what is “post” in post-neoliberal political economy

7/30/2019 What is Post in Post-Neoliberal Political Economy

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What is Post in Post-Neoliberal Political Economy? Indigenous land rights

and the extractive industry in Peru, Bolivia and Ecuador

Roger Merino(*)

(*)(*)

Indigenous movements in Latin America are considered as important actors in the processes of radicaldemocracy and the constitution of post-neoliberal regimens. In Bolivia and Ecuador political parties

representing indigenous people have promoted legal and institutional reforms towards the creation of a

plurinational state. In Peru, indigenous movements have supported the candidature of the recently left-wing elected

president, forming chains of equivalence with environmentalists, unions, and liberaldemocrats against a radical

conservative neoliberal party. And yet, in these three countries, many indigenous people are still ignored or

repressed, particularly when they protest against mining, oil and developmental projects led either by the

government or transnational corporations. By exploring the discordance between multicultural policies on the one

hand, and extractivist economic dependence on the other hand, I suggest that in spite of the legal recognition of

indigenous rights, multiculturalism in Latin America has not challenged the legal and economic mechanisms of

assimilation of indigenous peoples land rights. Thus, in the Ecuadorian and Bolivian contexts there is a deep

tension between the communal paradigm of the Buen vivir and the liberal framework of the sovereignty of the

nation state which owns all natural resources; whereas in the Peruvian context the governmental rhetoric of social

inclusion is embedded in the logic of neoliberal assimilation.

Keywords: indigenous rights, political economy, liberal multiculturalism, Latin America.

1. Introduction. Indigenous lands rights: from open exclusion to violent assimilation

Western legality has justified and legitimized the colonial project of expropriation of indigenousland. During colonization the implementation of International Law was based on twoassumptions regarding indigenous peoples land rights: indigenous peoples do not legally exist

(thus their land can be occupied), or indigenous peoples exist but are inferior (thus, their rightsexisted but can be extinguished). Based on that distinction, the dispossession of indigenous

peoples was achieved by means of acquisition and means of extinguishment (Gilbert,2006).

The means of acquisition during colonization were the legal doctrines of discovery and conquest.The doctrine of discovery meant that the discoverer of unoccupied lands gained a right to theland title against other European powers. As indigenous peoples were not considered humanbeings, their lands were regarded as unoccupied, and Spanish and Portuguese explorers appliedthe doctrine of natural slavery to them (Corntassel and Hopkins, 1995).

In De Indis et de ivre belli relectiones (1532) Francisco de Vitoria affirmed that the indiansowned the land in America, and discovery was not a proper legal mean of acquisition.However, although the indians had certain rights to property, they can lose their rights if the

conqueror had a just cause to make war against them. The just war emerged if the Indiansdid not fullfill their inherent obligations: 1) leave free passage to colonizers into their lands; 2)allow trading among colonizers; 3) share the wealth of their lands; 4) permit the propagation of

(*) Ph.D/M.Phil (c) Social and Policy Sciences, University of Bath; MSc. International Policy, University of Bath;MSc. Comparative Law, Economics and Finance, International University College of Turin; LL.M. San MarcosUniversity ([email protected]).(*)(*) Paper to be presented at the Postgraduates in Latin American Studies Annual Conference, Department ofInternational Development, University of Oxford (2527 June, 2012)


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Christianity. Thus, just war provided the colonizers with alegal title of territory as part of alegal conquest (Gilbert, 2006). In addition, Vitoria concluded that indigenous peoples wereunable to administer a State because, among other failures, they had no proper laws normagistrates, Europeans therefore could undertake the administration of their country in their

benefit (Fromherz, 2008). In sum, Victoria provided the legal framework for the conquest of

indigenous territories.

The Treaty of Westphalia (1648) meant the ending of the Thirty Years War, the end of theRoman-Catholic Church political hegemony, and the emergence of the modern system of Statesin Europe, marking a new historical period in which sovereign territorial states replaced thefeudal order. This revolution had a deep impact on indigenous land rights because a body oflaw was set up with only one subject: the nation-state (Gilbert, 2006). Thus, there could be twotreatments for indigenous peoples: they are considered as nation-states or they are inhabitantsto be assimilated or excluded from the nation-state (Derso, 2010). Other important effect was thedistinction between territorial sovereignty (jurisdiction over a specific area of territory) as anissue of International Law, and title to land as a matter of property rights. This distinction

between individual property rights and state territorial rights created a disparity in whichInternational Law excluded the indigenous notion of communal land ownership (Gilbert,2006).

Hence, these two denials (the negation of sovereignty and the negation of communal property)were the basis for the doctrine of terra nullius (land belonging to nobody), a discourse thatoperated to legitimate the dispossession of indigenous people by not conforming to Europeanlegality. John Locke provided the foundations for this doctrine by influencing the idea of thesuperiority of settled agricultural societies over indigenous peoples (Gilbert,2006). In his TwoTreatises of Government, Locke proposed that property in land originated from tilling the soil, inmixing labour with land. The apparent absence of such activities in the colonies led to the

colonizers argument that they were free to settle and acquire property rights by agricultural

cultivation without the consent of natives (Tully, 1994; Dodds, 1998). Therefore, at the end ofthe 18th century the strategy of colonial powers was the rejection of the existence of indigenousterritorial rights. Terra nullius occupied the place of just war in dispossessing indigenous land.A factor in this evolution was the movement of decolonization in las Americas. During this firstwave of decolonization the new emerging states reclaimed territory against the former colonialpowers. Indigenous peoples were ignored during the process of transfer of territory between ex-imperial European colonizers and newly independent States. Whereas early International Lawwas directed to provide to the colonizers with a legacy of their conquest, modern InternationalLaw aimed at justifiyng the stability of these conquest for either the colonizers or their decendantstates (Gilbert, 2006). Thus, the decolonization process did not end the expropriation ofindigenous land, but the beginning of internal colonialism. In this model the appropriation of

the land is not directed only to resettlement and exploitation (which is also true in externalcolonisation), but for the territorial foundation of the dominant society itself (Tully, 2000).

Since the independence, there were recognized some indigenous rights through treaties, privatecontracts and state legislation but imposing liberal and Western concepts in benefit of the newnation-states (Churchill, 2002; Eudaily, 2004). For example, in United State the GeneralAllotment Act (1887) recognized that each native person have right on their land. Once they

received his allotment (private property), the balance of each reserved territory was declared


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surplus and made available to non-Indian settlers (corporations, federal parks, forest andmilitary bases), reducing the indigenous land-base by two-thirds, affecting their subsistence.Native people seek just resolutions in U.S. courts and refuse to participate in allotments, but theCourts denied their rights, and the refusal of allotments resulted in being left landless (Churchill,2002). This period referred to as the allotment and assimilation era was based on the reasoning

that communal ownership of land only exacerbated tribal Indians uncivilized lifestyles.Similarly in New Zealand, the colonial laws regarding Native Lands (Native title land Act 1862and Native Lands Act 1865) brought about the extinction of communally held territories in orderto weaken the Maori social structure (Gilbert,2006).

