Handbook of Indigenous
Peoples’ Rights; edited by Corinne Lennox and Damien Short
Format: Pinched_Crown (174 × 246 mm); Style: Handbook_2; Font: Bembo;
Dir: //ukfs11/Bks_Production/Frontlist Production Teams/eProduction/Live Projects/
9781857436419/DTP/9781857436419_text.3d;
27
Indigenous peoples’ rights and the
law in Latin America
Rachel Sieder1
Since the late 1980s, legal innovations at international, continental and national levels have
converted indigenous peoples into subjects of rights. This means that they are now recognized
not only as individual citizens of the countries they live in, but also as collectives with specific
group rights that are different from those pertaining to the rest of the population. Indigenous peoples’
rights to continue living in a manner different from dominant society imply that governments
must respect spheres of autonomy for indigenous government and legal jurisdiction. According
to current international human rights law, these autonomy rights are based on the principle of
self-determination that underpins the contemporary system of sovereign nation-states.2
Throughout the history of Latin America, indigenous people have figured amongst those
groups whose human rights have been most systematically denied and violated. Yet, in contrast
to other regions of the world where acceptance of the concept of ‘indigenous peoples’ has been
much more problematic and contested, most countries of the region have accepted the existence
of their native populations and have slowly come to accept—at least in theory—that they
should exercise some degree of ‘internal self-determination’ (Stavenhagen 2002) within the
existing boundaries of the nation-state. However, in recent years the consolidation and deepening
of an economic model based on direct foreign investment and commodity exports has
revealed the limitations and challenges of such legal protections and reforms. Multicultural and
pluri-national constitutional recognitions and efforts to demarcate indigenous lands have been
followed by violent backlash and unwillingness on the part of governments to ensure that
indigenous peoples’ territorial and autonomy rights are upheld and respected in practice. A
plethora of domestic and transnational economic actors now compete to control and benefit
from the surface and subsoil natural resources on ancestral indigenous lands, competition
endorsed by governments through licenses, concessions and the approval of large-scale infrastructural
projects. The accelerated exploitation of oil, minerals, timber and biogenetic resources,
the construction of roads and hydro-electric dams, and the development of agroindustry
have had hugely negative impacts on indigenous ways of life, to the point where the physical
survival of many groups is gravely endangered. For example, in Brazil, despite the demarcation
of indigenous territories, tropical rainforests and savannah have been stolen and converted into
vast cattle ranches, soya fields and sugar cane plantations. Hydroelectric dams and mining projects
threaten the lands and livelihoods of thousands of native peoples; many communities live
414
Handbook of Indigenous
Peoples’ Rights; edited by Corinne Lennox and Damien Short
Format: Pinched_Crown (174 × 246 mm); Style: Handbook_2; Font: Bembo;
Dir: //ukfs11/Bks_Production/Frontlist Production Teams/eProduction/Live Projects/
9781857436419/DTP/9781857436419_text.3d;
in overcrowded reserves, while others have been expelled from their homelands altogether.
Those mobilizing to defend their lands are frequently assassinated by gunmen hired by ranchers
or other private interests3
. Lack of legal security, land grabs and violent evictions have also led
to unprecedented suicide rates amongst some indigenous groups.4
According to the most recent national census data, Latin America’s indigenous population
comprises approximately 45 million people in 2010 and is growing.5
In some countries the
indigenous population comprises millions of people, such as Mexico (almost 17 million) and
Peru (7 million). At the other extreme, Costa Rica’s indigenous population numbers some
100,000 people, and Uruguay’s a mere 80,000 (CEPAL 2014, 43). More than 800 different
indigenous peoples survived the catastrophe of conquest by European powers in the 16th and
17th centuries. Today some 305 peoples are found in Brazil, 102 in Colombia, 85 in Peru and
78 in Mexico. At the other extreme, Costa Rica and Panama have just nine indigenous peoples
each in their national territories, while El Salvador has three and Uruguay two (CEPAL 2014,
44). In some countries, such as Argentina, Brazil and Uruguay, they now represent less than 3%
of the total population, whereas in others, such as Bolivia and Guatemala, they are over 40%.
Mexico is the country with the largest indigenous population in numerical terms: some 15% of
the total population. Some native languages – such as Aymara, Quechua, Nahuatl or K’iche’ –
are spoken by millions of people, whereas amongst many of the smaller lowland groups autochthonous
languages are rapidly disappearing. Yet in many countries the overall trend is towards
an increase in those people self-identifying as indigenous.
