The Indigenous World 2025: Argentina

Written on 25 April 2025. Posted in Argentina

Argentina is a federal country comprising 23 provinces and one autonomous city (Buenos Aires, the capital) with a total population of 45,892,285 million people, according to the 2022 census data. This last census recorded 1,306,730 people in private households who self-recognized as Indigenous or descendants of Indigenous Peoples, accounting for 2.9% of the total population in this type of housing. In turn, the results of the census determined the existence of 58 Indigenous Peoples. Legally, they have specific constitutional rights at the federal level and in most provincial states.

In addition, a set of international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), are in force, forming part of the body of constitutional law. ILO Convention 169 takes precedence over national laws (but does not form part of the body of constitutional law). It was ratified in 2000 and has been in force as an international treaty since 2001. The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and the American Declaration on the Rights of Indigenous Peoples are operative in Argentina with normative force.

This article is part of the 39^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of an Indigenous activist Funa-ay Claver, a Bontok Igorot, standing alongside Indigenous youth activists and others. They are protesting against the repressive laws and human rights violations suffered through the actions and projects of the Government of the Philippines and other actors against Indigenous Peoples at President Marcos Jr’s national address on 22 July 2024 in Quezon City, Philippines. The photo was taken by Katribu Kalipunan ng Katutubong Mamamayan ng Pilipinas and is the cover of The Indigenous World 2025 where this article is featured. Find The Indigenous World 2025 in full here

Scaling up of a regulatory framework harmful to Indigenous rights

The government administration in Argentina, which recently completed its first term in office in December 2024, has undertaken swingeing regulatory reforms across a wide range of sectors, some of which have had a significant impact on the rights of Indigenous Peoples. In just one year, institutions have been transformed, others abolished, all while a regulatory framework is being erected that favours large investments and unequivocally undermines Indigenous territorial rights.

Against this backdrop, the Incentive Regime for Large Investments (RIGI), envisaged as part of the Decree of Necessity and Urgency, has generated a debate as regards its scope. Its main objective is to favour investments by granting significant benefits, including tax exemptions. Forestry, tourism, infrastructure, mining, technology, steel, energy, oil and gas are all among the sectors covered.

Although its objectives promise benefits for broad sectors of the population, it is difficult to see what these could actually be given the situations already being experienced in provinces such as Catamarca, with the exploitation of lithium, and Neuquén, with hydrocarbon exploitation. At the same time, it is difficult to understand why such a convenient and generous scheme has been designed for investors, especially foreign ones.

The RIGI is clearly a regulatory scheme that is in breach of existing Indigenous rights. It does not contemplate the right to consultation, anticipates high-impact activities on Indigenous territories, and does not even refer to environmental rights and their impact, far less environmental liabilities and potential forms of remediation.

From a legal point of view, it may well end up in court, with uncertain results. At the political level, however, there needs to be resistance by means of alternative proposals that demonstrate that extractivism is neither a panacea nor the answer to the energy crisis and the lack of economic resources.

Moreover, and in the same vein of affecting the rights of Indigenous Peoples, specifically the right to legal status, a resolution has been issued with the aim of abolishing the National Registry of Indigenous Communities (RE.NA.CI). This registry was created in 1995 by means of Resolution 781, with Resolution 4811/96 then establishing the criteria for authorizing registration. The resolution repeals Resolution 4811/96, which was aimed at honouring constitutional commitments. Legal status has an impact on the relationship between the State and Indigenous Peoples. They are recognized as collective and political subjects and their legal status is of a public nature, which determines the State's conception of Indigenous Peoples and, at the same time, recognizes their identity, a right also recognized by the Constitution.

While respecting provincial autonomy, it is desirable that uniform criteria be established for granting legal status, ensuring that these are in line with the standards set out in the international legal instruments in force and those established by the Inter-American Human Rights System. These criteria should never be regressive in terms of rights, and far less left to an imprecise interpretation – or to a discretionary decision of the provinces – as how to manage such legal status. It needs to be understood that we are referring to a relationship that is always traumatic – and cannot be healed through unilateral decisions – and to an identity that is always in dispute. And the national State has decided to render Indigenous Peoples yet more invisible. By abolishing the National Registry of Indigenous Communities, they are attempting to negate the communities, without understanding that they exist regardless of any administrative act.

