Pye, Geralyn --- "Latin America: Something Positive in Mexico? The Law of Indigenous Communities and Peoples' Rights in Oaxaca" [1999] IndigLawB 74; (1999) 4(23) Indigenous Law Bulletin 28

Something Positive in Mexico?

The Law of Indigenous Communities and Peoples’ Rights in Oaxaca

by Geralyn Pye

On 1 January 1994, an indigenous militia called the Zapatista Army for National Liberation (‘EZLN’) took over several towns in the Mexican state of Chiapas. The Zapatistas are a small guerrilla group supported by indigneous and non-indigenous peoples in southern Chiapas. Their armed uprising was a protest against inequitable land holding patterns, a lack of political will to recognise indigenous rights, state and death squad violence against peasants and the lack of substantive democracy in Mexico as a whole. Shortly after the takeover, a truce was declared and a series of negotiations and agreements were undertaken between the EZLN and the Mexican government.^[1] One of these agreements, the San Andres Peace Accord (‘the Accords’) has national significance and strongly supports indigenous interests.

The EZLN’s actions drew the attention of the world and especially of those with an interest in Latin America and indigenous concerns to this once little known south-eastern corner of Mexico. While this attention has concentrated on the EZLN and Chiapas, some important legal developments have occurred in the neighbouring state of Oaxaca.^[2]

This article will compare those parts of the Accords which deal with indigenous peoples and communities with the constitutional and statutory reforms in the state of Oaxaca. These reforms incorporate some, but not all, of the proposals in the Accords. The recognition of some indigenous rights, if not their full implementation, in La Ley de Derechos de los Pueblos y Comunidades Indígenas de Oaxaca (‘the Law on Indigenous Communities and Peoples’ Rights of Oaxaca’) shows that governments do have alternatives to the violent counterguerilla strategy^[3] that has been adopted by the central Mexican government in the face of the challenge issued by the Zapatistas in Chiapas.^[4] On the other hand, the still incomplete reform in Oaxaca shows that counter-reform remains possible. Therefore, in addition to global support for a non-violent resolution of the Chiapan conflict, support and publicity for the positive developments in Oaxaca is necessary.

The San Andres Peace Accords

As noted above, the Accords were part of wider peace negotiations between the EZLN and the Mexican Government, which occurred in the years following the EZLN’s coup in 1994.

The Accords reflect the demands of the Zapatistas’ supporters. Under the Accords, these demands were to be sent to federal decision-makers for debate – this has not happened.^[5] All five chapters of the San Andres Accords make specific reference to indigenous peoples, indicating the importance of indigenous demands for the Zapatistas. The introductory chapter calls for ‘a profound transformation of the state’.^[6] Such a transformation should lead to a new social agreement which recognises the plurality of Mexican society and under which the contribution made by indigenous peoples which could form a basis for the acknowledgment of their rights, especially their right to self-determination and autonomy. Articles 3 and 4 call for a basic recognition of the equality of all Mexicans and the necessity for constitutional and legal reform to make this equality a genuine reality for indigenous peoples in Mexico.^[7]

Chapter II of the Accords is lengthy and crucial. It details what is meant by the terms self-determination and autonomy. In essence this meaning is laid out in Article 2 of Chapter II, which states that:

Autonomy is the concrete expression of the right to self-determination, within the framework of membership of the National State. The indigenous peoples shall be able, consequently, to decide their own form of internal government as well as decide their way of organizing themselves politically, socially, economically and culturally.^[8]

Under the Accords, autonomy also includes recognition of indigenous territory, control over natural and State allocated resources, and the possibility of the voluntary redistribution of indigenous municipal boundaries.^[9]

In addition to this fundamental framework for indigenous autonomy, Chapter III of the Accords calls for: increased political participation and representation; guaranteed access to justice; recognition of indigenous judicial practices and norms; knowledge and respect of indigenous cultures and languages; indigenous access to, and input into, free quality bilingual education; provision of basic needs; respect for indigenous forms of production and employment; protection for migrant indigenous people, both within Mexico and in other countries; control of their own means of communication; provision of independent radio stations for indigenous communities and, finally, the right to utilise indigenous languages in the media.

