Collective Territorial Rights of the Indigenous Peoples of Mexico: a Path to Increased Self-Determination

Collective Territorial Rights of the Indigenous Peoples of Mexico: A Path to Increased Self-Determination

by Diana Cristina Fimbres

B.A. in Spanish, June 2012, University of California Irvine

A Thesis submitted to

The Faculty of The Columbian College of Arts and Sciences of The George Washington University in partial fulfillment of the requirements for the degree of Master of Arts

May 19, 2019

Thesis directed by

Ambassador Francisco Villagrán de León Visiting Scholar

Dedication

To my grandmother, Herminia Sandoval. To the young girl in Michoacán who deeply yearned for an education and to the older woman she became who nurtured in me the value of learning.

This is for you.

iii

Acknowledgments

The author wishes to acknowledge Ambassador Francisco Villagrán de León for all of his unwavering support, notable expertise, and constructive input. I also recognize Prof.

Laura Papish for her valuable guidance.

Table of Contents

Dedication iii Acknowledgments iv Introduction 1 Indigenous Peoples of Mexico under International Instruments and National Law 4 Collective Territorial Rights in Mexico 11 Relevant Frameworks for Self-Determination 16 Collective Territoriality Helps Move Away From Discrimination 22 Land Development and its Economic Implications for Self-Determination 30 On Implementation and the Limits of Self-Determination 38 Conclusion 42 References 44 Appendix I 48 Appendix II 50

Introduction

As the original inhabitants of Mexico, the indigenous peoples of Mexico have cultural, social, and economic traditions that span millennia1. They, nonetheless, have a centuries-long history of generalized marginalization within this land. External forces beyond their communities and within their country have consistently pushed these groups to leave their volitions and their traditional territories behind. Against this landscape, indigenous peoples in Mexico fight to maintain their rich customs and preferred way of life.

As a result of pressure from outside interests2, they occupy space both inside and outside indigenous communities3 where, in the latter, they often face limited and grim choices in part due to their ethnic identity and economic disempowerment.

Discrimination against indigenous peoples is part of the fabric of Mexican society. Their historic lands and territories offer a space that allows them to flourish as a group and protect against threats4. The ratification of the International Labor Organization (ILO)

Convention 169 on Indigenous and Tribal Peoples and more recently Article II of the

Mexican Constitution, grant collective territorial rights5 to indigenous communities as a

1 For example, Mayan civilization dates back to 2600 B.C. – 1800 B.C. 2Tauli-Corpuz, V. (n.d.). Declaración de cierre de misión México. United Nations. Retrieved from http://hchr.org.mx/images/doc_pub/PPII_EndofMissionStatementSPA_FINAL.pdf 3 An indigenous community is defined as the community that constitutes a cultural, economic and social unit settled in a territory and that recognizes its own authorities, according to their customs. 4 Threats to their survival as a group 5 Total environment of the areas, including the concept of territories, which the peoples concerned occupy or otherwise use 1

means of self-preservation6. Nonetheless, foreign parties7 continue and increasingly infringe upon their land8.

I will argue that collective territorial rights are a means for self-determination for the indigenous peoples of Mexico. Self-determination, in this context, includes several components (i.e., cultural, social, spiritual, and economic). I will argue that preserving collective territorial rights is fundamental to indigenous self-determination because land rights are a viable route for social and economic development and cultural preservation.

This work will not delve deeply into the spiritual component. As this subset of human rights become more precarious and endangered by economic and political interests, preserving them becomes a crucial priority. Threats to territorial rights in this country further deprive indigenous peoples of opportunities to choose from a catalog of already limited options.

This project will primarily take a practical approach to the issue and context at hand. It will consistently reference and explore relevant frameworks and definitions to further the argument. To make this argument, I will first define and identify the indigenous peoples of Mexico under national and international frameworks highlighting the territorial links in their current definition. I will then define collective territorial rights per se and point to articles and laws that protect them within the national scope, followed by establishing frameworks for self-determination and autonomy. Next, I will refer to the historical discrimination against these peoples and argue that collective territorial rights

6 Preservation of social, cultural, and economic practices 7 E.g., Investors and government 8 Tauli-Corpuz, V. (n.d.). Declaración de cierre de misión México. United Nations. Retrieved from http://hchr.org.mx/images/doc_pub/PPII_EndofMissionStatementSPA_FINAL.pdf

help insulate them from the discrimination faced outside indigenous spaces allowing them to develop in a manner suitable for their identity. Furthermore, collective territorial rights also signify a potential mechanism for economic expansion – a tool currently under threat that can enhance the self-determination of these groups. Lastly, I will briefly examine pertinent challenges related to implementation and applicable human rights frameworks.

Indigenous Peoples of Mexico under International Instruments and National Law

The concept of ‘indigenous peoples9’ is inherently broad. By some estimates, there are over three hundred million10 indigenous peoples in the world11. Although there is no one universal definition, the characterizations are similar. Several international instruments and the Constitution of Mexico establish a delineation via their lens. Debates continue to incur to come to a general consensus on a definition12; scholars raise a plethora of concerns. Nonetheless, whether directly or more subtly, territorial ties are a thread that runs through the amalgam of descriptions. In other words, land connects to the very concept of being indigenous.

Relevant definitions approach the issue differently within the same general theme.

Notable differences between definitions include the idea of “dominant societies” which is a part of the United Nations definition. Whereas, the International Labor Organization and the Mexican Constitution forthrightly reference colonization13 as an integral component for falling under the subset of these pre-Hispanic peoples. The inclusion of colonization or its fundamental structure in these descriptions, further establish the deep

9 A number of local, national and regional terms are used to describe indigenous peoples, including tribes, ethnic minorities, natives, indigenous nationalities, First Nations, aboriginals, indigenous communities, hill peoples and highland peoples. 10 Indigenous Peoples Infographic. November 2016. https://www.un.org/development/desa/indigenouspeoples/publications/desktop-publications.html. 11 Indigenous peoples in Asia, Africa, the Americas 12 See Sanders, DE. “Indigenous Peoples: Issues of Definition.” International Journal of Cultural Property 8, no. 1 (January 1999): 4–13. 13 Colonialism involved the transfer of population to a new territory, where the arrivals lived as permanent settlers while maintaining political allegiance to their country of origin. 4

connection between land and peoples. More specifically, Mexico has either ratified or abides by the following declarations and laws14.

The United Nations Declaration on the Right of Indigenous Peoples (UNDRIP) defines indigenous peoples as those individuals who have “retained social, cultural, economic, and political characteristics that are distinct from those of the dominant societies in which they live15”. The United Nations posits that despite their cultural differences, the thousands of indigenous groups around the world share common problems related to the protection of their rights as distinct peoples16. The description points to critical elements guiding their perspective.

Delving deeper into this definition for conceptual clarity will, in turn, illustrate practical approaches to the subject. A couple of terms not explicitly defined are dominant societies and distinct peoples. Dominant society or dominant culture 17 describes a culture in a modern society that can impose or affect the values, language, and other ways of behaving on a subordinate culture or cultures consisting of distinct peoples18. A dominant society assumes and is dependent on a societal landscape composed of diverse and or contesting cultures19. In theory, in a homogeneous society with no competing cultures, this concept would not hold or be applicable. The United Nations’ definition points to an

14 The following mentions are not wholly inclusive. There are over 30 normative frameworks affecting this population. 15 United Nations Declaration on the Rights of Indigenous Peoples. (2007). Retrieved from https://www.un.org/development/desa/indigenouspeoples/wp- content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf 16 Rights, S. R. (2018). Special Rapporteur Report on the Indigenous Rights. The United Nations. Retrieved 2018 17 These terms will be used interchangeably. 18Dominant Culture. Accessed March 2, 2019. https://www.encyclopedia.com/social- sciences/dictionaries-thesauruses-pictures-and-press-releases/dominant-culture. 19 Competing cultures referring to a space with more than one culture purposely or inadvertently trying to be more dominant 5

uneven power relationship amongst groups in which one group exerts greater control over influential societal factors20, and it may also carry a colonial undertone reflective of the societal interactions previously described. As with many Latin American nations, Mexico is an expression of this type of socially unbalanced society that contains both distinct peoples and a dominant society, which in this instance conveys racial implications stemming from its colonial past21.

As a result of Spanish colonization in the 16th century22, mestizos23 - individuals of mixed European and indigenous descent – are a majority in Mexico’s ethnic landscape.

According to the Mexican Bureau of Statistics (INEGI), less than 10% of the total population self-identifies and retains its indigenous status24. These indigenous peoples retain most of their customs, language, and pre-colonial traditions and way of life.

Although the ethnic gap between European and indigenous persons is less visible than it once was - a socio-economic crevasse divides the modern Mexican mestizo culture and the indigenous person. The U.N. definition for indigenous peoples is dependent on unequal social relations between groups, which arises in Mexico as a historical byproduct. The description above does not explicitly acknowledge colonialism, yet it incorporates related aspects. It non-explicitly proposes a veiled colonial caveat, if as such interpreted, applicable to define indigenous peoples in specific contexts.

