Legal Imaginaries: Recognizing Indigenous Law in Colombia

• Date: 30 June 2011
• DOI: https://doi.org/10.1108/S1059-4337(2011)0000055007
• Pages: 77-100
• Published date: 30 June 2011
• Author: Sandra Brunnegger

LEGAL IMAGINARIES:

RECOGNIZING INDIGENOUS

LAW IN COLOMBIA

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Sandra Brunnegger

ABSTRACT

The recognition of indigenous law in the 1991 Colombian Constitution

initiated significant social, political, and cultural transformations within

indigenous communities. This article explores how the indigenous law of

Pijao communities in Tolima is being constructed, imagined and

(re)produced by indigenous leaders who are simultaneously staking out

their own political position through an engagement with these processes.

The article suggests that this new generation of indigenous leaders seeks

to ground its political legitimacy by drawing on the (legal) realm of the

state; at the same time, challenges to its legitimacy are also increasingly

framed in a legal idiom.

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This article is based on fieldwork undertaken at the Tribunal Superior Indı´gena del Tolima

(Superior Indigenous Tribunal of Tolima) belonging to the indigenous organization CRIT in

Tolima; my research on indigenous law among Pijao communities in Tolima has been ongoing

since 2007.

Studies in Law, Politics, and Society, Volume 55, 77–100

Copyright r2011 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2011)0000055007

77

INTRODUCTION

Latin America’s wave of constitutional reforms during the 1990s had the

effect of recasting most Andean countries (notably Bolivia, Colombia,

Ecuador, Peru, and Venezuela) as multiethnic and pluricultural states,

granting a realm of autonomy in legal and political terms to their ethnic

communities (Sieder, 2002;Gros, 1993;Van Cott, 2000b,Yashar, 2005).

1

The 1991 Colombian Constitution, in particular, granted far-reaching

cultural, linguistic, political and territorial rights to 87 recognized

indigenous communities, including a right for indigenous authorities to

‘‘exercise jurisdictional functions within their territories in accordance with

their own norms and procedures’’ (Article 246).

2

The implementation, however, of constitutionally granted indigenous

rights in Colombia has proved challenging, being subject to often fierce

debates between state agencies and indigenous leaders especially over land

rights.

3

The constitutional recognition of indigenous law has further raised

issues of the limitations of indigenous authorities’ judicial autonomy and of

the basis on which state and indigenous law should interact with each

other.

4

In particular, the 1991 Colombian Constitution makes a specific

provision for a law to ‘‘establish the forms of coordination of this special

jurisdiction with the national judicial system’’ (Article 246).

5

However,

Colombia has yet to frame and pass any such ‘‘coordination law.’’ Through

various decisions the Colombian Constitutional Court has instead been able

to establish some basic principles governing this relationship between state

and indigenous law (Sa

´nchez Botero, 1998).

6

The absence of such a ‘‘coordination law’’ in Colombia has also led to

the emergence of multiple projects and initiatives supported by diverse

actors, including regional and national indigenous organizations, commu-

nities, universities, NGOs, and state bodies; these initiatives seek forms of

working relationships between state and indigenous law. These efforts have

generated a number of recent developments, such as the creation of the

Escuela de Derecho Propio Cristo

´bal Secue (Cristo

´bal Secue School of Own

Laws), overseen by the indigenous organization the Asociacio

´n de Cabildos

Indı´gena del Norte del Cauca, ACIN, in the department of Cauca, a body

training indigenous members in state and indigenous law, and the Tribunal

Superior Indı´gena del Tolima (Superior Indigenous Tribunal of Tolima)

belonging to the indigenous organization Consejo Regional Indı´gena del

Tolima, CRIT, in Tolima. This tribunal provides a means of redress for

indigenous community members dissatisfied with the decisions of their

own authorities. The organizations of these hybrid institutions have

SANDRA BRUNNEGGER78