According to all social indicators, indigenous populations in Latin America are amongst the
most impoverished of the region’s citizens. As a consequence of the historical dispossession of
Table 27.1 Indigenous Peoples in Latin America, estimated population 2010
Country Total population Total indigenous
population
Indigenous percentage of
population
Bolivia 9,995,000 6,016,026 62.2
Guatemala 14,334,000 5,881,009 41.0
Peru 29,272,000 7,021,271 24.0
Mexico 112,336,538 16,933,283 15.1
Panama 3,405,813 417,559 12.3
Chile 16,341,929 1,805,243 11.0
Nicaragua 5,813,000 518,104 8.1
Ecuador 14,483,499 1,018,076 7.0
Honduras 7,619,000 536,541 7.0
Colombia 46,448,000 1,559,852 3.4
Venezuelaa 27,227,930 724,592 2.7
Costa Rica 4,301,712 104,143 2.1
Argentina 40,117,096 955,032 2.4
Uruguay 3,251,654 76,452 2.4
Paraguay 6,232,511 112,848 1.8
Brazil 190,755,799 896,917 0.5
El Salvador 6,281,000 14,408 0.2
Total 538,153,481 44,791,456 8.3
Source:CEPAL 2014: 43.
Indigenous rights and law in Latin America
415
Handbook of Indigenous
Peoples’ Rights; edited by Corinne Lennox and Damien Short
Format: Pinched_Crown (174 × 246 mm); Style: Handbook_2; Font: Bembo;
Dir: //ukfs11/Bks_Production/Frontlist Production Teams/eProduction/Live Projects/
9781857436419/DTP/9781857436419_text.3d;
their lands and their enslavement and exploitation at the hands of colonial and republican elites,
native peoples suffer from acute economic, social, political and cultural marginalization.
Although only 11% of Latin Americans are indigenous, they constitute some 20% to 25% of the
40% of the region’s population living in poverty and an even higher percentage of the 17%
living in extreme poverty. More than half of all Bolivians and Guatemalans are poor, but nearly
three-quarters of indigenous people in those countries live below the poverty line. In Ecuador
more than 80% of indigenous people live in poverty, and in the rural highlands this figure rises
to 90%. In Peru more than 40% of all families below the poverty line are indigenous (UNDP
2009). A breakdown of the statistics shows even worse social indicators for indigenous women
and children. Indigenous people are the victims of racism and discrimination in society, and
especially within state institutions such as schools, hospitals or courts. This particularly affects
the growing number who live in Latin America’s urban areas: currently more than half of the
overall indigenous population of 11m. people. Indigenous peoples also suffer from multiple
forms of violence associated with current patterns of economic development, including the accelerated
exploitation of natural resources (such as oil, minerals, timber and biogenetic resources),
the construction of roads and hydroelectric dams, and agro-industrial development, all of which
have a highly negative impact on indigenous ways of life, threatening the physical survival of
many groups.
Constitutional transformations and the impact of international law
Compared to other regions in the world, Latin America is characterized by its ‘high porosity to
human rights norms and institutions’ (Rodríguez-Piñero 2007: 185). This is because of a series
of historical factors, including the circulation of ideas about citizenship and rights since colonization
in the 16th century and the role that law has played in the constitution of Latin American
nation-states and their diverse imaginaries, something which continues to be reflected in
recent processes of constitutional reform (Goodale 2008). It is also a result of the strength of
trans-regional human rights and social movements in Latin America (Sikkink 2005). Latin
American countries have been global front-runners in the legal recognition of indigenous peoples’
rights. The International Labour Organization’s Convention 169, approved in 1989
(hereafter ILO 169), the first international convention setting out the collective rights of indigenous
peoples, was ratified by most countries in the region during the 1990s. This convention
replaced the earlier ILO Convention 107, which dated from 1957 and which—in contrast to
ILO 169—was characterized by an integrationist ideology, reflected in public policies towards
indigenous populations in countries such as Mexico and Peru between the 1930s and 1970s.
The regionwide adoption of ILO 169 can be understood as part of the ‘norms cascade’,
whereby elected democratic governments ratified numerous international human rights instruments
as a means of staking their global democratic credentials following extended periods of
military and authoritarian rule (Finnemore and Sikkink 1998). Ratification was also a reaction
to the growing continental mobilization of indigenous peoples’ social movements, which
reached its apogee in 1992, centring on rejection of official celebrations of the Spanish quincentenary
(Bengoa 2008; Brysk 2000; Stavenhagen 2002). ILO 169 establishes the obligation
on states party to the convention to protect and promote the social, economic and cultural
rights of indigenous peoples who live within their national territories, respecting their social
and cultural identity and their specific customs, traditions and institutions. Amongst its most
important articles are those stating that indigenous peoples have a right to make decisions
about development projects that affect them6
and to be adequately consulted about these prior
to their approval and initiation.7
The promise of ‘prior consultation’ subsequently became a
Rachel Sieder
416
Handbook of Indigenous
Peoples’ Rights; edited by Corinne Lennox and Damien Short
Format: Pinched_Crown (174 × 246 mm); Style: Handbook_2; Font: Bembo;
Dir: //ukfs11/Bks_Production/Frontlist Production Teams/eProduction/Live Projects/
9781857436419/DTP/9781857436419_text.3d;
lightning rod for indigenous mobilizations against the operations of extractive development
industries in their historic territories.
