has attempted several times to pass legislation to restrict rights guaranteed under the 1988 Constitution (de Souza Filho, Reference Souza Filho1992). Indeed, from 2011 to 2022, the emancipatory potential of Indigenous Peoples’ rights was threatened by legal, political, economic, and social restraints rooted in the country’s deeply embedded colonial structures, especially within those Brazilian institutions charged with realizing Indigenous rights (Beltrão & Oliveira, Reference Beltrão, Oliveira, Beltrão, Monteiro de Brito Filho, Gómez, Pajares, Paredes and Zúñiga2014).

This chapter analyzes the achievements of 1988: successes resulting from an intense process of political mobilization by Indigenous Peoples and their civil society allies, combined with a theoretical shift away from colonialist conceptions of the inferiority of Indigenous epistemologies and worldviews. This chapter next examines barriers that Indigenous Peoples face in enforcing their constitutional and international human rights, as well as the opportunities created since the change in government in January 2023. It concludes by proposing recommendations to advance the implementation and full realization of Indigenous land rights in Brazil.

Indigenous Participation in the 1988 Constituent Assembly

The year 1985 marked the end of a decades-long brutal military dictatorship. When José Sarney assumed the Presidency, he proposed to convene a Constituent Assembly to the National Congress. The newly elected parliamentarians began to work on drafting a new constitution on February 1, 1987 (Oliveira, Reference Oliveira1993).

The National Constituent Assembly offered an opportunity to bring Indigenous claims to the political debate and to gain important rights to redress colonial violence (Carvalho, Reference Carvalho2000). Actively participating in the drafting of the 1988 Constitution, Indigenous leaders in Brazil mobilized, acquired voice and power, and countered powerful interests that opposed their demands (Verdum, Reference Verdum and Verdum2009). After two unsuccessful attempts to participate directly in drafting the new constitution, the UNI mobilized Indigenous communities to refer the agenda to Congress and pressure parliamentarians to include their demands (Lacerda, Reference Lacerda2018). Their agenda was put forward through establishing a minimum program for Indigenous rights in the Constituent Assembly, supported mainly by the CIMI, INESC, CEDI, and the Pro-Indian Commission of São Paulo (Fernandes, Reference Fernandes2016). This program was launched in 1986 as a manifesto signed by twenty-nine organizations, and included the following claims: (1) recognition of Indigenous Peoples’ territorial rights; (2) demarcation and guarantee of Indigenous lands; (3) Indigenous Peoples’ exclusive enjoyment of the natural resources existing in the soil and subsoil of their territories; (4) resettlement, under decent and fair conditions, of non-Indigenous settlers on Indigenous lands; and (5) recognition of and respect for the social and cultural organizations of Indigenous Peoples. Given the absence of Indigenous parliamentarians in the National Constituent Assembly, the Indigenous movement addressed their demands in two ways: through proposals for popular amendments and by mobilizing the Indigenous movement and laws protecting Indigenous rights via subcommittees and the plenary of the National Constituent Assembly (Barbosa & Fagundes, Reference Barbosa and Fagundes2018).

The most critical moment of the constitutional drafting negotiations was the vote on the chapter entitled “On Indigenous Peoples” when Indigenous delegations from various regions of the country camped out in Brasilia for three weeks of intense advocacy. Contentious recommendations during this period argued for continuing the guardianship regime, restricting land rights to present occupation, and denying constitutional protections to assimilated Indigenous Peoples. Strong and persistent pressure from Indigenous delegations resulted in the withdrawal of these recommendations (Lacerda, Reference Lacerda2018).

Indigenous Constitutional Rights and Post-1988 Advancements

Article 231 of the 1988 Constitution protects Indigenous land rights, and specifically ensures original, inalienable, and irrevocable rights over the lands that Indigenous Peoples traditionally occupy, permanent possession of traditional lands, and the exclusive use of natural resources found on their territories (Cavalcante, Reference Cavalcante2016). The constitution defines “traditionally occupied lands” as those that Indigenous Peoples permanently inhabit, use for “productive activities,”Footnote ¹⁷ and are essential to preserving environmental resources necessary for their wellbeing and physical and cultural reproduction.Footnote ¹⁸ These lands are then designated for Indigenous Peoples’ permanent possession, exclusive use, and full enjoyment of their mineral and natural resource wealth.Footnote ¹⁹ Further, Brazil’s National Congress must authorize any removal of Indigenous Peoples from their lands in the event of a natural disaster or epidemic that endangers their population, or when it is in the national interest.Footnote ²⁰

Communities have autonomy to govern their lands and resolve internal issues, but Brazilian legislation regulates important aspects of relations between them and non-Indigenous society. For example, given Indigenous Peoples’ constitutional original land rights, any non-Indigenous settler occupation, economic exploitation, or possession of these lands would be considered illegal and invalid under law.Footnote ²¹ Further, FUNAI collaborates with Indigenous Peoples on various activities, such as supporting their development and exercising police power in their defense, but no longer performs any guardianship function.Footnote ²²

Demarcation

Scholars argue that the acknowledgement of original rights to traditionally occupied Indigenous lands in Article 231 of the constitution neither grants nor bestows such rights, but rather recognizes the preexisting rights of Indigenous Peoples that precede the Brazilian state (Calafate, Reference Calafate2018). Demarcating these lands is an obligation of the Federal Union. Demarcation consists of an administrative legal process for recognizing lands as Indigenous traditional territories under Decree 1.775, which includes: (1) identification; (2) delimitation; (3) contestation by third parties; (4) demarcation; (5) ratification; (6) issuance of presidential decree; and (7) registration (Curi, Reference Curi2010).Footnote ²³ This administrative process usually begins from an Indigenous community’s request, and is carried out by FUNAI, resulting in a title for exclusive use and enjoyment for one or more different Indigenous ethnicities and ownership to the Federal Union (Brazil).

Since the adoption of the 1988 Constitution, the federal government, with the exception of the Bolsonaro administration, has completed the demarcation process for significant amounts of Indigenous lands (see Table 3.1) (Baines, Reference Baines2014).Footnote ²⁴

Table 3.1Indigenous lands demarcated since 1988 (Source: https://pib.socioambiental.org)

Table 3.1 Long description

The table compares the number of land demarcations and total size in hectares of indigenous territories recognized under different Brazilian presidents from 1985 to 2023. The data is presented in 4 columns namely, the president, period, number, and size, from left to right in order. The details are as follows.

• During the presidency of Luiz Inacio Lula da Silva in Jan 2023, the corresponding values are 6, and 615,237.

• During the presidency of Jair Messias Bolsonaro from January 2019 to December 2022, the corresponding values are 0, and 0.

• During the presidency of Michel Temer from May 2016 to December 2018, the corresponding values are 1, and 19,216.

• During the presidency of Dilma Roussef from January 2015 to May 2016, the corresponding values are 10, and 1,243,549.

• During the presidency of Dilma Roussef from January 2011 to December 2014, the corresponding values are 11, and 2,025,406.

• During the presidency of Luiz Inacio Lula da Silva from January 2007 to December 2010, the corresponding values are 21, and 7,726,053.

• During the presidency of Fernando Henrique Cardoso from January 1999 to December 2002, the corresponding values are 31, and 9,699,936.

• During the presidency of Itamar Franco from October 1992 to December 1994, the corresponding values are 16, and 5,432,437.

• During the presidency of Fernando Collor from March 1990 to September 1992, the corresponding values are 112, and 26,405,219.

• During the presidency of Jose Sarney from April 1985 to March 1990, the corresponding values are 67, and 14,370,486.

Current Challenges and Opportunities for Indigenous Land Rights Enforcement

Post-1988, the Indigenous movement has continued to grow and expand dialogue and deliver achievements despite resistance. In 2006, Gersem Luciano, an intellectual Baniwa, in a tone of hope, stated that Brazil’s Indigenous Peoples were living at an outstanding historical moment. They had been “breathing a less repressive air, resuming their ethnic and identity social projects, rescuing, revaluing, and reviving cultures and traditions, reappropriating their lands, relearning their languages, and returning to practice their rituals and ceremonies” (Luciano, Reference Luciano2006).

