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

• Pages: 19-41
• DOI: https://doi.org/10.1108/S1059-4337(2011)0000055005
• Date: 30 June 2011
• Published date: 30 June 2011
• Author: Jorge Contesse

INDIGENOUS PEOPLES IN CHILE:

THE QUEST TO BECOME A

CONSTITUTIONAL ENTITY

Jorge Contesse

ABSTRACT

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

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ISSN: 1059-4337/doi:10.1108/S1059-4337(2011)0000055005

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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

JORGE CONTESSE20