Legal framework

Written on 28 March 2011. Posted in Argentina

The National Constitution was reformed in 1994, with the following being incorporated into its article 75: "It is for the Congress: section 17. "To recognise the ethnic and cultural pre-existence of Argentina's indigenous peoples. To guarantee respect for their identity and the right to a bilingual and intercultural education, to recognise the legal status of their communities and the communal possession and ownership of the lands that they traditionally occupy and to regulate the provision of other lands appropriate and sufficient for human development; none of these shall be transferable, transmissible or open to encumbrance or seizure. To ensure their participation in the management of their natural resources and other interests that affect them. The provinces shall concurrently exercise these powers."

Nine of the twenty-three Argentine provinces have included special rights in their constitutions (Buenos Aires, Chaco, Chubut, Formosa, Jujuy La Pampa, Neuquén, Río Negro, Salta).

In 1992, Law 24071 adopted ILO Convention 169. In 2000, the government's signature ratifying adoption of the Convention was deposited in Geneva and it came into force in July 2001. In 1995, the Constitution of the UN Development Fund for Indigenous Peoples of Latin America and the Caribbean was approved by means of Law 24544. In 1997, Law 24874 led to adoption of the UN International Decade of the World's Indigenous People.

Between 1984 and 1993, various "integrated indigenist# laws were promulgated: National Law 23302, approved in 1985 with its implementing regulations issued in 1989, along with provincial laws N° 426/84 in Formosa, 6373/86 in Salta, amended in 2000, N° 3258/87 in Chaco, N° 2727/89 in Misiones, N° 2287/88 in Río Negro (1988); N° 3657/91 in Chubut, and N° 11078/93 in Santa Fe. The first created the National Institute for Indigenous Affairs (INAI), a decentralized body that acts as an implementing organisation for the State's indigenist policy, with the provincial laws creating similar bodies. They all introduce a series of positive measures aimed at the preservation, improvement, promotion, respect, development and participation of indigenous citizens. Not all are implemented in practice, and most are only partially implemented. Some recent events demonstrate that the conditions under which the indigenous are able to access their constitutional rights are even becoming more restrictive, and dependent above all on the indigenous peoples' capacity to see legal processes through.

Government policy

Although Argentina has formally adopted a new approach to the specific cultural and legal needs of indigenous peoples, it lacks a state policy to effectively put this into practice. Some State bodies such as, for example, the ministries of Health, Education and Social Development, produce programmes or plans aimed at indigenous peoples without considering the constitutional obligation to involve those affected. This leads to overlaps and contradictions between them. Civil servants regularly adopt their own criteria by which to define the needs, interests and priorities of indigenous peoples, viewing them more as applicants and beneficiaries of support and favours than autonomous participants in the decision-making process. Concerned at this inconsistency between theory and practice, the Committee on the Elimination of Racial Discrimination made an observation to the Argentine State in 2000 regarding the lack of indigenous participation in the country's political life and recommended that "bearing in mind the fact that the territories in which they live are the areas with the highest rate of unsatisfied basic needs and that rates of poverty and unemployment among them and other vulnerable groups have increased as a result of the economic crisis, [the State should] take measures to relieve this situation, and keep us informed in this respect".

The indigenous movement has actively demanded due participation but, in practice, clientelist and assistential practices prevail such that, cyclically, at each election, "indigenous issues" become subordinated to the interests of political parties. In addition, national and provincial programmes aimed at meeting the material needs of poor sectors do not recognise the specific needs of indigenous peoples or take account of their identity.