Perhaps the most significant legal act in this regulatory barrage against Indigenous rights, at least in terms of its impact, is the repeal of the Indigenous Territorial Emergency Law. The Decree of Necessity and Urgency (DNU 1083/24) repealed DNU 805/21, a decree that had extended the emergency law on Indigenous community possession and property (Law 26,160 and its successive extensions). This law is of notable gravity for several reasons. Firstly, it materializes a public policy aimed at fulfilling a State obligation: respect for Indigenous territorial rights and, consequently, the collective titling of their lands. Secondly, by repealing this law, which not only ordered technico-legal cadastral surveys but additionally suspended evictions (26,160 had not had the desired effect and evictions had continued to take place under previous governments) it is anticipated that these could multiply, creating a situation of vulnerability, insecurity and suffering for the Indigenous communities that will only continue to deteriorate. Thirdly, the repeal creates considerable uncertainty since it raises doubts as to the outcomes of surveys currently underway but not yet completed, and even of those that have already been completed.

This legal act on the part of the administration reflects an ideological conception on the part of the State that is profoundly monocultural, exclusionary, racist and unequivocally associated with extractivism, an activity that needs the Indigenous territories in order to expand. There are obviously economic interests at play, along with business greed and benefits designed to be distributed to corporations, but this goes far beyond considerations of profit or gain.

It is a conception that considers Indigenous Peoples as an obstacle and their rights as a threat. An ideology that despises what is different and which takes consistent steps, through each of its government decisions, to undermine and eliminate the legitimate demands of Indigenous Peoples. Its aim is to cement a State matrix that is the result of a “Western society”, one that understands the principles of freedom and equality restrictively, subjugating peoples and cultures.

The eventful evolution of institutionalism for Indigenous Peoples

Since Law 23,302 of 1985, which created the National Institute of Indigenous Affairs (INAI), it has been considered important that a special national agency was able to bear witness to the policies that are essential and necessary to guarantee the rights contemplated in an increasingly robust regulatory framework.

INAI pursued varying policies, depending on how each government and its authorities wished to pursue its management. It was, however, becoming progressively delegitimized in the eyes of the Indigenous communities, either because it would not commit to public policies that could respond to their demands in any significant way or because it was unable to concretely achieve those policies in the face of other State agencies working in the opposite direction: undermining rather than respecting rights.

Under the current administration, the institutional framework designed to form a contact point with Indigenous Peoples faces worrying uncertainties and contradictions. Initially, INAI’s dissolution was hinted at, then it was decided to move it from the Ministry of Justice and Human Rights (now simply the Ministry of Justice) to the Ministry of the Interior and now, in view of the dissolution of this latter, it is currently under the jurisdiction of the Deputy Head of Cabinet of the Interior, within the Office of the Chief of Cabinet Ministers. This subsumption of the organization can be seen as a process of gradually moving it down the hierarchy.

By means of Resolution 40/2024, the President of INAI resolved to create “the Federal Council of Indigenous Policies, made up of representatives of the provincial government agencies with competence in Indigenous affairs”. According to this resolution, its objectives include: “to become a permanent space for dialogue, meeting and collaboration between the provinces and the national government, in the coordinated formulation and implementation of public policies for Indigenous Peoples”. It also convenes meetings of, among others, the representatives of the Indigenous Peoples as proposed by the Indigenous territorial organizations and by the Indigenous Participation Council (CPI), which has been maintained in spite of everything.

The question and dilemma that arises is whether the creation of another State body – which does not, according to said resolution, entail either the creation of a new structure or the allocation of additional budget – will result in policies being formulated with the participation of Indigenous Peoples rather than with them merely as recipients. Moreover, will this space be intended to guarantee the full exercise of already existing rights, or will it, by contrast, result in another scenario of absences, persecutions and harassment, disguised by a Federal Council and likely simply to raise false expectations among the Indigenous communities?

In order to focus on the situation of the provinces – given the federal regime of government in Argentina and the importance of provincial autonomy –, in January 2023, with the consensus of the Indigenous Confederation of Neuquén, the Neuquén legislature approved the Free, Prior and Informed Consultation procedure applicable to the province’s Indigenous communities. This law is the first of its kind in the country. However, despite months passing since its enactment, it has yet to be implemented.

