The Struggle Between Indigenous Folkways and National Law: Resolving the Past and the Present

Over the last twenty years, almost all applicable Latin American countries have been moving toward full recognition of their multiethnic citizenship. Peru codified indigenous rights in 1993, Ecuador legalized them in 1998, and Bolivia passed a new constitution including embedded indigenous rights in 2009. However, despite a favorable movement in the direction of increased equality for indigenous peoples, an opposing trend of violence and discrimination has persisted between the state and indigenous populations in these three countries. Last year in Bagua, Peru, for example, a violent clash occurred between indigenous protesters and the national police, resulting in thirty-four deaths and one hundred wounded. In Ecuador, an indigenous group recently prosecuted a man for murder, punishing him with public humiliation and beatings, a sentence many Europeanized Ecuadorians saw as barbaric. In May, indigenous peoples lynched four police officers in the Amazonian region of Bolivia. As these three cases show, the lack of a clearly defined process to mediate often hostile interactions between indigenous custom and Western law has left room for tension, conflict, and violence to brew between indigenous people and the state. Thus, national laws concerning the links between indigenous and state justice must be better developed to prevent conflict and human rights abuses from breaking out.

Indigenous Law and National Constitutions

Defining indigenous justice is a complex issue because each of the many different indigenous groups in Latin America has its own customary laws. The ever-changing nature of oral tradition further complicates such a definition. Rachel Sieder, author and senior lecturer in Latin American politics at the University of London, points out that “indigenous law is dynamic, not fixed, and often there is internal contention about its nature.” This constant change makes it difficult to create a definition which would help modern governments decide what does and what does not constitute indigenous justice. Guisela Mayén, as quoted in the Latinamerica Press, describes indigenous law as “a series of unwritten oral principles that are abided by and socially accepted by a specific community.” She goes on to state that “indigenous law aims to restore the harmony and balance in the community…whereas the Western system seeks punishment.” Compensation for wrongdoing in indigenous communities usually takes the form of community service or some type of finite retribution made available to the victims. Indigenous law, while practiced somewhat differently by each group, is almost always based on principles of oral tradition and community consensus.

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This analysis was prepared by COHA Research Associate Abigail Griffith