The National Institute for Indigenous Affairs (INAI)

INAI is the state body responsible for implementing indigenous policy. It was established by Law 23302, promulgated in 1985, with its implementing regulations issued in 1989. The law established its creation as a "decentralized body with indigenous participation, which will report directly to the Ministry for Health and Social Action". The communities were to be represented by indigenous delegates appointed directly by them once the election mechanisms had been institutionalized. The law was never implemented. Moreover, two decrees from the National Executive dated 1991 and 1994 demoted INAI, turning it into an office reporting to a National Department, thus distorting the law's aims and preventing the direct participation of indigenous people. Proceedings to remedy this were instigated and, with neither staff nor budget, the institute began to take its first steps in 1993. In August 2000, following a ruling of the National Appeals Court in administrative/federal matters, the National Executive issued Decree 677 stipulating the formation of INAI within 30 days as a decentralized body with indigenous participation in the terms of Law 23302.

Finally, in 2005, elections were held for indigenous representatives, by people and by province, to form the Council of Indigenous Peoples. This body, which has advisory powers, is formally made up of 40 representatives and 40 substitutes. At the end of May 2006, 12 members were chosen from among these but INAI still does not have the ministerial status provided by law and its authorities are chosen by the national Ministry for Social Development and the Environment, to which INAI reports.

Specific programmes created for indigenous peoples within the context of the current administration’s policies (2003-07)

National Health Programme for Indigenous Peoples: This Programme is in line with Federal Health Plan guidelines regarding respect for the cultural diversity of indigenous minorities. It states that it will develop an intercultural Primary Health Care strategy in six Argentine provinces (Chaco, Formosa, Jujuy, Misiones, Salta and Tucumán). Its objectives are, among others, to strengthen the role of Health Workers, to promote the creation of an intercultural space and to raise awareness among the health teams.

This programme is not yet underway despite the fact that the health status of indigenous peoples is worrying. The health situation in rural communities is a complex one, involving environmental destruction, loss of soil productivity, lack of water, deficient or non-existent medical assistance, an absence of transport or communication means, minimal education provision, an absence of environmental sanitation, non-existent pest control, and animal and human parasitosis. Although figures broken down by ethnic group do not exist, the areas in which these communities live show high levels of acute infections such as tuberculosis, Chagas disease, cholera, and others. In some rural areas, the infant mortality rate is 30%. Poorly fed, indigenous children's futures are being compromised, and whilst some schools do provide them with a daily meal, this is only for a certain number of months a year.

Community teams for indigenous peoples' sub-programme: This was created in 2005 within the Federal Health Plan as a component of the Community Medical Teams Programme, with the stated aim of "improving the socio-sanitary situation of native peoples from an intercultural approach based on respect for the traditions and customs of different communities". Within the sub-programme, 15 work groups have been formed for 15 communities living in 11 provinces. In total, 102 people have the task of designing strategies to resolve the health problems detected and coordinating them at community, provincial and national level.

The National Programme for Intercultural Bilingual Education: was created in 2005 with a 2.4 million peso budget for grants and 1.5 million to provide materials, teacher training, technical and financial support to institutional pedagogic projects, research, evaluation and monitoring and the creation of national and regional level networks. In 2004, the national Ministry of Education, Science and Technology, together with Unicef, published the results of a Call to Systematize Experiences in Intercultural and Bilingual Education. This took place in 2001 by means of an agreement with PROEIB Andes (Intercultural and Bilingual Education Training Programme for Andean Countries), with the aim of gathering together and disseminating the proposals and actions being implemented in different communities. The publication "Intercultural Bilingual Education in Argentina" brings together various experiences, demonstrating how varied the intercultural bilingual education experiences throughout the country are. Some are implemented, using varying strategies, to reverse high absenteeism and drop-out rates, to improve the pupils' performance and overcome the limitations of the education received. Others are making progress in terms of recovering the memory, identity and history of the communities.

National Parks Administration and Indigenous Peoples: an interesting experience in co-management has been taking place for a number of years between this body and the Mapuche people. In the area of the Lanín National Park (Neuquén province), work is being carried out on the joint management of the rich biodiversity that the park and six Mapuche communities are home to. The experiment has been considered very successful and it is hoped to replicate it in other nature reserves.