20 These primarily include economic, cultural, and social concerns. 21 Originally, a land populated by an abundant landscape of indigenous peoples, Spain colonized Mexico in the 16th century. It then received waves of mostly European migrants that continually came together with indigenous individuals throughout the subsequent centuries. 22 Spanish conquest of Aztec empire started in 1520 23 Mestizos is a term coined by Spanish colonists to describe a person of European and Indigenous descent 24 Hablantes De La Lengua Indígena En México, accessed February 02, 2019, http://cuentame.inegi.org.mx/poblacion/lindigena.aspx?tema=P. 6

Other international mechanisms contain more detailed descriptions. For instance, the International Labour Organization provides a broader demarcation than the definition found in the United Nations Declaration on the Rights of Indigenous Peoples. On

September 1990, Mexico ratified International Labor Organization Convention 169,

Indigenous and Tribal Peoples Convention25 (ILO C. 169). It defines indigenous peoples as

peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions26.

The International Labour Organization’s proposition is unique since it presents territories on two fronts and allows for additional parameters. It circumscribes indigenous peoples in ‘independent countries’ to lands or regions they inhabited before conquests or colonization, regardless of their current status27. The definition qualifies indigenous persons in terms of territory - pre and post conquest28 - and underscores their collective personhood by referring to their specific political and socioeconomic habits.

Furthermore, the emphasis on colonization in the previous definition highlights a vital historical association between indigenous peoples’ identity and their lands.

25 “Convention concerning Indigenous and Tribal Peoples in Independent Countries,” opened for ratification June 27, 1989, C169. https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C 169

26 Ibid 27 There are recurring issues with the statehood of indigenous peoples 28 Refers to the territory they traditionally inhabited and to how it is presently qualified. 7

Colonialism29 itself is recognized by territorial control and disputes - taking territory from others for an entity’s self-gain with an intent to dominate and subjugate the other30. It also involves settling on foreign soil generally with an intent to exploit through violent means. Although Mexico became an independent nation over 200 years ago31, officially free from Spanish political influence, a certain colonial heritage lives on within its boundaries and people. The Constitution of Mexico recognizes the impact of this influence and chooses to define the country’s original occupants under this framework as well.

The indigenous peoples' definition included in the Mexican Constitution of 1917 is vital within the scope of this argument. It characterizes indigenous peoples as the

“descendants of those inhabiting the country before colonization, and that preserve their own social, economic, cultural and political institutions, or some of them”32. Although similar to previous descriptions, this explanation includes a political aspect and a caveat that makes the last set of components non-mutually exclusive - further opening up the possibilities of what indigenous identity constitutes. Under this conceptual structure, social, cultural, and economic norms do not wholly or solely bound them. The Mexican

Constitution considers individuals as indigenous if they have preserved at least “some of” their pre-colonial characteristics. It acknowledges and allows that certain customs and traditions change and evolve – sometimes from a natural desire or as a result of extraneous pressures.

29 "Colonialism," Stanford Encyclopedia of Philosophy, August 29, 2017, https://plato.stanford.edu/entries/colonialism/#Def. 30 Refers to the non-dominant society 31Mexico became an independent nation in 1810 32 Political Constitution of the United Mexican States. (2015, October). Retrieved from https://www2.juridicas.unam.mx/constitucion-reordenada-consolidada/en/vigente#menu-412 8

Although the Constitution allows for fluidity in the second component of qualifiers33, it firmly maintains that it refers to individuals living on lands (now comprising of Mexico) prior to the arrival of Cortés34 and those who followed. This description of indigenous identity draws a clear line in the sand bound by temporality and historical factors. To propose it more simply, under this conceptual structure all peoples and ancient civilizations35 inhabiting the land before the Spanish conquest were indigenous. Since it overtly mentions colonialism as a defining characteristic of their identity, there is an underlying implication of land transfer from the indigenous persons to the new settlers. The reference to colonialism within the definition has merit. It is pragmatic and allows for clarity. Nonetheless, it reflects a solidly Western36 perspective from which to view a rich myriad of peoples and ancient cultures that inhabited said territories from 1800 B.C. onward, thousands of years prior to European colonization37.

More precisely, under the definition provided by the Mexican Constitution, said government currently identifies 67 distinct indigenous groups38 (see Appendix I) in the country, comprising of approximately 11 million people and 10% of the total population spread across the 32 federal entities. According to the Sistema de Información Cultural39, the most populous indigenous groups are the Nahuas, Mayas, Zapotecs, and Mixtecs40.

33 The Mexican constitution considers individuals indigenous if they have preserved some of their pre-colonial characteristics. 34 Refers to Spanish Conquistador Hernán Cortés de Monroy y Pizarro Altamirano who led an expedition that caused the fall of the Aztec Empire (1519-1521) 35 Refers specifically to the first settled and stable communities that became the basis for later states, nations, and empires 36 See Westernization concept 37 Spain colonized Mexico in 1591 38Sistema de Información Cultural. Retrieved from http://sic.gob.mx/index.php?table=grupo_etnico# 39 Cultural Information System of Mexico 40 Sistema de Información Cultural. Retrieved from http://sic.gob.mx/index.php?table=grupo_etnico# 9

Indigenous communities of varying sizes reside in all states. The central and southern regions of the country (e.g., federal entities of Chiapas, Oaxaca, Yucatán, and Guerrero) hold the largest concentrations41.

Indigenous groups in and beyond Mexico are authentically unique cultures themselves. Nonetheless, this argument will primarily rely on the similarity of their condition as “indigenous peoples” under the framework of the Mexican Constitution, presenting particular communities to demonstrate a broader point. Definitions found in international instruments and the Political Constitution of the United States of Mexico42 allow a birds-eye view examination of these groups. Additionally, prior explanations begin to establish the role and implications of colonialism in this context with several explicitly emphasizing the centrality of their historically-possessed territories in defining indigenous identity.

41 Some of these states have an indigenous population over 50% 42 Mexico’s official country name 10

Collective Territorial Rights in Mexico

The collective territorial rights of the indigenous peoples of Mexico are part of an ongoing human rights process. This section aims to uncover certain assumptions and provide useful frameworks from which to approach this topic. It will also reveal determinative linkages between collective rights and land rights. Understanding the notion of “collective territorial rights” rests on analyzing each component to achieve a general and inclusive conception appropriate for this national context. Furthermore, this section will look at how these collective rights continue to evolve in Mexico.

The argument posited by this thesis rests on the understanding and acceptance of collective rights (and claims of indigenous land rights) as a subset of human rights43 and that the notion of collective rights is compatible with liberalism’s emphasis on the individual44. Although thinkers justify and identify collective rights differently45, within the context of this argument, they are defined as rights held by a group. Not every group can claim collective rights; they must have a common culture that is pervasive and encompasses a wide range of activities and pursuits46. Furthermore, these rights are embodied in social practices47 , and the culture of the group must have a territorial aspect48. These groups substantially rely on their land to thrive. The Food and Agriculture

Organization of the United Nations describes collective rights as “indispensable for the survival, well-being, and integral development of indigenous peoples as distinct human

43 I can point you to different arguments by Joseph Raz and Will Kymlicka. 44 Thompson, Ethnic Minorities and the Case for Collective Rights, 1997 45 Some have a goods based approach and others a cultural preservation approach 46 See Joseph Raz and Avishai Margalit, “National Self-Determination”, Journal of Philosophy 87 (1990): 439-461. 47 Will Kymlicka, Multicultural Citizenship (Oxford: Clarendon Press, 2000). 76-77 48 Steven Wall, Collective Rights and Individual Autonomy, Ethics (January 2007): 234-264 11

groups”49. They have a profoundly spiritual, cultural, social, and economic connection with their lands and resources via the community, the region, or the state – contrasting with dominant models of individual ownership, privatization, and development50.

Collective rights to lands, territories, and resources give them aggregate and insular ownership over decision-making processes relevant to these territories, in addition to some political power and the ability to maintain communally held traditional knowledge51.

To begin to understand this issue, the term ‘indigenous lands’ must be defined.

