The Indigenous World 2022: Argentina
The most recent national census from 2010 gives a total of 955,032 people self-identifying as descendants of or belonging to Indigenous Peoples, out of a total of 45 million inhabitants. There are 35 officially recognised Indigenous Peoples, although given the dynamic of processes for recovering their identity, this number may change. Legally, they have specific constitutional rights at the federal level and in several provincial states. In addition, a set of human rights contemplated in various international instruments such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights are of constitutional force in the country. ILO Convention 169 is of supra-legal hierarchy (i.e. it does not form part of the body of constitutional rules and regulations) and was ratified in 2000. The United Nations and American Declarations on the Rights of Indigenous Peoples are also of regulatory effect.
Increased territorial conflicts
In the midst of the pandemic, territorial conflicts intensified in 2021 for multiple reasons, including a lack of recognition of Indigenous Peoples’ rights. There are a number of different reasons behind these conflicts. Firstly, there has been a continuing advance of extractive industries onto Indigenous territories. The case of Chubut Province is typical. Although it is has been a pioneer in prohibiting open-pit mining (as a result of a 2003 referendum that flatly rejected the possibility of promoting this kind of operation), in December 2021 the legislature approved a zoning law that would have permitted mining in certain areas, some of them inhabited by Indigenous communities. The people’s rejection came swiftly in the form of protests, roadblocks, assemblies and strikes, and the very same legislature repealed the law only a few days later.
Secondly, the Emergency Indigenous Communal Property Law (Law 26,160 plus three successive extensions) expired on 23 November 2021. A fourth extension was to be granted through a parliamentary debate, pending an essential and delayed Indigenous Community Property Law. It should be recalled that this emergency law –brief and to the point– orders the technical/legal cadastral survey of territories claimed by the Indigenous communities and suspends evictions until these tasks have been carried out. Although it was approved by the Senate, it was not discussed in the Chamber of Deputies, however. An extension was therefore granted by the Executive in the form of an urgent and necessary decree. Although this decree has regulatory force and is “similar” to a law issued by Congress, the impossibility of obtaining an extension by means of a parliamentary debate has undermined its legitimacy and represents a setback in the regulatory status quo. It is both desirable and to be expected that the extension will be discussed again in 2022 and be granted by decision of the representatives. Better still, perhaps discussions could commence on the Indigenous Communal Property Law itself.
Thirdly, the criminalisation and harassment of Indigenous communities, precisely because of their territorial demands, once again led to the death of a Mapuche community member, Elías Garay, murdered by two plain clothes individuals. A second community member was also seriously injured, in a context in which the community was surrounded by provincial security forces. This relates to a case of territorial recovery in the Cuesta del Ternero area of Lof Quemquemtreu in Río Negro Province. These are State lands for which the government granted a concession to an individual for forestry purposes, despite these lands being claimed by the community. An eviction order is currently pending and the community members are being prosecuted as usurpers.
In Jujuy Province, resolution 2261/2021 of the Public Prosecutor's Office established a Protocol for addressing land conflicts and Indigenous communities but there have been constant complaints of failures to comply with this. The National Institute for Indigenous Affairs (INAI), for example, has denounced intrusions into the Tusca Pacha Los Alisos community, belonging to the Kolla people, in Palpalá department. The territorial rights of the community continue to be compromised regardless of the provincial regulations in force.
Finally, and briefly, there are clear tensions between some court decisions protecting Indigenous Peoples’ rights and others that clearly disregard them. The emblematic case of a territorial conflict in Río Negro, between the Indigenous Mapuche community of Lof Che Buenuleo and a private individual, for example, throws up examples of judicial decisions that reflect such contradictions. On the one hand, at the federal level, and given that INAI intervened to approve the set of files accrediting the technical/legal cadastral survey ordered by Law 26,160 (above), one court has recognised the administrative act requiring “(...) the National Institute for Indigenous Affairs to carry out the measurement of the plots georeferenced in administrative file 2020-61169031-APN-INAI#MJ within 90 days of the date of this becoming final and that, once concluded, it executes actions aimed at establishing the community property in favour of the claimant community (...)”.[i] Another court, however, ignored INAI's resolution, considering it null and void.[ii] Moreover, in criminal proceedings, based on accusations that the community members are usurpers, the Provincial Court of Appeal decided to dismiss the case definitively stating that the substantive issue had nothing to do with the criminal matter and should be resolved in civil proceedings. At the same time, it urged resolution of the conflict through dialogue and mediation.
Territorial conflicts remain at the heart of disputes between the State and Indigenous Peoples. The State continues to demonstrate ambivalence in its actions. On the one hand, it has used a number of INAI policies to approve technical files recognising their territorial ownership or denouncing their persecution and criminalisation. On the other, however, it uses the security forces or legal resolutions to harass and criminalise Indigenous communities who are demanding their rights.