Although the constitutional changes approved in Latin American countries during the 1990s
varied in the degree to which they recognized indigenous rights, all were profoundly influenced
by ILO 169 (Assies et. al. 1999; Sieder 2002; Van Cott 2000; Yrigoyen 2011). This first phase of
multicultural constitutional reforms has been interpreted by some authors as a means to try and
shore up the legitimacy of governments and as an extension of rights (Van Cott 2000). Others
have viewed the turn to multicultural constitutions and policies as a new form of regulation that
reflects contemporary forms of neo-liberal rule (Hale 2004; Hernández et al. 2004). Certainly
these constitutional changes led to a wave of policy measures across the continent in fields such
as health and education aimed specifically at indigenous people. These measures were supported
by the Inter-American Development Bank and the World Bank (Plant 2002; Davis 2002;
Andolina et al. 2010). In some countries these reforms and programmes opened important
spaces for indigenous professionals to participate in the elaboration and implementation of
public policies, creating new institutions such as the Project for the Development of Indigenous
Peoples and Afro-Ecuadorians in Ecuador, known as PRODEPINE (Andolina et al. 2010).
However, this first wave of reforms failed to respond fully to indigenous peoples’ demands that
their historic territories and livelihoods be protected.
In Ecuador and Bolivia, indigenous peoples’ mobilization and their incursion in electoral
politics contributed to a second round of ‘plurinational’ reforms in the 2000s, leading to the
approval of new constitutions in 2008 in Ecuador and 2009 in Bolivia. These ostensibly aimed
to ‘decolonize’ those nation-states, heralding more pluralist arrangements recognizing greater
degrees of political and legal autonomy for indigenous peoples. They even incorporated Kichwa
and Aymara concepts of ‘good living’ (‘buen vivir’) into the constitutions, which presuppose
forms of development premised on harmony with different ecosystems. Yet despite the new
constitutions the left-of-centre governments of Rafael Correa and Evo Morales continued to
pursue extractivist models of economic development premised on the exploitation of natural
resources including oil, minerals, water and timber. Indigenous peoples’ organizations in both
countries have increasingly mobilized to oppose these development policies and protest their
impacts (Weinberg 2010). In February 2012 the National Confederation of Indigenous
Nationalities of Ecuador (CONAIE), the largest indigenous confederation in the country and
one of the strongest in Latin America, called on its members to increase their protests against the
Correa government in Ecuador following the approval in 2011 of a new mining law favouring
transnational corporations and the government’s continued support for oil exploration in the
Amazon region (Ortiz 2012). In Bolivia, massive protests in 2011 over government plans for the
construction of a transnational road through the protected Indigenous Territory of Isiboro
Sécure National Park (TIPNIS), home to the Moxeño, Yurakaré and Chimán indigenous
groups, led to clashes between protestors and police and an eventual suspension of the project
by the Morales administration (Chavez 2011). Subsequently, however, in February 2012 President
Morales approved a new law providing for consultation with TIPNIS inhabitants aimed
at securing approval from them to resume work on the controversial road project (Herrera
Farell 2012).