Like much else, conceptualizations are varied. For example, the International Labor

Organization Convention on Indigenous and Tribal Peoples 16952, which Mexico ratified, qualifies indigenous lands as “the total environment of the areas, including the concept of territories, which the peoples concerned occupy or otherwise use.” This definition is clear, yet broad in scope. Notably, it makes no historical reference and points to the current status of the land. The government53-run National Institute for Indigenous

Communities’ 54 approach55 utilizes two principal dimensions to characterize an indigenous region: (1) population and demographics and (2) spatial and territorial dimension. To define territorial limits, they also take into consideration the population’s

49 Jacques Diouf, "FAO Policy on Indigenous and Tribal Peoples,” March 2015, accessed April 22, 2019, http://www.fao.org/3/a-i4476e.pdf. 50 See the United Nations Permanent Forum on Indigenous Issues 51 Ibid 52 “Convention concerning Indigenous and Tribal Peoples in Independent Countries,” opened for ratification June 27, 1989, C169. ART. 13.2 https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C 169 53 Refers to Mexican government 54The original name is Instituto Nacional de Los Pueblos Indígenas 55 To read more about their methodology and approach, please see report by Comisión Nacional para el Desarrollo de los Pueblos Indígenas titled “Regiones indígenas de México” 12

participation in economic processes (e.g., production, consumption, and bartering)56, which is an interesting choice considering that the informal economy, which consists of non-regulated activities, employs 57% of the country57, and 23% of production occurs in this sector as well58. The Mexican government may also classify an indigenous municipality using a quantitative approach and defines it as one in which the total indigenous population represents more than 40 percent of the total municipal population59. The rationale for this threshold appears arbitrary and non-considerate of other more defining factors. Indeed, it is challenging to capture in an absolute sense of the meaning of the term ‘indigenous land.’ In this overall argument, I will use the ILO’s description in C.169 and reference indigenous groups’ particular social, economic and cultural practices60. It establishes a sense of homogeneity in the definition within the argument and applies to this national context.

In Mexico, social perspectives and political movements61 impacted legislation which affected the notion of collective territorial rights as recognized human rights.

While the original Constitution of 1917 acknowledged indigenous peoples, it did not include their collective right to land. The development of these rights in the country is relatively recent, most occurring within the past few decades62. The International Labor

Organization Convention on Indigenous and Tribal Peoples 16963 marks a turning point

56 Specifically production, consumption, and bartering activities 57 Source Instituto Nacional de Geografía y Estadística Reporte medición de la informalidad http://www.beta.inegi.org.mx/temas/pibmed/ 58 Ibid 59 About 60% of the indigenous peoples of Mexico live in an “indigenous municipality”. 60 Although is an overarching homogeneity, each territory is heterogeneous. 61 E.g., racism and indigenismo, and later on the Partido Revolucionario Institucional (PRI) 62 Mexico’s first important step in the subject involved ratifying ILO C.169 in 1990 63 “Convention concerning Indigenous and Tribal Peoples in Independent Countries,” opened for ratification June 27, 1989, C169. ART. 13.2 13

for collective rights and group land rights64. This international framework applies to

Mexico, which ratified the convention in 1990. ILO Convention 169 moved away from an individualist perspective presented in ILO Convention 10765 and placed greater emphasis on collective peoples.

Additionally, it elevated the role of indigenous communities in the active participation of the identification of their community problems and solutions, insisted on prior consultation, and adopted an appropriate language that reflected collective indigenous concerns and necessities66. Ratifying ILO Convention 169 laid the foundation for the transformation that occurred in Mexico two decades later, including the state’s approach and discourse, reshaping it from a collective rights perspective. Part II of this

Convention more specifically addresses indigenous land rights in several of its articles.

Most notably, Part II. On Land in ILO C. 169 states that:

1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities (Article 14).

1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources (Article 15).

https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C 169 64 Part II of C.169 is a section devoted to Lands 65 “Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries” opened for ratification June 26, 1957. https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C 107 66 Juan A. Cruz Parcero, "Los Derechos Colectivos Indígenas Y Su Desarrollo En La Constitución De 1917," 2017, https://archivos.juridicas.unam.mx/www/bjv/libros/9/4320/10.pdf. 14

1. Subject to the following paragraphs of this Article, the peoples concerned shall not be removed from the lands which they occupy (Article 16).

3. Whenever possible, these peoples shall have the right to return to their traditional lands, as soon as the grounds for relocation cease to exist (Article 16).

4. When such return is not possible, as determined by agreement or, in the absence of such agreement, through appropriate procedures, these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development (Article 16)67.

These articles are significant because they explicitly recognize indigenous people’s right to collective land ownership and their right to benefit in multiple dimensions from the land’s natural resources. It begins to tie together the influence of adequately held territories on community resources and development and their culture and traditions. Some articles in Section II on Land of ILO Convention 169 open up choices for these groups and allude to a collective identity by binding traditional activities to a given geography. They further and delineate indigenous control over their traditionally inhabited lands. These articles and Convention serve as Mexico’s current non-binding international framework. Nonetheless, ILO C.169 has significant implications for human rights implementation in the country as a result of the constitutional reform passed in 201168. I will discuss this modification and its consequences later on.

67 “Convention concerning Indigenous and Tribal Peoples in Independent Countries,” opened for ratification June 27, 1989, C169. ART. 13.2 https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C 169 68 Ibid 15

Relevant Frameworks for Self-Determination

This section aims to put forth definitions and conceptions of self-determination and autonomy that are relevant and presently applied to the issue at hand. This discussion will not address how these conceptions developed or how different fields approach them.

There are plenty of debates on that subject matter69. Instead, I will mostly use definitions included in national and international instruments; some mentioned prior. I will also clarify what is meant by each of those concepts within the scope of this work.

Self-determination is the right of a group to be collectively self-governing70.

Article I of the Charter of the United Nations embodies the principle of self- determination. The International Covenant on Economic, Social, and Cultural Rights71 also includes this principle. It states that

All peoples have the right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social, and cultural development.

The term political status is usually employed in international law discussions and plays a critical role in indigenous claims to collective self-determination. This collective self-determination can take several forms including; independence (from a colonial power) to secession (from a larger state), confederation (of two states), or political autonomy within a state through either delegated power or constitutionally protected political autonomy72. The type of self-determination I will refer to is the latter - a

69 Moore, M. (2003). An Historical Argument for Indigenous Self-Determination. Nomos, 45, 89-118. Retrieved from https://www.jstor.org/stable/24220018 70 Ibid 71 Mexico ratified it in 1976 72 Moore, M. (2003). An Historical Argument for Indigenous Self-Determination. Nomos, 45, 89- 118. Retrieved from https://www.jstor.org/stable/24220018 16

political autonomy that allows said groups to partake in a decision-making process, in this particular case, within the confines of the Mexican state.

Ultimately, the exercise of self-government for these peoples will have to be within existing states. The challenge for these groups is to advance models of self- determination that work and make sense for them to pursue. According to Margaret

Moore, indigenous peoples argue for “limited forms of self-government within the state, which typically involve maximal jurisdictional authority, consistent with numbers, especially over areas relating to language, culture, and resources but also with some increased representation at the center”73. In Mexico, the San Andres Accords of 199674 present a blueprint that incorporates the differences found within a multiethnic nation

(e.g., Mexico), it ensures expanded political and fair representation within the justice system and allows for decision-making in the decentralized tradition75.

ILO Convention 169 also helps describe self-determination. As a general policy, it posits that:

governments shall conduct prior consults when measures may affect these communities (Art. 6), these peoples have the right to decide their own priorities in development, governments have an obligation to cooperate in the environmental protection and preservation the lands they inhabit (Art. 7), they have the right to retain their own customs and institutions as long as they are compatible with the country’s respective legal system and international law (Art.8).

Although there are some issues with ILO C.169 to be discussed later on, as a whole, it provides a launching pad to understand how self-determination could function for indigenous peoples within a democratic state. The goal is not for indigenous peoples

73 Ibid, 104. 74 For the text of the accord, see Los Acuerdos de San Andres de Larrainzar, 1996, retrieved April 22, 2019, Universidad Autónoma de Mexico Web site: https://archivos.juridicas.unam.mx/www/bjv/libros/1/1/12.pdf 75 Ibid. 17

to form a sovereign country, instead for the state to empower them. This empowerment originates from the ability to choose priorities that are in line with their group’s interest.

It also arises from having an array of choices in the first place. Much of what we have seen in Mexico are limitations to both of these notions. Either indigenous peoples are excluded from processes that affect them or when given an opportunity to participate the options are less than ideal, many times it is both. The indigenous peoples’ ability to navigate and persist external influence and power is a determinant to their collective cultural survival. Hindering their joint movement could allow for infiltration that may eventually or gradually disperse them as an entity.

The United Nations Declaration on the Granting of Independence to Colonial

Countries and Peoples76 adopted by the U.N. General Assembly on December 14, 1960, is also worth noting on account that it is referenced to support an argument for indigenous peoples’ self-determination. It includes the self-determination principle and justification

77 found in the International Covenant on Economic, Social, and Cultural Rights. The

Declaration on the Granting of Independence to Colonial Countries and Peoples posits78 that to practice freedom and power territories should be transferred to peoples inhabiting the country regardless of race or creed79. Additionally, disruption of territorial integrity is not in accordance with the Universal Declaration of Human Rights.

