Ness Disputes in Indigenous Territories

The State in Waiting: State-ness Disputes in Indigenous Territories By Juan Carlos Mart´ınez CIESAS Centro de Investigaciones y Estudios Superiores en Antropologıa,´ Social Pacıfico´ Sur Resumen Este art´ıculo analiza los l´ımites del estado mexicano de garantizar los derechos de las comunidades ind´ıgenas y los pasos que han tomado las comunidades para intentar y asegurar que sus derechos sean garantizados en la practica.´ Este analisis´ contribuye alaantropolog´ıa del estado, espec´ıficamente la que discute que la formacion´ y las funciones del Estado tiene lugar fuera de las instituciones gubernamentales. El caso de la presa Cerro de Oro y el proyecto de conversion hidroelectricaenelestadodeOaxaca´ revela como´ los derechos son ignorados por los servidores publicos´ y subordinados a los intereses del gran capital trasnacional en la nueva fase de expansion´ capitalista. Mi principal hipotesis´ es que el estado neoliberal genera una tensa contradiccion´ al tratar simultaneamente´ de garantizar los intereses de las grandes empresas y los derechos de los pueblos ind´ıgenas. En esta contradiccion,elgobiernomexicanohaabandonadoel´ ejercicio de la soberan´ıa, generando disputas entre empresas privadas y comunidades locales para asumir funciones del estado creando sus propias condiciones de Estado o lo que algunos autores en America´ Latina han llamado “estatalidad”. [globalizacion,´ derechos humanos, pueblos ind´ıgenas,ley,Mexico,´ antropolog´ıa social] Abstract This article analyzes the limits of the Mexican government´s ability to guarantee the rights of indigenous communities and the steps taken by those communities to try to ensure that their rights are guaranteed in practice. This analysis contributes to anthropological literature on the state, and shows that state formation and state functions may take place outside of governmental institutions. The case of the Cerro de Oro The Journal of Latin American and Caribbean Anthropology, Vol. 00, No. 0, pp. 1–23. ISSN 1935-4932, online ISSN 1935-4940. C 2017 by the American Anthropological Association. All rights reserved. DOI: 10.1111/jlca.12251 This is an open access article under the terms of the Creative Commons Attribution-NonCommercial- NoDerivs License, which permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no modifications or adaptations are made. The State in Waiting 1 hydroelectric plant project in Oaxaca, Mexico, reveals how rights are ignored by state officials and subordinated to powerful economic interests in a new phase of capitalist expansion. The main hypothesis here is that the neoliberal state generates a situation of tense contradictions by simultaneously trying to guarantee the economic interests of transnational enterprises and the rights of indigenous people. Within this con- tradiction, the Mexican government abandons the exercise of sovereignty, generating disputes among private enterprises and local communities as they attempt to assume the functions of state, or state-ness. [globalization, human rights, indigenous people, law, Mexico, social anthropology] When I visited the Cerro de Oro dam in southern Mexico in mid-2011, I was with a group of indigenous campesinos (peasants), NGO members, engineers, corporate financiers from Mexico and the United States, and an Argentinian mediator. I was working for the Mexican NGO Fundar’,1 Center for Analysis and Research, and acting as an advisor to the communities. As a lawyer and anthropologist, my role was to insist that the international and national laws that recognize indigenous rights could not be ignored in the construction of a hydroelectric plant. Over time, I came to reflect on this experience and the transformations in the law and in the state during the 20 years since I had qualified as a lawyer. We passed through a devastated area with felled trees and ripped up earth: it was almost impossible to walk through, and heavy machinery was standing by. A few months earlier, construction companies had started operations to build a hydroelectric plant, using a dam that was already in place. As the detrimental impact on the local environment became evident, this had prompted opposition from local inhabitants. I approached an older man, part of the visiting group, who was a distinguished engineer, to find out his perspective on these events. He told me that 30 years ago he had helped to construct the dam and that they had not needed anybody’s permission. For him, the dam was “proof of Mexico’s development and the great capacity of its engineers. We are internationally famous,” he told me. In his view, consulting indigenous people was simply an obstacle to the contribution that big business could make to this country of poor people: “These people are ignorant and easy to manipulate; they don’t even know why they’re here obstructing the works and investments that Mexico needs.” To him, the interests of the companies were synonymous with the interests of the country. He believed that “these people’s” laziness and greed were preventing development: “They just want to receive money without having to work.” Without