In Latin American things were not better. For example, after Upper Perus (Bolivia)

Independence from Spain in 1825 the new power elites (Spanish descendants) were faced withthe task of building a modern society. They faced two key obstacles: the existence of largeindigenous populations and the great extensions of communally-owned land. To overcome theseobstacles government power elites attempted to: a) physically eliminate indigenous populations;b) dispossess indigenous peoples of their lands through legal mechanisms; c) assimilate them

into the liberal modernization project (Galindo, 2010). Thus, the official policy of all statestowards their indigenous populations was violent assimilation. They used a variety of coercivemeans to obtain this goal, from forced conversion to Christianity to compulsory use of Spanish.The justification for this strategy was national unity and its philosophical underpinning was aconception of indigenous societies as savage and backwards (Sanders, 1989). Thus, the newnations were structured in the image of Western, Catholic, white countries with no place forIndians (Arocena, 2008). The effect of these measures was to turn indigenous people intoservants (peons) attached to large land estates (haciendas) (Galindo, 2010).

Indigenous rebellions in Latin America emerged as response to this violent assimilation. But therevolutionary project was led by Marxists parties and movements that recognized for first time

indigenous rights but through an inclusion from the Left. In Bolivia, the 1952 nationalisticrevolution consolidated the process of indigenous inclusion granting them political, social andeconomic rights, not as indigenous peoples with specific cultural identities, but rather as peasantsor useful citizens (Arocena, 2008), and sindicatos campesinos (peasant unions) tookpreeminence over indigenous organizations. The classist policies were imposed by force incountries like Mexico, Peru, and Bolivia in order to implement a corporate model which tiedindigenous peasants to the state economy (Postero and Zamosc, 2006). In these countriesindigenous protests led to significant land reforms (Bolivia after 1952 and Peru after 1968), butwithout contesting the division between state territorial sovereignty and individual property landrights, for even though the notion of individual property in land was suppressed, the onlycollective ownership that was recognized was state ownership (Gilbert,2006). In sum, for many

indigenous people the socialist approach to land ownership resulted in the relocation ofsettlements and communities, and the denial of their specific cultural identity and socialorganization. Indigenous groups have had to fight against this classist position by trying torecoup their ethnic identity (Langer and Muoz, 2003).

In April of 1940, the First Interamerican Indigenist Congress was held in the Mexican city ofPtzcuaro, which generated the Ptzcuaro Agreement. This Agreement did not represent afundamental change in the strategy of assimilating indigenous peoples, but in the form: from


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violent to friendly assimilation. The way to ensure indigenous integration into national societieswas to provide better education, technical training, and financial assistance (Roldn, 2004). Theapproval in 1957 of the International Labor Organizations Convention 107 (ratified by all theindependent countries of Latin America and the Caribbean) reinforced this strategicintegrationist approach (Roldn, 2004; Sanders, 1989; Suagee, 1997; Stamatopoulou, 1994;

Pitty, 2001). The Convention 107 explicitly established the norms by which such integrationshould be achieved while respecting indigenous peoples rights in the interim (Colchester, 2002).

In sum, since colonial times indigenous populations were labeled successively as Indians, peonsand peasants, moving from a homogenizing model of exclusion to a homogenizing model ofinclusion (Galindo, 2010), in both cases the result was the same: the denial of a different legal,political and economic organization; the denial of a different ontology and epistemology. Themechanisms for inclusion were treaties, contract and the recognition of private property rightsin settler colonial context; and policies of integration and modernization in Latin America.

In this paper, I argue that the mechanisms of exclusion and inclusion are rooted in the political

economy of capitalist expansion, liberal legality and Western modernity. These mechanismsremain today even in so-called post-neoliberal regimens because even though in theseregimens there has been a radical critique of Western modernity and an attempt to profoundlyreform liberal legality, there has not been a challenge to the dominant political economy.

2. Indigenous peoples in the era of multiculturalism: self-determination or friendlyassimilation?

The counterpoint to colonialism and assimilation is self-determination (Kowal, 2008), which isthe pillar of communal rights, and specifically, land rights for indigenous peoples. For them, landtenure is more than an economic issue; it involves a set of unique and interrelated legal, social,

political and spiritual relationships (Daes, 2008; Roldn, 2004), which are prerequisites for theirphysical and cultural survival (Sewptson and Plant, 1985; Satterthwaite and Hurwitz, 2005;Barsh, 2001; Stamatopoulou, 1994). In sum, holistic indigenous worldviews go well beyondliberal-individualist explanations about property rights (Holder and Corntasell, 2002). Given thisunique connection with their lands, it is justified to grant indigenous peoples the highest standardof protection. This standard entails a substantial limitation on the exercise of eminent domainpowers by the state through the prohibition of relocation or land exploitation without indigenouspeoples consent (MacKay, 2002). The different institutional steps toward self-determination inthe last decades havebeen achieved within todays era of multiculturalism.

In this context, article 12 of ILO Convention 107 was strongly criticized because it justified the

removal of indigenous from their territories for the interest of national economic development(Sewptson and Plant, 1985). This situation was amended by Convention ILO 169 approved in1989, which prohibits relocation without indigenous consent; however, in issues regarding the

exploitation of indigenous land it does not require consent, but only that the state establish ormaintain procedures through which shall consult these peoples (article 15). This weak

protection has been challenged by some scholars through interpretations directed to reinforceindigenous rights. They argue that article 15 should be read consistently with article 6, soconsultation must be undertaken in good faith and with the objective of achieving consent


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(MacKay, 2002), and if consent is not achieved, there should be a strong presumption that theproject should not go forward (Anaya, 2005).

In the 1980s, the United Nations (UN) started the efforts to implement a Declaration of theRights of Indigenous Peoples (DRIP) by creating the UN Working Group on Indigenous

Populations. Over the years, participation by indigenous peoples increased dramatically(Tennant, 1994); this corresponds with the expansion of the international indigenous peoplesmovement as a global movement (Barsh, 1987; Oldham and Frank, 2008; Stamatopoulou, 1994;Gilbert, 2007). Thus, after 20 years of negotiation at the United Nations there was enacted in2007 the Declaration of Rights of Indigenous Peoples (DRIP), which recognizes stronglycollective rights, the necessity of consent to exploit indigenous land and self-determination(Oldham and Frank, 2008; Gilbert, 2007; Fromherz, 2008).

Apart from the Declaration several conventions exist at regional level. The AmericanConvention on Human Rights, ratified by twenty-five American nations, has been interpreted bythe Inter-American Commission and Court on Human Rights in favor of indigenous peoples.