Nonetheless, Verdum (Reference Verdum and Verdum2009) comments that none of the post-1988 governments, even the most progressive, implemented significant changes in the state’s political-administrative practices and structures, with a stagnation in measures recognizing the political autonomy of Indigenous Peoples, as well as the lack of demarcation of lands outside the Amazon. The PNGATI, intending to fund and propel Indigenous self-government, largely has not been implemented, despite the isolated successes, culminating with the closure of bodies to execute the policy by the Bolsonaro administration.Footnote ³⁴ These have been supported by the current administration.Footnote ³⁵ The former UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, also visited Brazil in 2009 and issued a report documenting several rights violations and making recommendations for the Brazilian state to improve the conditions for their implementation (Anaya, Reference Anaya2009).

In 2016, during Anaya’s successor Victoria Tauli-Corpuz’s visit to Brazil, she noted that the situation had only worsened. In her 2016 report, Tauli-Corpuz clearly stated that “today, Indigenous Peoples face more profound risks than at any time since the adoption of the Constitution in 1988.” She also observed that the concentration of economic and political powers in the hands of a small segment of Brazilian society, as well as recent political and institutional changes, have contributed to further disempowering Indigenous Peoples and promoting structural discrimination (Tauli-Corpuz, Reference Tauli-Corpuz2016).

In a 2009 landmark Supreme Federal Court (STF) ruling,Footnote ³⁶ the demarcation of Raposa Serra do Sol lands was upheld, covering an area of roughly 1.7 million hectares. Notwithstanding, the Court also issued controversial opinions that helped to weaken Indigenous People’s rights to self-determination, stating that demarcation is limited by the scope of the Federal Union’s power, akin to a mere “supporting” participation, under the purview of the Federal Prosecutor. The judge’s critique of UNDRIP in this lawsuit was also contrary to international law interpretation; the Court found that Brazil should not rely upon the self-determination clause since the Brazilian constitution is “the” only binding law for Brazilian Native peoples, preventing them from being recognized as Indigenous Peoples with self-determination rights.

At first glance, land demarcation rights in Brazil seem robust. According to FUNAI, there exist 736 Indigenous lands across the country, occupying nearly 14 percent of Brazil’s national territory.Footnote ³⁷ Most demarcated Indigenous lands (54 percent), encompassing more than 98 percent of the total area designated to Indigenous lands in Brazil (Sobrevila, Reference Sobrevila2008),Footnote ³⁸ are in the northern regions in the Amazon rainforest.Footnote ³⁹ Outside of the Amazon region, two-thirds of Indigenous communities live displaced and dispossessed either in small and sparse areas. Many of these areas were created by SPI between 1910 and 1967 as reservations (Oliveira, Reference Oliveira1993). FUNAI has a backlog of approximately 490 pending requests for land demarcation and has stalled 132 Working Groups advancing demarcation claims. During the Bolsonaro administration, the government dramatically cut FUNAI’s budget and staff,Footnote ⁴⁰ and zero progress was made in identifying and demarcating any claimed Indigenous lands.Footnote ⁴¹

While the juridical treatment of Indigenous territorial claims has been largely unfavorable to Indigenous communities, in September 2023 the Supreme Court finally overruled precedent that prevented Indigenous Peoples from reclaiming their lands. Although the STF had recognized the continuous demarcation of the extensive Raposa Serra do Sol land and confirmed Indigenous land rights in 2009, the Court also set forth the “timeframe doctrine” (marco temporal), an interpretation of the constitution requiring Indigenous presence in their claimed area on the very date of the Brazilian Constitution’s promulgation: October 5, 1988. While the STF decided that the effects of the decision mentioned above would not extend to other cases, lower courts began to adopt indiscriminately the “timeframe doctrine” to nullify the land demarcation processes (Sartori Junior, Reference Sartori Junior2018). Former UN Special Rapporteur on Indigenous Rights Victoria Tauli-Corpuz, among others, argued that the “timeframe doctrine” was in conflict with constitutional provisions by constraining Indigenous rights to lands and natural resources and by hindering valid demarcation processes (Tauli-Corpuz, Reference Tauli-Corpuz2016). Therefore, the September 2023 overruling of this doctrine, has been deemed as an advance for the protection of Indigenous lands.

However, in the National Congress, parliamentarians led by the “Ruralist caucus” (Ruralistas), tied to agribusiness, who had been relentlessly proposing bills considered harmful to Indigenous land rights (DHESCA, 2017), reacted negatively to the Supreme Court ruling and the approved Law 14.701/23.Footnote ⁴² In addition to other provisions, the new Act set forth the timeframe doctrine, requiring the presence of Indigenous communities in a claimed area since 1988, ignoring the overall context of violent evictions that motivated the overruling in the Supreme Court. Further, the powerful Ruralist caucus led a massive campaign to withdraw constitutionally and internationally recognized Indigenous rights with strong support from military and other economic sectors, such as mining.Footnote ⁴³

Land tenure insecurity, combined with poor socio-economic conditions inside and outside of Indigenous lands, has resulted in Indigenous Peoples’ increased dependency on the stateFootnote ⁴⁴ and in violence from land grabbers.Footnote ⁴⁵ In turn, the government uses arguments of extreme “poverty“ and the absence of self-sustainability to justify economic exploitation on Indigenous lands, permitting large-scale agriculture, mining, logging, and infrastructure works, such as dams, roads, and electric lines.

Many factors explain the difficulties Indigenous Peoples have encountered since 1988 to enforce their constitutional rights. Carvalho (Reference Carvalho2000) writes that Brazil, unlike other Latin American countries, has not supported Indigenous involvement in political processes. The resistance of the military and many parliamentarians to the recognition of Indigenous rights, even if they voted in favor of them in the National Constituent Assembly, was a foreshadowing of the obstacles Indigenous Peoples would face in the coming years – the era of implementation, which saw a dismantling of Indigenous rights (Barbosa & Fagundes, Reference Barbosa and Fagundes2018).

Conclusions and Recommendations

Brazil’s transition from dictatorship to democracy in the 1980s resulted in positive legal changes for Indigenous Peoples, especially with the guarantees of the 1988 Constitution. The constitutional guarantee for Indigenous Peoples to occupy their traditional lands remains the primary source of Indigenous People’s survival and resistance to ongoing settler colonial laws, policies, and practices throughout the country. While the 1988 Constitution remains the law of the land, the past ten years of struggles to claim Indigenous land rights have demonstrated that the support from the government is critical to the full realization of land rights. Without the Brazilian government’s commitment to land rights, Indigenous Peoples will be at continued risk from dispossession and erasure as independent peoples.

Nevertheless, the political mobilization of Indigenous Peoples in the National Constituent Assembly process has provided many important lessons, and the challenging years have been a time of intense mobilization and resistance. Since President Lula took office in 2023, Indigenous Peoples have already obtained several gains. The establishment of the MPI offers additional promise, especially under Indigenous leadership, toward respect for Indigenous Peoples’ reciprocal and spiritual relationship with their lands. The MPI can support FUNAI to advance land demarcations, create and accomplish territorial and environmental management plans, conduct prior consultations, and strengthen health and educational policies.

The Brazilian Supreme Court must also reaffirm its standing and once more overturn the “timeframe doctrine,” especially given that the National Congress may vote to override President Lula’s veto to the law that established this requirement to demarcations. The Brazilian National Congress has clearly indicated that any improvements to Indigenous land rights will face strong political opposition in a divided society, particularly by the Ruralistas. Globalization and international commodity markets continue to drive encroachment and impact Indigenous communities and their land rights, and have a strong resonance in Brazilian politics.

