Too Much for Too Few: Problems of Indigenous Land Rights in Latin America Author(s): Anthony Stocks Reviewed

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Too Much Problems

for Too

Few:

of Indigenous in Latin Land Rights America

Anthony Stocks
Idaho State University, Pocatello, Idaho 83209; Department of Anthropology, email: astocks@isu.edu

Annu. Rev. Anthropol. 2005. 34:85-104 First published online as a Review inAdvance on June 14, 2005 The Annual Review of Anthropology is online at anthro.annualreviews.org doi: 10.1146/ annurev.anthro. 3 3.0702 03.143 844 2005 by Copyright Annual Reviews. All rights reserved 0084-6570/05/1021 0085$20.00

Key Words indigenous land rights, American Indians, Awas Tingni,

Peru, Bolivia, Colombia, Nicaragua

Brazil,

Abstract
In a number constitutional of countries legislative in Latin America, recent under in the changes which indigenous or oth

and

environment

people hold or claim land and natural resource rights have triggered
a number of processes and projects to demarcate, legalize,

erwise consolidate indigenous lands.This review begins with a look

at Nicaragua and goes on to examine five of the South American

processes, allegedly with the most

ronments, and concludes that they

favorable legal and policy envi

suffer from common problems

related to (a) the amount of land and resources being claimed by rel atively small numbers of people, (b) the contestation of the claims by
non-indigenous tions and sectors, that and (c) the nature them. The of indigenous confrontation organiza between the NGOs support

policy and reality yields some lessons for the future.

85

Contents INTRODUCTION. 86

sectors in a number in policy ican countries. More good

of Latin news

Amer the

is that

World
sure on

Bank has been a leader in keeping pres

the politicians. gold miners, forces, The bad ranchers, oil news is that guerillas, compa

NICARAGUA SURPRISES AND IS EVERYONE

SURPRISED. 86 89 91 97

the squatters, local nies, police

paramilitaries,

THEN TO GETTING FROM

NOW. CASE STUDIES. CONCLUSIONS.

to and other assorted claimants loggers, resources in and space currently occupied by have not all gotten the mes people digenous In the and contentious sage. on-the-ground seems the men want. Worse, have begun and to

messy world of the vindication of indigenous

land sibly the guns sometimes policy rights, far away, and sometimes just take what in several they countries impos with as

INTRODUCTION
Latin UN: Nations United dergoing of America a sea is alleged change by many to be un the place regarding na in their respective people on the A spate of recent books landscape (Assies et al.

policy to realize dollars

makers

the actual involved

number

of hectares such as "rights

in phrases

indigenous societies.

lands they traditionally occupied,"

moved have review into retreated a static mode from with and, the policy a detailed

they have
cases, This

tional changes

in some advances. look

in the political

2000, Brysk 2000, Langer & Mu oz 2003, 2002, Sieder 2002, Van Cott Maybury-Lewis & Warren 2000, Jackson 2002) andmajor sys
tematic international institutional studies on

indigenous landrights (Colchester et al. 2001, Daes 2001, Plant & Hvalkof 2001, Roldan Ortiga 2004) testify to the great interest these
changes velopment opened tion and have aroused communities. to new forms of in the academic The door and de has been

begins no and its impact where advance jor policy one The it, Nicaragua. Nicaraguan expected case is not interesting, only for its legal prece but also as another illustration of the dent,

at a ma

confrontation between policy and reality in indigenous affairs (e.g., Schmink & Woods 1992). It then briefly examines the forces that
are land changing issues the way across policy makers interpret and looks Latin America

the promise

political of a measure autonomy, and of new

participa of cultural, of control forms of

at the application of indigenous

in Brazil, Colombia, Bolivia, and

land policy
Peru, all

and economic political, over natural resources, indigenous land tenure.

countries judged to be advanced in the policy

arena with draws regard parallels to land and issues. A final sec tion cases distinctions about between the diffi

At the end of theUnited Nations'

ternational Peoples Decade (1995-2004), of theWorld's these

(UN) In
Indigenous as

and makes

conclusions

advances significant to be little seemed Advances

appear changes in an arena where there progress for many years.

culties encountered in applying policy and the

implications these cases make for the future.

are not necessar in policy, however, in it takes more advances and ily application, to in a document 500 than paragraphs change of colonial when and the as postcolonial involves good practice, some news control is

NICARAGUA SURPRISES EVERYONE AND IS SURPRISED

Late the muggy afternoon of August 3, in a air-conditioned ho freezing inManagua, tel room the Nicaragua, editing first draft of a team report on the land claim of 2003, I sat in

years

especially as essential thing that the

practice land. The to

over

regain indigenous struggle lands that indigenous people presently as an 1 is now viewed occupy legitimate legal

an com Mayangna Tingni, indigenous in The claim munity Nicaragua. encompassed Awas

86

Stocks

traditional hunting, fishing, and agricultural areas. It did 94,000

not encompass all the Mayangna had occu

hectares

and

included

mission on Human Rights (seeDavis 1988 for the background and significance of this orga nization with regard to land rights), the case
was moved to the related court, the Inter

pied historically in theWawa River Basin, but itwas the best they could hope for, given
the counterclaims munities of and of indigenous logging Miskitu com invasions the Miskitu cooperatives, and

American Court of Human Rights. The

cision startling of the and court on

de

31, 2001, was August The unequivocal. community

ladino/mestizo

squatters,

dominated political climate of theMosquina, in which they are less than a 10% minor ity. The report was lengthy and contained
an ethno-historical uments and academic evaluation studies, based an oral on doc history

was indeed judged to have "customary" land rights on the basis of historical occupation. Furthermore, Nicaragua was judged to have violated the rights of theMayangna
ing a logging concession on those

by impos
lands with

to connect the people with

tory, studies of current land

the written his

use, a census

of those considered
analysis cash of were of the

to have land rights, an

and the treatment the systems soil study maps types, and

out consultation, and also for the lack of a legal framework through which they could claim their land rights according toNicaraguan law. Although a number of international treaties
and nous other as the other gument declarations peoples have of the world indige no rights, as court has been explicit court. Earlier cases in have such the terra nullius ar expressed that

economy, the

subsistence economy and an ethnographic Accompanying information ecosystems, settlements, of cultural place

