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Chile’s New Constitution: An Opportunity to End the Mapuche Conflict

By Tomás Pizarro-Escuti-

A demonstrator flutters a Mapuche indigenous flag in Santiago (October 2019), Pablo Vera/AFP

The Mapuche-Chilean state conflict can be defined as an indigenous self-determination conflict with demands centred on three issues: self-government, recognition of cultural identity and ancestral lands restoration. Considered to be one of Latin America’s oldest self-determination struggles, in recent years, the conflict has escalated to unprecedented levels, leading some to refer to the conflict as the “New Arauco War”. The present-day existence of organised groups seeking to vindicate the Mapuche cause through violent acts has become increasingly intense, creating a scenario where the rule of law has been threatened in Southern Chile. Violent incidents have become commonplace, ranging from land and city councils occupations to terrorist attacks aimed at forestry companies, government buildings and churches ― some resulting in civilian deaths. However, it should be underlined that these violent incidents tend to be a reaction to state repression against the Mapuche, particularly by the police and the army. There is a constant militarisation in what the state defines as the "conflict zone": raids on communities, persecution of political leaders, etc…

The purpose of this article is not to describe the violence of the current crisis but to inform the readers about the causes and origins of the conflict and the obstacles that remain in solving it. As Chilean citizens overwhelmingly voted in favour of drafting a new constitution that will replace the current, Pinochet-era text, there is now the unique opportunity to finally begin to settle the centuries-old struggle of the Mapuche communities in Chile and enshrine their rights in the foundations of the country.

Origins and causes of the conflict:

Map of Wallmapu

Today’s ongoing Chilean-Mapuche conflict traces its roots to more than five hundred years of an unresolved territorial dispute. Wallmapu, is the name given by the Mapuche people to the territory they inhabited before the Spanish invasion. Encompassing a large part of what are now the States of Chile and Argentina, it roughly extended from the Limarí River in northern Chile to the Chiloé archipelago in the South and from the southern latitude of Buenos Aires to Patagonia. Throughout history, the Mapuche have shown an immense capacity for resistance. They stopped the expansion of the Inca Empire at the end of the 15th-century and a century later, they defied the mighty Spanish Empire — the world's first global superpower. Alonso de Ercilla, the famous poet and conquistador, referred to the Mapuche in 1569 as “a race so noble, dauntless, bellicose, and haughty, that by king it ne'er was humbled nor to foreign sway submitted”. The Spanish Empire attempted to subjugate the Mapuche multiple times, but their quest for conquest resulted in a hundred years of fierce struggle known as the “Arauco War”.

In 1641, both parties exhaustedly agreed to sign a peace treaty at the Quilín Parliament. This historic treaty established a de jure recognition of the Mapuche territory and granted the Mapuche an autonomous territory of more than 10,000,000 hectares, defining the Bío-Bío River in southern Chile as the border between the two nations. After the Chilean War of Independence (1812-1826) the sovereign status of Wallmapu began to change. Although it was assumed that the newly independent countries would only inherit those territories under Spanish jurisdiction, in 1825 talks were held between the Chilean republic and the Mapuche to regulate the relations between the two.

The Treaty of Tapihue signed on January 7, 1825, between Pedro Barnechea, plenipotentiary of the Chilean government, and Lonko Mariluan, a representative of all Mapuche chieftains — stipulated that Wallmapu would belong to the Chilean state. However, it was also established that the Mapuche would enjoy full autonomy within their territory set to be at the South of the Bío-Bío river (Article XIX), granting full legal jurisdiction to the Chieftains (Article XIX) and even prohibiting Chileans from settling in Mapuche territory (Article XVIII ).

Current Mapuche autonomist organisations, both peaceful and violent, claim that the treaty is the foundation of the collective and territorial rights of the Mapuche people before Chile, arguing that it would be vested with the legal protection that international public law guarantees to border treaties that nations reciprocally agree upon.

However, in 1861, the Chilean government broke the Treaty of Tapihue, initiating the military occupation of Wallmapu in a process known as “The Pacification of Araucanía”, referred to by some historians as the “Extermination War for its extreme violence”. As a result of this 13 years’ war, Wallmapu lost its autonomy and from the 10,000,000 hectares the Mapuche once possessed were confined to 475,000 hectares in remote areas of poor-quality agricultural land. This systematic usurpation of territory deprived the Mapuche people of central elements of their culture and changed their food and production habits, transforming them from an agricultural society to a group of poor peasants surviving on subsistence farming.