Indigenous Peoples must continue to resist and claim political space in state structures toward realizing land rights. Despite being important for advancing the protection of some rights, conflicting interests and power asymmetries limit the possibilities of marginalized groups to make real achievements in political arenas. Driven by grassroots and national political mobilizations, Indigenous Peoples and their allies, in conjunction with global Indigenous interests, must apply constant pressure on the Brazilian state, transnational corporate actors and international investors to protect and safeguard Indigenous land rights in the country. Without this constant vigilance, land rights in Brazil will remain fragile.

Introduction

Colombia has some of the most robust and secure land tenure regimes in Latin America, with full rights to land ownership, access, withdrawal, management, exclusion, due process, and compensation (RRI, 2014, 2015, 2018; Velázquez Ruiz, Reference Velásquez Ruiz2018).Footnote ¹ However, the recognition of Indigenous Peoples’ collective land rights has advanced in a context of intense land conflict, driven by a profound inequality to land access. Colombia has the highest concentration of land ownership in the world: one percent of landowners own more than 80 percent of the land, and the remaining 99 percent own less than 20 percent (Faguet et al., Reference Faguet, Sanches and Villaveces2016; Guereña, Reference Guereña2017).

In 1991, the Colombian National Political Constitution (NPC) recognized and protected a comprehensive set of collective rights for Indigenous Peoples: to land, culture, identity, self-government, autonomy, and political participation. The NPC ratified the collective property rights of Indigenous Peoples under the resguardo, an administrative regime for Indigenous Peoples’ communal lands, born during colonial times. Resguardo is defined as a “legal and socio-political institution of special character, formed by one or more Indigenous communities, which with a collective property title (equivalent in guarantees to private property), own their territory, governed by an autonomous organization protected by the Indigenous jurisdiction and its own regulatory system” (Decree 2164 of 1995 compiled in Decree 1071 of 2015).

Article 7 of the NPC provides that “The State recognizes and protects the ethnic and cultural diversity of the Colombian Nation” (Corte Constitutional, 2021), a shift from the assimilationist 1886 Constitution and policies aiming to fragment and dispossess Indigenous Peoples of their collective ancestral lands (Semper, Reference Semper2018). However, the promise of the NPC was hampered by a long-lasting internal armed conflict over land access and use, violence, and forced displacement of Indigenous and other rural communities. The 2016 Peace Accord sought to address land disputes. But the implementation of the Peace Accord and its promise of land justice was hampered by delays, political polarization, and several scandals over the management of public resources. In some rural areas, violence has again seen a resurgence.

This chapter details how land rights remain a contentious subject in Colombia: this issue is historically contested and rooted in enduring land disputes between state actors and Indigenous communities. The current land rights framework emerged from both the legislative actions and the socio-political mobilization of Indigenous Peoples, the latter playing a critical role in shaping land policy and achieving the restitution and recognition of their ancestral lands.

The chapter documents the legal and political strategies used by Indigenous Peoples to secure collective land rights in this contested setting. By taking a historical perspective, this chapter traces the structural factors affecting land rights implementation, and the repeating cycles of recognition, poor performance, and limitations on the enjoyment of tenure rights. Finally, the chapter explores the challenges and opportunities for land rights from the current Peace Accord.

Achieving Recognition of Indigenous Peoples’ Collective Land Rights: A Historical Perspective

To understand the contradictions in Colombia’s Indigenous land rights framework, one must look at the historical and political factors driving change and the structural factors that make Indigenous land rights contentious. Villa and Houghton (Reference Villa and Houghton2004) discussed three territorial and population dynamics that have been affecting Indigenous land rights since the nineteenth century Republican era. The first dynamic began with Law 11 of 1821, which considered Indigenous Peoples as free and equal to the rest of country’s population and ordered the dismantling and distribution of resguardo lands to other populations. This legislation displaced many Indigenous communities from their lands and turned people into day laborers and sharecroppers. The second dynamic was the expansion of the agricultural frontier and peasant colonization resulting from the civil violence in the 1950s. A third dynamic emerged during the 1970s agrarian crisis, expanding the planting of illegal crops, such as coca leaves and opium poppy, often around Indigenous territories, and catalyzing new forms of violence against Indigenous Peoples.

Muñoz Onofre (Reference Muñoz Onofre2016) argued that Colombia’s land rights framework is embedded in a socio-economic model focused on the exploitation of natural resources, which ignores the existence and validity of Indigenous Peoples’ territorial management perspectives, and thus leading to conflicts.

The following sections provide a chronology of major policies on Indigenous Peoples’ rights to their ancestral lands from the Republican period until the late 1900s, showing the repeating cycles of recognition, poor performance, and limitations on the enjoyment of tenure rights.

The Republic Contexts

The Spanish colonial power imposed a new regime atop the social-economic, political, and communal land systems of Indigenous populations. Within this period, the resguardo emerged as a colonial model of social organization, administration, and control of territory, under which the colonial power assigned resguardo lands to Indigenous populations. The resguardo was a legislative initiative for the protection of subjugated Indigenous populations that encouraged their demographic recovery, but all the while liberated other lands for distribution to non-Indigenous settlers. In the resguardo, the community exercised full control and full domain for the use of the land and was protected against selling or leasing (Mayorga Garcia, Reference Mayorga Garcia2004). Although Indigenous Peoples during the colonial period resisted the resguardo system, today the resguardo constitutes the strongest legal tenure regime for Indigenous Peoples in Colombia.

In the context of the New Republic after independence, liberal principles promoted the free market and the individual rights of citizens, which affected Indigenous Peoples’ collective tenure systems (Semper, Reference Semper2018). The clash of ideological principles between individual and communal property rights flourished in a series of contradictory statutes that, while recognizing the Indigenous populations’ rights to their communal lands, equally defined mechanisms for the erosion of the communal property – such is the case of Articles 3 and 11 of Law 1821, which ordered the extinction of Indigenous Peoples’ obligation to pay tributes, while promoting the distribution of resguardo lands to non-Indigenous individuals respectively (Morales Gomez, Reference Morales Gomez1979). Table 4.1 lists the key Indigenous policies created during the New Republic that either recognized or abolished the special status of Indigenous Peoples and their collective tenure rights.

Table 4.1Policy development for Indigenous Peoples during the 1800s

Table 4.1 Long description

The table gives Colombian regulations from 1810 to 1890 on Indigenous land rights. It has two columns that list the regulations impacting Indigenous collective tenure rights and those favoring Indigenous collective tenure rights. They are listed as below:

1. Regulations Impacting Indigenous Collective Tenure Rights.

• Decree of September 24, 1810, issued by the Supreme Government Junta of Santa Fe. It terminated the resguardo system, recognized Indigenous Peoples as citizens with equal rights, and sought to replace collective land property with individual private property.

• Law of October 4, 1821. It declared legal equality, subjected Indigenous Peoples to common law, and ordered the distribution of resguardos within five years.

• Law 11 of 1821. It declared Indigenous Peoples as state citizens, promoted integration of Indigenous lands into the market, and ordered gradual dissolution of the resguardo system, suppressing their special protections under the guise of equality.

• Law 192 of 1824. It incorporated Indigenous populations from zones not integrated into the economy, into missionary processes and transferred their lands to the church.

• Laws of March 6, 1832, and June 2, 1834. These are complementary laws facilitating the division of resguardos into individual parcels.

• Law of June 22, 1850, ordered free distribution and alienation of resguardos, allocating individual property titles to Indigenous Peoples.

2. Regulations Favoring Indigenous Collective Tenure Rights.

• Decree of May 20, 1820 issued by Simon Bolivar, ordered restitution of resguardo lands to Indigenous communities but required internal division to integrate them into the free market.

• Law of June 30, 1824, promoted distribution of vacant lands to Indigenous communities and creation of parroquias to integrate wild indigenous into the economy.

• Law 11 of April 27, 1874, recognized Indigenous Peoples’ authority to regulate internal affairs.

• Law 89 of 1890, recognized the Cabildo as Indigenous self-governance structure and guaranteed collective territories, granting them a special status.