community. geographic

international Inter-American courts that had

identifying the locations fishing

vegetation, of old areas neighbors,

camps,

hunting and historical names,

lands

rejected were

legally

unoccupied

significance,

coun

terclaims, and a host of other details. It had taken 2months of fieldwork for 9 outside re
searchers munity and technical trainers to to and 20 com researchers would and guides seem

until the arrival of colonizing powers (Anaya 1996, pp. 21-23), but they stopped short of ruling in favor of indigenous customary rights
on national state lands in deference to postcolonial sovereignty. Nicaragua has not yet rati

compile. be moving indige

Although

Nicaragua in the direction quickly

fied the International Labor Organization

Convention supports 169 traditional that, among other land "territorial"

of recognizing

things, rights

nous land rights, first with its 1987 auton omy law and its constitutional backing (Hale 1994;Was 1989, pp. 142^7) that granted
resource and natural cultural, political, east coast to rights Nicaragua's indigenous and African Nicaraguan and then populations, certain

(to be defined below)

digenous people, it has

for the world's

signed the American

in

with a 2003 indigenous demarcation law. The work in Awas Tingni itself came as a result of a landmark legal case brought by the com
munity before the Inter-American Court of

Convention on Human Rights (see Anaya & Williams 2001 for a description of how this system applies to indigenous people), which makes the court decisions legally binding. For
reasons of its own,1 the government agreed

Human Rights (Anaya & Grossman 2002). In 1995, the community protested a logging concession that had been granted by Violeta
Chamorro's firm der on what their government they viewed to a Korean as their land, logging un or years Com

!Nicaraguan politicians consider that the nation will have to resolve the indigenous land tenure issues on the Atlantic coast before they can profit from the exploitation of what they think of as the "national forest." They tend to think of indigenous claims as islands in a sea of national forests. In digenous people tend to think that there is no national for est in eastern Nicaragua, only contiguous and often over lapping territorial claims. These two competing "maps" of eastern Nicaragua are reminiscent of Orlove's (1991) work on Lake Titicaca.

traditional of testimony

of their interpretation tenure After rights. before

customary several

the Inter-American

www.annualreviews.org

Indigenous Land Rights in Latin America

8j

to legalize the "traditional" lands of Awas Tingni. Thus, inJanuary 2003 theNicaraguan GEF: Global
Environmental Facility congress it had took a bill out of committee than four where years law. languished an indigenous for more

that

too many the

political land.2

and

economic

inter

ests want

Because

the upper Wawa

River basin is heavily forested and the water quality of its discharge inevitably affects off
shore fisheries, on this offer besides fails natural community the Mayangna injustice some of the most important in eastern Nicaragua. The working to protect resources has re an

and passed

"demarcation"

USAID: United
States Agency International Development for

This law was originally drafted at the insis tence of theWorld Bank as a precondition for releasing funds for the Atlantic Biologi cal Corridor Global Environmental Facility (GEF) project under the theory that secure
tenure for indigenous communities would

jected the preliminary offers andmay go back

to court.

prevent resource degradation by excluding outside appropriators (Graham 1997). Re

gional worked autonomy to protect regions alone, resources. where it was felt, had not the aware Additionally were people

My impression is that Nicaragua's polit ical reaction to the literal application of its own high-minded constitutional and legisla
tive framework drafted at the insistence in the powerful the case interna of of foreign-supported regional tional law autonomy, lender in the combatants and case the the a of

autonomous

of the United

States Agency for International

demarcation than openings, indigenous the

(USAID)-funded demarcation Development of six indigenous territories between 1994 and 1998 in the BOSAWAS biosphere added po litical pressure, along with the elaboration of a 1997World Bank-funded regional map of
community claims (Dana 1998; Dana et al.

is becoming

norm

rather

exception. Despite the movement toward

promising effective

ownership and control over indigenous lands has bogged down in some of the places
where it seemed rights most advanced. Although conser in indigenous activists, and love fact some to is action-oriented (not see that all)

1998; Offen 2003a; Stocks 1996, 2003).

As a number of researchers have com

anthropologists, vationists this matter, have of nous become legislation would the less

mented,
role

the World

Bank has played a pivotal

the cause of indigenous and

progress governments After 15 years

in advancing

traditional people with regard to biodiversity

conservation (e.g., Brysk 2000, Davis 1993,

enthusiastic. seemed fronts are of to

that many stake that

favor progress of

Offen 2003b, Partridge et al. 1996), andmuch of the impetus inLatin America for change in the legal framework surrounding indigenous
land tenure comes from that source and other

rights, At stymied.

indige seem deeply

a number the

practical

issues

include

sovereignty

multi-lateral
lead. However,

donors who have followed their

even with the powerful influ

of states faced with ambiguous defini tions of territoriality within their boundaries (Assies 2000, Stavenhagen 2002), the diffi culty and ambiguity of establishing parallel legal systems for indigenous cultural sys tems and nonindigenous peoples (e.g., Padilla 1996; Sieder 1997, 2002a; Yrigoyen Fajardo

ence of multilateral
community or

and bilateral lenders, no

territory has

multi-community

yet been titled under the new Nicaraguan law. In October 2004, Awas Tingni was offered
relatively small and noncontiguous pieces of

agricultural land instead of the territory we

documented; what agrarian the offer reform is scarcely would have more than extended

on the basis of some boilerplate formula of people per hectare of farmland. Political in sider gossip holds that the claim is unoffi cially thought to be "too much land for too
few people," which is another way of saying

2 As this review was written, the Nicaraguan government announced plans to legalize five indigenous territories in and about the Bosawas International Biosphere Reserve inMay 2005. Indigenous people will own ~75% of the 7500 km2 reserve. The path is smoother for the Bosawas territorial claims because they fall into a protected category that prohibits contestation from commercial logging and mining interests and prohibits the legalization of individual squatter claims.

