Customary Justice of Indigenous Peoples in Colombia: Between Reality and Historical Debt

Written on 24 September 2025. Posted in News

BY LAURA ANNE KLEINER & TULLIO TOGNI FOR INDIGENOUS DEBATES

The Regional Indigenous Council of Cauca (CRIC) played a key role in the implementation of the Special Indigenous Jurisdiction. In 1991, Article 246 of the new Political Constitution established that Indigenous Authorities may exercise jurisdictional functions within their territories, in accordance with their traditional customs and practices. In this context, the 2017 ruling by the Supreme Court of Justice in favour of Feliciano Valencia marked a historic milestone, setting legal precedent on the importance of Indigenous justice systems. Looking ahead, progress is still needed on the Law of Coordination, aimed at harmonising the Special Indigenous Jurisdiction with the ordinary justice system.

The Regional Indigenous Council of Cauca (CRIC) is the leading organisation of Colombia’s Indigenous movement and also the oldest, with roots dating back to 1971 through land recovery initiatives. In 1999, CRIC declared the Indigenous Reserve of La María Piendamó a Territory of Coexistence, Dialogue, and Negotiation. For years, this site hosted dialogue between civil society, the state, and armed groups, in efforts to de-escalate the armed conflict and explore peaceful alternatives. These efforts persisted despite the historical context marked by the expansion of paramilitary forces and the repressive policies of President Álvaro Uribe’s administration (2002–2010).

In 2008, an emblematic case emerged concerning the autonomy and self-governance of Colombia’s Indigenous Peoples. During a large mobilisation, the Indigenous Guard—the community-based self-protection system of the peoples of Cauca—identified and detained the army corporal, Jairo Danilo Chaparral Santiago. He was carrying a weapon and had infiltrated the mobilisation, pretending to be a university student. Following internal consultation and accusations that he had entered Indigenous territory clandestinely and without authorisation, the communities decided to apply a sanction (harmonisation) under their customary law (derecho propio): 20 lashes.

In response, Chaparral filed a complaint against the Indigenous authorities, in particular against Feliciano Valencia, who at the time was the legal representative of CRIC. The corporal claimed he had suffered humiliation and physical harm, arguing that his sanction did not constitute a legitimate legal procedure but rather arbitrary violence. He further contended that Indigenous Jurisdiction had no authority over him, as he was an active member of the National Army.

A Landmark Ruling for Indigenous Justice

The road was anything but easy. In the first instance, a judge ruled that the sanction imposed on the army corporal had been a legitimate exercise of Indigenous Jurisdiction and acquitted Feliciano Valencia. However, in September 2015 the Superior Court of Popayán overturned that decision and sentenced him to 18 years in prison for aggravated unlawful detention and bodily harm. Two years later, on 28 June 2017, after appealing to the Supreme Court of Justice, Valencia was released. The court recognised that both the detention and the sanction imposed by the community had taken place within the legitimate framework of the Special Indigenous Jurisdiction (JEI).

The ruling marked a turning point. It set a national legal precedent on the recognition of Indigenous justice in Colombia—a country where, until 1991, Indigenous Peoples were still legally classified as minors and “savages” in need of civilisation. Valencia’s case sparked a legal and political debate that continues to this day: if Article 246 of the Constitution allows Indigenous Authorities to exercise jurisdiction in their territories, in line with their cosmovision and traditions, why is that right still so difficult to enforce? Despite the Supreme Court ruling, obstacles remain. In practice, Indigenous justice continues to face serious challenges—not least its coordination with Colombia’s ordinary justice system, military courts, and the Special Jurisdiction for Peace.

The debate remains urgent. In October 2024, a bill known as the Law of Coordination was elaborated and proposed to the Parliament. Its goal is to promote better integration between the Special Indigenous Jurisdiction and the national system, and to strengthen recognition of the justice systems of Colombia’s 116 Indigenous Peoples.

