Indigenous World 2019: Argentina

Written on 24 April 2019. Posted in Argentina

Argentina is a country made up of 23 provinces, with a total population of approximately 40 million people. The most recent national census in 2010 gave a total of 955,032 people self-identifying as descended from or belonging to an indigenous people.1 There are 35 different officially-recognised indigenous peoples in the country. They legally hold specific constitutional rights at the federal level and in various provincial states.

In addition, ILO Convention 169 and other universal human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic and Social and Cultural Rights (ICESCR) are of constitutional force in the country. Argentina voted in favour of the UN Declaration on the Rights of Indigenous Peoples.

Argentina focused on issues of security policy throughout 2018 which, for indigenous peoples, resulted in a hardening of the state’s actions, aimed primarily at ignoring indigenous rights and punishing their demands and claims. Not only were legal actions taken against them with the aim of prosecuting and criminalising both indigenous individuals and their organisations’ leaders but territorial demands central to the development of their life plans were also seen by the state as actions that could be deemed criminal.

This framing of certain acts of violence as “terrorism”, the aggravated sentences, the impunity of members of the security forces who use violence against indigenous people, their imprisonment based on distorted or inadequately proven “facts”, have all triggered warning lights among indigenous communities and peoples, their organisations, and human rights organisations. This tightening of security policy has both an economic and a political explanation, the first drawing on the second. Given the government’s political decision to generate income from the sale of the country’s raw materials, and the key importance of “commodities” to the regional and national economy, the indigenous territories are becoming increasingly valuable and so natural resource exploitation, and thus the “neutralisation” of indigenous demands, now has to be achieved by force.

In addition to the cases affecting the Mapuche people of Patagonia (see 2018 report), there are also notable examples in the north of the country, such as that of the Wichí² people in Formosa and Salta provinces, who are being prosecuted by private individuals and the state itself precisely because they have put their land claims into effect given the lack of a legal response to their demands.³

Indigenous defenders and legal cases

The year 2018 was also noteworthy for the situation of indigenous human rights defenders, primarily due to demands for their territorial rights, to the actions their organisations and communities are taking to ensure their effective defence, and to the state response to requests that their rights should be respected. Periodic violence has been taking place around the Vaca Muerta gas deposit in Neuquén Province, including harassment and criminalisation, with many cases being taken to court.⁴

The state has furthermore also failed to comply with resolutions issued by international bodies on issues affecting indigenous leaders. Such is the case of Mapuche Lonko (leader) Facundo Jones Huala, who was imprisoned in Esquel, Chubut Province, pending his requested extradition to Chile. The United Nations Human Rights Committee called for his extradition to be suspended until his case could be heard by the Committee.⁵ In September 2018, the Argentine State nonetheless decided to extradite him anyway. He was prosecuted by the Chilean State, convicted of criminal arson and carrying firearms and sentenced, in violation of all due process and his right to a defence, on the basis of evidence obtained through illegal intelligence practices. An appeal for annulment made by his defence was ruled admissible by Chile’s Supreme Court of Justice precisely on the basis of the law on intelligence in criminal proceedings.

Moreover, although the prefects were prosecuted (for culpable homicide) in the murder of Rafael Nahuel in Río Negro Province, so too were the two Mapuche youths who helped Rafael when he was injured, both being charged with misappropriation and resisting authority, giving the impression of a confrontation when in reality there was already evidence that the Mapuche were unarmed. In Salta Province, three Wichí caciques (chiefs) from Rivadavia Banda Sur are being prosecuted for criminal damage and threats in a land conflict with an estate owner, without due respect for their procedural rights. The defence maintains that the case should only proceed with a Wichí interpreter (the mother tongue of the three defendants) but the judge has rejected these requests.

Criminal prosecution of indigenous individuals is a method that has gradually been taking hold at the federal level and in the different provinces of Argentina. Not only do the courts not give any response to indigenous rights violations, they have now become a constant threat. Procedures drag on over time, forming a constant reminder of the state’s strength, which can even cause them to lose their freedom.

Feminism and the indigenous women’s movement

The year of 2018 marked a turning point in Argentina in terms of increasing gender demands, focused largely around legalised abortion but also strongly around issues of gender violence, sexual abuse, femicide, and the need for the state to place gender policies firmly on the public agenda. It was against this backdrop that the Indigenous Movement for Living Well Together (El Movimiento Indigena para el buen vivir)⁶ came into being. It defines itself as autonomous, self-managing, non-party political, non-religious, and self-convened in order to build “living well together” as a right. The organisation participated in the 33^rd National Meeting of Women in Chubut Province, and at this meeting demanded plurinationality as an objective of the movement.