For much of the 20th century, the precarious situation of the Mapuche did not improve. In 1931 the “Austral Property Law” gave definitive ownership of indigenous lands to settlers and private companies, resulting in a process where 168 indigenous communities disappeared by 1973. During the dictatorship of Pinochet (1973-1990), the Decree-Laws 701 and 2568, were established to privatise areas of “underdeveloped native forests” owned by the Mapuche, effectively putting an end to the collective ownership of land they possessed after the “Pacification of Araucania”. This led to the concentrated ownership of land by large-scale forestry corporations and landowners, further impoverishing the Mapuche. This generation of Mapuche people not only witnessed the economic downfall of their communities but also the environmental degradation of their land, facing problems such as water pollution and the disappearance of the native flora and fauna. It is in this context that in the 1990s a new generation of Mapuche sought to reclaim autonomy and the right to self-determination which constitutes the major force behind today’s conflict.

What Problems Remain to be solved?

The current obstacles that affect a peaceful resolution between the Chilean state and violent groups are related to the failure of the post-Pinochet era governments in developing a successful institutional response to the Mapuche self-determination demands. The return of democracy raised hopes for a new understanding between the Chilean state and the Mapuche people. In 1989, the presidential candidate Patricio Aylwin, the leader of the Concertacion —the centre-left coalition which won every election from 1990 until 2010 — and the National Council of Indigenous Peoples signed the “Nueva Imperial Accord”. In the agreement, Aylwin committed to grant constitutional recognition of indigenous peoples and their economic, social and cultural rights. Once Aylwin was elected President, Mapuche organisations sought to materialise the accord. However, given the fragile state of democracy at the time, the government opted not to challenge conservative sectors that opposed the accord in order to ensure the governability of the country; thus, the Mapuche question was left off the political agenda. In fact, much to the disappointment of Mapuche activists, neither the Concertacion nor subsequent governments fulfilled Aylwin’s promises, generating great frustration which is still prevalent today.

In order to appease the ever-growing dissatisfaction with the government of indigenous groups, in 1994, through the enactment of Law 19253, the National Corporation for Indigenous Development (NCID) was created. The NCID is responsible for advising and directing governmental programs that assist the development of indigenous people in social, cultural and economic matters. However, this public organisation has been highly criticised because it lacks the power to formulate and execute policy; it only acts as a supervisory institution that is subjected to different sectoral ministries which are often unaware of the NCID’s role. The NCID has failed to advance in vital areas such as in the recognition of political, cultural and linguistic rights. It has not provided a framework to promote indigenous institutional representation. In fact, even the NCID director's appointment is made without the consultation of indigenous people, being at the exclusive discretion of the President. Law 19253 has not been amended since its publication, and its failure to tackle the issues of the Mapuche community, especially those concerned with greater autonomy and the restoration of land, has encouraged polarisation and wider support for violence as a legitimate means for Mapuche social and political demands.

Post-dictatorship governments have also neglected dismantling Pinochet-era legislation, namely Law 18314, known as the “Anti-terrorist law”. This law has been consistently used to trial Mapuche activists, causing severe criticism from international organisations such as the UN’s Committee Against Torture and Human Rights Watch. Law 18314 toughens sentences for offences already established in the Penal Code, even doubling the penalties foreseen for them. It allows the use of faceless witnesses, restricts access to precautionary measures and extends pre-trial detention periods. Instead of deterring extremist groups, this policy exacerbates the conflict and gives justification to violent groups that present themselves as defenders of the Mapuche. State policy has mainly offered cosmetic arrangements to the Mapuche conflict such as the Historical Truth and New Deal Commission established in 2003, which although explicitly acknowledged Chile’s history of discrimination and repression against indigenous people and the mass usurpation of Mapuche lands, it remained mainly a symbolical act. In the last 30 years, economic development policies have been pursued on the assumption that the Mapuche's main problem is poverty, persistently sidestepping the issue of constitutional recognition and greater autonomy, thus Mapuche policy in Chile could be defined as a policy failure,

The current violence in Chile is a response to the lack of significant indigenous policy which fosters and legitimises violent confrontations encouraged by groups such as CAM, that, in contrast to the government, promote clear objectives such as Mapuche national independence, effectively appealing to disaffected people. Graphic 1, from the Mapuche Data Project (MDP), which compiles events of the Mapuche-Chilean State conflict, reflects well how the conflict has been escalating from mainly peaceful demonstrations in the 90s to steady political violence in the 2010s. This is arguably a consequence of the protests failing to generate policy changes.