88

Stocks

2002), the postmodern

nous self-representation

dilemmas of indige
(e.g., Assies 2000;

During nomic

the

1980s

the discourses indigenous

of rights,

eco and

globalization,

1993; Hendricks 1991; Hoffman French 2004; Jackson 1991, 1995; Rappaport & Dover 1996; Turner 2002; Warren & Conklin Jackson 2002), the contradictory
of decentralization and privatization undercut while and co-opted allegedly movement tire indigenous

biodiversity conservation began to cohere like

a cuajada, the cattle ranchers cheese made simple white all over Central America. by Al

tendencies
that have the seeming en to

though economic
state ments sovereignty and

globalization
through of and the living

undermines
adjust ability state's

structural

the reduction policy

to set economic

standards

strengthen it (e.g., Assies 2000, Padilla 1996, Ramos 2002), and the question of who con
trols natural and benefits resources from on surface indigenous and subsurface lands (e.g.,

thereby presenting

ample political space for

so and the rest of civil groups indigenous to contest state the it also supports ciety as a more to run flexible way privatization

1994, Van Cott Cony 2002, Yrigoyen Fajardo 2002). This last is sue is perhaps themost difficult to implement of the new constitutional provisions. As Van Cott (2002) points out, no country complies with its own constitution or with international treaties in this regard. Until
case, nous nowhere people in Latin say "no" America and make

1993, Davis & Wali

a world
responsible

economy. This
for a number

tendency has been

of attacks and on "unmort the

"inalienable,"

"untransferable,"

the Awas Tingni

could it stick. indige

gageable"3 attributes of classic indigenous le gal landholding. Mexico's rejection of the in alienable principle of communal ejido lands in its 1991 constitution is one example (Aguilar Camin & Mercer 1993), and Peru's simi
lar treatment of its native and peasant com

munities
from

with
same

its 1993 constitution

economic philosophy.

stems
The

GETTING NOW
Stavenhagen
ate ment" tions of causes to of the the

FROM THEN TO
(2002) attributes the immedi
the present peasant 1960s and and "indigenous guerilla 1970s and move insurrec the col

the

same

underlying

indigenous digenous

can aid however, reasoning, in situations in where people over am is control the land base

biguous and not supported in law. Neolib

eral economic reasoning, prominently rep

resented by theWorld
many other multilateral

Bank, USAID,
and bilateral

and

lapse of the Soviet empire in 1989. Van Cott (2002) refers to the many challenges
to of tion. lions state sovereignty that countries on the in the Andes as a "crisis decentraliza rebel re legitimacy" Many focused provoked with simmering theme of

donors,

identifies the lack of clear property rights as

one of the major impediments to capitalist

development
1989, Deininger Royston2002,

(e.g., Adelman
2003, Sanjaketal.

1984, De

Soto
& et al.

Durrand-Lasserve 2002, Weaver

agrarian

form in the 1960s and 1970s, although the

efforts were usually cautious and inadequate. reform In Ecuador, for example, the agrarian

1997). Even though Hardin's

of the commons" communal degrading and her thesis land resources, colleagues digenous land Ostrom of

(1968) "tragedy
to leave in

seemed

in a never-never the work on common of

of the 1960s left one third of the agricul tural land in the hands of large landowners and one third in the hands of medium
sized private entrepreneurs. Indigenous sub

sistence
with an outcome

farmers split the remaining

market-oriented that delayed peasant

third

mestizo

smallholders, rebellion

only temporarily 2003).

(Smith

1992, Zamosc

3 Ortiga (2004, p. 27) defines inalienability as "incapable of being lawfully alienated, surrendered or taken away by another." Unmortgageable is defined as "not susceptible of being mortgaged or given as collateral to access credit," whereas untransferable is "incapable of being transferred from one person to another."

www.annualreviews.org

Indigenous Land Rights in Latin America

89

property

regimes

scotched

the

notion

that

movements strong enough

and

support that the

organizations International

were Labor

communal NGO:
nongovernmental organization ILO: Labor International Organization to the Hardin wrote

(group) property
commons 1990; (Ostrom

is equivalent
about Ostrom which et al.

open-access

1994,1999). Scholars have argued for 30 years

that group property management is the best way of natural to insure resources sustainable

Organization (ILO) revised the earlier assimi lationist viewpoint inConvention 107 and re 169 (ILO 1989), placed it with Convention which asserted indigenous land rights and,
for the first time, used the term territory to

(e.g., Ciriacy-Wantrup & Bishop 1975).

The ment uum is modern filling by The indigenous some small the rights part of move the of vac state

refer to indigenous traditional landholding.

"Territory" was defined of the occupy tal environment digenous peoples] as covering areas which or otherwise "the the to [in use"

created

undermining

sovereignty.

numbers

of nongovernmen

tal organizations (NGOs) that support indige nous and black rights and the representative
"ethnic" organizations themselves exploded

(Article 13 [2]).The convention mandated the identification of such lands, urged states to provide access to lands historically occupied,
but now contested, and mandated that each

in the 1980s, and this trend continued into the 1990s (Assies 2000, Bebbington 1996). Offen (2003b, p. 50) refers to this explo sion as the "NGOization of the indigenous
and black concentrated has The support rights movement." in areas where biodiver mainly

signatory state have legal procedures by which the land rights could be claimed (Article 14 [2 and 3]).Many Latin American states have now signed the document. Outside of Latin
America, almost no one has.4

sity and indigenous (or African-indigenous) lands overlap, such as the Pacific lowlands of Colombia where 4.5 million hectares in 122 black territories were titled between 1996 and 2003, benefiting
Northeastern Brazil has

270,000 people.
a recent site

In 1994, the United Nations produced its own Draft Declaration on the Rights of In digenous Peoples (UN 1994), which skirted the question of land titling bymerely stating in Article 10 that "indigenous peoples shall not be forcibly removed from their lands or ter
ritories." Such lands, several discourse has territories, times over in waters, the etc., are mentioned tion, but the states conven

also been

of such activity (Arruti 2000, Hoffman French 2004, Offen 2003b,Warren 2001). Anthropologists have been highly involved
in the evolution of "outside" support for in

dividual organization

tended

the rights of in to make the U.N. about ethnic supporting territories

digenous rights (Messer 2002). The NGO

volvement gaining in strength indigenous for more land than issues has 50 years

in
been since

tread lightly or autonomous independent of states. within the borders

In the same mode,

David Maybury-Lewis,
others began to consider

Charles Wagley,
how the Amazonian

and

the 1997 Draft American Declaration on the Rights of Indigenous Peoples of the Inter
American Commission on Human Rights

cultures they studied, and to which

came of committed, could development. survive Brazilian

they be

contains
that nic nous insure groups

two articles
no new across state even

(Articles 25 and 26)

will and unify that eth lines indige not will

the onslaught

boundaries

Maybury-Lewis same spon that pro

went on in 1971 to found the organization

Cultural year, sored duced Survival the World a at Harvard. Council In the of Churches in Barbados of Barbados

territories,

if recognized,

symposium

the Declaration

regard

ing indigenous rights (WCC 1971). The issue in of land rights was specifically mentioned Article 2.Withal, by the late 1980s, the cur
rents emerging from peasant and indigenous