The Judicialization of Indigenous Claims
The limitations of the constitutional changes approved and the lack of official political will to
guarantee indigenous peoples’ rights in practice generated different responses. In some
Indigenous rights and law in Latin America
417
Handbook of Indigenous
Peoples’ Rights; edited by Corinne Lennox and Damien Short
Format: Pinched_Crown (174 × 246 mm); Style: Handbook_2; Font: Bembo;
Dir: //ukfs11/Bks_Production/Frontlist Production Teams/eProduction/Live Projects/
9781857436419/DTP/9781857436419_text.3d;
countries, such as Mexico, Guatemala and Colombia, indigenous peoples’ organizations turned
to strengthening de facto forms of territorial, political and legal autonomy: for example, the
autonomous Zapatista municipalities in the state of Chiapas, Mexico or the indigenous cabildos
in the northern Cauca region of Colombia (Baronnet et al. 2012; Padilla 2009). Indigenous
organizations have also invoked constitutional and international norms judicializing alleged
abuse of their collective rights. Issues including discrimination, control over territories and natural
resources, abuse of due process rights and systematic state violence against indigenous
peoples have all been contested in Latin American courts. The judicialization of indigenous
rights was particularly marked in Colombia during the 1990s (in part due to the extensive
guarantees established in the Consitution of 1991), and that country’s Constitutional Court
went the furthest in the region in establishing new jurisprudence guaranteeing their collective
rights (Rodríguez-Garavito and Arenas 2005; Sánchez Botero 2010). In other countries, however,
it was difficult to present legal appeals in defence of collective rights: constitutional formulations
for rights protections were often weak or imprecise, the status of international law
vis-à-vis domestic law was disputed by many jurists, effective support structures for legal
mobilization (Epp 1998) were not always in place, and mechanisms for presenting constitutional
writs or actions were restricted.8
Even when legal appeals were successfully mounted, the high
courts were usually less than receptive to indigenous peoples’ claims and in the rare instances
when they did find in their favour judgements were frequently unenforced in practice. For
example, in the case of the Yaqui tribe in Sonora, Mexico, whose rights to prior consultation
about illegal use of water resources on their historic territories have been repeatedly confirmed
by the Mexican Supreme Court with little or no practical effects to date.9
In the face of their limited success before national courts, indigenous peoples and their allies
have taken their claims to extranational forums such as the International Labour Organization
and the Inter-American Commission and Court.10
During the 2000s the Inter-American Court
of Human Rights developed its jurisprudence on the collective rights of indigenous peoples and
the obligations of the member states of the Inter-American human rights system to uphold
them in practice (Morris et al. 2009). A number of cases set important precedents, including
that of Awas Tingni vs. the State of Nicaragua (see Morel, this volume). The sentence of the Court
in August 2001 developed an ‘evolutionary interpretation’ of article 21 of the American Convention,
which protects property rights, extending this to include the communal property of
indigenous peoples administered according to their own forms of law (Anaya and Crider
1996; Rodríguez-Piñero 2007). Advances in the jurisprudence of the inter-American human
rights system are transforming the basis for the defence of indigenous peoples’ collective
rights in Latin America, with the Inter-American court’s decisions generally conforming to
the principles set out in the UNDRIP.11
However, although the decisions of the court
have set important legal precedents, in most instances governments have failed to respect
them in practice.
Consultation for Free, Prior and Informed Consent
One of the most contentious social and legal issues is that of prior consultation and consent
around development projects. ILO 169 states that indigenous peoples have the right to make
decisions about development projects that affect them (article 7.1), and to be adequately consulted
about these prior to their approval and initiation (article 15) (Carvajal et al. 2009; see also
Barelli, this volume). As the National Organization of Indigenous Peoples of Colombia (ONIC)
has stated, the objectives of consultation are (1) to protect the life and integrity of indigenous
peoples, avoiding the threats that can negatively affect them, provoking their cultural or physical
Rachel Sieder
418
Handbook of Indigenous
Peoples’ Rights; edited by Corinne Lennox and Damien Short
Format: Pinched_Crown (174 × 246 mm); Style: Handbook_2; Font: Bembo;
Dir: //ukfs11/Bks_Production/Frontlist Production Teams/eProduction/Live Projects/
9781857436419/DTP/9781857436419_text.3d;
extermination, and; (2) to ensure they participate effectively as full subjects of rights in processes
of decision making that affect them. Colombia’s Constitutional Court has identified prior consultation
as a fundamental right, deriving from the constitutional protections extended to the
cultural and ethnic identity of the country’s indigenous peoples (CEPAL 2014, 28). In a
stronger legal formulation, the UNDRIP sets out an emergent right of indigenous peoples to
decide their own forms of development (article 32.1), establishes that their free, prior and
informed consent (FPIC) must exist before the start of any project which will affect their territories
or resources (article 32.2), and that the impacts of economic development on indigenous
peoples must be mitigated or compensated for (article 32.3). Yet Latin American governments
have approved massive infrastructure projects and extended licenses or concessions to multinational
corporations to prospect for and exploit oil, minerals and other natural resources on
indigenous peoples’ ancestral lands without consulting them. For example, more than 75% of
the Peruvian Amazon is now effectively leased to the international oil industry; in Brazil more
than 250 hydroelectric dams are planned for development in the Amazon region, despite a lack
of adequate environmental safeguards or consultation with Amazonian indigenous peoples.12
Throughout the 2000s the promise of prior consultation became a lightning rod for indigenous
mobilizations against the operations of extractive development industries. Rights to free, prior
and informed consent were invoked in specific cases before the Inter-American human rights
system even prior to 2007, and the UNDRIP has become a point of reference in indigenous
organizations’ campaigns and attempts to generate national and regional jurisprudence in Latin
America (Morris et al. 2009). Long and bitter struggles have been waged before the courts over
what constitutes ‘prior informed consultation in good faith,’ for example, in Colombia surrounding
the struggle of the U’wa people to prevent oil exploitation on their territories
(Rodríguez-Garavito and Arenas 2005; Rodríguez-Garavito 2011), or in Guatemala by indigenous
peoples opposed to gold mining (Fulmer, Godoy and Neff 2008; Sieder 2007).