They have recognized the right of collective property and the necessity to provide theirconsentto any activity that can cause profound impacts on their land (Page, 2004). Similar interpretationhas been made with the African Charter on Human and Peoples Rights by the AfricanCommission on Human and Peoples Rights (Korman, 2010). Moreover, the rights of indigenous

peoples gradually developed under very different international institutional settings, includingthe work of the ILO, the World Bank, the Conference of the Parties to the Convention onBiological Diversity, the UN Forum on Forests, UN Development Programme (UNDP), UNConference on Environment and Development (UNCED), World Intellectual PropertyOrganization (WIPO) and the different UN human rights monitoring bodies (Anaya, 2004).

These progresses, however, should be analyzed accurately. The era of multiculturalism have

meant the era of cultural recognition but not the era of indigenous autonomy.

The first problem with the system is the lack of enforcement. The declaration is not a bindinginstrument and many countries (as the U.S. and Canada) just refuse to be part of the Inter-American System or to respect its recommendation and decisions (Page, 2004; Pasqualucci,2009). Another problem is that the indigenous policies of international financial institutions donot recognize the necessity of indigenous consent. For example, the World Bank (WB)Operational Policy 4.10 on Indigenous Peoples (OP) establishes that for all projects that affectnative people, the WB borrower must engage in free, prior and informed consultation withindigenous, not being necessary to obtain their consent. Finally, a more critical view on thedecisions of the Inter-American system shows that it has not been as progressive as the

Declaration (Pasqualucci, 2009). The Inter-American Court does not sustain the right ofindigenous peoples to all natural resources on their lands. Rather, the Court holds that indigenouspeoples have the right only to those natural resources that they had used traditionally and whichwere necessary for their very survival, development and continuation of peoples way of life.

This holding allows the state, subject to certain safeguards of indigenous rights, to harvestnatural resources on indigenous communal lands. Although the state must consult with theindigenous people prior to all development, it is not essential that the state get the free, prior, andinformed consent of the peoples in all instances. In the Saramaka case, the Inter-American


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Court held that consent is only necessary when the state is considering large-scale developmentor investment projects that would have a major impact on a large part of their territory.Conversely, the DRIP calls for free and informed consent prior to the approval of any projectaffecting their lands or territories and other resources. The limitation that the consent of

indigenous people is only necessary when major development or investment projects will have a

profound impact on a large part of their territory seems to facilitate some partial logging andmining concessions that could negatively impact indigenous communities (Ibid).

Moreover, although many indigenous peoples have taken a functional approach to self-determination related to the right to control their institutions, territories, resources, social ordersand cultures without external domination; some indigenous peoples do define their right to self-determination in terms of political independence (Falk, 1993), and the sovereignty recognizedto indigenous peoples by the DRIP doesnt relate to original power over people and territory: is

sovereignty without imperium (Wiessner, 2008). In addition, although the DRIP has been praisedfor its broad recognition of collective rights, a number of provisions regarding collective rightswere dropped from the 1993 version of the draft in the series of compromises that led to the lastversion. Articles in the 1993 version, for example, included collective rights to maintain anddevelop their distinct identities (Article 8), to determine their own citizenship in accordance

with their customs and traditions (Article 32); and to determine the responsibilities ofindividuals to their communities (Article 34). These provisions were led aside because of thetrade-off in assuming the framework of human rights (Engle, 2011). However, the history ofindigenous resistance shows that a simple application of individual civil and political rights toindigenous peoples would be insufficient. For example, indigenous rights are defined, explicitlyor implicitly, with the repugnancy clause. This clause expresses minimum standards being

applied as a qualification to the toleration being accorded to the basically unacceptable norms ofbackward communities. Paragraphs (2) and (3) of Article 46 of the DRIP threaten to function

in the same way as the repugnancy clause. By subjecting the rights contained in the declarationto the vague standards of international human rights obligations and justice, democracy,

respect for human rights, equality, non-discrimination, good governance and good faith, theprovisions offer states a way to define certain indigenous claims out of these categories, and todeny them accordingly (Ibid).

Another important point is that although indigenous peoples land rights are somehowuniversally recognized, they are not universally respected: non-respect is increasingly associatedwith states efforts to attract foreign direct investment by opening isolated and protected areas of

the countryside to development without regard to the wishes or welfare of the actual inhabitants(Barsh, 2001). Thus, legal recognition of rights for indigenous peoples has gone hand in handwith new forms of capital violent accumulation (Sieder, 2011). In the past, the beneficiaries ofland theft were non-indigenous farmers, ranchers, mining companies and lumber mills; in the20th Century world economy, the beneficiaries are largely trans-national corporations engaged inexport from South to North (Barsh, 2001).

In this context, the two main legal expressions of the era of multiculturalism: the doctrine ofnative titleand the free prior and informed consent, although have been largely celebrated,still do not ensure complete protection to indigenous peoples land rights.


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The native title doctrine was mainly developed through the jurisprudence of the Supreme Courtof Canada and the High Court of Australia in the 1990s. This doctrine recognizes that thecolonization of indigenous territories has not completely extinguished indigenous peoples landrights. The objective of such recognition is reconciliation between States and their indigenouspopulations (Gilbert, 2007). But the Native title regime (and the policies of reconciliation) is

premised on the denial of Indigenous peoples sovereignty. While the courts implicitlyrecognized the continuance of traditional laws and customs, they do not recognize anyconcomitant legal and political autonomy (Short, 2003). The Native title claims process is basedon the assumption that the Crown holds underlying title to all land and resources on theAustralian continent, and Aboriginal people can only make a claim to Native title where it hasnot previously been extinguished by an act of state (dispossessed indigenous groups stand nochance of regaining lost land). Even then, they can only make a claim if they can prove they havea continuing traditional connection to the land in question, using the white legal systems burden

of proof requirements. Thus, the onus of proof is on Aboriginal people, whereas in a systemwhich genuinely recognized Aboriginal peoples originary or inherent sovereignty andnationhood, it would have to be the other way around (Fitzpatrick, 2002; Pratt, 2004). Moreover,

native title is considerably weaker than freehold title because is subject to a number of importantlimitations, including the right of preemption which precludes alienation outside the indigenouscommunity except to the Crown, and susceptibility to extinguishment without compensation(Patton, 2000; Dodds, 1998). Indigenous title could be explicitly extinguished by an act directedto that purpose, or implicitly by an act that creates a situation that would ultimately extinguishthe title. Thus, extinguishment raises issues regarding indigenous peoples right to participation

in decisions affecting them, as the legislature can potentially extinguish indigenous peoplesright over their lands without consultation with the concerned communities (Gilbert, 2007).

On the other hand, the right of indigenous peoples to provide a free prior and informed consentto any activity or legislation that can affect their rights is also usually regarded as the most

important achievement of the era of multiculturalism. This consent must be expressed inaccordance with their customary laws and practices, and must be obtained without coercion ormanipulation, at an early stage of project design, and after the project proponents full disclosureof the intent and scope of the activity in language and process understandable to the affectedcommunities (MacKay, 2005). But consent regulation and application is very contentious.While the DRIP does call on states to consult with the communities in order to obtain their priorconsent, and in the Inter-American System of Human Rights, the Commission has oftenpromoted the necessity of consent, and many important decisions of the Court regardingindigenous rights have assumed the arguments of the Commission (Page, 2004; Anaya, 2005;Gilbert, 2007); most international instruments and national regulations recognize just the right ofindigenous peoples to be consultedin relation to matters affecting them.