169 in ratified Convention 4In Latin America, Mexico in 1991, Costa Rica and 1990, Bolivia and Colombia in 1995, Paraguay in 1993, Peru in 1994, Honduras Guatemala in 1996, Ecuador in 1998, Argentina in 2000, in 2002, and Brazil in 2003. and Dominica Venezuela the Outside of Latin America, only Denmark, Norway, Netherlands, and Fiji have signed.

go

Stocks

challenge the sovereignty of the state (OAS

1997). These limitations would seem to con

for "in Those

indigenous progress," in the first Costa In the or

land

tenure,

frameworks frameworks. Brazil, TI: terras ind genas Funda do Indio o

"deficient" group

tradict Article 18(3i), which guarantees title to

lands a and resources which, groups held before colonization, would the unite provision if honored, such as

are Bolivia,

Colombia, Peru.

Rica, second

Panama, group Mexico, else

and Paraguay, are Argentina, Nicaragua, is in the third countries have

FUNAI: Nacional

indigenous

Yanomamo

Guatemala, and Venezuela. group.

Honduras, Everyone

(Venezuela/Brazil) Mayangna
across At the state the

(both
same

and and the Miskitu in Nicaragua/Honduras)

time, a significant part of in

Because

the "superior"

boundaries.

presented the most opportunities for change,

this section to land examining issues takes a "natural the in four Bolivia, progress of these community history" on approach indigenous Brazil,

biodiversity

conservation

the late 1980s and early 1990s was arguing

against excluded community the creation protected conservation of new areas parks and in which and human in favor local com of

countries:

Colombia,

and Peru.

Brazil.

Brazil's

~410,000

indigenous

peo

munities
protagonists

in biodiverse regions would become

for protecting the resources they

ple (FUNAI2004) are only 2.2% of the pop ulation, but they inhabit more than 12.5%
of Brazil. enormous Despite symbolic their numbers, importance. they Even are of before

depended on for cultural or even biological survival (e.g., Poole 1989,1994; Stevens 1997; Western &Wright 1994). Turning over land
to communal groups as owners and stewards

ILO Convention
cultural and

169, Brazil changed its con stitution in 1988 to reflect a modern multi
proindigenous stance. The for

(privatization) has been explicitly argued as a conservation policy since the 1980s (Vogel 1992). Indeed, scholars have often argued
that of tive are the best people indigenous the the management land when is conservation (e.g., Durning guardians objec 1992,

mer policy of fraternal protection of those who were only partially capable held that indigenous people required tutelage by the
state. Lands are held in trust by the state,

very much
the United

as indigenous
States. Government

lands are held in

agencies were

Mclntosh
many parts

2004). Surprisingly, biodiversity in

of the world correlates positively

taskedwith identifying indigenous lands, pro

tecting them, relocating outsiders when nec

with indigenous population density (Balm ford et al. 2001, Vogel 2001). In Central
America tracts the presence is associated of intact definitively with forest tropical the pres

essary, and pacifying "wild" Indians (de Souza Lima 1991). In a sharp about-face, Article 231 of the 1988 constitution holds that Brazil's
indigenous people are the original and nat

ence of tribal ethnic groups (Chapin 1992, 2003; Chapin & Threlkeld 2001; Herlihy
1997), Amazon Other and the same seems to be et true al. of the (e.g., researchers Schwartzman have argued 2000).

ural owners of Brazilian land and that their

land rights have precedence own over other land

rights. They
right ties. The state

are all full citizens but have a

their should cultural demarcate, identi and

that all tropical

to maintain

forests are anthropogenic (Bale 1989, for the Amazon; Noble & Dirzo 1997, for the general
statement).

respect,

protect terras ind genas (TIs), although Article

231 maintains the "trust" status of indigenous

CASE STUDIES
In Rold n's (2004) authoritative analysis of
the Latin tries current America that have framework legal can be divided "superior" legal for into change, coun

land and defines such lands in basic agreement with ILO 169: (a) lands inhabited on a perma nent basis; (b) lands used for productive activ ities; (c) lands essential to the preservation of
environmental resources necessary for their

frameworks

well-being; and (d) lands necessary for their physical and cultural reproduction, according
www.annualreviews.org Indigenous Land Rights in Latin America 91

to

their

usage,

customs,

and

traditions.

drastically

slowed

the process

of TI

demarca

Article 67 of the 1988 constitution

the demarcation of all TIs within

ordered
years.

five

In 1991, Presidential Decree 22, modified by 608, declared that demarcation of the TIs would be completed by 1993. The World Bank immediately released funds to support
the work.

tion and registration and has challenged the ability of Funda o Nacional do Indio (FU mandate. Between 1991 NAI) to respond to its and 1993, 229 TIs were registered, but be tween 1993 and 2004 only 89 were added. Fifty of the registered TIs are either un
dergoing boundary revision or have revision

The deadline was not met. By 1993 only 291 of 559 TIs had been demarcated. In the
first ful few sectors years of of the process, with many power interests in the TIs the consti sup material

planned (FUNAI 2004). In a notable case, in December 2003, the Raposa/Serra do Sol TI
was reduced in favor of ranchers and miners

in the natural complained tutional to

society resources

who had invaded the claim. At the same time,

because of "structural adjustments," FUNAI

embedded about the decrees

politicians and

measures

that

ported and regulated them. In 1996, Presi dent Cardoso addressed what he held to be unconstitutional aspects of Decrees 22 and 608. Under the auspices of strengthening the eventual official "registration" for theTIs, he produced Decree 1775, which gives "states, municipalities and individuals" the right to
contest demarcations at any point in the pro

has suffered personnel cuts of more than 60%; and yet, the numbers of indigenous peoples and claims has increased. Whereas in 1991
there were ~3 00,000 indigenous people, to

in 220 day there are an estimated ~410,000 distinct ethnicities, many of which are newly "rediscovered." The official number of TIs in
some part of the process has increased, from

cess, until the land is fully registered. A 90 day period was provided for the contestation of already-demarcated lands that had not yet
been registered. Of the 559 indigenous areas

559 in 1996 to 580 in 2004. The President of FUNAI, Mercio Pereira Gomes, recently mentioned a possible number of 620 TIs in
the the future northeast itwill because of At the new the than claims from rate of (2004). take more current 3 5 years

progress,

to fin

identified at that time in Brazil, 344 were thus

opened real motivation up Titles to be the TIs of to contestation. for for natural already-titled on the Many the decree resource TIs basis were of argued was that the to open

ish the job if the political will does not weaken

further.

exploitation. threatened contestation.