Law 89 of 1890 was an important legal antecedent for Indigenous land rights: Articles 14 to 22 enshrined Indigenous Peoples’ collective ownership over the resguardo, and the recognition of Indigenous councils (Cabildos)Footnote ² as legitimate self-governance systems (Rodriguez, Reference Rodriguez2017; Ulloa, Reference Ulloa, Gonzales, Cal y Mayor and Ortiz-T2010). Despite the discriminatory content of the law against Indigenous Peoples and its integrationist intention, for a long time this law was the only legal tool for the vindication of Indigenous territorial rights, ethnic identity, and autonomy and governance. In the early twentieth century, Law 89 of 1890 became the major legal precedent for Indigenous Peoples to recover usurped lands in the next century (see the later section on Indigenous resistance and mobilization). In 1996, Constitutional Court Ruling No. C-139/96 declared the unconstitutionality of several articles of Law 89 of 1890 that treated Indigenous Peoples as “savages” and minors and as subjects of cultural assimilation, although it did not question the validity of the law (Semper, Reference Semper2018).

The Turn of the Twentieth Century

The early twentieth century was characterized by the government seeking to gain more control over Indigenous lands, while Indigenous land rights struggles emerged in the south of the Colombian Andean region. The government established a series of concordats with the Catholic Church in 1903, 1920, and 1973 to exercise administrative, judicial, and educational control over Indigenous Peoples, including through conversion to Catholicism and assimilation into the wider society. The Christian missions settling Indigenous lands were a driving force for the dismantling of Indigenous cultures and territories. According to Boza Villarreal (Reference Boza Villarreal2013), until the late 1970s Catholic missions comprised 77 percent of the country’s territory. However, by the 1980s, their power and control was reduced. As shown in Table 4.2, in the first half of the twentieth century, the government passed a series of laws promoting the dissolution of the resguardo system. For instance, Law 200 of 1936 regulated the dissolution of Indigenous lands lacking legal titles. In the second half of the century, a new structure for the legal collective tenure regime started forming, with new laws and decrees, including the enactment of the 1991 NPC, which established major changes in the state’s relationship with Indigenous Peoples.

Table 4.2Policy development on Indigenous Peoples’ land tenure rights during the 1900s

Table 4.2 ()

Table 4.2 (Part A) Long description

The table has two columns, and the headers are regulations impacting Indigenous collective tenure rights and regulations favoring Indigenous collective tenure rights.

Row 1. Column 1 reads. Law 55 of 1095 recognized the private property rights of non-Indigenous individuals over areas of resguardos. Article 2 made legal the dispossession and dissolution of the resguardo system. Column 2 reads. Law 135 of 1961 created the Colombian Institute of Agrarian Reform, I N C O R A, in charge of establishing new resguardos. It safeguarded vacant lands occupied by Indigenous communities from seizure by private individuals.

Row 2. Column 1 reads. Law 51 of 1911 extinguished collective lands in the Valle of Sibundoy. Column 2 reads. Law 31 of 1967 ratified the I L O Convention 1957.

Row 3. Column 1 reads. Law 104 of 1919 dissolved resguardos with fewer than 200 people and judicialized resisting indigenous communities. Column 2 reads. Regulatory Decree 2001 of 1988 of Law 31 of 1967 defined the legal procedure for the creation of resguardos on vacant lands and ordered the conversion of Indigenous reserves, created under Decree 2117 of 1969, into resguardos, returning the collective property rights of Indigenous Peoples to their ancestral lands.

Row 4. Column 1 reads. Law 19 of 1927 created a special commission to divide and distribute Indigenous communal lands to new settlers. Column 2 reads. Law 30 of 1988, which reformed Law 200 of 1936, ordered the creation of new resguardos, restituted resguardos previously dissolved, and established that vacant lands occupied by Indigenous Peoples could only be used for the constitution of resguardos.

Row 5. Column 1 reads. Law 111 of 1931 empowered the judicial and administrative authorities to order the division of resguardos. Column 2 reads. National Political Constitution of 1991 ratified the collective property of Indigenous Peoples over the resguardo.

Row 6. Column 1 reads. Law 200 of 1936, known as Statuto of Land, regulated the dissolution of Indigenous lands without titles, and granted these lands to new settlers. Column 2 reads. Law 21 of 1991 ratified the I L O Convention 169 of 1989. This affirmed Indigenous Peoples’ rights to self-determination, autonomy, territorial and socio-cultural integrity. There are also recognized rights to enjoy natural resources, health, education, political participation, and the right to be consulted about state’s administrative actions that can affect these rights.

Table 4.2 ()

Table 4.2 (Part B) Long description

The table has two columns, and the headers are regulations impacting Indigenous collective tenure rights and regulations favoring Indigenous collective tenure rights.

Row 7. Column 1 reads. Law 100 of 1944, Aparceria or sharecropping Law, strengthened large-scale private landholdings and promoted unjust systems between landless peasants and landlords. Column 2 reads. Law 60 of 1993 defined the allocation of financial resources to resguardos, outlining norms and competences according to Articles 151 and 288 of the N P C.

Row 8. Column 1 reads. Law 81 of 1958 promoted agrarian development on Indigenous lands, required Indigenous communities to prove colonial titles to their lands, and declared lands without titles vacant lands of the nation. Column 2 reads. Law 160 of 1994, chapter 14, defined resguardo and its socio-environmental functions. Resguardos, as indigenous reserves, were linked to Article 63 of the N P C that defined Indigenous territories as inalienable, imprescriptible, and not subject to seizure.

Row 9. Column 1 reads. Decree 2117 of 1969 created a new tenure regime, the Indigenous reserves, limiting Indigenous tenure rights to mere usufruct rights and restraining the collective property ownership of Indigenous Peoples over their lands. Column 2 reads. Decree 1397 of 1996 created a Permanent Table of Consensus of Indigenous Peoples, M P C, and the National Commission of Indigenous Territories, C N T I. Decree 1396 of 1996 created the Commission of Indigenous Peoples’ Human Rights.

Row 10. Column 1 is blank. Column 2 reads. Law 387 of 1997 enacted the protection of internally forced displaced peoples, with an ethnic perspective.

The social agrarian reform under Law 135 of 1961 was created against a backdrop of increasing political tensions and the re-emergence of internal armed conflict that displaced rural populations. The reform aimed to democratize rural property, including abolishing the division of Indigenous lands, and promoted the formalization of resguardo (Figueroa, Reference Figueroa2016; Semper, Reference Semper2018). The law created the Colombian Institute of Agrarian ReformFootnote ³ (INCORA in Spanish) to manage agrarian issues, and to acquire, redistribute, and provide lands to the landless, including the creation of resguardo lands (Balcazar et al., Reference Balcazar, Lopez, Orozco and Vega2001).

Additionally, Decree 2117 of 1969, which partially regulated Law 135 of 1961, created the “Indigenous reservation”Footnote ⁴ tenure regime system, considered a regressive measure as it eliminated Indigenous Peoples’ ownership rights over their territories, granting only usufruct rights. After advocacy by Indigenous Peoples, the government issued Decree 2001 of 1988 regulating Law 135 of 1961 in relation to the constitution of resguardo and compelled the conversion of Indigenous reservations back into resguardos.Footnote ⁵

Throughout the evolving legal framework, Indigenous socio-political mobilization played a critical role in the restitution and recovery of their ancestral lands, while reshaping the country’s Indigenous rights policies and resisting statutory actions to rollback their rights.

Indigenous Social and Political Mobilization

The first and second half of the twentieth century saw a series of Indigenous uprisings. First, in the southern provinces of Cauca, Huila, and Tolima, where the Indigenous movement resisted increasing dispossession pressures, the renowned Nasa Indigenous leader, Manuel Quintín Lame, organized an ethnic political movement to advance Indigenous communities’ territorial rights by using the existing legal framework, in particular Law 89 of 1890 (Vasco Uribe, Reference Vasco Uribe2008). Through a process of reinterpreting the laws, Quintín Lame created a rights-based plan: the restitution and expansion of the resguardo lands; the strengthening of the Cabildo governance system; abolition of the terraje;Footnote ⁶ compliance with laws favorable to Indigenous Peoples’ rights, such as Law 89 of 1890; and protection of Indigenous history, language, and traditions, among others (Sanchez Gutierrez & Molina Echeverri, Reference Sanchez Gutierrez and Molina Echeverri2014).

