Indigenous Peoples in Chile: The Quest to become a Constitutional Entity

Date30 June 2011
Published date30 June 2011
AuthorJorge Contesse
Jorge Contesse
This chapter discusses the legal and political process whereby indigenous
peoples in Chile have demanded, and failed to be granted, constitutional
recognition. By identifying indigenous peoples as groups that suffer from
both misrecognition and maldistribution, I demonstrate political autho-
rities’ and legal scholars’ lack of understanding toward indigenous
peoples’ demands since the resumption of democracy, in the late 1980s. I
discuss the way in which indigenous peoples ultimately resort to the law
from outside, i.e., international human rights law, to challenge the local
understandings and the contours of a Constitution that fails to include the
most disadvantaged group in Chilean society.
Indigenous peoples subvert constitutional legality by resorting to the law.
They affect and reinterpret domestic provisions by using international
human rights norms that give legal significance to local practices and
customs that national law often neglects. This process takes place amidst a
number of different interpretations of what the law is, how legal codes can
be used in favor, or against, the claims of disadvantaged groups, and in the
Studies in Law, Politics, and Society, Volume 55, 19–41
Copyright r2011 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2011)0000055005
case of Chile, it happens by insisting on the central role of law. Yet such a
process has somehow been forced by the persistent neglect that Chilean
political elites have dispensed toward the native populations.
In this chapter I explore the legal and political dynamics that have
accompanied the claims that indigenous peoples have made against the
state. I focus on one particular and recent period of history, namely, the
post-Pinochet area. As I explain below this is the time when new social
movements articulated demands in the key of human rights. As a
consequence, rights-based talk and debate have occupied much of the
public forum’s space. I argue that indigenous peoples are a distinctive
subordinated group – they not only suffer from maldistribution but also
misrecognition. I then explain the political discussions around indigenous
peoples’ demand to be constitutionally recognized. I survey the debates that
have taken place in Congress as well as some of the most prominent
scholars’ arguments against constitutional recognition. Finally, I show how
indigenous peoples have resorted to international human rights law to
unlock the hermetic political and legal features of Chilean society.
Since 1988–1990, the period during which Chile returned to a democratic
regime, indigenous peoples have demanded recognition. In particular, they
seek that the Constitution formally recognizes the different ethnic groups
that inhabit Chile. The request was first drafted in the late 1980s by a
number of indigenous organizations that supported the newly formed
democratic coalition and that were influenced by the recent developments of
international human rights law – particularly, the adoption in June 1989 of
ILO Covenant 169. Since then, indigenous peoples’ demands have evolved
and expanded into more articulated claims, such as indigenous participation
in public affairs, specific legislation and regulation of natural resources. The
claims’ core, however – that indigenous be granted formal legal status –
remains the same.
At the end of the 1980s, political elites agreed on the terms of the
transition to democracy by adopting fifty-four amendments to the
Constitution. One of the most significant amendments was the explicit
reference to international human rights as a cornerstone of Chilean
constitutional law.
But presidential candidate of Chile, Patricio Aylwin, also embraced the
claim for indigenous’ constitutional recognition. Indigenous leaders also
demanded the establishment of social rights’ agenda and the adoption of
ILO Covenant 169, thereby understanding law as a central role in their
being a part of Chile’s new social pact. It was in the southern village of
Nueva Imperial where Aylwin and indigenous leaders signed an agreement

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