Colombia.

Three

years

after

Brazil's

revoked

changes, Colombia, in the 1991 crisis of gov ernance (Van Cott 2002), drastically changed
its constitution. to reduce To of control the insurgencies government, and & the role central

Predictions
land rights Combrisson

of total disaster for indigenous

were on every side (e.g., 1998, Schwartzman Borges et al. 1995,

the nation
in Colombia issues have

is decentralizing.
are

The
and

changes
many

Turner
fact

1996). Perhaps
was that

the most
demarcated

disturbing
and reg

to critics

far-reaching, from this emerged

experiment

istered TIs were subject to invasion while claims were being contested (Westlund & Borges 1996), and indeed invasions were the order of the day and have continued. Others (Pires-O'Brien 1999) have maintained that ul
the timately into account prosper indigenous such movement claims must take squatter if it is to

that apply widely to the new land regimes in Latin America. The -500,000 (Padilla 1996) indigenous people in Colombia constitute 2% of the population
ethnolinguistic groups,

and consist of 84
concentrated mainly

in Brazil.

Decree
trous results

1775 did not cause all the disas

that were predicted, but it has

in the Cauca region around Cali and in the Amazon lowlands. They inhabit nearly 28.5 million hectares of land, ~27% of the country's national lands (Jackson 2003). In
the Colombian case, indigenous lands were

Stocks

thoroughly enshrined by colonial law, and subsequent governments have upheld the Under legality of the "reserves" {resguardos).
the new become, constitution, or to be the old integrated resguardos into, are to inalienable

an underlying and formerly moribund

identity. Government workers,

ethnic

particularly, ETI: indigenous territorial entities

are concerned about the possible loss of jobs

as their ties to the center are broken and they for the councils. face working From the perspective of many servers, force of the the changes indigenous have

indigenous territorial entities (ETIs). From

the tion on indigenous of political the surface, perspective, and to be economic a response the decentraliza power to seems, the de

ETA:
outside ob the (Jackson African-Columbian territorial entities

undermined

movement

mands for land and autonomy that had gone

on since the conquest, but the situation is not

1996, Padilla 1996, Ramos 2002, Rappaport & Dover 1996). In Padilla's (1996) terms, the
state has inserted a "Trojan horse" into the

that simple. The new ETIs are indigenously entities governed political/cultural/economic
in more are geographic space as well that include one or resguardos, not exclusively as other indigenous, lands. They however.

indigenous movement
territories As part of the leaders indigenous

by making
state

indigenous

apparatus. political are now concerned with

public administration using European

of discourse, sistance. they are no also longer as active Outsiders point for power

forms
in re

They all have both mestizos and indigenous people, although they are supposed to be
governed raise taxes, by indigenous organize the councils, educational which can system,

to the presence operating

of numerous

contenders

and determine
boundaries. Thus,

land regimes within

private property can

their
coex

within the sphere of the ETIs, including drug traffickers and a confusing plethora of rebel forces and paramilitaries (Taussig 2003), all of whom to some degree prey on indigenous
people purposes. fense, ample, have even as they recruit them for their own own de Indigenous taken up people, the same in their activities, s or

ist with
some social

communal property, which worries

of or

observers

that unacceptable degrees as mestizos ensue stratification may

for ex poppies

indigenous families gain land and power (Field 1996). In general, this radical
change surface, various jurisdiction has caused interesting debates regimes, mestizos, about problems the value to of including property over

affluent

growing

coca in the Vaup

in Cauca (Field 1996, Jackson 2003).

Despite the mid-to-late-1990s assessments

of what might
digenous land

happen
tenure

in Colombian
Foundation

in

indigenous and the

legal claim

(e.g., Gaia

1993), little has happened. Enabling

tion, the Ordering eral years

legisla

of essential attributes of ethnicity

particular, as human focus Western individualized system people for may on property not the community, notions into mestizos, seek consensus of a indigenous and rights ideas about

itself. In
such issues tend to

Territorial Organic long-expected sev in draft has been for Law, but has not been passed. Atten

rights the individual. are

democracy

also

tion has shifted from resguardos to Colombia's black populations. Since 1996, a World
Bank-funded project has Natural been Resource operating Management to demarcate and

one-person-one-vote whereas or make indigenous decisions

title

5 million

hectares
in the

of

land to black
of African

through religious figures such as the mamus of the Iku. Many indigenous people say
the constitution is not their "original law"

community

councils

form

Colombian territorial entities (ETAs) par allel to the ETIs (Offen 2003b). However,
Colombia olence. has Cultural descended Survival into increasing produced vi Quarterly

(Padilla
ment ranchers indigenous

1996). Mestizo
small happy are not council

peasants,
about the

govern
and proposed

workers,

business

owners,

its Winter
seven analyses years

2003 issue on the Colombian

after the flurry 1990s. of writing in the mid

case
and sin

government,

and many

have claimed marrying

indigenous status either by indigenous people or by reasserting

Particularly

gled out for criticism was the implementation

Indigenous Land Rights in Latin America 93

www.annualreviews.org

of Plan Colombia, which has involved crop

eradication even more TCO: tierras de origen comunitarias on 95,000 hectares increased and, levels seriously, perhaps of sup

centers" ethnicities. ated

{centrales The

rather than as campesinos), cannier and more accultur such as the Guaran

"mission

Indians,"

port for the military. Jackson (2003), in a re cent article posted on theWeb site of the
American that the Anthropological contestation Association, power of notes indigenous

and theTrinitarios left over from the Jesuit Missions of the seventeenth and eighteenth centuries (Jones 1984) dominated the low
land centrales framework campesinos, for territorial but there was aspirations, no legal except

people is bland compared with the various armed groups, all of which tend to dislocate physically, target, and kill indigenous peo
ple, especially cesses have had people leaders. severe These effects pro intervening on indigenous the implementa

for individual communities

ous lands, as in the case of

to claim contigu
the Chiquitanos.