challenging his views, I asked him what had changed since the dam was built. “The government,” he answered, without any 2 J ournal of L atin A merican and C aribbean A nthropology hesitation. “Before the government planned and executed [it] . it ensured it was obeyed.” He continued, “Now they ask everyone about everything, and if people oppose . Well look, there’s nothing we can do.” He said the state had changed, and had lost its previous function of issuing orders that would be carried out. Perhaps the engineer was not entirely wrong, but he was unaware that, actually, it was only the companies that benefited from this new, apparently passive, state. This article analyzes the ways in which the Mexican state demonstrates a weak capacity to guarantee rights; it favors corporate interests in conflicts against the rights of indigenous people. The following research explores both the material and the ideological conditions that enable indigenous communities to make their rights effective in practice. It also focuses on how private enterprises use the “emptiness of state” to introduce their own forms of estatalidad: Rene Zavaleta Mercado (1990) refers to conditions of estatalidad, or “state-ness,” as enabling certain state functions to be performed outside of formal governmental institutions. In the case explored here, indigenous communities allied with other national and transnational networks to appropriate some of the state’s functions, fostering emerging conditions of estatalidad, or state-ness. At the same time, private enterprises brought their own normative frameworks into play; however, outcomes depended far more on factors external to the legal realm than on the formal logic of the law (Bourdieu 2014). This research differs from anthropological studies that highlight the pre- eminence of capitalist enterprises and the legal weakness of indigenous peoples’ rights—and specifically, the right to consultation (Composto and Navarro 2014; Cruz Rueda 2013; Ornelas1990). In contrast, it points to conditions where communities do manage to build state-ness. This work challenges those studies that from a juridical perspective assume that nation states can become “intercultural states of law2” given sufficient political will (Schonbohm¨ 2011). I argue that rather than political will expressed through law, it is, in fact, transformations in the political economy of the Mexican state that have unintentionally opened up a space for another kind of nonhegemonic legality and state-ness to emerge. Although the studies mentioned above ably illustrate how national governments have favored international finance and capital, they tend to assume that governments have full control of all institutions, overlooking the fact that at any moment each group can strategically appropriate resources that are no longer under the direct control of the state and its traditional corporatist networks. Studies that emphasize the power of the law assume that indigenous peoples’ rights can be guaranteed by strengthening the capacities of public servants and by reducing corruption. However, such perspectives fail to consider that indigenous rights are in fact part of an alternative political economy that challenges and at times opposes the logic and interests of capital accumulation. The State in Waiting 3 The corporatist model that for a long time sustained the Mexican state has more recently experienced an erosion of its material and ideological bases. For this reason, organizations within society, using the contradictory norms of a neoliberal state and their own material resources, are creating alternative institutions that are different from those offered by the centralized state. This new form of state-ness cannot be reduced to a set of principles, norms, or procedures for the management of the commons (Ostrom 1990), or be understood simply as spaces of resistance and dispute (Zibechi 2014). Rather, this state-ness creates forms of representation and deliberation, and generates material and symbolic means that fill the gaps left by the nationalist state, while appropriating the rights and norms that best suit the interests of organized groups beyond the will of formalized institutions. Communities sometimes succeed in taking control over certain processes, and in some cases even achieve results that can be totally or partially against the interests of governments and big enterprises. This article analyzes the processes that halted a private investment project, which had planned to use a public dam in the state of Oaxaca, Mexico, to generate electricity to be sold to transnational companies. This case generated a controversy that did not find a resolution through Mexican formal institutions. Instead, the investment was withdrawn because of the discourse built by communities using the safeguards of the lending financial institution.3 Be- tween 1974 and 1986, some 26,000 Chinanteco indigenous people had been summarily expelled from their ancestral lands to facilitate the construction of this dam (Bartolome´ and Barabas 1990; Ewell and Poleman 1980).

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