My recent trip to Bolivia, in the midst of indigenous demonstrations insupport of the indigenous government, under attack once again by thestrong powers of whites and mestizos, pushes me to continue reflectingon legal relativism, especially considering that in the Bolivian casethe majority of population, both in the fields and in the city, areindigenous. And since the Bolivian case is not the only one in LatinAmerica with a more or less numerous presence of indigenous peoples, itis worth considering the content of some constitutions of this continentthat are interested in the topic, in response to the more or lessmassive presence of indigenous populations , and whose representativesparticipated to varying degrees in their drafting, except in the case ofNicaragua, when their rights were defended by intellectuals andanthropologists. And let's start precisely from this last case, with theNicaraguan constitution drawn up in 1987, in the midst of the Sandinistarevolution. The date is important, not only for the Sandinista seizureof power in 1979, overthrowing the Somoza dictatorship, but also for theelaboration in Barbados in 1971 by indigenous people and anthropologistsof the basis of the indigenous struggles in Latin America in thefollowing years. In its fifth article, the Nicaraguan constitutionrecognized the existence of indigenous populations in the country (whichSomoza had silenced), reaffirming the right to maintain their cultureand identity, "hold its own forms of social organization and administerits local assumptions ", as well as recognizing community ownership oflands. Furthermore, with a subsequent correction, it also recognized theterritorial autonomy of the indigenous Miskitos of the Atlantic coast.This is an important recognition, even if the reference to "localassumptions" is very generic, but at that moment there was the illusionthat the informal rules of law and justice were also included. This isan important precedent, even if largely disregarded in its contents,above all due to the authoritarian drift of the Sandinista governmentwhich ended up not recognizing the indigenous rights granted by theconstitution, as well as most of those concerning the population in general.In the following ten years, indigenous struggles in defense of theirrights multiplied, with alternating episodes of repression and localvictories, even if minimal, so much so that when in 1998, after two coupattempts, Hugo Chávez won the elections and called an assemblyconstituent, the new constitution, which came into force through apopular referendum in December 1999, contains extensive references tothese populations, even if their presence in Venezuelan territory doesnot exceed five percent of the population. Already in the preamble itshistorical importance is announced, alongside Bolivar, the foundingfather, recalling "the heroism and sacrifice of our aboriginalancestors". Certainly this reference could have been reduced to arhetorical historical recognition of resistance against theconquistadors, as had happened in Mexico (such as: "the best native isthe dead one"), but this was not the case, considering that in the samepreamble the new characteristics of the state, including the intentionto "refound the republic to establish a democratic... multi-ethnic andpluri-cultural society", unprecedented characteristics in the LatinAmerican constitutional panorama. Consistent with this premise, in theVenezuelan constitution, also produced in a period self-considered"revolutionary", indigenous people are widely present, with in additiona specific article entitled "On the rights of indigenous peoples"(articles 119 to 125 and , above all, the 260).In the seven articles dedicated to indigenous people, the recognition oftheir existence is repeated, which shows that in fact many states stilldo not do so, and the need to respect "their social, political andeconomic organisation, their cultures, customs and customs, languagesand religions", as well as the right to have recognized communityownership of their "ancestral lands", to be demarcated with thecollaboration of the indigenous people themselves. Added to this is alsothe "right to maintain and develop one's ethnic and cultural identity,worldview, values, spirituality and its sacred places and places ofworship". This reference is important, since in the subsequentdemarcation of the lands, the sacred "places" ended up multiplying,given that the indigenous people used them to expand the historicallyunrecognized and reduced territorial limits, generating endlessconflicts with the whites who had occupied them illegally. (afterChávez's death, the demarcation stalled). Finally, an important noveltyin the Latin American constitutional panorama: "The collectiveintellectual property of the knowledge, technologies and innovations ofindigenous peoples is guaranteed and protected. All activities relatedto genetic resources and associated knowledge will pursue collectivebenefits. The registration of patents on these ancestral resources andknowledge is prohibited" (Article 124). The importance of this defensecannot be overlooked if we consider the exploitation that the largepharmaceutical industries have made of indigenous medical and botanicalknowledge.In this context, Article 260 takes on a form of exemplary legalrelativism: "The legitimate authorities of indigenous peoples may applydemands for justice in their habitat based on their ancestral traditionsand which concern only their members, according to their own rules andprocedures ". During the discussion in the 1998 constituent assembly,this article was a source of controversy and protests on the part of thenon-indigenous lawyers and constitutionalists present in the chamber andthe pressure was so great that a final codicil was added: everythingabove will be possible, provided that those traditional norms "are notcontrary to this constitution, law and public order. The law willdetermine forms of coordination of this special jurisdiction with thenational justice system." In this way, the disruptiveness of recognitionwas limited to minor cases of transgressions, such as thefts, while"major crimes" fell within the jurisdiction of the national justicesystem. What happened in practice? Not much, except in the case of theWayuu, one of the most important indigenous peoples of Venezuela andColombia (their territory is on the border between the two states),which during its long history has produced a complex and functioningsystem of conflict resolution between the clans, entrusting thesettlement of disputes to a specialized "speaker", also deciding theprice to pay to resolve them once the person or group responsible hasbeen identified. As long as it involved arguments and thefts, the systemworked and the state did not intervene, but when someone died and someindigenous or white person filed a complaint with the Venezuelan police,then the national legal system imposed itself. Conclusion: legalrelativism yes, but only when the state decides that it is okay!However, the Venezuelan case, beyond its limits, has become an examplefor those countries where the left or, in general, progressive groupshave taken power through elections. In a future intervention, I willextend the analysis to the cases of Bolivia and Mexico, the lattercountries with an important indigenous presence in their territories,together with some references to the current Colombian and Chileansituation.Emanuele Amodiohttps://www.sicilialibertaria.it/_________________________________________A - I N F O S N E W S S E R V I C EBy, For, and About AnarchistsSend news reports to A-infos-en mailing listA-infos-en@ainfos.ca
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