Why all the improvements in the recognition of indigenous rights seem more decorative thanreal? Why in spite of the celebrated declarations and recognition of rights still indigenouspeoples struggle for defending their land and livelihoods? One interesting answer is that as theglobalisation of both extractive capitalism and indigenous rights has intensified over the last twodecades, conflicts over the exploitation of indigenous lands have multiplied across the world(Rodrguez-Garavito, 2011). In that scenario, the consultation approach that would overcome theassimilationist approach, is fostered by everyone (World Bank, ILO, the International Council on


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Mining and Metals (ICMM), Oxfam, etc.) and entails the juridification of collective claims ofcultural identity, self-determination, and control over territories and resources into an ethnicitygovernance, which is the projection of the neoliberal legal subject onto the plane of collectiverights. The fit between consultation and governance explains the ease with which consultation

was incorporated into the neoliberal mainstream, specifically in the discourse of economic

development (Rodrguez-Garavito, 2011). In Convention 169 itself, consultation rights-baseddimension is situated within the economic framework of the development process. This

explains the fact that actors of global neoliberalism, from multilateral banks to TNCs, haveembraced consultation, finding it to be a useful and business-friendly mechanism for respondingto growing criticisms of their operations impact on indigenous peoples. In fact, consultationbecame a key component of the discursive adjustments with which the development project

was repackaged and re-exported across the world (Ibid).

In that context, the main problem of consultation/consent is that is trapped within liberal legality.In the jurisprudence of the Inter-American Human Rights system, classic individual rights,including the right to property, have been re-read to accommodate communal perspectives

(Pentassuglia, 2011). The problem with this process of accommodation is that indigenouslegality can be easily emptied. Goodland (2004) for example, recognized the right to consent butaccording to the Western view: a majority of 51% suffices (when indigenous tend to require amassive consent); in addition, informed consent would not be in the national interest if anextraordinarily lucrative mine was held hostage by one absentee family (Goodland, 2004).Furthermore, there are limits to what the jurisprudence can do: individual cases may prove lessprogressive or convincing than others; the reach of jurisprudential assessments varies dependingon the contingencies of the regime under which they operate (Pentassuglia, 2011). This situationis perpetuated because the unequal power of indigenous communities with national governmentsand extractive industries. Typically, indigenous peoples are poor and lack training, experience,access to information and political power (Page, 2004).

In that context, the recognition of indigenous rights has as limit the dominant political economy:there are industries seeking valuable resources and promising lucrative returns to governments,as well as some development analysts who point to extractive projects as important anti-povertymeasures; and the international financial institutions continue to advocate for mineral, water, oil,and gas projects and private investment while purporting to uphold the rights of indigenouspeoples through participatory programming and other non-binding initiatives (Satterthwaiteand Hurwitz, 2005).

In sum, it seems that there is an slow evolution: from mechanisms of open exclusion andnegation of legal subjectivity (discovery, just war, terra nullius) during the colonial era; to

mechanism of assimilation (implementation of treaty making, private property rights, nationalpolicies of economic and social integration) during the independence era; to finally mechanismof friendly assimilation (native title, consultation) during the multicultural era. However, inall these cases there is a core that is not questioned, a political space that denies real self-determination and autonomy to indigenous peoples.


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3. Liberal multiculturalism in Latin America

In Latin America there are two countries where indigenous populations constitute a majority(Bolivia, Guatemala), and at least three where the population ranges between 10 and 40 per centof the total (Mexico, Ecuador, Peru), and poverty tends to be higher in countries with larger

indigenous populations (Van Cott, 2006; Horton, 2006). In this context, Latin Americanmulticulturalism has been consolidated in the last three decades due to three factors: theemergence of indigenous political movements, the development of an international jurisprudencewhich characterized the rights of indigenous peoples as human rights, and the constitutionalreform process (Sieder, 2002). Latin American constitutionalism engaged in multiculturalismby extending collective entitlements to indigenous peoples, such as rights to customary law,collective property and bilingual education (Horton, 2006). In addition, Latin America is theregion with most ratifications of the ILO Convention 169. Some have argued that this trendexpresses a friendly liquidation of the past in overcoming centuries of discrimination,

exploitation and marginalization of indigenous peoples (Van Cott, 2000).

According to the comparative study of Van Cott (2006) the multicultural policies (MCPs)

enacting during the nineties have been positive because virtually all Latin American countriesrecognize some constitutional rights for indigenous peoples. Twelve countries recognize adistinct status for indigenous peoples and most recognize some type of collective land rights andcustomary law. Those countries classified as strong

1recognize some form of autonomy for

indigenous peoples (control over a territorial space and public resources and the power to makeand enforce norms) as well as the right to hold land collectively, the right to exercise customarylaw, and some type of educational or language rights. Although Brazil and Paraguay alsorecognize some MCPs, in these countries the extent of recognition, particularly with respect toland rights and self-government, is considerably weaker than in the other countries, so theyremain in the group of modest countries.

2 On the other hand, countries with relatively smallindigenous populations adopted the most extensive regimes (Colombia, Venezuela, Panama),

while countries with relatively large indigenous populations (Bolivia, Guatemala, Mexico, Peru)adopted more restrictive ones. Ecuador (a country with both a large indigenous population and astrong regime) is an outlier, probably due to the greater effectiveness during the constitutionalreform of its indigenous movement.

Van Cott also found (2006) that the countries having the most intense structural reforms(Argentina, Chile, and Peru) have relatively weak MCPs, while the two countries whoseadjustments were less traumatic (Ecuador and Venezuela) have the most ample set of MCPs.Thus, she observes an inverse relationship between the strength of multicultural and structuralreforms: most Latin American states entered the era of multicultural constitutionalism after theintroduction of structural reforms. The timing of the adoption of MCPs (mainly after 1994)

coincides with an increase in welfare-state spending in response to sharp increases in poverty andinequality throughout the region. In addition, of the four countries with quadruple-digit inflation,none enacted strong MCPs. Conversely, the three countries with the strongest recognition of

indigenous rights (Colombia, Ecuador, Venezuela) experienced only moderate, two-digit

1 Colombia, Ecuador, Panama, Venezuela.2 Argentina, Bolivia, Brazil, Costa Rica, Guatemala, Honduras, Peru, Mexico, Nicaragua, Paraguay. The only weakcountries would be: Belize, Chile, El Salvador, Guyana and Suriname.


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inflation in the pre-reform period. Thus, intense economic crisis may strengthen neoliberal elites,making it more difficult for indigenous peoples to secure ample multicultural regimes, whereasrelatively low levels of economic crisis give more leverage to anti-structural reform coalitionsand lower the barriers to securing indigenous rights.