Clearly, the implementation of these extensive demands would represent a monumental achievement for indigenous peoples in Mexico. Perhaps conscious that it would be unlikely that all of these demands would be met, the EZLN included some broad principles for establishing a new relationship between the state and the Mexican people. These principles include: pluralism; self-determination and autonomy for indigenous peoples; environmental sustainability; consultation and accord and the decentralisation of power and resources from federal to municipal governments, including indigenous municipalities.^[10] Finally, the Accords include nine articles in Chapter V calling for specific constitutional and legal reforms. These are:

(a) To legislate on the autonomy of the indigenous communities and towns...



(b) To legislate to ‘guarantee the protection of the integrity of the lands belonging to indigenous groups,’ ...



(c) ...to install a preferential order that privileges the indigenous communities in the granting of concessions in order to reap the benefits of the exploitation and use of natural resources;



(d) Legislate on the rights of the indigenous people, men and women, to have representatives in the legislative entities ...



(e) Legislate on the rights of the indigenous towns to elect their own authorities and to exercise authority according to their internal norms ...



(f) ... to take into consideration the pluri-cultural nature of the Mexican Nation that may be reflected in intercultural dialogue ...



(g) ... not to discriminate on the basis of racial or ethnic origin, language, gender, beliefs or social condition...



[ensure] ... the rights of the indigenous towns to the protection of their sacred sites and ceremonial centers, and the use of plants and animals ...



(h) To legislate so that no form of coercion may be exercised against the individual guarantees and the specific rights and freedoms of the indigenous towns; and



(i) Legislate for the rights of the indigenous towns to the free exercise and development of their cultures and their access to means of communication’.^[11]

Obviously, had the Accords been implemented or had the Oaxacan reforms been on this extensive scale, worldwide publicity would have ensued. Yet the Accords do lay a solid basis for addressing indigenous peoples’ concerns. Some of the elements detailed in the Accords are recognised in the various legal reforms which have occurred in the state of Oaxaca over the last ten years.

Law of Indigenous Communities and Peoples of Oaxaca

After a period of debate and indigenous political mobilisation, the reform process in Oaxaca has included substantive constitutional change. First, in 1990, the amendment of Article 4 of the state constitution recognised communal work (tequio) and the right to trial in one’s indigenous language. In 1997, the enactment of Article 25 of the State Constitution established

... respect for the traditions and democratic practices of the indigenous communities’ of Oaxaca. This reform merely gave formal recognition to a long-standing practice in many of the 400-plus indigenous communities which make up the majority of the State’s 570 municipalities.^[12] Unfortunately, the Oaxacan State Government has recently moved to institute electoral laws at the national level which would override traditional indigenous practices.^[13]

As part of the ongoing reform process, the state passed an act decentralising decisions over land boundary disputes, political customs, public security and budget allocations from a federal to a community level in 1994.^[14] In 1995 it passed legislation allowing communities to use either their own practices or direct, secret elections to choose municipal authorities.^[15]

In 1996, over a period of more than three months, indigenous peoples in Oaxaca took part in the widest consultations on indigenous rights that had ever occurred in the history of Mexico.^[16] Finally, on 21 March 1998, the enactment of the Law on Indigenous Communities and Peoples’ Rights of Oaxaca formally recognised indigenous autonomy, indigenous land rights (whether held individually or communally) and self-determination. Self-determination was defined as the right of communities to make their own decisions according to their own worldview and to control their natural resources, lands, socio-political organisation, administrative justice, education, language, health and culture.^[17] The legal recognition of indigenous practices and rights has been described by one commentator as part of a process of internal decolonisation of Oaxaca’s indigenous peoples.^[18]

Nevertheless, because the reforms involve recognition rather than authorisation (as called for in the Accords) there is still a risk of counter-reform. This threat was made manifest on 24 February 1997 when the State executive moved to reform Article 29 of the Oaxacan Constitution.^[19] The proposed reform would require municipal elections to be conducted on the basis of universal suffrage in direct and secret ballot rather than by traditional practice. Furthermore, the reform bill proposed that there be no intermediary body between the elected municipal council and state authorities, thus diminishing the powers of local councils. While such a proposal might appear democratic, Mixe indigenous practices (while they might not be without their own faults) call for communal assemblies, for authorities to have fulfilled communal responsibilities (eg tequios), and for consensual decision-making which rejects such standard Mexican election activities as the taking and occupation of municipal buildings. ^[20]

Yet, in spite of the difficulties – including a slow timetable and the possibility of the election of a new State government less sympathetic to indigenous concerns - the reforms in Oaxaca not only recognise indigenous culture and rights, but also move towards defining key concepts such as autonomy, territory, people, community, individual and social rights and the norms of indigenous practices.^[21] While the San Andres Peace Accords seek a great leap forward for indigenous peoples in Mexico, the Law on Indigenous Communities and Peoples’ Rights of Oaxaca signals a small, yet concrete step for some of Mexico’s original custodians.