The jurisprudence of the Inter-American Court of Human Rights has begun to reflect the
substance of the UNDRIP, particularly with respect to the issue of prior consent. In the case of
the Saramaka people vs. Suriname, resolved in November 2007, the court stipulated that the
state is obliged not adopt any measure without the consent of the community.12
In its landmark
2012 judgment on the case of the Kichwa indigenous people of Sarayaku vs. Ecuador,13
the
Court analysed developments in international norms and jurisprudence and concluded that the
obligation on states to consult with indigenous peoples is now a general principle of international
law. In its ruling the Court set out the minimal standards for free, prior and informed
consent (FPIC), including: (1) states must actively consult and must inform; (2) consultations
must be carried out in accordance with the customs and traditions of the communities affected;
(3) consultations must be carried out in good faith, through culturally adequate procedures with
the expressed purpose of reaching an agreement; (4) consultation should be effected in the first
stages of a development or investment plan, and not simply when the need arises to obtain the
community’s consent; (5) the state must ensure that the members of a people or community are
aware of the possible benefits and risks of the proposed development.14
In the hope of defusing and controlling increasing socio-environmental conflicts involving
indigenous people, Latin American governments opted to draft legislation and administrative
guidelines to regulate processes of prior consultation (Rodríguez-Garavito 2011). For example,
the Peruvian government adopted a Law of the Right to Consultation in 2011, following the
massacre in June 2009 at the town of Bagua involving indigenous protests against oil exploitation
in the Peruvian Amazon. However, legislation alone has not solved the problem: state
authorities tend to emphasize procedural aspects and define the content of the right to consultation
without reference to indigenous peoples or the international standards set out in ILO
Indigenous rights and law in Latin America
419
Handbook of Indigenous
Peoples’ Rights; edited by Corinne Lennox and Damien Short
Format: Pinched_Crown (174 × 246 mm); Style: Handbook_2; Font: Bembo;
Dir: //ukfs11/Bks_Production/Frontlist Production Teams/eProduction/Live Projects/
9781857436419/DTP/9781857436419_text.3d;
169, the UNDRIP and the jurisprudence of the Inter-American Court. Funds allocated are
often insufficient to ensure meaningful processes of consultation; information and transparency
are insufficient; and confusion often persists about which public institutions are responsible for
ensuring the consultations are carried out. At the same time private actors and state police and
army forces continue to use systematic violence to quell protests; villagers, indigenous rights
activists, human rights defenders and environmental campaigners are regularly assassinated,
beaten, detained or jailed when they try to defend the rights of communities.
Future Prospects
Indigenous peoples’ rights are by their very nature indivisible and collective. Respect by governments
for such rights means not only implementing policies to tackle marginalization and
discrimination, or recognizing cultural rights, but also involves profound questioning of the
dominant models of political organization and economic development. This explains why the
collective rights of indigenous peoples are so controversial and why governments repeatedly
continue to violate them, despite proclaiming their commitment to improving conditions for
their indigenous citizens.
Evidently normative advances in national, regional and international law affirming the collective
rights of indigenous peoples have been an important element in their struggles for
inclusion and respect for their cultural difference. These legal changes are in large part a consequence
of decades of indigenous struggle and lobbying at the grassroots, nationally and
internationally. Yet constitutional provisions without secondary legislation and coherent technical
rules, and economic development policies that conflict with measures for protection of
indigenous lands, mean proclamation of indigenous rights are empty promises. Law alone
cannot resolve indigenous peoples’ multiple claims, and legal mobilization is only one aspect of
their broader political strategies. Given the globalized nature of economic development, securing
guarantees for indigenous peoples’ collective rights will require action not just within
nation-states but also internationally. However, effective international action to guarantee
indigenous rights does not exist, and recent developments in Latin America suggest that resistance
to indigenous claims on land and natural resources is only likely to become more
entrenched in the forthcoming period.
Notes
1 An earlier version of this essay was published in César Rodríguez-Garavito (ed.) El derecho en América
Latina: los retos del siglo XXI, Buenos Aires: Siglo XXI, 2011.
2 UN Declaration on the Rights of Indigenous Peoples, article 3: ‘Indigenous peoples have the right to
self-determination. By virtue of that right they freely determine their political status and freely pursue
their economic, social and cultural development’, www.un.org/esa/socdev/unpfii/documents/
DRIPS_en.pdf (accessed March 2012).