These principles are relevant because they provide an international perspective that englobes self-determination and territory and connect the will of all peoples vis a vis

76 Adopted by the General Assembly resolution 1514 (XV) of 14 December 1960 77 All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development. 78 For full Declaration on Granting of Independence to Colonial Countries and Peoples see: http://www.un.org/en/decolonization/declaration.shtml 79 These rights are then limited by Article 6, which refers to the imperatives of the "national unity" 18

land. It makes a similar argument in that the ability to fulfill a culture and a people's wants is dependent on a designated space. Mexico disengaged from its colonial status80 prior to the ratification of this Declaration. Nonetheless, parallels exist between the two.

The Declaration on the Granting of Independence to Colonial Countries and Peoples was the basis for the decolonization of Africa81 and the Caribbean. Mexico’s colonial past and the current present deprives indigenous communities of territories that virtually connect their standard practices and their potential realization.

More specifically, Article 2 of Title One, Chapter 1 of the Political Constitution of the United Mexican States establishes indigenous people’s right to self-determination to guarantee national unity82. Moreover, the Constitution “recognizes and protects the indigenous peoples’ right to self-determination and, consequently, the right to autonomy”83. Nonetheless, a key point worth mentioning is that Article 2, VIII states that:

The constitutions and laws of the States and the Federal District shall establish those elements of self-determination and autonomy that may best express the conditions and aspirations of indigenous peoples in each State, as well as the rules, according to which indigenous communities will be defined as public interest entities84.

Therefore, in practice, self-determination and political autonomy may vary from state to state and ultimately differ from what the Mexican Constitution proposes. There are 32 federal entities in Mexico, and according to Mexico’s Human Rights Commission,

80 Mexico gained independence from Spain in 1810 81 Between 1945 and 1960, three dozen new states in Asia and Africa achieved autonomy or outright independence from their European colonial rulers. 82 Indigenous people’s right to self-determination shall be subjected to the Constitution in order to guarantee national unity. States’ and Federal District’s constitutions and laws must recognize indigenous peoples and communities, taking into account the general principles established in the previous paragraphs, as well as ethnic-linguistic and land settlement criteria. 83 Political Constitution of the United Mexican States. (2015, October). Retrieved from https://www2.juridicas.unam.mx/constitucion-reordenada-consolidada/en/vigente#menu-412 84 Ibid 19

there are over 30 “normative frameworks”85 or state laws applicable to indigenous peoples, some states have multiple legislations (See Appendix II). Now, state legislation protecting indigenous peoples and their autonomy is an advancement. Nonetheless, partitioning self-determination and autonomy into thirty-two pieces or more will most likely create an uneven standard in the country, and within certain indigenous groups who inhabit more than one state, since these demarcations sometimes do not coincide with their traditional territories. I will expand on the implications of this variability in the latter implementation section of this work.

In a more practical and applied sense of self-determination, Article II of the

Mexican Constitution recognizes that indigenous peoples’ can:

III. Elect, in accordance with their traditional rules, procedures and customs, their authorities or representatives to exercise their own form of internal government, guaranteeing the right to vote and being voted of indigenous women and men under equitable condition; as well as to guarantee the access to public office or elected positions to those citizens that have been elected or designated within a framework that respects the federal pact and the sovereignty of the states. In no case the communitarian practices shall limit the electoral or political rights of the citizens in the election of their municipal authorities.

VII. Elect indigenous representatives for the town council in those municipalities with indigenous population86.

These clauses demonstrate the subsets of self-determining dynamics. Indigenous groups are allowed a fluidity in their decision-making within their internal affairs. Nevertheless, the state bounds and limits them. Furthermore, there should be more of an explicit recognition of the interdependence between indigenous and non-indigenous communities endorsing both shared rule and self-rule. Local indigenous governments are better

85 See Appendix II 86 Political Constitution of the United Mexican States. (2015, October). Retrieved from https://www2.juridicas.unam.mx/constitucion-reordenada-consolidada/en/vigente#menu-412 20

positioned to understand local and community concerns, while institutionalized cooperation between indigenous and nonindigenous communities may bring about learning and coordination, maximizing the experience and expertise of larger governing bodies87.

To close, I will briefly mention individual autonomy. Contrary to self- determination and political autonomy, individual autonomy or individual freedom deals with a single person, and not a collective. Although, individual autonomy may signify self-directing liberty and personal independence88, I will assume that individual autonomy89 requires that persons be relatively free from coercion and manipulation, that they have access to an adequate range of options, and that the state has a role to play in ensuring that they have access to a suitable range of options90. Individual autonomy will only be referenced in this work as it relates to collective determination and the broader argument.

87 Moore, M. (2003). An Historical Argument for Indigenous Self-Determination. Nomos, 45, 89-118. Retrieved from https://www.jstor.org/stable/24220018 88 (2018, 12 30). Retrieved from Merriam-Webster: https://www.merriam- webster.com/dictionary/autonomy 89 Autonomy can be characterized in different ways. The characterization I use places emphasis on conditions external to the agent, such as access to options and freedom from coercion and manipulation. For a defense of this conceptualization, see Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986), 367-429. 90 Wall, S. (2007). Collective Rights and Individual Autonomy. Ethics, 117(2), 234-264. 21

Collective Territoriality Helps Move Away From Discrimination

The end91 of Mexican ‘Indigenism’ is not the indigenous person, it is the Mexican person. -Gonzalo Aguirre Beltrán92

Serving as an undertone for this discussion, with very palpable present-day consequences, is this nation’s past - which includes institutionalized slavery during colonial times93 and a history of racism and discrimination that pervades most social strata. In part, collective land rights allow for the exercise of this abhorrent practice to subside as indigenous communities develop a social insulation. Moreover, this section will explore the origins and linkages between colonialism, land destitution, and discrimination to put forth an argument that demonstrates how collective territorial rights can be useful to protect self-determination related to its social and cultural components.

Racism is the belief in the superiority of one race over another, which results in discrimination and prejudice towards individuals based on their race and ethnicity94.

Prominent in Mexico’s social landscape and relevant for further discussions, is the fact that discrimination against indigenous peoples is not only based on phenotypic characteristics. Mestizos95 may discriminate against indigenous peoples, who they may physically resemble, pointing to a form of discrimination that englobes cultural and economic96 factors that additionally delineate a distinction between them. In other words,

91 Referring to the goal of the project. The aim was strip the indigenous person from that identity and make them “Mexican”. 92 Aguirre Beltran ran the first Indigenism Coordination Centre (opened 1954) in San Cristobal de las Casas, Chiapas, Mexico 93 From 1521 to 1821 94 Garner, Steve (2009). Racisms: An Introduction. Sage. 95 Mixed race individuals of European and Indigenous origin 96 E.g., Indigenous peoples have the lowest income and highest vulnerabilities and tend be paid less for the same job 22

this type of discrimination may take into account language or dialects, dress, or any other forms that visibly highlight their heritage.

Although race97 and ethnicity98 are generally considered separate concepts99, the

International Convention on the Elimination of All Forms of Racial Discrimination

(ICERD) states that there is no distinction between ‘racial discrimination’ and ‘ethnic discrimination’100. Discrimination is deemed as the treatment or consideration of or making a distinction towards, a person based on the group, class, or category to which the person is perceived to belong101. As previously mentioned, indigenous communities in

Mexico are subjected to and limited by these societal forces.

A rupture exists between the narrative portrayed by contemporary society about its indigenous people and the actual experience of these groups. The glorification of an

Aztec and Mayan past serving as symbols of origin, nationalism, and cultural grandiosity found in modern Mexican culture and folklore emphasize a dichotomous narrative when compared to the subpar conditions and handling of these groups. In part, this contradiction stems from Indigenismo’s political ideology and its subsequent influence on national public policies. Indigenismo came about in the late nineteenth century and the early twentieth century as Latin American countries sought independence from colonial rule and sought to carve out a role for indigenous peoples within their respective

97 A grouping of humans based on shared physical or social qualities into categories generally viewed as distinct by society 98 A category of people who identify with each other based on similarities such as common ancestry, language, history, society, culture or nation 99 The distinction between race and ethnicity is debated among anthropologists 100 U.N. Convention on Racial Discrimination 101 "What is Discrimination?" Canadian Human Rights Commission. Archived from the original on 2018-04-15. 23

emerging nation-states102. This ideology proposes a prevalent social and political role for indigenous peoples in countries where they constitute a significant or majority of the population103. It draws a clear distinction between indigenous peoples and Europeans, or those of European ancestry who have dominated the indigenous majorities since the 16th century104. In Mexico, the movement rose to prominence starting with the Revolution of

1911105 and became most influential during the presidency of Lazaro Cardenas (1934-

1940) whose administration made significant efforts to reconstitute the nation to its indigenous heritage106. Some scholars argue that the government used Indigenismo as an effort to unite the country after the Revolution of 1911 that left it disjointed and divided it into factions107.

