Mexico’s Constitution, Indigenous Rights and the Future

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Hector Calleros

University of Warsaw

Introduction

Energy generation, the construction of infrastructure, and mining exploitation – all of them aided by technological innovations – define the context in which many Indigenous communities and peoples in Mexico have been living in during the past 200 years, since Mexico’s independence in 1821. Environmental conservation also define this context. In the last few years, organized crime has been taking control of regions where indigenous communities have traditionally lived. Poverty persists, despite everything. It is against this backdrop, we see the important constitutional developments and setbacks of indigenous rights in Mexico.

The 1917 Constitution of Mexico and the Recognition of Indigenous Rights

In the Constitution of Mexico, indigenous rights are firmly established and indigenous land rights are a central element of Mexico’s constitutional order. The country’s land tenure system was established in the context of a revolution (1910-1921); and this system was later reformed in 1992 (DeWalt et al. 1994; Janvry et al. 1997; Cornelius and Myhre 1998; Deere and León 2000). The reform, however, failed to incentivize land markets or privatize social property on a large scale.

Article 27 of the Constitution of Mexico (Constitución Política de los Estados Unidos Mexicanos) establishes a land tenure system that recognizes communal landholdings as ‘social property’ under the names of ejido (communal landholdings granted to organized groups of claimants) and comunidades agrarias (often granted to groups of claimants who produced evidence of dispossession of their lands); but it  also recognizes private property. Furthermore, instances of customary practices (Usos y Costumbres) still exist at the local level. Articles 18 and 115 are also relevant for Indigenous communities and peoples. Apart from rights to land, indigenous rights have also been viewed from a human rights perspective. Recent constitutional reforms have focused on human rights thereby broadening its application to indigenous communities. Article 1 states that ‘all individuals shall be entitled to the human rights granted by this Constitution and the international treaties signed by the Mexican State, as well as to the guarantees for the protection of these rights.’ Additionally, Article 2 recognizes the right of indigenous peoples to self-determination and establishes preferential access for indigenous peoples to the natural resources in the areas they inhabit. The focus on human rights has been in tandem with a shift in judicial attention. Indigenous issues, previously the realm of corporatist politics, have seen, since the turn of the century, as a matter that received much judicial attention. Mexico’s Supreme Court (Suprema Corte de Justicia de la Nación – SCJN) has engaged in topics such as the recognition of the juridical personality of indigenous peoples and territories. Besides, international legal instruments also played an important role towards the recognition of indigenous land rights such as the International Labour Organization (ILO) Indigenous and Tribal Peoples Convention, 1989 (No. 169); the International Convention on the Elimination of All Forms of Racial Discrimination; the American Convention on Human Rights; the United Nations Declaration on the Rights of Indigenous Peoples. Despite the commitment of Mexico to indigenous rights, however, the country has been urged to align its legal provisions regarding indigenous land rights with international standards and to reform ‘the agrarian legal regime’.

The Exploitation of Natural Resources, Energy Production and Other Current Challenges

The use of natural resources appears to be a source of economic opportunities for the rural poor, or at least successive governments seem to put it that way when preparing to attract investment to exploit these resources. However, academic research has identified the threats and challenges faced by indigenous peoples in relation to the public and private policies and projects on natural resources extraction.

Energy generation projects have also generated considerable impact on Indigenous territories. Mexico’s 2013 reform of the energy sector encouraged the development of wind energy. However, its development was followed by conflicts in places such as Oaxaca. For example, human rights activists and scholars identified ‘repressive techniques’ employed by state and non-state actors against popular opposition to the construction of wind parks on communal lands (see Dunlap, 2018).

In addition, the construction of infrastructure projects provoked opposition and resistance from the indigenous communities whose livelihoods, landscapes, resources, health, and cultures are directly affected. Two recent examples would include the construction of a train line in the Yucatan peninsula (Tren Maya) and the Los Pilares-Bicentenario dam.

Similarly, large-scale mining projects provoke opposition and resistance at a local level as mining affects indigenous territories (CERD 2012; Vicente-Vásquez-UNPFII 2013; Brandt 2014; Boni et al 2015; Hall et al. 2015; Tetreault 2015; IWGIA 2018).

However, it is not only the use of resources for the purposes of power generation, infrastructure construction or mining that creates problems for indigenous populations. Public policies for the conservation of the environment have also been problematic. For example, a landmark recommendation issued by the country’s human rights watchdog, raised concerns about the management of protected areas in Indigenous territories (CNDH RG 26/2016; UNAM-CNDH 2019).

Controversies have followed the use of advanced technologies. Debates on food security illustrate how new technologies are seen as threatening indigenous lifestyles, habitats and territories. The campaign Sin Maíz No Hay País (No Country Without Maize) has placed Mexico as a center of discussions on the legal, political, environmental, and bio-cultural implications of genetically modified crops (Quist and Chapela 2001; Pechlaner and Otero 2008; Mann 2011; Motta 2014; Graddy-Lovelace 2016; González-Ortega et al 2017; Agapito-Tenfen et al. 2017).

Criminal violence has engulfed the life of several regions of the country in the past few years and indigenous regions have not been exempted from this maddening violence. On the legacies of violence, a recent discussion persists – often suppressed – about the role of the kingdom of Spain towards shaping the experience of indigenous communities in Mexico, in particular, and in America, in general. The Spaniards’ references to ‘hispanidad’ (hispanity) only stimulate that discussion as far-right and conservative forces portray colonialism as a 'civilizing' achievement. In 2019, in a letter to Felipe VI, King of Spain, Andrés Manuel López Obrador (AMLO), President of Mexico, wrote about three centuries of trans-Atlantic rule as the product of an invasion and acts of violence. In that letter, AMLO invited the monarch to 'participate' in a reconciliation as 'Mexico wishes the Spanish State to admit its historical responsibility', and offer ‘the appropriate political apologies or reparations’. Felipe VI, however, has not yet responded directly to the letter, even though he is in a position to publicly respond to the several acts of repudiation that have knocked down Spanish icons associated with oppression. Hispanidad (Hispanity), is broadly identified, in name and image, with a colonial legacy that activists have "demolished" in several cities of America: from the statue of Gonzalo Jiménez de Quesada in Colombia, to the statues of Junípero Sierra, Christopher Columbus, Hernando de Soto and Miguel de Cervantes Saavedra, in the United States. In October 2020, the statue of Columbus was removed from its pedestal, in the central Paseo de la Reforma avenue, in Mexico City.

Conclusion

In the light of the 200 years since Mexico’s independence of 1821, the future of indigenous peoples in Mexico urgently needs the enforcement of the protections offered by the country’s Constitution. Neoliberal capitalism (i.e., energy, mining, infrastructure), violence (from the long-lasting legacies to contemporary transnational criminal organizations), and a precarious rule of law, constitute real threats to indigenous lives. In constitutional and public policy terms, Mexico’s main challenge is to reform the land tenure system regarding indigenous land rights according to international human rights standards.

Dr Hector Calleros is a lecturer and a researcher in the American Studies Center - University of Warsaw (Poland). 

Suggested Citation: Hector Calleros, ‘Mexico’s Constitution, Indigenous Rights and the Future: Symposium on 200 years since Latin American States’ Independence and Indigenous Peoples’ IACL-AIDC Blog (7 October 2021) https://blog-iacl-aidc.org/independence-and-indigenous-peoples/2021/10/7/mexicos-constitution-indigenous-rights-and-the-future.