3 ‘In the south many tribes such as the Guarani live in appalling conditions under tarpaulin shacks along
the roadside. Their leaders are being systematically targeted and killed by private militias of gunmen
hired by the ranchers to prevent them occupying their ancestral land.’ Survival International, at www.
survivalinternational.org/tribes/brazilian (accessed 16 May 2015).
4 The Guarani-Kiowah people in the state of Mato Grosso do Sol, Brazil, had a suicide rate of thirty
times the national average in 1995 (Valenta 2003, 654).
5 Estimates for indigenous population vary considerably and are hotly contested: the widely cited 1994
study on indigenous poverty by Pscharopoulos and Patrinos estimated an indigenous population of 34
million or 8% of the region's population. In 2005 an Inter-American Development Bank document
cited in Perafan and Moyer (2006) estimated some 52 million people, or 11% of the population. The
Rachel Sieder
420
Handbook of Indigenous
Peoples’ Rights; edited by Corinne Lennox and Damien Short
Format: Pinched_Crown (174 × 246 mm); Style: Handbook_2; Font: Bembo;
Dir: //ukfs11/Bks_Production/Frontlist Production Teams/eProduction/Live Projects/
9781857436419/DTP/9781857436419_text.3d;
more recent 2010 CEPAL study cited here estimates 45 million people or 8% of the total Latin
American population.
6 Article 7 (1) of the Convention establishes that ‘The peoples concerned shall have the right to decide
their own priorities for the process of development as it affects their lives, beliefs, institutions and
spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent
possible, over their own economic, social and cultural development. In addition, they shall participate
in the formulation, implementation and evaluation of plans and programmes for national and regional
development which may affect them directly’, at www.ilo.org/ilolex/cgi-lex/convde.pl?C169
(accessed March 2012).
7 Article 15 of the Convention states that ‘1. The rights of the peoples concerned to the natural
resources pertaining to their lands shall be specially safeguarded. These rights include the right of these
peoples to participate in the use, management and conservation of these resources. 2. In cases in which
the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining
to lands, governments shall establish or maintain procedures through which they shall consult
these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced,
before undertaking or permitting any programmes for the exploration or exploitation of such
resources pertaining to their lands. The peoples concerned shall wherever possible participate in the
benefits of such activities, and shall receive fair compensation for any damages which they may sustain
as a result of such activities’, at www.ilo.org/ilolex/cgi-lex/convde.pl?C169 (accessed March 2012).
8 In Colombia, for example, presenting an acción de tutela is relatively straightforward and low cost,
whereas in Mexico the obstacles to presenting an amparo are numerous (Cepeda 2005; Domingo
2005)
9 See Alejandra Leyva, ‘Una sentencia fallida: el caso de la Tribu Yaqui’, Animal Politico, 16 March 2015,
at www.animalpolitico.com/blogueros-verdad-justicia-reparacion/2015/03/16/una-sentencia-fallidael-caso-de-la-tribu-yaqui/
(accessed 7 May 2015).
10 See Sieder 2007; Fulmer et al. 2008; Sierra et al. 2013; Padilla 2009.
11 Pasqualucci argues that until 2009 at least, the Inter-American Court charted a middle ground in the
area of state expropriation of natural resources on indigenous ancestral lands, allowing the State some
residual rights in the development of those resources to the detriment of the indigenous peoples (2009, 54).
12 ‘Amazonian Tribes Unite to Demand Brazil Stop Hydroelectric Dams’’, Jonathan Watts, The Guardian,
(30 April 2015), at www.theguardian.com/world/2015/apr/30/amazonian-tribes-demand-brazilstop-hydroelectric-dams
(accessed 7 May 2015).
13 The Court ruled that ‘[the state of Suriname must] adopt legislative, administrative and other measures
necessary to recognize and ensure the right of the Saramaka people to be effectively consulted, in
accordance with their traditions and customs, or when necessary, the right to give or withhold their
free, informed and prior consent, with regards to development or investment projects that may affect
their territory, and to reasonably share the benefits of such projects with the members of the Saramaka
people, should these be ultimately carried out. The Saramaka people must be consulted during the
process established to comply with this form of reparation. The State must comply with this reparation
measure within a reasonable time,’ Saramaka People v. Suriname, Judgment of 28 November 2007,
Series C No. 172, art.194 (d) p. 57.
14 In 1996 the Ecuadorian government authorized operations by Argentine oil company CGC in the
Ecuadorian Amazon, in the ancestral lands of the Sarayaku people. In 2003 representatives of the
Sarayaku presented their case to the Inter-American Commission, alleging that the Ecuadorian state
had violated their rights to prior consultation.
References
Anaya, S. J., 2004. Indigenous Peoples in International Law, 2nd edn, New York: Oxford University Press.
Anaya, S. J., 2009. International Human Rights and Indigenous Peoples. New York: Aspen.