Some authors view the relationship between MCPs and economic policies differently. Theyargue that political elites approve a minimal set of multicultural rights in order to deflectdemands for more radical challenges to neoliberalism: multiculturalism is a mechanism toreconstitute the hegemony and legitimacy of weak states and fragile democracies, rather thansignifying a real governmental commitment to guarantee rights for indigenous peoples (Sieder,2011). Thus, indigenous participation in formal politics is limited and largely symbolic sincepolitical elites respond selectively to indigenous claims, meeting specific types of demands,while marginalising other types of claims (Horton, 2006).

According to Hale (2005), encouraged and supported by multilateral institutions, Latin Americanelites have moved from being vehement opponents to reluctant arbiters of rights grounded in

cultural difference. Thus, they find that cultural rights, when carefully delimited, not only poselittle challenge to the neoliberal project but also induce the bearers of these rights to join in themarch. For example, collective rights, granted as compensatory measures to disadvantagedcultural groups, are an integral part of neoliberal ideology, as long as they meet two basicconditions: not contradict the principal tenets of the long-term economic development model,and not cross a certain line in the gathering of political space, which would threaten establishedpower holders and destabilize the regime. Indigenous activism, thus, occupies a space allowedfor political and economic elites (they become indios permitidos), wining some importantbattles in the struggle for recognition, yet they exchange protest for proposal, often losing theinclination to articulate more expansive, utopian political visions.

For Van Cott (2006) rather than foreclosing more radical proposals, the limited set of MCPsprovides a basis in the formal political system for the articulation of their demands. Moreover,although most indigenous organizations denounce neoliberalism and globalisation she said-their economic claims can be satisfied within the context of a generous capitalist welfare state.They seek greater political and administrative autonomy within their own territories, combinedwith a significant increase in economic redistribution through state social programmes thatwould enable them to compete within the prevailing model (e.g. access to credit, marketassistance, and agricultural subsidies like those available to farmers in the West). Therefore,neoliberalism and globalisation for Van Cott have not brought only harm to indigenous peoples.The decentralization implemented in Bolivian and Colombian multicultural constitutionalreforms (in the nineties), a key component of contemporary neoliberal economic and state

reforms, shifts authority and resources to municipalities and regions where resources can be usedmore transparently and efficiently and authority can be exercised with greater accountability andresponsiveness to public needs. It was the mechanism that provided the structural basis forfulfilling indigenous peoples most important demand: self-government.

I suggest that Van Cotts conclusions were mistaken because her analysis on autonomy issuperficial and restricted to cultural and political rights of participation. The problem of land(and in general, indigenous commons) is the critical issue in the protection of indigenous rights


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because it is connected to two basic notions that have been rejected by Western modernity:indigenous sovereignty and communal property. A real recognition of this framework has notbeen ensured neither by the most celebrated doctrines on indigenous rights (native title andconsultation), nor by binding international instruments; neither by Latin Americanconstitutionalism. If the analysis would focus on critical issues such as the property on natural

resources, the delimitation of ancestral territories as intangible and the necessity of consent (notconsultation), no country in Latin America (and elsewhere) would be regarded as having astrong legal framework of protection of indigenous rights, even the most progressive regimestoday, such as Ecuador and Bolivia, as I will show in the next section.

Some years ago Roldn (2004) identified several problems affecting the legal framework forindigenous land rights (which remain today): 1) Failure to develop the body of laws necessary tooperationalize the rights guaranteed by the constitution or international treaties; 2) Poorlyconceived procedures for gaining legal recognition of indigenous lands ; 3) Imprecision in thewriting of indigenous legislation (for example, the notion of autonomy); 4) Failure to carry outadequate consultation (often consultation is simply the act of informing indigenous

representatives of programs that are already approved, without giving them time to study theproposals and inform their own communities); 5) Lack of legal definition of ownership rightsover natural resources in indigenous territories; 6) Lack of adequate legal definition of themanagement of indigenous territories that overlap with national parks or other protected areas.Recognizing the land rights of indigenous peoples then is not a simple question of granting title,but involves addressing a more complex set of interrelated legal, social, and political issues inorder to be effective and secure (Roldn, 2004).

4. The political economy of indigenous dispossession: the failure of multicultural policies in

Latin America

The failure of multicultural policies in Latin American is clearly connected to the impossibilityto change the political economy which is part of the matrix colonial of power (Quijano, 2000;Mignolo, 2007). Liberal capitalism is expressed in the form of multiculturalism (or pluri-nationalism) and in the form of economic development. These two forms are connected androoted in the modernity project. Insofar that this triad (liberalism-capitalism-modernity) is notchallenged, is not possible a real recognition of indigenous rights.

Thus, similarly to liberal legality, the economic development in Latin America has entailed (inall its versions) the assimilation and dispossession of indigenous peoples. Thus, the basicdiscordance of the classic theories of development (modernization and dependency) was notrelated to the nature and benefits of capitalism, but the form in which it must be implemented, by

the market or the state. In both cases there were not questionings on the extractive industries andtheir impacts on indigenous peoples. Human development does not question the exploitativenature of capitalism either, nor provide responses in cases in which different views ofdevelopment are irreconcilable. More deeply, no mainstream developmental approachchallenges the Eurocentric roots of Western modernity. The term development is not

problematized, nor the colonial reasons of underdevelopment, whose patterns remains today.Poverty, democracy, freedom are seen on developing countries from the epistemological

perspective of the developers.


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Todays development macro-policies are still based on modernization, and micro-policies onhuman development. An analysis of one neoliberal experience (Peru) and two post-neoliberal experiences (Bolivia and Ecuador) will show that modernization and assimilation

features are still embedded in what I call the political economy of indigenous dispossession.

Peruvian neoliberal assimilation

Indigenous peoples in Peru have historically suffered legal violence. For example, in 1909 thePeruvian state enacted the Law 1220 which recognized state property over indigenous land.Thus, the state was able to transfer such lands regardless indigenous populations (it entailed theright to displace, eliminate or exploit natives peoples) (Espinosa, 2009). In 1974, the militarygovernment of Velasco passed Law 20653 creating the legal figure of the native community in

the lowlands and the peasant community in the highlands in order to establish a strongprotective system for indigenous peoples. However, in 1978 Law 22175 replaced the provisionsof Law 20653 and rescinded the ownership over forests and subsurface resources for all nativecommunities subsequently recognized. Moreover, article 28 subjects native communities to the

greater social interest (Stocks, 2005). The legal protection for indigenous peoples was evenmore weakened during Fujimoris government. The 1993 Constitution, although affirming theethnic multiplicity of the country, removed the still in force norms in favor of indigenous peoplecontained in the 1974 legislation including the inalienability of indigenous lands, and reassertedthe states absolute control and ownership of natural resources. It has produced a rush ofconcessionaires of oil and gas companies (Stocks, 2005; Hughes, 2010; Green, 2006).