The role of Indigenous women in the fight for rights
Indigenous women are increasingly the protagonists in actions related to caring for their territories and the environment. In March 2021, they organised a huge march from all parts of the country that culminated in Buenos Aires on 25 May (the day commemorating the struggle for independence). It had a clear slogan: “Enough of terricide”. Women and children have been, and remain, most affected by the pandemic, the health crisis generally, evictions, a lack of water, inadequate food, environmental deterioration, and wider structural problems.
In this march to raise awareness among all citizens, Indigenous women conveyed a message of struggle for the self-determination of their territories, their bodies and, in short, their peoples. Another of the main objectives of the march was “(...) so that Indigenous women, as citizens and inhabitants of the Argentine territory, can have a space in which to influence the production of public policies and decisions, so that their voices can be heard and valued in the construction of a fair habitat in harmony with their worldview”.[iii]
Indigenous women pass on their identity by teaching their language, culture and knowledge to future generations. And yet those representing them warn that they are also the victims of discrimination, racism and machismo. It is worth noting the Indigenous women’s construction of a community feminism –as distinct from white feminism– that reinforces their strength. They emphasise that neither society nor the State treat the femicide of a white woman on a par with that of an Indigenous woman.[iv] The intersectional violence suffered by Indigenous women is becoming increasingly visible, and the structures that are sustaining this need to be overcome by radical means, something that the Movimiento de Mujeres por “el Buen Vivir” (Women's Movement for “Good Living”) are attempting to do.
One emblematic case in the struggle for Indigenous territory is that of Isabel Catrimán in Chubut Province, in a place known as Laguna Larga situated in the mountains. Although the dispute is over alleged State territories “ceded to private individuals”, she and her family have been living there for two decades, with the verbal agreement of the previous owner. They have made numerous improvements and have built a house, they tend their animals and have a vegetable garden there. In the midst of the pandemic, Isabel is now facing the arrival of “new buyers” who, with real estate interests (the territory is adjacent to a National Park and in a priority location for tourism), are trying to get her to abandon it. Isabel –almost 80 years old– continues to be harassed and, with the conflict now going through the courts, she faces an uncertain future. And yet she is resisting and is an example of the struggle for territory. In September 2020, a trawn (meeting) was held on the land, with the participation of Indigenous communities from the region that support Isabel's claim, and provincial and national government institutions (Ombudsman's Office of Chubut Province, National Public Defender's Office, Directorate for the Promotion and Strengthening of Access to Justice under the Ministry of Justice and Human Rights, National Institute for Indigenous Affairs) to outline actions to defend the territory throughout the region.
Increased disregard for Indigenous Peoples’ rights and the emergence of “hate speech”
Certain events took place in 2021 that were worrying and serious when taken in isolation but which, when considered together, paint a scenario of serious setbacks to Indigenous Peoples’ rights, enshrining racist, stigmatising and discriminatory “hate speech”. This discourse represents a clear sign that barriers that were thought to have been overcome in argument and in practice are still rooted in the thinking of a social sector that insists on the consolidation of a hegemonic, monocultural and exclusive State.
By way of example, it is worth noting what happened in November 2021, when Olga Curipan –leader of the Lof Kuripan Kayuman community and member of the Indigenous Participation Council– was attacked with a Molotov cocktail by a group identified as Comando de Restauración Nacional (National Restoration Command Unit), in the city of Bahía Blanca, Buenos Aires Province. This has been publicly denounced by INAI.
It is also worth noting that a public meeting was held called the “1st Bariloche Consensus Forum. For a sustainable and peaceful Patagonia”, which defines itself as a multisectoral space for dialogue[v] in which to address the issue of public and State land and environmental impacts, among other issues. This space brings together participants from different fields: lawyers, journalists, legislators, neighbours, the tourism sector, etc. Although, on the surface, this type of space would appear to be welcome given the current situation of permanent conflict over land, the truth is that the range of people involved in it is one-sided, and its ideological position is clearly contrary to one of respect for the rights of Indigenous Peoples.
And it is not only in the south of the country that the issue is being discussed in these terms. Quite the contrary, Indigenous Peoples’ rights are being rejected right across Argentina's geopolitical space. While this meeting was being organised in Bariloche, a similar space was being convened in Tucumán Province. This “1st Tucumán Consensus Forum on Rural Security” was organised by PRODECO (Civil Association for the Protection, Development and Cooperation of Private Property) with the object of raising awareness of land conflicts related to private property and Indigenous communal property and to analyse the scope of Law 26,160.[vi]
In short, these “supposed spaces for dialogue” simply instil in society an ignorance of Indigenous territorial rights. They interpret all community claims to the land –which translates into recoveries– as a crime of usurpation, and promote the association of agricultural and livestock producers with the aim of repelling any “intrusion” onto what they consider to be their lands.