Anaya, S. J. and Crider, T., 1996. ‘Indigenous Peoples, the Environment, and Commercial Forestry in
Developing Countries: The Case of Awas Tingni, Nicaragua’, Human Rights Quarterly 18: 345.
Andolina, R., Laurie, N. and Radcliffe, S. A., 2010. Indigenous Development in the Andes. Durham, NC:
Duke University Press.
Assies, W., van der Haar, G. and Hoekema, A. (eds) 1999. El reto de la diversidad. Pueblos indigenas y reforma
del estado. Zamora, Mexico: Colegio de Michoacán.
Indigenous rights and law in Latin America
421
Handbook of Indigenous
Peoples’ Rights; edited by Corinne Lennox and Damien Short
Format: Pinched_Crown (174 × 246 mm); Style: Handbook_2; Font: Bembo;
Dir: //ukfs11/Bks_Production/Frontlist Production Teams/eProduction/Live Projects/
9781857436419/DTP/9781857436419_text.3d;
Baronnet, B., Mora, M. and Stahler-Sholk, R., (eds) 2012. Luchas ‘muy otras’: Zapatismo y autonomía en las
comunidades indígenas de Chiapas. Mexico City: Universidad Autonoma Metropolitana/CIESAS.
Bengoa, J., 2008. La emergencia indígena en América Latina. Santiago de Chile: Siglo XXI.
Brysk, A., 2000. From Tribal Village to Global Village: Indian Rights and International Relations in Latin America.
Stanford, CA: Stanford University Press.
Carvajal, A., Cobaría, R., Colmenares Olivar, R., Cruz Rueda, E., Estrada Cordero, J. C., Furaguro, J.,
Gamboa Balbín, C., Garreta, A., Garreta, M. E., Herrera, E., Iguarán, R., Imbachi, E., Jiménez, B.,
Magdaniel, C., Marín, L., Muñoz, H., Patiño, G., Quispe, C., Román, T., Saavedra Galindo, A. M.,
Sánchez Botero, E., Uncacías, I., Uncaría, W., Vallejo Reyes, P., van der Sandt, J., Yagari, G. and
Yrigoyen Fajardo, R., 2009. Consulta Previa. Experiencias y Aprendizajes. Bogota: ICAH/ANH.
CEPAL, 2014. Los pueblos indígenas en América Latina: avances en el último decenio y retos pendientes para la
garantía de sus derechos. Santiago de Chile: CEPAL.
Cepeda, M. J., 2005. ‘The Judicialization of Politics in Colombia: The Old and the New’, in Sieder, R.,
L. Schjolden and A. Angell (eds), The Judicialization of Politics in Latin America. New York: Palgrave: 67–103.
Davis, S., 2002. ‘Indigenous Peoples, Poverty and Participatory Development: The Experience of the
World Bank in Latin America’, in Sieder, R., Multiculturalism in Latin America: Indigenous Rights, Diversity
and Democracy. New York: Palgrave: 227–250.
Domingo, P., 2005. ‘Judicialization of Politics. The Changing Role of the Judiciary in Mexico’, in Sieder,
R., L. Schjolden and A. Angell (eds), The Judicialization of Politics in Latin America. New York: Palgrave:
21–46.
Epp, C. R., 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective.
Chicago, IL: University of Chicago Press.
Finnemore, M. and Sikkink, K., 1998. ‘International Norm Dynamics and Political Change’, International
Organization 52: 887–917.
Fulmer, A., Godoy, A. and Neff, P., 2008. ‘Rights, Resistance, and the Law: Lessons from a Guatemalan
Mine’, Latin American Politics and Society 50: 91–121.
Goodale, M., 2008. Dilemmas of Modernity: Bolivian Encounters with Law and Liberalism. Stanford, CA:
Stanford University Press.
Hale, C., 2004. ‘Rethinking Indigenous Politics in the Era of the ‘Indio Permitido’, NACLA Report on the
Americas 38: 16–37.
Hernández, A., Sierra, M. T. and Paz, S. (eds), 2004. El Estado y los indígenas en tiempos del PAN:
neoindigenismo, legalidad e identidad. Mexico: CIESAS/Porrua.
Herrera Farell, G., 2012. ‘A New Battle is Looming in TIPNIS’, Latinamerica Press’, 24 February, at www.
lapress.org/articles.asp?art=6565 (accessed 16 March 2012).
Morris, M., Garavito, C. R., Salinas, N. O. and Buriticá, P., 2009. La consulta previa a pueblos indígenas: los
estándares del derecho internacional. Bogota: Universidad de los Andes.
Ortiz, G., 2012. ‘Indigenas llaman a levantarse contra Correa’, Inter Press Service, at http://ipsnoticias.net/
nota.asp?idnews=94834 (accessed 16 March 2012).
