Building Mayan Authority and Autonomy: The “Recovery” of Indigenous Law in Post-Peace Guatemala

• Pages: 43-75
• Date: 30 June 2011
• Published date: 30 June 2011
• DOI: https://doi.org/10.1108/S1059-4337(2011)0000055006
• Author: Rachel Sieder

BUILDING MAYAN AUTHORITY

AND AUTONOMY: THE

‘‘RECOVERY’’ OF INDIGENOUS

LAW IN POST-PEACE GUATEMALA

Rachel Sieder

ABSTRACT

Across Latin America, debates and practice around indigenous law

provide a window on shifting relations between indigenous movements,

states, and international actors. In Guatemala, the practice of indigenous

law is a reflection of cultural difference, a response to past and present

violence, and a resource for a population denied access to justice. In the

postwar period, indigenous law has become a central element of

contemporary Mayan identity politics. Together with the policy shift

toward state-endorsed multiculturalism, this has meant it has become a

highly contested and politicized terrain. This article examines attempts by

indigenous activists to ‘‘recuperate’’ and strengthen indigenous law – or

what is now termed ‘‘Mayan law’’ (derecho Maya) – in Santa Cruz del

Quiche

´, Guatemala. Analyzing the tensions between local demands, the

Mayan movement, international NGOs and intergovernmental bodies,

and the Guatemalan state, it reflects on what they reveal about the limits

and contradictions of the multicultural model of justice promoted since

the end of the armed conflict.

Studies in Law, Politics, and Society, Volume 55, 43–75

Copyright r2011 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2011)0000055006

43

INTRODUCTION

Compared to the Andean countries, Guatemala’s multicultural shift in the

1990s was relatively weak. In contrast to Bolivia and Ecuador, official

recognition of indigenous peoples and their rights was not a response to a

consolidated mass movement of indigenous peoples. The impact of 36 years

of armed conflict, and particularly of the counterinsurgency violence visited

on the civilian population during the early 1980s, had a devastating effect on

popular organization. Over 200,000 people were killed or disappeared

during the conflict, including an entire generation of indigenous leaders

(CEH, 2000). The effects of the army’s counterinsurgency campaigns

continue to divide rural communities and condition individual and collective

actions today. The indigenous movement which emerged in the late 1980s

was comparatively weak and fragmented, and its fortunes were initially tied

to the internationally brokered peace process.

The peace accords themselves, concluded in December 1996, constituted a

relatively strong endorsement of multiculturalism and indigenous rights,

particularly the extensive Agreement on the Rights and Identity of Indigenous

Peoples, signed in 1995.

1

However, again in contrast to other countries in the

region, these commitments never became constitutional norms. This

weakened the prospects for their potential justiciability or legal guarantee

and signaled the domestic political elite’s opposition to making good on the

promises of the peace accords.

2

In common with other Latin American states,

Guatemala did ratify International Labor Organization’s Convention 169,

which provided a legal basis for the recognition of indigenous peoples’

collective rights. Yet more than a decade after ILO 169 entered into force, its

justiciability remains a question of considerable legal and political dispute

(Sieder, 2007a;Fulmer, Snodgrass Godoy, & Neff, 2008).

3

Despite the relative weakness of the indigenous movement and the limited

scope for justiciability of indigenous peoples’ collective rights, Guatemala has

undoubtedly experienced a ‘‘multicultural transformation’’ of its politics

since the end of the armed conflict. This is largely a consequence of two

factors: first, the post-settlement implementation of the peace agreements –

and specifically the role of the international community and international

development cooperation in this process; and second, the ongoing rear-

ticulation of the Mayan movement in the wake of the peace process. These

two elements are intimately linked. In line with neoliberal policies elsewhere

in Latin America, the post-peace development model promoted by the

international community has emphasized administrative decentralization,

increased local participation in the provision of public goods, and greater

RACHEL SIEDER44

official recognition of ‘‘culture’’ and ethnic diversity. This affected many

areas of public policy, including justice administration, education, local

government and community development, and has led to the creation of

indigenous offices and programs within different government ministries and

agencies and the employment of indigenous professionals to run these (Cojtı

´,

2005;Cumes & Bastos, 2007). Yet this more ‘‘pro-culture’’ stance within the

state – or at least within some sectors of the state – has not meant the

recognition of the collective economic, social and cultural rights of

indigenous peoples inherent in international legal instruments such as ILO

169 or the 2007 UN Declaration on the Rights of Indigenous Peoples

(UNDRIP). Indeed, it has been denounced by movement activists as little

more than cosmetic multiculturalism, or ‘‘neoliberal multiculturalism’’ (Hale,

2002), involving the adoption of a multicultural discourse and the co-opting

of an elite of ‘‘permitted Indians’’ (Hale, 2004;Cojtı

´, 2005;Esquit, 2008). In

addition, those institutional spaces that have been opened for indigenous

people within the state apparatus are highly reliant on international

development cooperation funding, raising questions about what will happen

when the funding runs out (Cojtı

´, 2005).

The second factor, the rearticulation and revitalization of the Mayan

movement, is a response to widespread frustration with the limited

transformations achieved since the peace agreements were signed and the

effect of the peace process on the national Mayan movement (Bastos &

Camus, 2003). In response to the limited spaces opened by the process of

multiculturalization of the state and the failure of governments to guarantee

their rights in practice, left-wing indigenous activists across the country are

focusing their efforts on reconfiguring grass roots organization and practices

at local and municipal level. This has not yet produced a coherent or

consolidated national political proposal, movement, or party (Bastos, 2009).

However, more ethnographically grounded analyses of these local experi-

ences reveal much about the shifting nature of relations between the

indigenous movement and the Guatemalan state. They also allow us to

assess the prospects for an emancipatory indigenous politics following the

first phase of multicultural reforms.

Throughout Latin America, the strengthening of the norms, practices, and

authorities that make up ‘‘indigenous law’’ has become a central element in

indigenous peoples’ struggles for greater autonomy and recognition of their

collective rights. Indigenous law has become increasingly politicized in

response to a number of factors. These include the ongoing struggles of

indigenous peoples’ movements to articulate alternatives to dominant forms

of political organization, representation and economic development. They

The ‘‘Recovery’’ of Indigenous Law in Post-Peace Guatemala 45