Quintin Lame’s struggle influenced contemporary Indigenous movements in the 1970s and 1980s, with his political theory published in 1971, entitled The Thought of the Indio Educated in the Jungle, becoming a manifesto of the Indigenous movement after his death. In the same year, the Regional Indigenous Council of Cauca (CRIC) was founded on Lame’s political ideology of land restitution and actions to recover thousands of hectares of lands (Benavides, Reference Benavides2009). The CRIC inspired the formation of a broader Indigenous movement: in 1982 the National Indigenous Organization of Colombia (ONIC) emerged, and a pan-ethnic Indigenous movement expanded, with organizations advocating for autonomy, control of territories, and the assertion of their distinctive ethnic identities, positioning Indigenous rights as a national public issue (Muñoz Onofre, Reference Muñoz Onofre2016; Ulloa, Reference Ulloa, Gonzales, Cal y Mayor and Ortiz-T2010). These changes reshaped the political context and opened up opportunities for Indigenous political participation and representation.

In the 1980s, the Misak peoples led symbolic actions for ancestral land recoveryFootnote ⁷ under the principles of “greater right” and “reclaiming the land to recover everything,” and regained the resguardo Guambia in the State of Cauca. First, on July 19, 1980, the Misak recovered the Mercedes hacienda located at the core of their ancestral territory, under the control of political and economic elites, through a collective action involving the Misak community in solidarity with other Indigenous communities (CINEP, 2022; Tunubala Yalanda, Reference Tunubala Yalanda2016). This strategy of reclaiming land led to the legal recognition of Cabildos as public law entities with the administration function over their territories. The Cabildo of Guambía was the first to receive land restitution with autonomy according to their uses and customs (Velasco Alvarez, Reference Velasco Alvarezn.d.).Footnote ⁸

Customary Laws and Governance

Despite assimilation pressures, Indigenous traditional forms of authority and governance continue. Each Indigenous group has its way of seeing the world and understanding the universe; this cosmo-vision is the foundation of traditional laws and self-governance. Some of the diverse concepts of traditional laws and self-government are the Law of Origin (from creation), Natural Law (laws of the natural world, earth, the spirits, and mythology since the beginning of time), Overarching Right (the law of the first inhabitants of America, passed down by elders and from the ancestors, who show the ways to act, and the rules that must be obeyed), and the Own Law (part of the cultures of Indigenous Peoples, their ways of living, thinking, and practicing justice).

The Law of Origin is the highest expression of the Arhuaco people’s laws (from the Caribbean coast in the Sierra Nevada de Santa Marta), where all the obligations and rights of community members and all people are defined. Helmer Torres Solis, an anthropologist from the Arhuaco people (Reference Torres Solis2004, p. 15), asserted that the Law of Origin integrates the rules of conduct and knowledge and guidelines of relationships with nature that the creator father Serankua left to the four brother peoples of the Sierra (Arhuaco, Kogui, Wiwa, and Kankuamo). These laws create balance, and from their spiritual obligations maintain the balance of both the Sierra Nevada (the mother) and the rest of the universe for the benefit not only of the Sierra peoples, the “older brothers,” but also the other peoples of the earth or “younger brothers.”

The laws of Indigenous Peoples are oral, including the cultural foundations and forms of exercising justice (Defensoria del Pueblo, 2018). These traditional laws are protected by Decree 4633 of 2011, and in accordance with section 11 of Article 8 and Article 150 of the NPC, which recognize the coexistence of Indigenous norms and laws with those of the state. Among Indigenous Peoples, traditional and spiritual authorities are Taitas, Iachas, Mamus, Payes, Jaibanas, Abuelos, Abuelas, Brujos shamans, wise men, wise women, and traditional healers. There are traditional Indigenous Guards, such as Chaskis, Wasikamas, Cuiracuas, Kiwe, Thegnas, and Samaneros. Also, Indigenous Peoples have political-administrative authorities such as governors, captains, mayors, chiefs, and Thuthenas (councillors) among other denominations and their structures of government, such as Cabildos, Association of Cabildos, Association of Traditional Indigenous Authorities, and Indigenous Councils (Defensoria del Pueblo, 2018).

The Cabildo governance structure emerged during the colonial era. Republican Law 89 of 1890, Articles 4–6, defined the functions of the Cabildo, which has the role of administering and governing Indigenous communities. Decree 4633 recognizes the Cabildos and traditional Indigenous authorities as unique public law entities. Decree 1088 of 1993 regulates the creation of Indigenous Cabildos and the association of traditional authorities as public entities with legal personality, and with their own assets and administrative autonomy.

Legal Frameworks for Recognizing Indigenous Peoples’ Collective Tenure Rights

In the early 1990s, the Constitutional Assembly developed during a political crisis, with a weak state besieged by the consolidation of a drug trafficking economy into the state’s political structures (Diaz Uribe, Reference Diaz Uribe2021). The participation of Indigenous Peoples in the Constitutional Assembly positioned them not only as members of Colombian society, but as national political actors who could shape the Indigenous rights framework established in the 1991 NPC. Muñoz Onofre (Reference Muñoz Onofre2016) wrote that Indigenous participation in the Constitutional Assembly was a reconciliation process with the entire country, which reaffirmed the rights of Indigenous Peoples. The 1991 NPC safeguarded collective ownership, land use planning, and the autonomy and self-governing systems of Indigenous and Afro-descendant communities in relation to their collective territories (Bolaños Cardenas et al., Reference Bolaños Cardenas, Arango, Lovera and Molina2021).

Muyuy (1998, cited in Herreño Hernandez, Reference Herreño Hernandez2004, p. 259) identified six groups of rights recognized in the NPC.

1. 1. Cultural identity: protections for ethnic and cultural diversity; Indigenous languages and bilingual education; cultural heritage; cultural equality and dignity as a fundamental basis for citizenship; and the right to exercise Indigenous justice systems (Articles 2, 7, 10e, 11, 12, 68n5, 70, 72, 246).

2. 2. Territorial autonomy: recognizing resguardo and Indigenous territories as part of the nation’s administrative-territorial entities, with autonomy for Indigenous Peoples to exercise their own governance system and self-development through their customary systems (Cabildos). Resguardo are inalienable, imprescriptible, and guaranteed against seizure (Articles 63, 286 and 287).

3. 3. Political and social autonomy and participation: the right to political participation and representation in the Senate and House of Representatives. Article 171 establishes that there will be two seats in the Senate for Indigenous Peoples, via the Special Indigenous Constituency, but this does not preclude the possibility of participating in elections in the National Constituency or regional elections through political parties. There is recognition of double citizenship for Indigenous Peoples in frontier areas (Articles 176, 96c).

4. 4. Environmental and natural resources rights: rights to prior consultation on projects within Indigenous territories (Articles 79 and 80).

5. 5. Economic rights: the resguardo lands are interpreted as municipalities for managing national funds (Article 357). Article 329 recognizes the conformation of Indigenous territorial entities, although these are subject to creating the Comprehensive Law of Territorial Planning.

6. 6. Custom and tradition: Article 330 recognizes the right of Indigenous Peoples to govern and regulate their territories according to their customs and traditions, and states that the exploitation of natural resources in Indigenous territories shall be done without harming the cultural, social and economic integrity of Indigenous communities. The government shall encourage the participation of Indigenous representatives in any natural resource decisions.