Padilla, G., 2009. ‘Ingobernabilidad Nacional y Gobierno Local. El caso de la Asociación de Cabildos
Indígenas del Norte del Cauca, Colombia’, unpublished paper on file with author.
Pasqualucci, J.o M., 2009. ‘International Indigenous Land Rights: A Critique of the Jurisprudence of the
Inter-American Court of Human Rights in Light of the United National Declaration on the Rights of
Indigenous Peoples’, Wisconsin International Law Journal 27(1): 51-98..
Perafan, C. and Moyer, D., 2006. ‘The Indigenous Challenge’, in World Energy Book No.2, The World
Energy Council, at www.petroleum-economist.com web/pdf/section3_LAC.pdf (accessed February
2010).
Plant, R., 2002. ‘Latin America’s Multiculturalism: Economic and Agrarian Dimensions’, in Sieder, R.,
Multiculturalism in Latin America: Indigenous Rights, Diversity and Democracy. New York: Palgrave: 208–
226.
Psacharopoulos, G.and Patrinos, H. A. (eds), 1994. Indigenous People and Poverty in Latin America: An
Empirical Analysis. Washington, DC.: The World Bank.
Rodríguez-Garavito, C., 2011. ‘Ethnicity.gov: Global Governance, Indigenous Peoples, and the Right to
Prior Consultation in Social Minefields’, Indiana Journal of Global Legal Studies 18: 263.
Rodríguez-Garavito, C. and Arenas, L. C., 2005. ‘Indigenous Rights, Transnational Activism, and Legal
Mobilization: The Struggle of the U’wa People in Colombia’, in Rodriguez-Garavito, César and Boaventura
de Sousa Santos (eds), Law and Globalization from Below: Towards a Cosmopolitan Legality. New
York: Cambridge University Press: 241–266.
Rachel Sieder
422
Handbook of Indigenous
Peoples’ Rights; edited by Corinne Lennox and Damien Short
Format: Pinched_Crown (174 × 246 mm); Style: Handbook_2; Font: Bembo;
Dir: //ukfs11/Bks_Production/Frontlist Production Teams/eProduction/Live Projects/
9781857436419/DTP/9781857436419_text.3d;
Rodríguez-Piñero, 2007. ‘La internacionalización de los derechos indígenas en América Latina: el fin de
un ciclo?’ in Puig, S. M. I. (ed.), Pueblos Indigenas y Politica en America Latina. Barcelona: CIDOB: 181–199.
Sánchez Botero, E., 2010. Justicia y Pueblos Indígenas de Colombia. La tutela como medio para la construcción del
entendimiento intercultural, 3rd edn, Bogota: UNIJUS.
Sieder, Rachel (ed.), 2002. Multiculturalism in Latin America: Indigenous Rights, Diversity and Democracy. New
York: Palgrave.
Sieder, R., 2007. ‘The Judiciary and Indigenous Rights in Guatemala’, International Journal of Constitutional
Law 5: 211–241.
Sierra, M. T., Castillo, A. H. and Sieder, R. (eds) forthcoming. Globalización, Justicia y Derechos Indígenas
desde una Perspectiva de Género y Poder: Una propuesta comparativa. Mexico: CIESAS.
Sierra, M. T., Hernández, R. A. and Sieder, R. (eds), 2013. Justicias indígenas y Estado: Violencias contemporáneas.
México: FLACSO/CIESAS.
Sikkink, K., 2005. ‘The Transnational Dimension of the Judicialization of Politics in Latin America’, in
Sieder, R., Schjolden, L. and Angell, A., (eds), The Judicialization of Politics in Latin America. New York:
Palgrave, 263–292.
Stavenhagen, R., 2002. ‘Indigenous People and the State in Latin America: An Ongoing Debate,’ in
Sieder, Rachel (ed.), Multiculturalism in Latin America: Indigenous Rights, Diversity and Democracy. New
York: Palgrave: 24–44.
United Nations Development Programme (UNDP), 2009. The State of the World’s Indigenous Peoples. New
York: United Nations.
Van Cott, D. L., 2000. The Friendly Liquidation of the Past. Pittsburgh: University of Pittsburgh Press.
Weinberg, B., 2010. ‘New Water Wars in Bolivia: Climate Change and Indigenous Struggle’, NACLA
Report on the Americas 43: 19–24.
Yrigoyen, R., 2011. ‘Derecho y jurisdicción indígena en la historia constitucional: De la sujeción a la
descolonización’, in Rodríguez-Garavito, C. (ed.), El derecho en América Latina: los retos del siglo XXI.
Buenos Aires: Siglo XXI: 139–159.
Indigenous rights and law in Latin America
423