and have

prevented

tion of the ETIs. Since September 11, 2001, the U.S. government has increasingly linked
the ing and antidrug now funding seems to to be antiterrorist concentrating fund on

Illicit logging and the ongoing industrial soy bean frontier financed by international lend ing institutions assaulted indigenous forests continuously all through the 1960s and 1980s (Colchester et al. 2001, p. 32). In 1987, the
world's first large debt-for-nature swap exe

cuted by Conservation
out significant indigenous

International
consultation)

(with
en

assuring the continued

tal Petroleum's

supply of Occiden
to the market.

oil production

According to K. Offen (personal communi cation) political insiders say that President Uribe's backroom discussions with the many oil, gas, logging, andmilitary interests involve the possibility of retracting some, and perhaps all, of the ETI claims. However, themapping
and documentation resguardos is ongoing of Amazonian under funding indigenous from the

compassed much of the land of the lowland Chiman and provoked widespread indigna tion. The resulting Indigenous March for Land andDignity by lowland indigenous peo ples in 1990 was highly attended by themedia
and caused a mini-governmental crisis. Sud

denly land titles for nine lowland territories in the Andean foothills (2.9 million hectares)
were but Decrees, given by three Presidential was no at institu effort corresponding ter These tional organization for governance. there

European Union (Vieco et al. 2000) to pre pare for any eventual political opening in the
future.

ritories have been subsequently plagued with

enormous invasion are and governance areas and and issues some conserva be are cause home some protected development

Bolivia.

the As in Brazil and Colombia, Bolivian constitutional changes of 1994 de clared the country to bemultiethnic and pluri cultural. Highland indigenous people of the
language today groups of the orig ac 8 people Jaqui, for ~3.5 and Uru million

to various

tion projects (Albo 2002). In 1996, Law 1715 (agrarian reform) presented the legal figure of
original community lands [tierras comunitarias

Quechua, count million

Bolivians.

Thirty-one

surviving

inal ethnolinguistic groups, today numbering ~243,000 people (projected from Mihotek 1999 at a 3%/year growth rate), only 3% of the Bolivian population, reside in the low lands. The 1952Movimiento Nacional Revolu cionario broke up many latifundia in the high lands under agrarian reform in 1954 but had
very little effect on the lowlands. However,

de origen (TCOs)] to lowland indigenous peo ples and allowed groups of communities to claim a territory jointly.The nine already "de
creed" der this territories law. Sixteen were more further territories un protected immedi

ately applied for land, for a total of nearly 20 million hectares, and the land transactions in them were immobilized by 1998. These new TCOs suffer from the same invasions by log
ging and governance issues as do the orig

agrarian reform obligated both highland and

lowland communities to organize in "peasant

inal nine. Additionally,

home to various ethnic

several of them are

groups unrepresented

94

Stocks

in the

central

campesino

that

applied

for

the

land under the laws (Stocks 1999).The 16new TCOs demanding territory occupy 11.7 mil lion hectares. One not-yet-immobilized TCO claims 1.4 million hectares, while a national park exclusively managed
Guaran TCO occupies

legally forestalled. A TCO could cally be composed of several DMIs respond to different municipalities, new municipalities are not obligated

theoreti that cor and the to share

DMI: municipal NC: indigenous districts

and occupied by a
3.4 million hectares.

funds with the DMI. If they do share funds, it is through the political party system, not
through the ethnic organization that may be

native

community

In all, lowland indigenous people (3% of the population) are claiming 19.4 million
hectares, or 17.68% of Bolivia.

more important to theTCO or even theDMI.

All in all, some observers conclude that Law

In its application, Law 1715 has been severely criticized (Colchester et al. 2001). Its advantage is that it allows for titling ter
ritories process rather of than communities, studies [called but the cadastral "cleans

1551 signaled the collapse of the state's inter est in indigenous welfare. The initiative isnow back in the hands of the indigenous institu tions themselves and their supporting NGOs (Calla 2000, Orellana Halkyer Peru. 2000).

ing" (saneamiento)] gives priority to all other claimants before indigenous people, includ
ing, in at least one notorious concession. case, Assies process a highly (2000) as cre controversial refers to the forest

Peru's lowland indigenous people have been reduced from more than 100 pre Columbian language groups to 65 today, ~300,000 people (Smith et al. 2003), occu pying only 0.8% of the country but 15% of
the eastern lowlands. people In the Andes, at Quechua 10 mil and Aymara number least

saneamiento

ating "archipelagos" indigenous land. Saneamiento effectively ground to a halt by

1999. Another mass protest was organized

of

in 2000, the Third Indigenous and Peasant March for Land, Territory and Natural Re
sources. forest The government priority retreated concessions on giving in the saneamiento

lion people, 47% of the nation, and they oc cupy more than 50% of the national land (Van Cott 2002). Peruvian law has fluctuated
a good deal over the years with regard to low

process and agreed to streamline the titling

process. paved As the way of 2001, for the 1.8 million had government more hectares

land indigenous people (Stocks 1984, V rese 1972). In 1909, Law 1220 (a forest law, not an indigenous law) gave to the state domin
ion over forests. Indigenous people were per

of titled land (four TCOs), but more than 16 million hectares of land claims have not
been subject to saneamiento of TCOs 1551, or has Governance better. Law legal titling. not fared any

mitted to live in and around the forest, but they could not obtain land titles. In 1974, the
military government of Juan Velasco Alvarado

a decentralization

(popu

lar participation) 1994 constitution

ates with vided new municipal Bolivia's into

law was created with the (Ceto 2003). The law cre
boundaries of that coincide subdi are departments revenues Federal

passed Law 20653 creating the legal figure of the native community (NC) in the lowlands and the peasant community in the highlands (Lowenthal 1975). In a complete reversal of
the "normal" Latin American indigenous pol

system provinces.