The arrival of the indigenous women’s movement onto the feminist scene merits a whole section by itself. Despite the difficulties and complexities of the emerging feminist movement in Argentina, which has a widely varying agenda, native women are also demanding a diverse and specific arena for themselves. The presence of indigenous women both in the indigenous communities and organisations and in a wider scenario that aims to question the state matrix and development model – and which is not simply taking place on the margins of the debate around gender justice – is part of the enormous challenge that indigenous peoples have placed on the State agenda.

Future prospects

Although no change in state policy is expected in the short-term, small steps are being made to raise the visibility of indigenous rights, often by means of confrontation with state agents. Given the prosecution, criminalisation and harassment of indigenous peoples that is occurring, other actions are now being taken with the aim of protecting their rights. One example is the draft bill of law on indigenous communal ownership that has been tabled with the Chamber of Senators of the Congress of the Nation,⁷ and which is intended to provide a framework of certainty for the majority of indigenous communities who lack any title deeds.

The growing presence of extractivist activities⁸ is an attack on indigenous peoples’ territorial recognition and land regularisation. It is therefore essential that regulatory – but also administrative – progress is made in order to provide legal security in extremely precarious situations that often end in the eviction and prosecution of indigenous communities through misappropriation.

However, cases such as at the Vaca Muerta deposit in Neuquén Province (now Argentina’s main hope of overcoming the economic crisis), or the progress being made at Salinas Grandes in Salta and Jujuy Provinces around lithium exploitation, where there has been no consultation of the indigenous communities, demonstrate the difficulties in giving a substantive response that results in a collective title.

The only case of territorial conflict involving indigenous peoples that is currently with the Inter-American Court of Human Rights was referred by the Commission in February 2018. It is the case of the Lhaka Honhat Aboriginal Communities Association in Salta Province. This association encompasses communities of the Wichí (Mataco), Iyojwaja (Chorote), Nivacklé (Chulupí), Qom (Toba) and Tapy’y (Tapiete) peoples. The Lhaka Honhat Association has been calling on the State to guarantee the communities’ right to communal ownership of their ancestral territories since 1984. These territories are located in the former state plots 55 and 14 of Rivadavia department, Salta Province.⁹

Although there is no clear date by which the Court will issue its decision, the length of this process already needs to be taken into account when attempting to understand the difficulties and analyse the possible paths to reaching an agreement with the state.

Finally, 2018 was a year of struggle for indigenous rights in the face of a state that insists on violating indigenous people. The previous year’s focus on stigmatising them as “violent” or “terrorists” continues to result in a security policy that is coherent and consistent with the economic decisions being taken, namely to continue promoting extractive activities in the territories claimed by indigenous peoples, in accordance with domestic law and international regulations in force in the country.

Notes and references 

1. National Census of Population, Households and Housing 2010. See http://bit.ly/2T4pD6n

2. On 22 December 2018, the Ingeniero Juárez police, in Formosa Province, arrested 20 Wichí adolescents without disclosing their identity or giving their reasons

3. In Salta, in May 2018, the Provincial Government suppressed indigenous communities that were complaining at the conditions of extreme vulnerability in which they had been living since the flooding of the Pilcomayo See the Alternative Report produced by the National Aboriginal Pastoral Team (ENDEPA) for the Committee on Economic, Social and Cultural Rights on 30 August 2018.

4. The Chief Prosecutor of Neuquén indicted three leaders of the Mapuche Confederation of Neuquén (CMN) for repeated crimes of instigating misappropriation because of the camps they had set up at the entrance to the See infobae.com.ar on 20 Dedecember 2018.

5. Communication N° 3238/2018 issued by the Human Rights Committee in accordance with the Optional Protocol to the International Covenant on Civil and Political Rights, which ruled to suspend the extradition of Francisco Facundo Jones

6. See resumenlatinoamericano.org

7. See www.vaconfirma.com.ar of 25 April 2018

8. See The Indigenous World, IWGIA 2018

9. See cels.org.ar

Silvina Ramírez is a lawyer with a doctorate in law who teaches postgraduate studies in the Faculty of Law of Buenos Aires University (UBA) and Palermo University. Member of the Association of Lawyers in Indigenous Law (AADI) and Academic Advisor to the CEPPAS Legal Group for Access to Land (GAJAT).