The Long Road to Justice

It has now been 34 years since Colombia adopted its new Constitution. In historical terms, that’s not a long time—especially considering that the country waited nearly a century, and endured an almost permanent state of civil war, before replacing the 1886 Constitution. Over those turbulent decades, Colombian society underwent profound changes, yet power remained concentrated in the same few hands. And yet, viewed from another angle, 34 years is a long time—particularly given the sense of collective euphoria that swept the country during the constitutional process. Back then, many believed the country was finally on the brink of building a Social State under the Rule of Law, in stark contrast to the longstanding myth of Colombia as “the oldest and most stable democracy in Latin America.”

The 1991 Constitution—hailed as the Human Rights Constitution—was, at the time, almost revolutionary. Not only because it emerged in the midst of a decades-long armed conflict, but also because it coincided with the signing of peace agreements and the demobilisation of several guerrilla movements. Among them were the 19th of April Movement (M-19), in which current President Gustavo Petro once militated, and the Quintín Lame Armed Movement (MAQL), a group rooted in and largely based in the department of Cauca.

Emerging in the mid-1980s to protect Indigenous communities from armed groups and to defend advances in land recovery and the establishment of Indigenous Councils led by the CRIC, the Quintín Lame Armed Movement demobilised between 1990 and 1991 for two main reasons: first, the Indigenous communities themselves requested it, believing that armed resistance was no longer a viable strategy given the historical circumstances; and second, the opening of political space brought about by the constitutional process.

Thanks to the persistence of the Quintín Lame Armed Movement, “ethnic rights” were enshrined in constitutional provisions that recognised Indigenous Peoples’ collective identity, spiritual beliefs and practices, territorial rights, and autonomy. Notably, Article 246 promoted the recognition of Indigenous customs and traditions through legal pluralism. This paradigm shift led to the constitutional recognition of Indigenous Peoples as collective legal subjects—a concept previously nonexistent—and acknowledged the country’s ethnic and cultural diversity. In doing so, Colombia transformed into a plurinational and multicultural state.

An Ongoing Struggle

Nearly 20 years after the adoption of the Political Constitution, the case of Feliciano Valencia—and the widespread public acclaim following his release after a landmark ruling—revealed how slowly progress has been made and highlighted a crucial shortfall: the practical implementation of agreed principles and the effective, systemic coordination between the National Judicial System and the Special Indigenous Jurisdiction.

This glaring contradiction is far from new in Colombia. Unfortunately, the country has long been accustomed to seeing rights confined to paper while peace processes are repeatedly undermined. This pattern first emerged in the late 1980s with the political genocide of the left-wing Patriotic Union party, formed in the wake of an initial FARC-EP demobilisation. It continued throughout the 1990s and 2000s, with the rise of paramilitary forces following the adoption of the new Constitution, plunging the country into one of its darkest eras. This troubling trend was reaffirmed in the past decade, as the armed conflict reconfigured itself amid failures to implement the 2016 Peace Agreements.

In this context, the struggle led by the Regional Indigenous Council of Cauca (CRIC) and its Own Justice System remains active, standing as a powerful example of how rights are claimed and exercised autonomously despite numerous challenges, compelling the State to uphold its constitutional obligations.

The issue of the Special Indigenous Jurisdiction continues to spark debate. In October 2024, the draft of a statutory bill known as the Law of Coordination was proposed to the Senate, seeking to foster greater harmonisation between the Special Indigenous Jurisdiction (JEI) and the National Judicial System, with the aim of strengthening recognition of the justice systems of Colombia’s 116 Indigenous Peoples. The ambition remains the same: to achieve genuine democracy, strengthen autonomy, and claim diversity.

Laura Ann Kleiner is a lawyer specialised in human rights of Indigenous Peoples and migration. She currently works with Comundo at the Colombian organisation Corporación Jurídica Yira Castro.

Tullio Togni is an anthropologist specialised in self-protection, international humanitarian law, and human rights. He currently works with Comundo at the human rights observatory of the Regional Indigenous Council of Cauca (CRIC).

Cover photo: CRIC Comunicaciones

Tags: Indigenous Debates