President Garca was elected in 2005 with the promise of social justice. However, he deepenedthe neoliberal credo through policies of free trade and the promotion of extractive industries thataffected indigenous peoples land. Against indigenous protests he opposed an openly violentrhetoric called the dog in the manger. In an article published in the right-wing daily El

Comercio (2007) he argued that there are millions of wood hectares that are idle, millions ofhectares that communities have not cultivated there are many resources that are not

transferable, do not receive investments and not produce jobs. And all this due to the taboo of

old ideologies, laziness, intolerance or the law of the dog in the manger: If I do not, nobody will

do it(a4). Then, in the Dogin the Manger against the Poor (2008a), he argued: Now that thebattle is not more economical because the world crushed the dog in the manger in this issue, he

appears as pluriculturalist, patriotic and anti-mining (a4).

According to Garca, indigenous lands are not exploited due to old ideologies and envy ofindigenous communities; they are the dogs in the manger because in defending their lands,

they prevent foreign direct investments to derive value from these resources. Thus, Garca

identifies the indigenous communal property regime as an obstacle to development andmodernization, the responsible for the misery afflicting the Amazonian region (Bebbington andHumphreys, 2011; Rnique, 2009).

The vision of indigenous peoples opposes completely this idea. The Inter-Ethnic Association forthe Development of the Peruvian Amazon (AIDESEP) criticized Garcas metaphor in a public

letter: We are called dog in the manger for defending the live of our indigenous peoples and


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protesting against the imposition of external models of development that responds openly to

transnational interests... (2007).

The discontent against Garcas policies spread for the whole country. Although according

official figures economic growth has increased and poverty rate has decreased from 48% to 34%

during Garcas government (INEI, 2010), instability is everywhere. Recent growth was fuelledby high prices of minerals, which is a fragile way of growing (Lee, 2010). Furthermore, thepoverty reduction statistics do not tell the whole true. According to the multidimensional povertyindex from the United Nations Development Programme (UNDP, 2011) Peru is the second worstcountry in South America. This outcome is a result of poor planning and redistributive policies:Peru spends less than any other Latin American country on social programs; it is estimated that25 percent of the total population has no access to water, and more than half lack adequatesanitation and the quality of education is among the lowest in the hemisphere; in those vitalmeasurements of a countrys overall well-being, there has been little change in the neoliberal era(Schmall, 2011).

Economic growth and social conflicts are two sides of the same coin. On one hand, between1990 and 2007, Peru received US$12.35 billion in mining investments; it is the main silverproducer of the world, second for copper and zinc, fourth for lead, and sixth for gold; in 2007, itranked sixth in the world in levels of investment in exploration, and this tendency is maintainedin spite of the financial crisis because the demand of countries like China or Brazil (Bebbingtonand Bury, 2009). On the other hand, the extractive industry has produced an increment of socialconflicts. In 2007, the Peruvian Ombudsmans office recorded 78 social conflicts in the country,of which 37 were socio environmental; by June 2011, it records 217 social conflicts, of which 91are socio environmental (Ombudsmans Office, 2011).

Anthony Bebbington (2008, 2011) has theorized the socio-environmental conflicts as cases of

accumulation by dispossession (Harvey, 2003). In Peru can be observed different patterns ofdispossession by transnational investments and the government: the (attempt of) dispossession ofland located in hydrocarbons areas (for example, the case of Bagua); the dispossession ofresources such as water or grazing (for example, the cases of Tambogrande, Majaz, Yanacocha);the dispossession of the livelihood of agricultural communities (all mentioned); the dispossessionof the real value of the mining activity (for example, in Tintaya the main concern at thebeginning of the project was the gains from mining).

There are many other cases as Antamina (Szablowski, 2002; Taylor, 2011), or recently Puno(Salazar, 2011), Conga (Cajamarca) and again Tintaya3. Bagua is the only case occurred in theAmazon; however, it shares common patterns with other conflicts. Bagua is included in a group

of conflicts called all-or-nothing, which occurs when local people perceive that they do notneed mining: they have their own social and economic order and mining is likely to conflictdirectly with it. This was the case with the threat to the agriculture economy in Tambogrande,Majaz or the issue of water scarcity in Cajamarca (Arellano-Yanguas, 2011).

3 The conflict with Tintaya has emerged again in the last weeks in the province of Espinar. The new protestshowever are related to environmental concerns, and the government has declared the state of emergency to controlviolently the population.


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Arellano-Yanguas (2011) outlines that conflicts are produced because the high company profitsand the large, sudden canon minero transfers to under-prepared regional and local governments.However, the conflicts about the distribution of the canon, although important, have not been astranscendental as those connected to the livelihoods of indigenous communities. Only the casesof dispossession of real value for communities might be understood as a problem of public

management as Arellano suggests. There are two different situations (Tanaka et al, 2007): in thefirst one, the project has already been implemented, thus, the conflict is about the participation ofthe benefits of the activity (the conflict is connected to dispossession of real value); in thesecond situation, it is attempted to start an operation, thus, the protest addresses the convenienceor not of that activity. Thus, not all cases can be addressed by information and dialogue in ordertobuild a different relationship with the company (Anguelovski, 2011: 395); or by proposingan efficient distribution of canon. Many cases are about dispossession of land and livelihoods,and communities do not want any external activity in their lands.

These conflicts are complex due to the different actors involved and their interrelation. On onehand, the World Bank and other international institutions have continued to encourage

developing countries to attract FDIs on extractive industries as a development strategy(Bebbington et al, 2008); the Peruvian governments have been the most radical in following suchrecommendations, favoring transnational investments. On the other hand, mining has moved intoareas that have no mining tradition but are currently occupied by agro-pastoral communities whohave opposed it strongly (Bebbington et al, 2008; Taylor, 2011). In that context, the concern ofthe state is focused on maintaining the public order, and averting that the protests do notdiscourage investments.

The new government of Ollanta Humala was elected for his left-wing politics, and was supportedby environmentalists, unions, indigenous peoples and liberal democrats against a radicalconservative neoliberal party. Humala changed the rhetoric of Garcia about the dog in the

manger for social inclusion, but this social inclusion is rooted in the assimilationperspective. Thus, the main multicultural policy of the government is limited to recognize theright of indigenous peoples to be consulted after the policy or concession has been made. Inaddition, the political economy is concerned just with growth plus redistribution, namely, thesame political economy of free trade and promotion of the extractive industry plus more socialprograms. The result is that indigenous peoples are consulted in order to be excluded, they areintegrated into the market in order to deny there different view of buen vivir, which entails adifferent political economy and legality.

Consequently, the social conflicts have not stopped. The government have declared the state ofemergency in order to control zones of socio-environmental conflicts, in the case of Congaagainst Newmont and Espinar against Tintaya. The government and its technocrats continue tomake invisible other forms of social organization. Some argue that the solution is just torecognize private property of natural resources for indigenous peoples, so they can sell their

private property to corporations. Indeed, the message of the neoliberal technocrats is perversebecause for them the only way to achieve an efficient distribution of land is by transformingcollective property into private property. However, as collective land delimits indigenousidentity, the neoliberal solution is a threat: if you want to participate in the economy you mustgive up being indigenous (Hvalkof, 2008).