In 1917, the Mexican Constitution incorporated Indigenismo as a guiding ideology which sought to liberate108 indigenous peoples from a history of mistreatment by integrating them into the Mexican state from a nationalist perspective. Nevertheless, critics of Indigenismo such as anthropologist Guillermo Bonfil Batalla, argue that in trying to incorporate indigenous peoples into the dominant culture and ultimately create a sole mestizo culture, the state was in fact “de-indianizing” them 109 by pushing them into a social and literal space that was not of their choosing. Rather, he recommended a

102 Barnet-Sánchez, Holly. "Indigenismo and Pre-Hispanic Revivals" in The Oxford Encyclopedia of Mesoamerican Culture. vol. 2, pp. 42-44. Oxford University Press 2001. 103Alcida Rita Ramos, Indigenism: Ethnic Politics in Brazil, University of Wisconsin Press, 1998. 104 Barnet-Sánchez, Holly. "Indigenismo and Pre-Hispanic Revivals" in The Oxford Encyclopedia of Mesoamerican Culture. vol. 2, pp. 42-44. Oxford University Press 2001. 105 Mexican Revolution 1911-1920. Civil war waged against President Porfirio Diaz who had been in power for more than 30 years. 106 Some scholars argue that Indigenism was used as an effort to unite the country after the Revolution of 1911 that left the country disjointed and divided it into factions. 107 Input citation 108 Liberate them from poverty and previous exploitation. This is debatable. 109 Bonfil Batalla, Guillermo (1996). México profundo: reclaiming a civilization /by Guillermo Bonfil Batalla; translated by Philip A. Dennis. Austin, TX: University of Texas Press. 24

“plurinational state of co-existence” where various cultural entities could pursue their priorities free from Western culture’s impositions110. Still, indigenist policies were merely a subsection of the questionable public policies affecting these communities. 111

Nearly half a century prior, the Mexican government implemented a law that led to a substantial loss of indigenous territories.

The Ley de Desamortización de Fincas Rústicas y Urbanas Propiedad de las

Corporaciones Civiles y Religiosas (1865) - hereafter referred to as Lerdo Law112- is worth examining to understand the national developments of the time. Originally intended to open up lands to promote economic growth, create a rural middle class, and improve public finances113; the Lerdo Law’s byproducts deeply affected indigenous communities by effectively removing them from their previously occupied properties.

The law, per se, called for the confiscation of properties owned by the Catholic Church114 and civic organizations to be sold to private individuals. The legislation included a clause115 mandating properties without official land title holders to be sold to the highest bidder at auction.116While the law did not directly target indigenous communities, as a group, they bore a significant burden. It was common practice for these groups to exert

110 Ibid 111 Korsbaek, L., & Samano Rentería, M. (2007). El Indigenismo en México: Antecedentes y Actualidad. Ra Ximhai, 3(1), 195-224. 112 Commonly referred to as Lerdo Law because it was pushed by Finance Minister, Miguel Lerdo de Tejada 113 D.F. Stevens, "Ley Lerdo" in Encyclopedia of Latin American History and Culture, vol. 3, p. 409. New York: Charles Scribner's Sons 1996. 114 Lands not being used for religious purposes (excluded churches and other similar property) 115 D.F.Stevens, "Ley Lerdo" in Encyclopedia of Latin American History and Culture, vol. 3, p. 409. New York: Charles Scribner's Sons 1996. 116Ibid 25

control over their lands as third parties and not as title-holders; therefore, once the law passed, it allowed for their properties to be seized.

Additionally, Lerdo law allowed the government to set prices for the properties newly under their control. Indigenous communities had low purchasing power and consequently did not acquire many of the communal lands117 they had occupied for generations, worsening their economic development and status. Hence, affluent non- indigenous buyers purchased properties for sale further enhancing their wealth and control of the country’s territories118. Mostly wealthy non-indigenous individuals seized the opportunity to concentrate land created by this legislative measure, further widening the economic gap between groups. The effects of Lerdo Law are still visible today.

Since the Conquest, constant land dispossession and marginalization have been a part of history for these indigenous groups119. Each squared meter seized represents a part of their livelihood. The Lerdo Law and Indigenismo are representative of a broader tendency to drive upon indigenous groups a type of existence they do not ask for or necessarily desire. Whether purposely or not, this pressure contributes to the loss of historical lands throughout time. For the most part, traditional indigenous communities uphold a different concept of land ownership than in Western cultures – a conception that relies heavily on communality and collectivity.

117 Which is not to say that these lands were equally divided amongst individuals in indigenous communities. 118 Such was the wealth disparity, that by the turn of the 20th century ten percent of the population owned ninety percent of the land. 119 In 1992, as a precondition for Mexico for entering the North American Free Trade Agreement (NAFTA) with the US and Canada, art.4 and art.27 of the Constitution were modified, by means of which it became possible to privatize communal ejido-land. This undermined the basic security of indigenous communities to land entitlement, and former ejidatorios now became formally illegal land-squatters, and their communities’ informal settlements. 26

Mexican society has a long tradition of racism and discrimination against indigenous peoples, and although there have been some advances, much of it remains institutionalized120. Discrimination is pervasive on different levels121: judicial, economic, social and cultural. In her latest report, the U.N. Special Rapporteur on Mexico posited that indigenous groups face significant obstacles in the realization of their economic, social, and cultural rights122. For these peoples, their territories directly connect to their economic, social, and cultural rights. The collective right to their land is essential for the fulfillment of the human rights mentioned earlier.

Collective land rights can serve as a mechanism to insulate the group, and the individual, from the perils of the dominant society’s viewpoint and poor treatment. Lands controlled by indigenous peoples provide a safe space for individuals to pursue life choices without the cultural forces of Mexican Indigenismo123 pressing down upon them.

Ultimately, discrimination by the dominant society limits their choices and abilities to engage in activities otherwise guaranteed to non-indigenous Mexican citizens.

Discrimination has tangible and well-recorded effects on this population. Recent reports124 indicate that indigenous peoples have a harder time accessing national judicial systems that enable the defense of their human rights. The Inter-American Commission

120 Korsbaek, L., & Samano Rentería, M. (2007). El Indigenismo en México: Antecedentes y Actualidad. Ra Ximhai, 3(1), 195-224. 121 Special Rapporteur Indigenous Peoples, U. N. (2018). Informe de la Relatora Especial sobre los derechos de los pueblos indígenas sobre su visita a México. The United Nations. Retrieved Dec 2018 122 Ibid 123 Contrary to the common definition of indigenism, Mexican indigenism sought to strip away indigenous identity and belong from the indigenous person to make them into Mexican person. 124 Special Rapporteur Indigenous Peoples, U. N. (2018). Informe de la Relatora Especial sobre los derechos de los pueblos indígenas sobre su visita a México. The United Nations. Retrieved Dec 2018 27

on Human Rights (CIDH) asserts that discrimination is a contributing factor to the fact that indigenous peoples are more prone to be victims of torture, and to other cruel, inhuman or degrading treatment125. According to a U.N. report126 discrimination also translates to a poor clean water supply, inadequate access to medical facilities, and a lack of access to educational institutions outside of their respective community, and lower overall pay. In short, these groups have a tough time engaging society at a leveled playing field similar to the rest of Mexican society.

The discrimination and racism directed at them hinders autonomy and their ability to make choices otherwise available to them. Arguably, when indigenous peoples control a spatial component, it frees them at least partially127, from these external pressures and allows them to blossom culturally, socially, and economically. In this space, they can create self-determined community-focused rules and set standards to an extent free from the paternalistic forces of the state. Preventing discrimination can help advance indigenous peoples’ constitutionally protected rights as stated in Article 2128 of the Constitution of Mexico129.

125 Derechos humanos de los pueblos indígenas en México. (2012). Retrieved from Comisión Nacional de los Derechos Humanos: http://www.cndh.org.mx/sites/all/doc/cartillas/14_cartilla_dh_pueblos_indigenas.pdf 126 Special Rapporteur Indigenous Peoples, U. N. (2018). Informe de la Relatora Especial sobre los derechos de los pueblos indígenas sobre su visita a México. The United Nations. Retrieved Dec 2018 127 Indigenous communities are prone to contact with non-indigenous communities 128Some of these include I. Decide their internal forms of coexistence, as well their social, economic, political and cultural organization. II. Apply their own legal systems to regulate and solve their internal conflicts, subjected to the general principles of this Constitution, respecting the fundamental rights, the human rights and, above all, the dignity and safety of women. The law shall establish the way in which judges and courts will validate the aforementioned regulations. IV. Preserve and enrich their languages, knowledge and all the elements that constitute their culture and identity. V. Maintain and improve their environment and lands, according to this Constitution. (Article 2) 129 Political Constitution of the United Mexican States. (2015, October). Retrieved from https://www2.juridicas.unam.mx/constitucion-reordenada-consolidada/en/vigente#menu-412 28

This argument is not to suggest that collective territorial land rights for indigenous peoples are the solution to ending discrimination against them, multiple levels and factions of society must push for this work. What I argue is that for the time being, indigenous communities and spaces provide some relief from these social forces and allow for freedom of collective choice and broader individual autonomy.