icy, the communities titled under this law owned the forest rights and subsurface rights.
However, munities the law did not effective permit several com to claim multi-communal

to be shared with these municipalities. Un fortunately, the municipalities crosscut TCO boundaries, which undercuts the ability of the TCO to self-govern. Although the law al lows for creating indigenous municipal dis tricts (DMIs) within municipalities, there will be no indigenous municipalities. Thus, the union is possibility of a TCO/municipality

territories in the sense of ILO Convention 169. Communities were often spatially distant from each other (the archipelago syndrome again), and large gaps were left that could be, and were, filled by ladino/mestizo colonists
and were open to logging concessions.

www.annualreviews.org

Indigenous Land Rights in Latin America

95

Perhaps many PETT: Project munities Special on Land

even upper

more

immediately

vexing com

to

The
lutionary while digenous

1985-1990 American Popular Revo

Alliance government a rhetoric was of of Alan support Garcia, for contested in espousing

Amazon

is that

the rights

fishing indigenous courses to water

are

retained by the state, which has led to much

usurpation of fishing stocks even within areas

communities,

fiercely

Tilting DANIDA: Danish

International Development Agency

by the traditional left in the form of theTupac

Amaru Movement and a much more radi

"owned" by indigenous communities

1981). However, within a year of passing

(Stocks
Law

20653, the military government took a right turn. In 1978, Law 22175 replaced the rad ical provisions of Law 20653 and rescinded
the ownership over forests and subsurface

cal Maoist left in the form of the Shining Path. Both groups established lowland for
est refuges, and neither respected the land

resources
Indigenous quest

for all subsequent NC

farmers, from under this the state even

titling.
re for swid

law, must

permission

rights of indigenous peoples. Violence shut down most of the old special projects. Un der Alberto Fujimori (1990-2000), a land titling program funded by theWorld Bank [the Special Project on Land Titling (PETT)] affected the individual parcels of thousands of
Quechua and mestizo farmers; however, the

dens if the lands are forested. But Law 22175 goes farther. Article 28 subjects NCs to the
greater vides roads allows sultation, lations, lines, nels. "social interest," and Article 29 pro for all state-constructed right-of-way now and in the future. This article free

program does not work onNC titling (Plant & Hvalkof 2001, p. 64), and PETT claims a lack
of financial and personnel resources to do so.

also con

without passage, indigenous or gas and instal pipelines or energy telecommunication electric to oil irrigation the and drainage sustain subsistence a chan

As of 2000, 139NCs
300 more were not

still had titles pending,

even in the process, and

and public However,

85% of the already-titled communities were applying for expansions (IACHR 2000).
As tions, ment's eral in the case structural social tendency of other Latin American to the the na adjustments sector toward and govern neolib have left

law does

1957 "re

law that allows serves," munally ing, has blocks owned

for indigenous of

or multicom communally land that can be used for hunt a provision that land under process of

strong

privatization

and gathering, fishing, been the basis for recent described Morales new NCs civilian below.

to NGOs
in Peru. A

the support of indigenous people

number of NGOs have been in

indigenous

projects General titling When

Nevertheless, the

volved with
tious dation effort

land rights, including an ambi

under Oxfam to put and Moore Foun existing information communities system (Smith

Bermudez, stopped. government

funding geographic

resumed

in

on

1980, oil and gas exploration intensified and, by 1983, Peru had eight special projects
underway to transform the forested eastern

et al. 2003) and the Danish Development Ucayali

International

foothills of the Andes into farmland without

consultation with indigenous residents. Only

(DANIDA)-funded Agency and Communal Reserve Titling Project, which has worked in the interstices of various laws, including Law 22175, theNa

the pressure of theUSAID-Palcazu

converted early ment from a colonization conservation managed integrated pioneer and

Project
to an develop the logjam

disaster

tional Forestry Law, and the Law of Protected Areas to title 209 new communities with 2.5 million hectares and 7.5 million hectares of
forest novative reserves project (Garcia has et al. tried 1998). This in the to circumvent

to break

of titling, which had been halted in the late 1970s. Legalization of the 10 Yanesha com
munities within the Palcazu valley was made a

limitations placed by the emphasis on titling

individual communities by convincing com

precondition of releasing US AID loanmoney for the project (Stocks 1990, Stocks et al. 1994).
96 Stocks

munities

to apply for contiguous lands (Gray 1998b, p. 206). Additionally the project has
territories for the Mashco-Piro,

demarcated

Isconahua, groups

and Murunahua inMadre de Dios, which

ethnolinguistic unti remains

wary would

new of creating tie up resources

communal that could

reserves be given

that out INRENA: Natural Institute National Resource

tled (Gray 1998a, pp. 206-21) and threatened

by oil interests nous reserves and have Six new loggers. also been created indige under

in concession.

Article
Natural

17 of Law 26834 (Law of Protected

Areas), which allows comanagement

CONCLUSIONS
It is difficult
American cases,

to look at these four South

each playing out in a "su

between theNational Natural Resource Insti tute (INRENA) and indigenous communities. This process started in 1987 with the 55,000
hectare Yanesha communal reserve, which

perior" legal context, without reflecting on the devilish content of the details. In the end,
Awas Tingni may have a shorter road than a

stands between the Yanachaga National

and 10 Yanesha communities

Park

in the Palcazu

Colombian ETI despite the difference in the quality and quantity of the legislative frame
work. people countries roots of However, too much theme here, and land for too of few the is a common examined the in each the

Valley
the

(Stocks 1990). Later reserves include

El Sira reserve created

616,000-hectare

under the Ucayali Project

Tamshiyacu-Tahuayo along the Amazon reserve, mainstream,

in 2001, and the

created has in 1990 322,500

economic enough. If

contestation

are clear

indigenous lands in the lowland tropics con

tained no valuable natural resources, the con

hectares (Newing & Bodmer 2004, Newing & Wahl 2004). Three more reserves have
followed. In perhaps the most damaging blow, Peru's

stitutional changes and enabling legislation might be applied without great moment in a
decade of on-the-ground work.