Conclusions
The year 2021 was even worse than previous years –if that were possible, given the adverse circumstances of the last few years– with regard to territorial conflicts. In addition to disputes with private companies and the national and provincial governments granting company concessions over Indigenous territories, there has been a weakening of the regulatory framework. This remains robust at the international level but limited in domestic legislation. This is due to the fact that, in recent years, it has been virtually impossible to discuss a substantive law to regulate territorial rights in Parliament, and the emergency law has had to be extended –given its expiry– by an urgent and necessary decree of the Executive.
Disputes over territory, due to recovery actions that have met with a violent response from the provincial State security forces, became more complex with the pandemic, and there are also structural difficulties that are resulting in the violation of multiple other rights, such as the right to clean water, to health, to food and to education, in addition to an endless list of unfulfilled State obligations.
Not only have violations of rights become recurrent but a landscape is being created that is conducive to a generalised view that these rights “do not exist”, or are relative, or do not correspond to the subject claiming them. So questions are once again being raised, for example, as to whether the Mapuche are Argentinians (or simply Chileans), and whether or not the Indigenous territories should be Indigenous, inciting a rhetoric that only deepens the already present discrimination and racism.
In this adverse context, Indigenous women are demonstrating an unequivocal connection to their territory. Environment and nature are inextricably intertwined in these disputes, turning women into the protagonists of territorial struggles –which, in the end, are the struggles of all living beings– and they are taking on the role of “caretakers” of the entire habitat. Indigenous women are collectively building other feminisms, closer to their relationship with Mother Earth and their worldviews.
It is still very difficult to build a State matrix of genuine respect for Indigenous Peoples’ rights. Although progress has been made in the public debate, and Indigenous organisations and communities are aware of their rights and are strengthening their demands, there remains a core of resistance within all State agencies aimed at preventing their effective enjoyment. Mechanisms are being developed that hinder the exercise of these rights and which, in short, expose a monocultural State model that continues to reject differences, simply consolidating its colonial origins.
Silvina Ramírez is a lawyer and Doctor of Law. She is a postgraduate lecturer at the School of Law in the University of Buenos Aires and the University of Palermo as well as other universities in Latin America. She is a member of the Indigenous Lawyers Association, academic adviser to the Legal Group on Access to Land of the Centre for Public Policy for Socialism, and Director of the Indigenous Law Programme of the Institute of Comparative Studies in Criminal and Social Sciences, INECIP. Contact: mailto:This email address is being protected from spambots. You need JavaScript enabled to view it.
This article is part of the 36th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. Find The Indigenous World 2022 in full here
Notes and references
[i]“Mapuche community of Buenuleo v. National State - National Institute for Indigenous Affairs (INAI) in a petition for amparo, Ley 16,986” (FGR No. 24326/2019). Federal Court of San Carlos de Bariloche, Río Negro, April 2021.
[ii] Federal Administrative Chamber - Chamber IV File CAF 14374/2020 - Friedrich, Emilio v. National Institute for Indigenous Affairs in a petition for amparo, Law 16,986. Buenos Aires, 9 November 2021.
[iii] “Mujeres indígenas caminan en Argentina por el derecho a la tierra” [Indigenous women walk in Argentina for the right to land]. Ciscsa. https://www.ciscsa.org.ar/post/mujeres-indigenas-caminan-en-argentina-por-el-derecho-a-la-tierra
[iv] Lucía Ríos, “Mujeres indígenas: las luchadoras por la identidad y contra el racismo” [Indigenous women: fighting for identity and anti-racism]. Telam, 5 September 2020.
https://www.telam.com.ar/notas/202009/510411-al-conmemorarse-el-dia-internacional-de-la-mujer-indigena-las-luchas-que-reivindican-las-mujeres-indigenas-en-argentina.html
[v] Government of Río Negro, “Foro del consenso en Bariloche: Carreras abogó por el diálogo y repudió cualquier tipo de violencia” [Consensus Forum in Bariloche: Carreras advocated for dialogue and rejected any kind of violence]. 25 August 2021. https://rionegro.gov.ar/articulo/38211/foro-del-consenso-en-bariloche-carreras-abogo-por-el-dialogo-y-repudio-cualquier-tipo-de-violencia
[vi] Apronor, “1º Foro Consenso Tucumán sobre Seguridad Rural” [1st Tucumán Consensus Forum on Rural Security]. https://apronor.com.ar/1-foro-consenso-tucuman-sobre-seguridad-rural/