Land Development and its Economic Implications for Self-Determination

The average indigenous person in Mexico has less financial success than the average non-indigenous citizen130 and is three times more likely to work without pay, and less likely to serve as an employer131. Due to an array of reasons some beyond the scope of this project, they earn less in wages for the same tasks completed by a non-indigenous worker132 when working in non-indigenous spaces. Therefore, control of the development of their economies as it relates to their collective land rights is fundamental to indigenous self-determination. In addition, formal recognition of rights over territories and natural resources is a direct factor in the mitigation of poverty and inversely introduce opportunities for collective well-being.

The dominant society in Mexico provides limited options for these communities.

Therefore, deep financial losses stemming from territorial losses could push indigenous peoples into a type of community and economic system that is unfavorable for them. This shift could limit the array of collective and individual choices at their disposal. A parallel and point of reference is the aftermath of Lerdo Law, during which territory loss resulted in the further marginalization of these groups133. In this sense, a decrease in land ownership means lessening resources and a decreased ability for these groups to build a community as they please.

For most indigenous communities around the world, right to land is “severely threaten by uncontrolled expansion of activities related to forestry, mining, tourism, and

130 Source Instituto Nacional de Geografía y Estadística (INEGI) 131 Source Consejo Nacional de Población (CONAPO) 132 A good example of this wage disparity is found in agriculture 133 D.F. Stevens, "Ley Lerdo" in Encyclopedia of Latin American History and Culture, vol. 3, p. 409. New York: Charles Scribner's Sons 1996. 30

other commercial enterprises”134 and Mexico is no different. Per its Constitution135, indigenous communities in the country can make claims of collective territorial rights to fertile and strategic136 lands. According to Mexico’s National Human Rights Commission

(CNDH)137, due to community practices and values, many of these lands are in prime shape and can be a source of minerals, energy, agriculture, and other development projects138. There are an exorbitant amount of profits to be made through the use of indigenous lands, located in virtually every state of the country, and non-indigenous persons, including foreign actors139, want to sustain financial gain exploiting indigenous properties. The National Human Rights Commission asserts that these “megaprojects” not only displace indigenous peoples from their land; they also seize valuable natural resources; As such, these communities rarely benefit from these projects140.

Due to the land’s inherent potential and facilitated via the Energy Reform141 passed in 2013 by Mexican lawmakers, these territories have become a source of contention between the government, international and national investors, and of course, the indigenous communities themselves142. More specifically, one of the objectives of the

134 Jacques Diouf, "FAO Policy on Indigenous and Tribal Peoples,” March 2015, accessed April 22, 2019, http://www.fao.org/3/a-i4476e.pdf. 135 Political Constitution of the United Mexican States. (2015, October). Retrieved from https://www2.juridicas.unam.mx/constitucion-reordenada-consolidada/en/vigente#menu-412 136 As determined by the Mexican government 137 Refers to Centro Nacional de los Derechos Humanos (CNDH) 138 These projects also include hotels, roads, and dams 139 Many of the “mega projects” in Mexico are inundated with significant Canadian investment 140 Josefina M. Melesio Nolasco, "Megaproyectos Y Derechos Humanos De Los Pueblos Indígenas," July 2015, accessed March 03, 2019, http://www.cndh.org.mx/sites/all/doc/cartillas/2015-2016/02-DH-Pueblos-indigenas.pdf. 141 Reforma Energética. (n.d.). Government of Mexico. Retrieved from https://www.gob.mx/cms/uploads/attachment/file/10233/Explicacion_ampliada_de_la_Reforma_ Energetica1.pdf 142 Special Rapporteur Indigenous Peoples, U. N. (2018). Informe de la Relatora Especial sobre los derechos de los pueblos indígenas sobre su visita a México. The United Nations. Retrieved Dec 2018 31

Energy Reform includes generating 35% of total electricity via renewable energy by

2024143. The U.N. Office of the High Commissioner’s report on Mexico, “Los Derechos de los Pueblos Indígenas en México: Una Mirada desde los Organismos del Sistemas de

Naciones Unidas” states that of the 29,000 land authorizations for mining, hydroelectric power, and wind power covering 35% of the national territory, 17% are on indigenous land144. This percentage is significant and somewhat predictable because indigenous peoples tend to care and respect their properties and as such, they tend to harness more resources.

Attempts to undermine ownership and control of indigenous lands occur all over the country and include: agricultural interest groups, a product of the Agrarian Law145, taking over communal lands; lack of territorial recognition is happening in the La

Candelaria community of Chiapas146 where tourism and infrastructure projects are preventing access to a water source, Laguna Sagrada; in Baja California, the Cucapá peoples have decreased access to areas for fishing upon infringement of their territory by the Mexican government and illegal fishers147.

More specifically in 2018, fifty-two communities in Oaxaca compromised of sixteen cultural groups called for prohibiting mining in the state. As of December 2018,

143 Reforma Energética. (n.d.). Government of Mexico. Retrieved from https://www.gob.mx/cms/uploads/attachment/file/10233/Explicacion_ampliada_de_la_Reforma_ Energetica1.pdf 144"Los Derechos De Los Pueblos Indígenas En México: Una Mirada Desde Los Organismos Del Sistems De Naciones Unidas," January 2018, , accessed February 20, 2019, https://hchr.org.mx/images/doc_pub/PueblosIndgenas_UnaMirada_2017.pdf. 145 Ley Federal de Reforma Agraria. (n.d). Government of Mexico. Retrieved from http://www.pa.gob.mx/publica/MARCO%20LEGAL%20PDF/LEY%20FED%20REF%20AGR. pdf 146 Ejido La Candelaria, Chiapas in southern Mexico 147 Special Rapporteur Indigenous Peoples, U. N. (2018). Informe de la Relatora Especial sobre los derechos de los pueblos indígenas sobre su visita a México. The United Nations. Retrieved Dec 2018 32

there were 322 approved mining concessions and 41 ongoing mining projects in this federal entity148. Indigenous assemblies documented the harm inflicted on their communities as a result of these mining projects. The social effects include labor exploitation, discrimination, and the partitioning of the community fabric. The environmental effects include river and stream pollution and disappearing springs. In particular, the San Jose Project149 is indicative of the detrimental results these projects may have on local populations. This project commenced on indigenous lands without a prior consultation process, and the promised economic benefit did not reach indigenous communities in the area150. In 2014, only 2% of the total profit from this mining project reached said communities. This fact is especially concerning considering the high poverty rates affecting this population. In 2016, 28% of the indigenous peoples of Mexico lived under extreme poverty – compared to the 7.6% national average. In that same year, the

National Institute of Indigenous peoples estimated that 71.9% of the indigenous peoples in the country live in poverty – compared to the 43.6% national average151. This project and others developed on their land demonstrate that wealth is made off their properties and on their backs and is not reaching them. Indigenous peoples need better control of their territories to maximize their benefit.

148 Carolina Gomez Mena, "Reforma Energética Impacta a Pueblos Indígenas: ONU," La Jornada, August 9, 2018, accessed February 1, 2019, https://www.jornada.com.mx/2018/08/09/politica/013n1pol. 149Claudia Altamirano, "Comunidades Indígenas De Oaxaca Exigen La Prohibición Total De La Minería En El Estado," Animal Politico, December 10, 2018, , accessed February 13, 2019, https://www.animalpolitico.com/2018/12/comunidades-indigenas-oaxaca-mineria-estado/. 150 Ibid 151 "Progama Nacional De Los Pueblos Indigenas," , accessed April 4, 2019, https://www.gob.mx/cms/uploads/attachment/file/423227/Programa-Nacional-de-los-Pueblos- Indigenas-2018-2024.pdf. 33

Mining projects pose a specific challenge because, under Article 15 clause 2152 of

ILO C. 169, national governments are allowed to own minerals and underground resources found in indigenous lands. Article 15 stipulates prior consultation and fair compensations for the inhabitants - nonetheless, it limits indigenous capacity to generate income from said development. These communities tend to have a spiritual connection with the land, thus disturbing it by extracting resources or modifying it in a manner that goes against their desires is detrimental - aside from the potential economic gains.

Prior consultation was developed as an inclusive practice aimed at incorporating indigenous peoples into private or public projects in their lands and projects that could directly affect them. The original intent behind this mechanism is to empower communities - but often they are bypassed or not significantly considered153. The interest in developing these lands is indicative of their economic potential, much of which goes to other actors. According to the Mexican Human Rights Commission, prior consultation

152 Article. 15, II. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities. 153 Special Rapporteur Indigenous Peoples, U. N. (2018). Informe de la Relatora Especial sobre los derechos de los pueblos indígenas sobre su visita a México. The United Nations. Retrieved Dec 2018 34

connects with several human rights; these include, self-determination154, sustainable development, right to property155, cultural biodiversity156, and cultural identity157.