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But conflicts such as the Bagua Massacre has demonstrated that indigenous peoples do not fightfor titling their land or for owning the subsoil; they fight for the respect of their legality,economy and culture. Santiago Manuin, an indigenous leader of the Amazonian communityAguaruna, said in an interview: Our ancestors left us the task of defending our territory; we

have never let anyone to take our land, the rubber boom was not able to destroy us, or the Incas,

neither terrorism nor the settlers; we must defend our land for our children (2011).

The neoliberal technocratic rhetoric, thus, serves as a mechanism of legitimation of the oldtheories of modernization and assimilation. It is not more an open violence as the Garcas dog in

the manger; they promote a sophisticate legal violence. Their theses have a universalistic view ofeconomic management through private property, and promote to imitate the development path ofWestern cultures based on individualism and market expansion (modernization thesis). Inaddition, they see indigenous as potential capitalists who must be integrated to the market(assimilationist thesis). Obviously, there is some sophistication. The modernization trend issoftened by alleging that multiculturalism is not in contradiction to the market; and theassimilation theory is seen as inevitable: it is not more the integration (indeed dissolution) ofindigenous cultures to the nation state, but into globalisation. But beyond rhetoric, thefoundations of these old theories are the same.

Moreover, the new rhetoric also shares the same logic of the colonial project. Colonizers usedthe idea of terra nullius (there is land available to be conquered); and the neoliberaltechnocrats use the idea of lex nullius (there is not a legal indigenous regimen or it is

inefficient, thus, the private property regimen should be implemented) (Mattei and Nader, 2008).But the indigenous legality exists; it is a legal and social system embedded in the idea of buenvivir (good life).

Buen Vivirin Bolivia and Ecuador

Buen vivir (Good Life), Sumak kawsay in Quichua or Suma kamaa in Aymara, is the basis ofindigenous cosmovision, a way to know (epistemology) and being (ontology) in the world. Itprojects ancestral social organizations based on the principle of communality and relationality(instead of individuality) among human beings and the nature. Buen vivirproposes an alternativeproject to Western modernity and its particular ontology based on progress.

There is an intrinsic tension between the inherent expansive nature of current capitalism, whichcreates economic dependence, and the implementation of theBuen Vivir. That is why the currentsocio-economic and political transformations in Latin America suggest the existence of twoprojects in tension: (a) alternative modernizations, based on an anti-neo-liberal developmentmodel; (b) decolonial projects, based on communal and indigenous practices and knowledge.Both options which are called post neoliberal are taking place at the level of both states andsocial movements (Escobar, 2010) but in a conflictive way expressing what Bolivian vicepresident Garcia Linera (2007) calls the dis-encounter of two revolutionary reasons.

The most important examples of these tensions are the recent policies of Buen vivir

implemented by Ecuador and Bolivia. In the Ecuadorian new constitution Buen vivir isdeveloped in the form of rights of Buen vivir, including many rights (alimentation,


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environment, water, education, housing, health, etc.) which have the same value of other set ofrights (collectives indigenous rights, participation, rights of nature). It is also relevant theconstitutional recognition of the rights of Mother Earth (arts. 71, 72), which for Escobar(2010) constitutes an epistemic-political event that disrupts the modern political space bychallenging liberalism, capitalism, and the State. The Pachamama is a strange entity that cannot

be easily fitted into the philosophical structure of a modern constitution; the notion isunthinkable within any modern perspective, within which nature is seen as an inert object forhumans to appropriate. On the other hand, the Constitution regulates a section named regimenofBuen vivir focused on inclusion and equity; and the conservation of biodiversity andmanagement of natural resources. In addition the Buen vivir regimen is articulated to thedevelopment regimen: development must serve to good life (Gudynas, 2011).

In Bolivia Suma qamaa is the ethic foundation of the plurinationality, the recognition that thestate is a unity constituted by multiple nations (Larrea, 2010). The constitution of 1994 hadacknowledged the multiethnic and pluricultural character of Bolivian society, providing somepolitical rights to indigenous groups. By this time, as part of neoliberal multicultural reforms,

was enacted a law that decentralized the state by redistributing economic resources from the ninedepartments of the country to hundreds of municipalities. Those areas with large numbers ofindigenous people were granted the possibility of becoming indigenous municipal districtsorganized according to their customs, but still subject to a top-down state decision making. Thenew Constitution of January 2009 goes beyond the previous one by recognizing the plurality ofBolivian society: legislative, judicial and electoral government branches have been relabeled asplurinational to stress this plural character. Thus, from a state led multiculturalism that grantedlegal and political rights to indigenous people so they could be part of a Unitarian liberal state;indigenous citizens has moved toward a plurinational state that fully acknowledges andincorporates the cultural diversity of its indigenous populations (Galindo, 2010).

In spite of the similarities there are important differences in both constitutional texts. In EcuadorSumak kawsay has two levels: framework for a set of rights, and mechanisms of implementationof those rights. In the Bolivian constitution this connection between Suma qamaa and the rightsis not explicit (there is not a reference to this concept in the section of fundamental rights), andthere is not explicit recognition of the rights of nature. The Bolivian text, however, developsmore the plurinationality than Ecuador (Gudynas, 2011).

Nonetheless, both constitutions have dark sides related to the ownership of natural resources, thepossibility to exploit indigenous land on behalf of national interests and the lack of recognitionof prior and informed consentof indigenous peoples. In the case of Bolivia, this project has notfocused on the political economy, in spite of the repetitive allegation in the new Constitution of

the necessity of industrialization to break the dependence on extraction (art. 316, 319) and theautonomy of indigenous peoples (art. 1, 2, 289, 290), the state dominates all natural resources ofthe country (art. 298, 309, 316); in spite of the constant recognition of the right of consultation(art. 11, 352, 403) there is not recognition of consent. In practice, there has not beenchallenged the economic extractive model, so, there is a constant threat on indigenous peoplesland. Similarly the Ecuadorian constitution establishes that the state dominates all naturalresources (art. 317, 408) and it can even exploit exceptionally the protected areas (art. 407).There is not recognition of the right of consent.


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At the level of policymaking the inconsistences are even worse. In the development plan ofEcuador there are contradictory conceptions (regarded the role of economic growth), lack ofclarity in the processes to implement the Plan, it maintains the macro-developmentist principlesand a strong individual orientation (based on human development), opposed to the

collectivistic and relational potential of Buen vivir. Similarly the development Plan of Bolivia(2006) is still rooted in the conventional view of development (Radcliffe, 2012).