Additionally, Article 86 defines the legal mechanism of immediate action (known as tutela in Spanish), where any Colombian citizen can demand the protection of their fundamental constitutional rights. The Constitutional Court, the highest tribunal in judicial matters, ensures compliance with, and safeguards the integrity and supremacy of, the Constitution (Corte Constitutional, 2021). The courts are crucial for claiming rights and justice, and Indigenous organizations have embraced a litigation strategy and the tutela as a central legal tool to assert, defend, and pressure the government to fulfill its constitutional responsibilities for protecting ancestral territories. For example, the Indigenous Secretariat of the National Commission of Indigenous Territories (CNTI) won a tutela against the National Land Agency (ANT) for administrative due process, the protection of ethnic and cultural diversity, and the safeguarding of the Embera Katio people’s collective property in northern Colombia. The Embera Katio people had to wait for more than four decades for the recognition of their collective lands (CNTI, 2021c), and the ruling paved the way for other Indigenous communities to resolve their long-unresolved land claims.

The Colombian government had also ratified the ILO Convention on Indigenous and Tribal Peoples 169 (1989) through Law 21 of 1991. With this ratification, prior consultation became a fundamental right of Indigenous Peoples to have their voices heard and considered in decisions that impact them in both formalized and non-formalized Indigenous territories.Footnote ⁹ The Constitutional Court ruling SU-039 of 1997 defined the objectives of prior consultation for natural resources activity on Indigenous territories: the community shall have comprehensive knowledge of the project planned in their territories and the mechanisms and procedures to implement them; the community shall be informed of the potential impacts on their subsistence, their social cohesion and their cultural, political and economic practices; and the community shall debate among its members and representatives the advantages and disadvantages of the project, and freely express their interests and concerns around the viability of the project (Rodriguez, Reference Rodriguez2017).

Advances on the Titling of Indigenous Collective Lands

Although Indigenous Peoples have secured ownership rights to over 35.6 million hectares of resguardo lands (see Figure 4.1), most of these collective lands were titled before the 1991 NPC (Muñoz Onofre, Reference Muñoz Onofre2016, p. 65; Ortega-Roldan, Reference Ortega-Roldan1993). CNTI reported that 1,450 Indigenous land formalization claims sat before the ANT, some of which have been waiting for more than two decades to be resolved (CNTI, 2019).

Figure 4.1

Map of formalized Indigenous Territories (authors’ own creation based on data from ANT and CNTI)

Figure 4.1 Long description

The map of Colombia highlights certain regions in the southeast part, which is a part of the Linea Negra. This includes the regions of Vichada, which lie south of Venezuela, Guainia and Vaupes to the west of Brasil, Amazonas to the north of Peru, and several scattered regions that border on Ecuador to the northeast. The indigenous land is also scattered next to the eastern regions of the Pacific Ocean. The regions in the central part are excluded from the black line. These include Bolivar and several regions mentioned in the Colombian language.

Scholars have analyzed the intrinsic contradictions of the 1991 NPC, which on one hand creates a protection framework, while on the other promotes an extractive economic model that affects Indigenous territories (Muñoz Onofre, Reference Muñoz Onofre2016; Valencia Hernández et al., Reference Valencia-Hernández, Muñoz-Villarreal and Hainsfurth2017). This contradiction is reflected in the case of four Indigenous groups of the Sierra Nevada de Santa Marta: Kogui, Arhuaco, Wiwa, and Kankuamo, whom in 1973 obtained recognition by the Colombian government of a ring of sacred sites extending around the base of the mountain range, known as the “Linea Negra” or “Black Line.”

In 1995, resolution 837 was issued to guarantee their fundamental right to prior consultation and to participate in any legislative measure affecting their ancestral territory.Footnote ¹⁰ Despite these protections, a series of political negotiations and legal battles around the demarcation of the Linea Negra have taken place. An increasing interest in the minerals around the Linea Negra have resulted in the approval of 132 mining concessions (another 200 mining requests are pending approval) (Mongabay, 2020).

With the signing of the 2016 Peace Agreement between the Colombian government and the guerrillas FARC, the country hoped to leave behind a chronic situation of violence, injustice, and profound inequality regarding land access. The Peace Agreement recognized the inequality of land ownership as the root cause of this conflict. The Comprehensive Rural Reform (RRI in Spanish) of the Peace Agreement aimed to address land inequality by promoting the formalization of land ownership and land restitution, with particular emphasis on women’s rights and vulnerable rural populations (Acuerdo Final de Paz, 2017). The Peace Agreement included an Ethnic Chapter, which established the principles of “no regression” and safeguards considerations to guarantee the respect of ethnic peoples’ collective rights, such as prior consultation rights, and respect for the collective land rights accrued under national and international legislation, among others (Comisión Étnica, 2018).

However, the implementation of the Peace Agreement was delayed under the government of former President Duque (2018–2022), impacting land justice initiatives. During Duque’s tenure, violence, exclusion, and the systematic killing of social leaders escalated, igniting a series of protests by Indigenous Peoples across Colombia, called the “National Ethnic, and Popular Minga” (MINGA) (BBC News Mundo, 2020; Romero Peñuela & Granados, Reference Romero Peñuela and Granados2021; Paz Cardona, Reference Paz Cardona2020).Footnote ¹¹

Indigenous People’s Land Rights in the Peace Agreement Context

Between 2012 and 2016, historic peace negotiations between the government and the guerrillas FARC concluded with the Peace Agreement, entitled the “Conclusion of the Conflict and the Construction of Stable and Lasting Peace.” Although praised for promoting inclusion and citizenship participation and selected delegates (Mendes, Reference Mendes2020; Zambrano & Gomez, Reference Zambrano and Gomez2013), Indigenous and Afro-descendant Peoples, as distinct ethnic groups, only gained access to the negotiations in the final month because of international pressure to include them. By working together under an autonomous initiative called the Ethnic Commission, they achieved the addition of an Ethnic Chapter to the Peace Agreement, which defined the principles of non-regression of their collective land rights (Bolaños Cardenas et al., Reference Bolaños Cardenas, Arango, Lovera and Molina2021; Comisión Étnica, 2018).

Both the peace negotiation process and the post-agreement outcomes evolved in a context of increasing discontent and protest by ethnic groups and the agrarian social movements against economic development programs directly affecting their land rights and local economies. Moreover, the failure to implement the Peace Agreement and the Ethnic Chapter exacerbated violence, generating a humanitarian crisis, and increased massive protests across the country. The 2019 Minga protest mobilized more than 20,000 people nationwide, and pressured the government to include an investment plan to solve the tenure rights problems in the National Development Plan 2018–22 – a plan that remains stubbornly unresolved (DNP, 2019).

The Law of Victims and Land Restitution (Law 1448 of 2011)Footnote ¹² preceded the signing of the Peace Agreement and provided official recognition of the victims of Colombia’s armed conflictFootnote ¹³ and the dramatic long-lasting land conflict that accounted for an estimated 6 million hectares of land being forcibly abandoned or usurped by different actors (Restrepo & Bernal, Reference Restrepo and Bernal2014). Decree 4633 of 2011 defined measures for the integral reparation of Indigenous Peoples’ collective rights and the restitution of their territories, and recognized Indigenous territories as victims of the conflict based on the integral conception, the cosmo-vision, and the special relationship between Indigenous Peoples and their lands. However, there are limited advances on integral compensation and land restitution for victims of the conflict due to government opposition.

In 2019, the Ombudsman asserted that of the 121,462 total claims for land restitution (individual and collective), 64 percent were denied based on assessments that violated the law (Defensoria del Pueblo, 2019), while the Colombian Commission of Jurists (Comision Colombiana de Juristas, 2019) documented that only fourteen claims for collective land restitution were ordered by specialized judges, of which nine overlapped with mining concessions granted by the government, violating the prior consultation rights of Indigenous communities. Analysis by the CNTI (2021b) showed that by February 2021, there were 573 requests for the restitution of Indigenous territories filed before the Land Restitution Unit, but only 2.9 percent of this total have received a court ruling.

Concluding Remarks and Recommendations

Although the 1991 NPC is the legal basis for advancing Indigenous Peoples’ rights in Colombia, it has not resulted in the full restitution and protection of their collective lands. One of the major real positive impacts has been the use of the tutela legal mechanism for enforcing rights and the rulings of the Constitutional Court, which has strengthened the constitutional rights of Indigenous Peoples.