The ILO Convention 169 and the U.N. Declaration on Indigenous and Tribal

Peoples call for a prior consultation process to take place before embarking on a project on indigenous lands. This step aims to incorporate indigenous communities into the decision-making process by enabling their active participation. Nevertheless, it is common practice to either leave indigenous groups either out of the conversation entirely or to conduct a prior consultation after the project has begun. In principle, this consultation should function to uplift community voices. In practice, it does little to curb the encroachment of lands and resources belonging to these groups. More specifically

Article 6 of ILO Convention 169 states that

In applying the provisions of this Convention, governments shall: (a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly; (b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them; (c) establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.

154Article 2 of the Political Constitution of the United States of Mexico. United Nations Declaration on the Rights of Indigenous Peoples (Article 3 and Article 4) establish that indigenous peoples have a right to self-determination though political, economic, social, and cultural means. 155 Article XXIII of the American Declaration of the Rights of Man and Duties of Man, and Article 21 of the American Convention on Human Rights. 156 In 1992, Mexico ratified the Convention on Biological Diversity (CBD). 157 Article 2 of the Political Constitution of the United States of Mexico. 35

Mexico’s Human Rights Commission admits that the state is required to approach communities at the earliest stages of the potential project and not as a means to communicate decisions that have already or are in the process of being adopted158 .

The current development model has dire environmental impacts and in many cases has led to the criminalization of indigenous land defenders159. As it stands now, the condition of indigenous lands in Mexico does not abide by international law standards160.

The latest U.N. Special Rapporteur report on the status of indigenous peoples in Mexico highlights that land disputes and issues of indigenous territory are at the heart of many human rights issues. The latest U.N. recommendations point out the need to promote and strengthen the autonomy161, self-government, and indigenous legal systems as established by Article 4162 of the United Nations Declaration on the Rights of Indigenous Peoples.

Ultimately, indigenous groups need collective territorial rights, consistent power, and control over their lands to ensure that if profits are going to be made on or because of their land, it will, in turn, benefit them; and that these projects are consistent and do not dilute their social, cultural, and economic values163. They must be guided by their own will as a people and not by external pressures from foreign actors; as proclaimed by their given rights as indigenous peoples. These communities have been exploited and

158 Josefina M. Melesio Nolasco, "Megaproyectos Y Derechos Humanos De Los Pueblos Indigenas," July 2015, accessed March 03, 2019, http://www.cndh.org.mx/sites/all/doc/cartillas/2015-2016/02-DH-Pueblos-indigenas.pdf. 159 Special Rapporteur Indigenous Peoples, U. N. (2018). Informe de la Relatora Especial sobre los derechos de los pueblos indígenas sobre su visita a México. The United Nations. Retrieved Dec 2018 160 Ibid. 161 Collective autonomy 162 Art. 4 Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. 163 As is proclaimed by their rights as indigenous peoples 36

marginalized for centuries, and in this circumstance and context, control of their land signifies control of their future and prosperity, as defined by them.

On Implementation and the Limits of Self-Determination

This thesis has examined frameworks, and social and economic conditions affecting the issue at hand. However, it did not explore a critical point — the role of implementation and the lack thereof in this nation. The Mexican government makes guarantees to its indigenous peoples through an array of legislation and international instruments. A quick glance might give the impression of adequate rights protections given the numerous human rights legislation and international mechanisms applicable to this population. Although, there is work to be done in that regard as well. Faulty implementation exacerbates many of the shortfalls in self-determination vis-a-vis land. In part, these shortcomings in self-determination stem from a combination of factors - the aforementioned lack of application of well-intended principles and as a consequence of establishing a large quantity of frameworks concerning indigenous rights.

Although the Mexican Constitution guarantees indigenous peoples right to political self-determination and autonomy, the fact that each one of the 32 states has a say in defining those two factors164 is detrimental for several reasons. Each federal entity has its framework for indigenous rights and, of course, collective land rights. According to the National Human Rights Commission, there are two federal laws, three international instruments, and thirty-two state laws, for a total of thirty-seven normative frameworks affecting indigenous rights165. In practice, this creates an inconsistency in the power

164 The constitutions and laws of the States and the Federal District shall establish those elements of self-determination and autonomy that may best express the conditions and aspirations of indigenous peoples in each State, as well as the rules, according to which indigenous communities will be defined as public interest entities. 165 "Pueblos Y Comunidades Indígenas – Marco Normativo," Comisión Nacional De Derechos Humanos., http://www.cndh.org.mx/Indigenas_Marco_Normativo. 38

dynamics and relationships established between indigenous groups and the state. It further prevents the development of a national standard for indigenous political autonomy and self –determination.

These variations in establishing the elements of self-determination and autonomy may leave indigenous groups in states with weaker conceptions more vulnerable to human rights violations, including land use and appropriation by the state or other actors, effectively infringing upon the collective and individual menu of choices and rights of these peoples. Furthermore, many indigenous groups do not abide by traditional state boundaries and as such a single community may reside in more than one state166. In previous scenario, individuals within the same community could experience varying levels of autonomy. There is an interplay between the states and indigenous communities since they both function within a liberal democracy.

In 2007, the Mexican government signed on to the U.N. Declaration on the Rights of Indigenous Peoples, which should theoretically empower these communities.

However, this and other international frameworks are not legally binding. As such, in

2018 the U.N. Rapporteur pointed to the Mexican government’s lack of follow-up167 on this regard. The actual exercise of these rights is dependent on the willingness of the

Mexican state to provide the conditions for implementation.

166 e.g., Mayas reside in 5 different Mexican states: Yucatán, Quintana Roo, Campeche, Chiapas y Tabasco 167 Special Rapporteur Indigenous Peoples, U. N. (2018). Informe de la Relatora Especial sobre los derechos de los pueblos indígenas sobre su visita a México. The United Nations. Retrieved Dec. 2018 39

For years scholars noticed gaps in human rights protections and legislation in

Mexico168. Therefore on June 2011, provisions in the Mexican Constitution changed as a result of the modifications of eleven articles169, now known as the 2011 Human Rights

Amendments (HRA 2011)170. The constitutional amendments focus on increasing human rights protection via the pro homine principle and international human rights standards171.

As previously discussed, treaty preambles are not legally binding, but can now provide interpretative support172. Put differently; the pro homine principle means that in a case where a judge has to choose a norm to apply on a case, they must elect the rule that most benefits the individual at hand, whether it is the Mexican Constitution, an international treaty, or a law173. This shift has large scale implications because Mexico has either signed or ratified several United Nations treaties, ILO Conventions (particularly C.169), and other international mechanisms. International frameworks tend to be more explicit and using them as a guide will most likely increase protections for indigenous peoples.

Most importantly, HRA 2011 puts the indigenous person at the forefront of the discussion and expands the possibilities for collective territorial rights and otherwise.

The Mexican government must continue efforts to improve implementation, which itself is further complicated by the wide array of available frameworks. Mexico

168 Ek, Victor M. Colli "Improving Human Rights in Mexico: Constitutional Reforms, International Standards, and New Requirements for Judges." Human Rights Brief 20, no. 1 (2012): 7-14. 169 Articles 1, 3, 11, 15, 18, 29, 33, 89, 97, 102, and 105 170 Ek, Victor M. Colli "Improving Human Rights in Mexico: Constitutional Reforms, International Standards, and New Requirements for Judges." Human Rights Brief 20, no. 1 (2012): 7-14. 171 Ibid 172 Valerio de Oliveira Mazzuoli. The Pro Homine Principle as a fundamental aspect of International Human Rights Law. Meridiano 47, 17: e17003, 2016 173 Ek, Victor M. Colli "Improving Human Rights in Mexico: Constitutional Reforms, International Standards, and New Requirements for Judges." Human Rights Brief 20, no. 1 (2012): 7-14. 40

must look to create a national standard for indigenous self-determination and collective land rights, but this goal is dependent upon both of the factors mentioned above. Until clearer human rights frameworks and implementation are part of the national approach to solving indigenous issues these communities will continue to struggle. States with better laws and implementation will provide better conditions, but there are no guarantees for communities in other areas.

Conclusion

The indigenous peoples mentioned in this work are the first inhabitants of the country we now call Mexico. Their connection to this land spans millennia, and for centuries they have endured less than ideal conditions at the hands of colonists and more recently their national government. This work is about their collective land rights which directly affect their livelihood. Traditional territories do not have the same meaning to those outside of an indigenous community. They are not transactional or disposable. Land and territory are cross-sectional for the indigenous person. They must reclaim their space to reclaim who they are culturally, spiritually, and economically. Centuries of subjugation cannot be undone, but lands rights provide an opportunity to re-empower themselves.

