Constitutional Process

What the Constitution Says About: Indigenous Rights

October is here, and Chileans are about to vote on a new constitution on Oct. 25. As part of an ongoing series about the Constitution and the upcoming vote, Chile Today spoke with the director of the Institute for Indigenous and Intercultural Studies at Universidad de la Frontera about indigenous peoples’ concerns with respect to the Constitution. At a minimum, they want recognition.

For millions of Chileans, Oct. 25 will be historic. In a referendum, the country will decide if a new constitution should be written or if the current one should be maintained.

“In my opinion, a new Constitution is necessary for the country. First, because the period in which it was written makes the content questionable. Second, because Chile has changed … The social process by which the demand for a new code arose demonstrates that we need a Constitution that keeps abreast with the changes in our society,” said Natalia Caniguan, director of the Institute for Indigenous and Intercultural Studies at Universidad de la Frontera.

According to the latest census, nearly 13 percent of Chileans, about two million people, identify as indigenous. However, Chile does not recognize or even mention indigenous peoples in its Constitution.

The constitutional acknowledgment of indigenous peoples is necessary. It would change the relationship between the state and the indigenous communities because it would recognize them as subjects of law, and establish a more symmetrical relationship.”

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The Fight For Inclusion

For decades, indigenous peoples in Chile have been demanding that the state acknowledge them in the Constitution. They have sought, among other things, the recognition of their cultures and protection of the territories they inhabit.

The current Constitution was written during Augusto Pinochet’s dictatorship. Former President Patricio Aylwin, Pinochet’s successor, signed an agreement with indigenous peoples in 1989 called the Nueva Imperial Accord.

As part of the accord, Aylwin pledged to give constitutional recognition to the native peoples but failed to do so. And so did the governments that followed. Since 1990, Congress has rejected seven times the bill to include indigenous peoples in the Constitution. “To me, that only shows that there hasn’t been any political will. I think there are certain fears like the myth that acknowledging indigenous peoples in the Constitution would translate into having different countries within the same country, but we have seen international experiences and we know that is not true,” said Caniguan.

Caniguan also believes that no government has carried out the Nueva Imperial promise because of a reluctance to cede power. “Recognizing them as subjects of rights with autonomy and self-determination in their territories means giving up power. It breaks the balance or the status quo of our current economic system.”

Indigenous Law Insufficient?

Although former President Aylwin did not accomplish the constitutional recognition he promised, he was able to enact the Indigenous Law, which created the National Indigenous Development Corporation (Conadi).

Caniguan thinks the Indigenous Law was a step in the right direction. “However, it did not translate into what the indigenous peoples were demanding … This law has specific problems, like the fact that it talks about ethnic groups instead of nations. When you say ethnic groups, you lower the category and are unable to guarantee people’s rights.”

“If native peoples were acknowledged in the Constitution, they would have more weight than under the Indigenous Law because another problem we encounter today is that we have several bigger laws that are imposed over this one.”

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Other Rights That Should be Guaranteed

In Caniguan’s opinion, the constitutional recognition of native peoples is just the beginning. The starting point to guarantee basic rights for indigenous communities. Among the rights that she thinks should be ensured by the state are:

  • Autonomy and self-determination: “That they can define forms of self-justice, or economic development in their territories. Overall, they should be allowed to exercise decision making in their territories.”
  • Cultural and linguistic rights: “These rights are currently not protected. We have examples of indigenous languages that are dying because there are no policies to promote them. There are also tensions regarding cultural practices, and even certain vetoes and discrimination.”
  • Political participation: “Indigenous peoples have to be represented in public instances. For example, there is currently a bill that seeks to ensure spots for native people in the eventual constitutional process or mixed convention. We need a society that includes diverse voices.”
  • Natural resources: “There needs to be participation in and consideration of what indigenous communities have to say on what happens to natural resources within their territories.”

When asked about her hopes for the future, Caniguan said she dreams of living in a plurinational state. “I want a Chile where the rights of everyone are recognized, without exceptions. That is an  issue today, that we believe we have certain rights but, we don’t … and the Chilean state has a pending debt with indigenous peoples, so I hope we will transform into a plural and diverse society.”

Indigenous Chango People Recognized By The Chilean State

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