While there have been significant legal advances for land rights, there are still challenges as tension persists in the implementation of these laws. There are deep-seated barriers to advancing land rights in practice. However, the resilience of Indigenous Peoples to consistently organize and defend their rights through political mobilization and litigation, and to recover their ancestral lands, has been a driving force for policy and constitutional reforms, even as internal conflict has intensified.

In the current post-conflict context, Indigenous Peoples have contributed to the realization and implementation of the Peace Agreement. The integral implementation of the Ethnic Chapter and Decree 902 of 2017, which adopt measures to facilitate the implementation of the RRI in land matters, specifically in procedures for access and formalization, and the Land Fund, is crucial in this phase of peace reconstruction. Looking ahead, the government must guarantee the effective operation of the Land Fund and regulate the sub-account for Indigenous communities’ access to collective lands, as established by Article 18 (12) of Decree 902 of 2017. It is imperative that the government clarifies the percentage of land allocated to Indigenous communities from the 3 million hectares of land the government plans to purchase under the RRI. Equally, it is crucial to define the percentage of lands for Indigenous communities among the 7 million hectares the government plans to formalize nationwide.

Moreover, the government needs to allocate the funds required for these land purchases, while improving coordination among institutions involved in land tenure rights and simplifying the administrative procedures for the formalization of Indigenous collective tenure rights. In this way, the government can ensure Indigenous Peoples are in fact recognized as rightsholders in the Comprehensive Rural Reform of the Peace Accord.

Introduction

Almost 13 percent of Chile’s population self-identified as “Indigenous” in the 2017 census, or 2,185,792 individuals (Instituto Nacional de Estadísticas Chile, 2018, p. 16). National legislation recognizes ten Indigenous Peoples (albeit by defining them as “ethnicities”): Aymara, Chango, Colla, Diaguita, Kawashkar o Alacalufe, Likan Antai (previously called Atacameños), Mapuche (the most populous), Quechua, Rapa Nui, and Yagán o Yámana (Article 1, paragraph 2 of the so-called Indigenous Law, Ley Indígena, Law 19.253 of 1993, as modified to include the Diaguita people in 2006 by Law 20,117 and the Chango people in 2020 by Law 21,273).

The majority of Indigenous individuals live in urban settings, and while poverty among Indigenous Peoples has slowly decreased in recent decades, the unemployment rates remain higher than the national average (Ministerio de Desarrollo Social, 2022). This is probably due to the widespread discrimination suffered by Indigenous Peoples throughout Chile (Briones & Lepe-Carrión, Reference Briones and Lepe-Carrión2023; Molina, Reference Molina, Yáñez and Aylwin2007).

Since the Conquista, Indigenous Peoples’ lands, and their access to natural resources, have been dramatically reduced. Nowadays, the few preserved or restored Indigenous lands are constantly challenged by the neoliberal economic priorities pursued by the Chilean state. These include, among other things, the construction of hydroelectric plants (Anaya, Reference Anaya2009; Rosti, Reference Rosti and Lenzerini2008), especially in the south (Aylwin & Silva, Reference Aylwin and Silva2014); the aggressive extractivist agenda (Silva Neriz, Reference Silva Neriz2013; Toledo Llancaqueo, Reference Toledo Llancaqueo2006), principally in the north (Marimán Quemenado, Reference Marimán Quemenado2011); the massive exploitation of forest resources (Silva Neriz, Reference Silva Neriz2013; Stavenhagen, Reference Stavenhagen2003); and the intense salmon farming in coastal areas (Aylwin & Silva, Reference Aylwin and Silva2014; Soluri, Reference Soluri2011).

In recent years, some positive trends have emerged, including an official state apology that (then) President Bachelet offered to the Mapuche people in 2017 for the “errors and the horrors” committed or tolerated by Chile throughout its history. However, the election of (former) President Piñera (his second mandate, 2018–2022) had another dramatic effect on Indigenous policies (Didier et al., Reference Didier, Aywin, Silva and Guerra2019). The nationwide protests that took place in Chile starting in October 2019 relate to broad unequal access to public resources (education, justice, public transport, health services, etc.) that continue to heavily affect Indigenous Peoples too.

In July 2021, the first Constituent Assembly (the so-called Constitutional Convention, Convención Constitucional) started working on the new Chilean Magna Carta. The Assembly was formed by 155 delegates – all elected by the Chileans – out of which seventeen seats were reserved for Indigenous Peoples in accordance with the percentages of the 2017 census. This resulted in seven seats for the Mapuche elected representatives, two for Aymara, and one for each of the other eight Indigenous Peoples (Chango, Colla, Diaguita, Kawashkar/Alacalufe, Likan Antai, Quechua, Rapa Nui, and Yagán/Yámana) (El Ciudadano, 2020). Moreover, the first president of the Constituent Assembly, Elisa Loncón Antileo, was an Indigenous academic and Mapuche woman.Footnote ¹

A constitutional text was drafted between 2021 and 2022 and included a wide array of Indigenous rights (50 provisions of 380), with references to their pre-existence, their rights to self-determination, autonomy, independent institutions, justice systems, participation, consultation, culture, and free, prior, and informed consent; also included were references to their rights to natural resources, territories, and land (Convención Constitucional, 2022b). The proposal was rejected, likely due to an inappropriate communication strategy as well as conservative propaganda, which argued that the constitutional changes would undermine the legal foundations of the Chilean state (Velásquez Loaiza, Reference Velásquez Loaiza2022).

A second text was prepared from June 7 to November 7, 2023, by a constitutional council (Consejo Constitucional) that was elected in May with poor Indigenous representation (Proceso Constitucional, 2023a). This proposal included only three articles on Indigenous Peoples and rights: on their recognition, their international individual and collective rights, and interculturality; on mechanisms to promote their political participation; and on local rights at the regional and municipal levels (Proceso Constitucional, 2023b). Hence, land rights were not included. Nevertheless, this text was also rejected at the referendum held on December 17, 2023 (Sanhueza, Reference Sanhueza2023). Against this background, this chapter analyzes the process of dispossession faced by Indigenous Peoples in relation to their traditional lands, how they have contested the titles to ownership and possession of such territories, and the outcomes of their litigation strategy both in the north and in the south of Chile in recent decades. This chapter confirms the consensus in other chapters in this book: dispossession has been followed by processes for recognizing and reclaiming land rights, but implementation has been problematic. In addition, the chapter identifies how litigation in national courts has created an opportunity to safeguard land rights, at least at the jurisprudential level.

Processes for Dispossessing Indigenous Peoples of their Lands

The independence and the foundation of the Chilean state are officially dated as 1818 and 1810, respectively. However, the territory that forms the modern Chilean state was occupied and colonized by Spaniards during different periods. For instance, the areas covering the current towns of Arica, Iquique, Antofagasta, Calama, and Pozo Almonte in the north, and where the Aymara and Lika Antai/Atacameño Indigenous Peoples have been living for centuries, were annexed to Chile only after the so-called Pacific Wars of 1879–1884 (Gudermann, Reference Gudermann, Gudermann, Foester and Vergara2003). In the south, the fierce resistance of the Mapuche led to the signing of a number of bilateral treaties between their leaders and the colonizers.Footnote ² Notwithstanding that these treaties de facto governed the territories south of the Bío-Bío river until the Civil War of 1859 (Bengoa, Reference Bengoa2000), the occupation of Indigenous lands started well before. For instance, the 1,600 Indigenous Peoples living in the Araucanía region were (immensely) outnumbered by the arrival of about 14,000 new settlers in the mid-nineteenth century (Aylwin, Reference Aylwin1995). Such a high concentration of non-Indigenous Peoples justified the first state acts to regulate both the colonization and the occupancy of these territories (Aylwin, Reference Aylwin1995).