Mapuche Data Project (MDP)

Policy Recommendations to enhance peace and democracy in Chile

Good governance is subject to the political, institutional and administrative definitions set by the state, the constitution being the means by which these are directed. From this perspective, as the supreme law of the state, the constitution is the instrument that establishes the government's exercise of power and its constraints, but also reflects the country's values and aspirations about how society should function. Therefore, serving as a more concrete foundation than any governmental reform or law, the constitution provides the strongest base for a resolution of the Mapuche-Chilean state conflict. In this case, the constitution offers a platform to deal with Mapuche grievances and the realisation of government promises that were not honoured.

The following points that should be enshrined in the constitution are based on Mapuche people demands and scholarly literature for the constitutional needs of countries with ethnic cleavages:

Constitutional Recognition and Plurinational State: Chile is lagging behind in the area of indigenous people's rights; the current constitution states that sovereignty is only vested in the "Chilean nation", presenting a highly homogenising vision of the state that excludes other national identities. Constitutional recognition of indigenous peoples is not a recent trend in Latin America; most of the constitutions in the continent include recognition of their aboriginal peoples. The question of constitutional recognition has been part of Mapuche demands since the aforementioned Nueva Imperial Accord in 1989 and is considered by the Unrepresented Nations and Peoples Organization to be the most important issue to be tackled by the state.

By recognising the Mapuche people's unique identity through a distinct legal status, the state would establish the precondition for the further implementation of other rights, such as greater autonomy. This could be arranged by establishing a Plurinational State- an inclusive, culturally heterogeneous state where different nations coexist and are subject to the same constitution. Plurinationality is also related to the recognition of the pre-existence of the First Nations, and in the case of Chile, it would serve to vindicate the 1825 Treaty of Tapihue. More importantly, the plurinational state would dismantle the structures that have allowed inequalities between indigenous and non-indigenous people, strengthening the partnership between the two. It should be stressed that a plurinational state does not imply the creation of a new state, but the transformation of the current monocultural-unitary state.

Self-determination and Autonomy: The majority of Mapuche organisations, both peaceful and violent, demand self-determination with an emphasis on autonomy, recovery and territorial control. Essentially, their demand calls for the recovery of the so-called ancient lands, the Wallmapu. Indigenous people's rights have a particular legal status under international law that are subject to international charters such as the Indigenous and Tribal Peoples Convention (C169) and the Declaration on the Rights of Indigenous Peoples (UNDRIP), which have been ratified but not implemented by Chile. Self-determination is one of the principles enshrined in the UNDRIP and C169, and it implies that indigenous people should be independent in developing and maintaining their institutional structures.

Furthermore, self-determination also involves indigenous people's right to autonomy, as established by UNDRIP Article 4, "in exercising their right to self-determination, have the right to self-government in matters relating to their internal and local affairs". Having established the legal legitimacy of indigenous rights, it is pertinent to recognise their demand to recover the usurped lands and re-establish the Wallmapu as a self-governing region. Such autonomy could be granted by establishing a "Federacy"; a political-administrative unit within a state, which possesses exclusive power in particular areas such as the creation of a Federacy's legislature and executive bodies with minority veto rights; control over development plans and control over the educational system. Of course, the constitutional delegates should work together with Mapuche representatives to establish self-governing powers which should address the tensions between the state and the Mapuche people.

Chile is experiencing a historical turning point; the possibility of dismantling colonial legacies has unveiled the opportunity to think of a new type of state where the Mapuche could be bearers of their legitimate rights in a new democracy. If the estallido social, interrupted by the pandemic showed anything, it is that in Chile there are many voices that are struggling to be heard by a plutocratic elite that has refused to pay attention to them. Perhaps this is why the Mapuche flag (Wenüfoye) was flown - alongside the Chilean flag - during the demonstrations that erupted in October 2019.



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