1993 constitution, although affirming the ethnic multiplicity of the country, revoked the inalienability of indigenous lands and
reasserted ownership There oil cent and has gas the state's absolute resources control (Dean and 2002). and re of natural been a rush

A deep paradox in all cases is that the increasing debility of states in the central
exercise related of with power neoliberal a defect directly cor decentralization

provides political openings not only for in

digenous for all social indigenous people sectors sectors to contest with have the state, similar contested desires. but also Non

of concessionaires the most lands

chapter

Thus, companies. in indigenous

is repre

indigenous

sented by oil and gas pipelines that traverse

some digenous of the remaining most intact and fragile dispute in re lands. The recent

land titling and made it difficult to control even titled lands. As political space is opened
for indigenous people, counter-claimants to

gards the Camisea pipeline, which is crossing theMachiguenga lands and Nomatsiguenga one Pravda claimed that (WRM 2003). (2003)
of the major contractors isHalliburton Inter

their land and resources multiply. The

ward lands movement is in real with danger regard of being to contested

for
so

indigenous

national and that the Bush administration put

great pressure on Peru to sign the contract. In

sharply and powerfully that it will effectively be extinguished. One is reminded that in the
U.S. not case stem real movement from support cases countries are clear decentralization. from the state the on civil rights did insti Strong seems critical difference

digenous land law has not been subsequently

revised nous to support territoriality, alienable the six new and indige property remains Five of and subject reserves are

tutional in these tween dures

and makes like Brazil, and there

be

to mortgage.

where

the proce bureau

threatened by government road-building and

settlement of logging schemes, concessions and 7.5 million have been hectares given out

exists

a state

cracy specifically dedicated to implementing

the laws regarding where Colombia, indigenous state support citizens, is strong and in

that exclude communities. Newing

ports that the Toledo government

(2004) re
is extremely

the courts but theoretical

www.annualreviews.org

in the field. Peru

j

Indigenous Land Rights in Latin America

and Bolivia both suffer from ineffective state

institutions and a plethora of dissonant laws

have ized with

formed indigenous mixed

civil

societies

essentially for governance,

legal but

NGOs

with regard to indigenous lands.

Another these cases. message Time strongly is an enemy emerges of from the process

results. outlined above demand a re

The

threats

sponse, but the ability of indigenous groups to

respond is often, unfortunately, in the hands

of securing indigenous lands. Not only does the length of time correlate positively with the buildup of resistance and theweakening of po liticalwill, but also it correlates with the rise of
new indigenous claimants. The road to effec

of theNGOs that support them, and there is no consistency in the philosophy, goals, and methods of NGOs that work with indige
nous ward versity people. income Some issues NGOs and others are oriented toward to biodi both medici a plethora are able as goals, a of

tive land rights both narrows and lengthens as

it is traversed. Another issue is that of the weakness of

conservation; whereas education, issues. to Very take on

some others

combine promote or them land

the nal of

above, plants, other

the indigenous governing institutions. With the possible exception of Peru, which has had 30 years of practice in the very re
stricted nance, sphere the issue of native community gover of democratic level for representation indigenous territo poli

religion, few of the

or willing means of

issues distant

achieving

their more

at the grassroots ries (i.e., for the

larger-than-community

yet this is precisely what is needed. Obvi ously, dealing with land issues plunges NGOs into the heart of politics and conflict. Just
as obviously, form organic they ties must with each other, ally with the under (usually

ties) is in disarray. This perplexing problem has been mostly ignored in the rush to get lands delimited, demarcated, and legalized,
it is an extremely vulnerable aspect of the In Bolivia, land movement. the indigenous are still the Centrales "owners" of registered the claims await the TCO claims while the but saneamiento ten receive Centrales as often people Centrales. native process. permission to extract as not who have on Meanwhile, from wood the the from lands of of loggers leaders of the the TCOs,

funded and understaffed) government insti tutions responsible for the legalization of land, and make land issues a priority. Where indigenous people have strong NGO
port, tion, have government have worked management permission, through plans, or governance and are legally

sup
issues, em

participa

powered and institutionally supported to de

fend their lands and resources, the outcome

In Peru,

community

indigenous in the representation that a the legal requirement must execute its own forest no

can be strongly positive for biodiversity con

servation, view income, and education. as I do not as "ethno-development" suspiciously

extraction (under permission from the forest service) is routinely circumvented by having a
native leader apply for the permit, then allow

do some (e.g., Escobar 1995, 1998, 1999, 2001), as long as it is based on indigenous
secure the control of over strong advances lands and resources. for land In issues, are absence most support

ing a local logger to take thewood in exchange for a kickback. The chaos surrounding the ETIs in Colombia has prevented implemen
tation invasions base of any and effective erosion for government, of the natural so local resource The

however, illusory.

in "development"

are difficult

anyone

to control.

After reviewing a detailed set of case stud ies from Latin America, Colchester et al. (2001, p. 32) draw the conclusion that con
stitutional legislation that natural pronouncements and technical without rules and are empty enabling and policy

problem of invasion of Brazil's TIs, especially by gold and diamond miners, is also well
known. In Nicaragua, the indigenous territo

resource

economic

ries demarcated within the BOSAWAS Inter national Biosphere Reserve, still without title,
98 Stocks

must be consistent with

land policy. At the policy and legislative level, this is certainly

sound review can

advice. is that and

What no

seems amount field of

clear law

from and by

this policy them

menting

indigenous

territories,

as with

Awas

create

sustain

realities

Tingni, is helpful, even if government does not immediately respond positively, because
the work unified tends toward a way of over time, do not to create a concrete indigenous end. Such own to polities realities legiti "rights" are ren

selves. The
groups for NGOs to support to

future challenge is for indigenous

their improve to concentrate and link with own on organizations, land issues, and agen

have macy who dered

government

their establishing whereas claimants them actively

cies with amandate

laws. The current

to apply indigenous land

of mapping and docu

exercise

work

simply

"interesting."

ACKNOWLEDGMENTS
author has been funded over the years by many different organizations in the process of collecting information used in this article. Iwould like to thankUSAID/Bolivia, USAID/Peru, (Environment andNatural Resources Office), The USAID/Nicaragua, USAID/Washington The
Nature Conservancy, WWF, and Cultural Survival for support, collaboration, and information.

Special thanks go tomy colleagues at Idaho State University

from campus through the past 26 years where I acquired opimons.

for forgiving my many absences

experience and, above all,

knowledge,

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