The 67 indigenous groups in this country face many unique challenges pertaining to their ethnic identity and particular community- but as a whole, these peoples need their land for the possibility to engage in a space that is free of the engrained colonialism and discrimination that pervades modern Mexican society. As previously discussed, this discrimination is not overt but lies hidden in the shadows of shared spaces where the indigenous person lies at the bottom of the social strata with limited possibilities to improve. Collective territorial rights provide a place that allows for self-determination and collective agency. In this place and these lands, indigenous peoples can potentially maximize their choices. This power may also allow them to engage in and benefit from commercial endeavors and land development that are in line with their values. I do not argue for a fully independent indigenous state; but rather a dynamic within the current political system that uplifts and protects, rather than oppresses these groups. To achieve

this landscape, indigenous lands must be respected and current relevant frameworks must be followed and or modified.

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Appendix I

Indigenous Groups in Mexico 1. Amuzgo - Ometepec, Guerrero 26. Kumiai - Playas de Rosarito, 2. Cakchiquel- Mazapa de Madero, Baja California Chiapas 27. Lacandón - Ocosingo, Chiapas 3. Chatino - San Miguel 28. Mame - Amatenango de la Panixtlahuaca, Oaxaca Frontera, Chiapas 4. Chichimeca Jonaz - Guanajuato 29. Matlatzinca - Temascaltepec, 5. Chinanteco - San Juan Bautista Estado de México Valle Nacional, Oaxaca 30. Maya - Yucatán 6. Choco - Santa María Nativitas, 31. Mayo - Huatabampo, Sonora Oaxaca 32. Mazahua - Ixtlahuaca, Estado de 7. Chol - Tila, Chiapas Mexico 8. Chontal de Oaxaca - Santa Maria 33. Mazateco - Huautla de Jimenez, Ecatepec, Oaxaca Oaxaca 9. Chontal de Tabasco - Tabasco 34. Mixe - Santa María Petapa, 10. Chuj - La Trinitaria, Chiapas Oaxaca 11. Cochimí - Ensenada, Baja 35. Mixteco Mixteca Alta - Tlapa de California Comonfort, Guerrero 12. Cora - Del Nayar, Nayarit 36. Mixteco Mixteca Baja- San 13. Cucapá- Mexicali, Baja Jerónimo Xayacatlán, Puebla California 37. Mixteco - Tlapa de Comonfort, 14. Cuicateco - Santos Reyes Pápalo, Guerrero Oaxaca 38. Mixteco Zona Mazateca - 15. Guarijío - Alamos, Sonora Sinaloa 16. Huasteco - Ebano, San Luis 39. Motoxintleco - Motozintla, Potosí Chiapas 17. Huave - San Mateo del Mar, 40. Náhuatl - Huejutla de Reyes, Oaxaca Hidalgo 18. Huichol - La Yesca, Nayarit 41. Ocuitleco - Ocuilan, Estado de 19. Ixcateco - Santa María Ixcatlán, Mexico Oaxaca 42. Otomí - Ixmiquilpan, Hidalgo 20. Ixil - Campeche, Campeche 43. Paipai - Ensenada, Baja 21. Jacalteco - Amatenango de la California Frontera, Chiapas 44. Pame - Santa Catarina, San Luis 22. Kanjobal - Champotón, Potosí Campeche 45. Pápago - General Plutarco Elías 23. Kekchi - Champotón, Campeche Calles, Sonora 24. Kikapu - Coahuila 46. Pima - Madera, Chihuahua 25. Kiliwa - Ensenada, Baja 47. Popoloca - Tlacotepec de Benito California Juárez, Puebla

48. Popoluca - Sayula de Alemán, 58. Totonaca - Filomeno Mata, Veracruz Veracruz 49. Purépecha - Michoacán 59. Triqui- San Martin Itunyoso, 50. Quiché - Champotón, Campeche Oaxaca 51. Seri - Hermosillo, Sonora 60. Tsotsil - San Cristóbal de las 52. Tacuate - Santa María Zacatepec, Casas, Chiapas Oaxaca 61. Tzeltal - Ocosingo, Chiapas 53. Tarahumara - Guachochi, 62. Yaqui - Guaymas, Sonora Chihuahua 63. Zapoteco de Ixtlán - San Pedro 54. Tepehuan del norte - Guadalupe Pochutla, Oaxaca y Calvo, Chihuahua 64. Zapoteco- Heroica Ciudad de 55. Tepehuan del sur - Durango Juchitlán de Zaragoza, Oaxaca 56. Tlapaneco - San Luis Acatlán, 65. Zapoteco sureño - Santa María Guerrero Huatulco, Oaxaca 57. Tojolabal - Las Margaritas, 66. Zapoteco Vallista - San Pedro Chiapas Pochutla, Oaxaca 67. Zoque - Rayón, Chiapas

Appendix II

Relevant Human Rights Frameworks for the Indigenous Peoples of Mexico

International Frameworks 1. United Nations Declaration of Human Rights 2. United Nations Declaration of the Rights of Indigenous Peoples 3. International Labor Organization Convention on the Rights of Indigenous Peoples (169)

National Legislation 4. Ley de la Comisión Nacional para el Desarrollo de los Pueblos Indígenas 5. Ley General de Derechos Lingüísticos de los Pueblos Indígenas 6. Constitution of the United States of Mexico

State Legislation 7. Ley de Justicia Indígena del Estado de Aguascalientes 8. Ley de Derechos y Cultura Indígena del Estado de Baja California 9. Ley de Derechos, Cultura y Organización de los Pueblos y Comunidades Indígenas del Estado de Campeche 10. Ley que crea el Instituto de Lenguas Indígenas del Estado de Campeche 11. Ley de Derechos y Cultura Indígenas del Estado de Chiapas 12. Ley de Derechos de los Pueblos Indígenas del Estado de Chihuahua 13. Ley de Interculturalidad, Atención a Migrantes y Movilidad Humana en el Distrito Federal 14. Ley sobre los Derechos de los Pueblos y Comunidades Indígenas del Estado de Colima 15. Ley General de los Pueblos y Comunidades Indígenas del Estado de Durango 16. Ley de Consulta de Pueblos y Comunidades Indígenas del Estado de Durango 17. Ley de Consulta Indígena para el Estado de Durango y sus Municipios 18. Ley de Derechos y Cultura Indígena del Estado de México 19. Ley que crea el Organismo Público Descentralizado denominado Consejo Estatal Para el Desarrollo Integral de los Pueblos Indígenas del Estado de México 20. Ley para la Protección de los Pueblos y Comunidades Indígenas en el Estado de Guanajuato 21. Ley de Reconocimiento, Derechos y Cultura de los Pueblos y Comunidades Indígenas del Estado de Guerrero 22. Ley de Derechos y Cultura Indígena para el Estado de Hidalgo 23. Ley de Derechos Lingüísticos del Estado de Hidalgo

24. Ley de Fomento y Desarrollo de los Derechos y Cultura de las Comunidades y Pueblos Indígenas del Estado de Morelos 25. Ley de Derechos y Cultura Indígena del Estado de Nayarit 26. Ley de los Derechos Indígenas en el Estado de Nuevo León 27. Ley de Derechos de los Pueblos y Comunidades Indígenas del Estado de Oaxaca 28. Ley Orgánica de la Procuraduría para la Defensa del Indígena 29. Ley Que Crea La Academia Oaxaqueña De Lengua Mixteca 30. Ley que Crea la Academia de la Lengua Zapoteca 31. Ley de Derechos, Cultura y Desarrollo de los Pueblos y Comunidades Indígenas del Estado de Puebla 32. Ley de Derechos y Cultura de los Pueblos y Comunidades Indígenas del Estado de Querétaro 33. Ley de Derechos, Cultura y Organización Indígena del Estado de Quintana Roo 34. Ley de Justicia Indígena del Estado de Quintana Roo 35. Ley para el Instituto de Desarrollo Humano y Social de los Pueblos y Comunidades Indígenas del Estado de San Luis Potosí 36. Ley de Justicia Indígena y Comunitaria para el Estado de San Luis Potosí 37. Ley de Derechos de los Pueblos y Comunidades Indígenas de Sonora 38. Ley de Derechos y Cultura Indígena del Estado de Tabasco 39. Ley de Protección, Fomento y Desarrollo a la Cultura Indígena para el Estado de Tlaxcala 40. Ley de Derechos y Cultura Indígenas para el Estado de Veracruz de Ignacio de La Llave 41. Ley para la Protección de los Derechos de la Comunidad Maya del Estado de Yucatán 42. Ley del Sistema de Justicia Maya del Estado de Yucatán 43. Ley de Justicia Comunitaria del Estado de Zacatecas