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

Date30 June 2011
Published date30 June 2011
AuthorRachel Sieder
Rachel Sieder
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
´, 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
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.
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.
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).
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
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

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