Geralyn Pye is a lecturer at the School of Political and International Studies, The Flinders University of South Australia.

^[1] Concluded in 1996 but so far not implemented.

^[2] One must understand the importance of patterns of landholding and the (related) continuous underground strength of indigenous autonomy in Oaxaca. These two factors are based in part on that State’s more trade based (rather than production based) economy which has created an environment of relatively less competition between indigenous and non-indigenous peoples in Oaxaca as compared to other regions in Mexico, and most notably compared to Chiapas with its large production based economy. A further element in comprehending the contextual variations between Oaxaca and Chiapas is the greater impact that neo-liberal reforms in Chiapas have had on the hopes of indigenous peoples (and others) of retaining or obtaining land. In contrast to Chiapas, indigenous peoples in Oaxaca have been able to retain much of their traditional lands. This information is drawn from my unpublished paper ‘Indigenous Political Mobilization in Mexico: A Comparison of Chiapas and Oaxaca’ (1998).

^[3] Sadly, the national and Chiapan elites appear more determined to pursue a policy of violence against the EZLN and the communities which support them and, true to history, it has been the indigenous peoples who have suffered the brunt of military and paramilitary attacks. For details on recent attacks on communities in EZLN controlled territory see, for example, M Mora, ‘The EZLN and Indigenous Autonomous Municipalities’, (1998) located on Irish Mexico Group Web page at <http://flag.blackened.net/revolt/mexico/comment/auto-munc.html> , 1-4; ‘San Andres Sakamch’en de los Pobres Autonomous Municipality Dislocated’ (1999) at <enlacecivil-1@laneta.apc.org>. An English translation of the latter may be found at <debate@sunsite.wits.ac.za> 1-2.

^[4] ‘The Fights for Elections’, (1999) 156 Chiapas al Día 2, reproduced in English at <debate@sunsite.wits.ac.za>.

^[5] San Andres Accords, 18 January 1996, translated by Rosalva Bermudez-Bullin, located on Irish Mexico Group Web page, above n 3, 1.

^[6] Ibid, Ch I Art 1.

^[7] Ibid, Ch I Art 2-4.

^[8] Ibid, Ch II Art 2.

^[9] Ibid, Ch II Art 4 & 5.

^[10] Ibid, Ch IV.

^[11] Ibid, Ch V.

^[12] Cited in H Bellinghausan, ‘El gobierno de Oaxaca prepara contrarreforma indígena, acusan’, La Jornada, 22 February 1997, 1. Located at <http://serpiente.digsca.unam.mx/jornada/1997/feb97/970222/oaxaca.html> .

^[13] Ibid.

^[14] New Accord with the People (1994).

^[15] Article 164, 1995

^[16] A Labra M., ‘Contra reforma en Oaxaca?’, La Jornada 28 February 1997, 1. Located at <http://serpiente.dgsca.mx/jornada/1998/jun98/980620/labra.html> .

^[17] Article 3, 1, 4, Chapter IV.

^[18] S Nahmad, S., ‘Ley de Derechos Indígenas en Oaxaca del Subterráneo a la Realidad’, Masiosare, 19 July 1990, 2. Located at <http://serpiente.digsca.unam.mx/jornada/1998/july98/980719/mas_salomon.html> .

^[19] Servicios del Pueblo Mixe, cited in Bellinghausan, above n 12, 1. The Mixe are an indigenous group living in the valley of Oaxaca in the central region of the state of Oaxaca.

^[20] Indigenous practices may of course be non-democratic. For example, women might be excluded from decision making under traditional practices. This has been an issue which the Zapatistas have had to contend with in response to demands from indigenous women in their ranks.

^[21] A Labra M., ‘Virtud, defecto.Ley indígena en Oaxaca’, La Jornada, 20 June 1998, 1. Located at <http://serpiente.dgsca.mx/jornada/1998/jun98/980620/labra.html> .