In 1883, the so-called Peace of Araucanía (Pacificación de la Araucanía) ended two years of military occupancy in the region, and marked the beginning of the arbitrary confinement of the Mapuche peoples onto reserves (Reducciones) or other lodgings (Bengoa, Reference Bengoa2000; Rosti, Reference Rosti and Lenzerini2008). The concept of individual property rights was unknown to Mapuche at that time (Nesti, Reference Nesti2002). Overall, the original Mapuche territory was reduced by 95 percent (Rosti, Reference Rosti and Lenzerini2008). In addition, other state initiatives, such as granting land concessions, attracting foreign settlers “in good health” to farm the land, creating new villages, and adopting ad hoc legislation legitimizing the new property titles, resulted in a further “colonization” of traditional Mapuche lands in the current Region of Araucanía (Aylwin, Reference Aylwin1995). Mapuche organizations were set up in the early 1900s, but they did not make any significant gains in the return of their lands (Bengoa, Reference Bengoa2000). A further 25 percent of Mapuche territory was “absorbed” before the agrarian reforms of the 1960s by non-Indigenous settlers that first unlawfully occupied the land, and then requested (and obtained) the titling for these territories (Bengoa, Reference Bengoa2000).

Chile has a strong tradition of legal positivism, which constrains the expression of (Indigenous) customary law. Despite centuries of dispossession, Indigenous Peoples often retain their own laws, or, for instance, what the Mapuche call Az Mapu, “the law of the land.” It is important to note that the term “law” is derived from Western values, understood by Mapuche as “state” or wingkas (non-Mapuche) law. Az Mapu refers to the group of norms and ways of relating that regulate Mapuche peoples and lands (Cloud, Reference Cloud2010). Az Mapu is intimately linked to the Mapuche cosmo-vision of a profound spiritual conception of equilibrium and harmony with the surrounding environment, and embedded in Mapuzungun (or Mapuche language), as Az Mapu is transmitted orally (Cloud, Reference Cloud2010).

On Easter Island, the dispossession of the lands of Rapa Nui Indigenous Peoples – and their dehumanization through slavery – started during the nineteenth century. The Rapa Nui decreased from 2,000 to 111 people between 1864 and 1877 (Rochna Ramirez, Reference Rochna Ramirez1996). In 1868, the French merchant Jean Baptiste Onésime Dutroux-Bornier (better known as “Pitopito”) “acquired” vast areas of land from the Rapa Nui by unlawful means, concluding contracts with children and taking advantage of the fact the Rapa Nui did not realize they were giving away their lands forever (Rochna Ramirez, Reference Rochna Ramirez1996). In 1888, the Agreement of Wills – signed by the navy captain Policarpo Toro in representation of Chile and the Rapa Nui king Atamu Tekena – marked the annexation of the Easter Island to Chile (Chartier et al., Reference Chartier, Chirif and Tomas2011). In principle, the Rapa Nui should have remained the owners of their ancestral lands (Marimán Quemenado, Reference Marimán Quemenado2011), but the Chilean state took control and gave concessions to the Rapa Nui’s lands without any consideration of the Rapa Nui claims (Rochna Ramirez, Reference Rochna Ramirez1996).

In 1933, the island was ultimately registered as terra nullius and formed part of the state lands of Chile in accordance with the then Article 590 of the Civil Code (Chartier et al., Reference Chartier, Chirif and Tomas2011; Marimán Quemenado, Reference Marimán Quemenado2011). In 2012, a Rapa Nui family contested the validity of this registration before the Supreme Court. Nevertheless, the Supreme Court validated that title as well as other property titles enacted in the past that ignored the Rapa Nui’s land titling (Silva Neriz, Reference Silva Neriz2013). The Rapa Nui were kept in semi-slavery conditions until the adoption of the so-called Easter Law (Ley Pascua) 16.441 in 1967 (Chartier et al., Reference Chartier, Chirif and Tomas2011); thereafter, a national park over the island (called Hanga Roa) was established in the 1980s (Rochna Ramirez, Reference Rochna Ramirez1996). The park is currently administered by the National Forestry Corporation (Corporación Nacional Forestal – CONAF) (Marimán Quemenado, Reference Marimán Quemenado2012), but without the participation of any Rapa Nui (Cloud, Reference Cloud2013). Therefore, 13 percent of Easter Island is held by the Rapa Nui people, 17 percent is in the hands of private owners, and 70 percent is state land (Aylwin & Silva, Reference Aylwin and Silva2014).

Only the agrarian reform of the 1960s brought some changes into Indigenous land titling. In particular, Law 17.729 of 1972 ruled a system of land restitutions (Article 17) and established an Institute for Indigenous Development (Articles 34 and ff.).Footnote ³ However, after the 1973 military golpe (coup), Law Decree 2,568 of 1979 modified the system of land restitution that became more arbitrary (Articles 9–26).Footnote ⁴ Moreover, the dictatorship introduced a system of land “normalization,” which was realized through revocations or expropriations and reallocation (via reselling) of land titles via unscrupulous transactions – for example, by concluding contracts with illiterate or poorly literate individuals, including Indigenous Peoples. This transformed all the lands that had been given back during the agrarian reform into private lands by the early 1980s (Toledo Llancaqueo, Reference Toledo Llancaqueo2006, p. 56). Finally, the Water Code (Decree 1,122 of 1981)Footnote ⁵ legitimized the privatization and appropriation of watercourses, depriving Indigenous Peoples of water access (see more on this further below).

Once democracy was restored in 1989, the then presidential candidate and future first democratically elected president after the dictatorship, Patricio Aylwin, signed the so-called (first) Agreement of Nueva Imperial with some Indigenous representatives. Among other things, he promised to promote a constitutional reform that would include Indigenous Peoples and to recognize their socio-economic and cultural rights. Despite several attempts, the constitutional recognition never followed, and as mentioned, the recent attempts of the constitutional reforms failed too. Under Aylwin’s mandate, the abovementioned “Indigenous Law” was eventually adopted in 1993.

The (Mis)Recognition of Indigenous Land Rights

Litigation for Land Rights

Indigenous Peoples have used litigation to advance and safeguard their land rights. Four specific cases are analyzed in this section, one in the north of Chile, and three in the south. Each of these demonstrate how national courts have become – in the last decades – the avenue to secure land rights, notwithstanding the unfavorable national legislative framework.

Conclusions

For Chile’s ten recognized Indigenous Peoples, the nation’s history has been characterized by dispossession, encroachment, and conflict. Indigenous Laws, like the Az Mapu, of the Mapuche, are ignored. There are significant pressures on Indigenous lands. Unique among Latin American countries, there is no constitutional recognition of Indigenous rights in Chile. The recent failed constitutional reforms would have strengthened Indigenous rights in a revitalized constitution. The future for Indigenous land rights, largely entrenched in the problematic Indigenous Law, remains uncertain.

The litigation strategy pursued by Chile’s Indigenous Peoples has been quite successful for safeguarding their land rights. The chapter presented four cases brought before the Chilean national courts, where Indigenous land rights – despite an unfavorable legislative framework – have ultimately been protected due to the Indigenous parties’ arguments and the courts’ use of international standards of Indigenous rights (the C169 and UNDRIP). The courts have embraced a broad conceptualization of Indigenous land rights, recognizing these rights are intimately linked with the right to access water, the rights to culture and way of life, the right to traditional medicine, and the preservation of Indigenous ceremonial areas due to the spiritual relationship that Indigenous Peoples enjoy with their lands. The courts’ rulings are becoming more aligned with the Indigenous customary conceptions of land, such as the Mapuche’s Az Mapu, and the balance it sustains between people and nature.

Chile’s national courts have matured on Indigenous rights issues, taking account of international standards and norms. However, the independence of the judiciary is fragile, being heavily influenced at times by the executive. Now, after two referendums that rejected a new and very progressive constitutional text in 2022 and a rather conservative proposal in 2023, it remains unclear how to move beyond Pinochet’s unequal constitution from 1980. In the meantime, despite many other implementation challenges, Indigenous Peoples in Chile may at least enjoy some jurisprudential protection of their lands and rights.