On 31 October 2024, a bill on Free, Prior and Informed Consultation, tabled by the executive, was approved in the legislature of Río Negro Province. This law departs significantly from the jurisprudential and normative standards established on the matter and suffers from one apparent flaw: it was not put out for consultation with the Indigenous communities and organizations, eliminating Indigenous Peoples from the very political participation that is supposed to be reflected in the right to consultation.

This alone is reason enough to maintain that the law enacted is contrary to the Constitution and international legal instruments in force. In addition, its content violates the rights of Indigenous Peoples, restrictively interpreting consultation and limiting it to Indigenous communities with legal status, re-igniting an old discussion that should have been settled by now, namely that this process is merely declarative and in no way constitutive.

The search for tools with which to guarantee the right to Free, Prior and Informed Consultation is important and should be supported given that it is not a right that is easily implemented. This process requires the regulation of processes that are creative and not merely formal, and which allow for a dialogue with the communities, something that is always stated but also seemingly never implemented.

Conclusion

From the very start of the government's term, actions have been taken to undermine the rights of Indigenous Peoples. The abolition of the National Institute against Discrimination, Xenophobia and Racism (INADI), and the restructuring of the National Institute of Indigenous Affairs (INAI), which resulted in the scrapping of internal departments, are just some of the decisions that were taken with the aim of weakening policies for Indigenous Peoples. And yet repealing the extension of the Indigenous Territorial Emergency Law was “the cherry on the cake” of a set of decisions that undermine their territorial rights and promote and facilitate evictions, thus intensifying territorial dispossession. At the time of writing (January 2025), the eviction of the Lof Paillako of the Mapuche people is about to take place in Los Alerces National Park, in Chubut Province. This judicial eviction is based precisely on the repeal of the emergency law.

To take another example, the abolition in practice of the National Registry of Indigenous Communities (RENACI) sends a message that, in future, the granting of legal status – and let us not forget that legal status is a constitutionally recognized right, not an obligation on Indigenous communities – will be restricted to the maximum. All this under the guise of a false federalism, a discourse that grants the provinces the power to manage everything related to status when, very often, these provinces either lack special bodies to implement this or have shown resistance to granting it, precisely because of their denial of Indigenous rights.

One can but wonder what to expect in the future, especially given that this government is only in its first year in office, and it is likely that it will continue to maintain and magnify a State model that is clearly harmful to the rights and interests of Indigenous Peoples.

Official discourse leaves no room for doubt that the politico-legal scenario over the coming years will be one of implementing policies harmful to Indigenous Peoples and which will create negative conditions for the exercise of their rights. To repeal, for example, the emergency law and, with it, to set aside the suspension of evictions, is a clear sign of an unequivocal intention to appropriate Indigenous territories. The Incentive Regime for Large Investments (RIGI) is also an unquestionable demonstration of the future that is being pursued by this administration.

Silvina Ramírez is a lawyer. Doctor of Law. Postgraduate lecturer at the Law School of the University of Buenos Aires (UBA) and the University of Palermo. Founding member of the Association of Indigenous Lawyers (AADI). Academic adviser to the Centre of Public Policies for Socialism (CEPPAS) and member of the editorial team of the news portal Infoterritorial (CEPPAS project) on territorial conflicts and Indigenous Peoples (infoterritorial.com.ar). Member of the Board of Directors of INECIP (Institute for Comparative Studies in Criminal and Social Sciences (INECIP). Reference person for Argentina in the Latin American Network on Legal  Anthropology (RELAJU) and member of the Latin American Group of Studies on Legal Pluralism (PRUJULA). Contact: This email address is being protected from spambots. You need JavaScript enabled to view it.

This article is part of the 39^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is of an Indigenous activist Funa-ay Claver, a Bontok Igorot, standing alongside Indigenous youth activists and others. They are protesting against the repressive laws and human rights violations suffered through the actions and projects of the Government of the Philippines and other actors against Indigenous Peoples at President Marcos Jr’s national address on 22 July 2024 in Quezon City, Philippines. The photo was taken by Katribu Kalipunan ng Katutubong Mamamayan ng Pilipinas and is the cover of The Indigenous World 2025 where this article is featured. Find The Indigenous World 2025 in full here

Tags: Land rights, Business and Human Rights , Human rights