The implementation of social and economic policies in both cases has been consequently verypolemical. There is a big distance between the pronouncements and the practices, because thegovernments still are trapped in developmentist conceptions, and the models still aremodernizing and led by experts (Escobar, 2011; Radcliffe, 2012). The problem of theseexperiences is that the financing of all programs still is based on the conventional developmentof appropriation of nature, maintaining the pattern of exportation of natural resources: theincreasing of social spending makes the government even more dependent of exporting minerals,hydrocarbons and promoting monocultives. In sum, the space of dispute of the Buen viviragainst

conventional development is related to the extractivism (Gudynas, 2011).

In the case of Ecuador, despite the potential significance of the Yasun-ITT initiative4, oilexploration in the rest of the Amazon region is being increased: the Ecuadorian government haszoned 65% of the Amazon for oil activities (52,300 km2), overlapping the ancestral lands of tenindigenous groups. The activities are carried out by Andes Petroleum, which is owned by theChinese National Petroleum Corporation (CNPC) and Petrochemical Corporation (SINOPEC),on behalf of Petro Ecuador. Similarly, the Correa government has initiated the process ofopening of Ecuadors gold and copper reserves to exploitation. Once again, while the Ecuadorian

state will hold majority shares in these mining sites, foreign corporations will carry out the actualwork. These plans have fuelled strong resistance by indigenous communities that fear that the

expansion of mining will only worsen their livelihoods (Bebbington, 2009; Arsel, 2012; Finer etal., 2008).

Correas public position has radically shifted, and he increasingly lauds the benefits of sociallyresponsible, large-scale mining, emphasizing that the revenues generated can be used for socialdevelopment. At the same time, his attacks on environmentalists have become sharper; he hasreferred to them as extortionists, terrorists, infantile leftists and romantic ecologists. Cor-rea has vowed that mining critics will not impede the exploitation of the resources that the

country needs (Bebbington, 2009).

In that context, economic elites have incorporated indigenous peoples into the formal politicalsystem without undermining their own power, excluding demands and tactics that undermineelite political and economic power. When the indigenous movement fails to work within the

4 The Yasuni Project was meant to leave at least 850 million barrels of heavy crude oil beneath one of the mostintact and biodiverse areas of the Amazon in order to protect biodiversity, respect indigenous land, and combatclimate change. In exchange for not extracting petroleum Ecuador seek financial compensation from a developedworld increasingly concerned about the destruction of the Amazon and the perils of climate change. Thiscompensation would be obtained by selling the Yasuni Guarantee Certificates for the CO2 locked in the oil fields.The idea was that EU member states operating under the European Trading System of carbon would be able topurchase and trade these certificates (Finer et al, 2010).


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formal institutions of democracy, it is subject to criticism (and punishment by the state) becauseits activities fall outside the bounds of acceptable political behavior. The use of economicdevelopment funds to integrate the leaders of the Confederation of Indigenous Nationalities ofEcuador (CONAIE) into the formal political system, the creation (and relative success) ofPachakutik as a political party and the targeted use of political appointments for indigenous

leaders all represent mechanisms of political incorporation that successfully bring indigenouspeoples into the formal political arena while effectively marginalizing their more radical orredistributive demands (Bowen, 2011).

In Bolivia, in spite of the environmentalist rhetoric, there is a stress of the extractivist strategies(expanding the industry of iron and lithium) and is announced flexibilization of environmentalnorms (cutting participation and affecting protected areas) (Radcliffe, 2012). Indeed, under thecurrent Morales administration, hydrocarbon operations have significantly expanded in thecountrys northern Amazon basin, generating consternation among indigenous groups andtensions between them and the government. In addition, hydrocarbon concessions in Boliviaoverlap with protected areas and indigenous territories. In the departments of La Paz, Beni, and

Cochabamba, significant parts of the Madidi and Isiboro Secur National Parks and of the Pilon-Lajas Biosphere Reserve are covered by hydrocarbon contracts. In the Gran Chaco of Tarija,most of the Aguarage National Park has been affected by contracts given to Petrobras andPetroandina that allow for exploratory seismic testing and drilling, while the Chinese companyEastern Petrogas is set to operate in the parks buffer zone. Plans to increase gas production haveintensified since the Morales administration took power, and the emphasis is clearly onexpanding such operations. The Morales governments rationale for this expansion is that theseresources belong to the nation and are needed to finance national social policy and cash-transferprograms for the poor (Bebbington, 2009; Finer et al., 2008).

In general, it is true that the improvements have opened a space for the expression of indigenous

voices and agency, facilitating pro-indigenous policies and legislation (Sieder, 2011). But it isnecessary to acknowledge the limits of that space and its content. Since multiculturalism (andplurinationalism) has been adopted as a project of elites (Horton, 2006), political participation,cultural rights, rights of Mother Earth even decentralization and judicial and administrativeautonomy all of these are outcomes that have been provided under the condition to notchallenge a extractivist political economy that is defended violently in Peru, Bolivia andEcuador. In sum, neoliberal and post-neoliberal governments approach a political economy ofindigenous dispossession: the term post is more rhetorical than substantive (Bebbington andHumphreys, 2011; Webber, 2011; Radcliffe, 2012).

5. Conclusion

It seems that there is an slow evolution from mechanisms of open exclusion, elimination andnegation of legal subjectivity (discovery, just war, terra nullius) during the colonial era; to

mechanisms of assimilation (implementation of treaty making, private property rights, nationalpolicies of economic and social integration) during the independence era; to finally mechanismsof self-determination (native title, consultation/consent) during the multicultural era.However, in spite of the apparent legal and institutional evolution in favour of indigenouspeoples, there is a core that has not been questioned; a political space related to the capitalist


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political economy, Western modernity and liberalism that deny real autonomy to indigenouspeoples.

Western modernity and liberal legality recognizes indigenous rights and promote toleration but

still they rely on an epistemic hierarchy. Multicultural liberals talk in terms of participation

within liberal institutions, but their solutions to collective disadvantage are framed in a liberaldiscourse of rights that has been historically forced on indigenous peoples. It is true that liberalmulticulturalism has opened a space for the expression of indigenous voices, facilitating pro-indigenous policies and legislation, but it is necessary to acknowledge the limits of that spaceand its content: political participation and cultural rights are outcomes that have been providedunder the condition to not challenge the dominant political economy.

In fact, self-determination or autonomy for indigenous peoples has not been fully ensured neitherby International Law and its most celebrated doctrines on indigenous rights, nor by LatinAmerican constitutionalism. If the analysis would focus on critical issues such as the property onnatural resources, the delimitation of ancestral territories as intangible and the necessity of

consent (not consultation), no country in Latin America (and elsewhere) would be regarded ashaving a strong legal framework for protection of indigenous rights.

This is clear even in regimens called post-neoliberals such as Bolivia and Ecuador. In fact, inspite of the insightful improvements such as the constitutional recognition of the Buen vivir,these regimens have not challenged the extractivist political economy. Similarly to Peru, thesecountries still practise a political economy of indigenous dispossession. The development ofthe whole country is still based on the expansion of capitalist extractivism, namely, on thedisplacement of indigenous peoples or the dispossession of their livelihoods.


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