Guatemala: Ongoing Struggles Over Indigenous Rights, 200 Years After Independence

Introduction: The Independence from the Spanish Crown and Indigenous Peoples

This blog analyses the situation of indigenous peoples in the case of Guatemala, where in recent decades there has been noticeable progress in relation to the recognition of their individual and collective rights. However, I argue that this progress is still insufficient and has done little to address the colonial basis of ethnic relationships in the country.

On 15th September 2021, Guatemala marked the bicentenary of its Independence from the Spanish Crown. The General Captaincy of Guatemala included present-day Guatemala, El Salvador, Honduras, Nicaragua, and Costa Rica and – after a brief incorporation into Mexico’s imperial project – went on to form the Federal Republic of Central America in 1824. Following a civil war between liberals and conservatives, the Republic gradually fell apart during the 1830s and Guatemala, as we know it today, was formed. Consequently, the history of the countries comprising Central America has been intertwined, both during and after colonisation, and Guatemala was at the political and administrative heart of different state-building projects.

Several Indigenous warriors had an important role in fighting against the Spanish Crown in the years leading to Independence, particularly Manuel Salvador de la Cruz Tot, Atanasio Tzul, and Lucas Aguilar. However, the Act of Independence of 1821 was orchestrated by the creole elite, with no participation of Indigenous leaders. At the same time, the Act refers rather simply to the Guatemalan people, hiding ethnic difference within a pretension of equality, a (liberal) idea which continues to be professed to the present day. Far from representing an improvement on the situation of those who had become “Indians” and yet enjoyed certain legal recognition within the Spanish colony, the Indigenous population was made invisible, their lands usurped for economic gain by the creole state, and cultural continuity threatened by schools designed to eliminate their culture. In the two centuries following Independence, the experience of the indigenous Maya, Xinka and Garífuna peoples has been marked by the usurpation of their territories for both agriculture and extractive industries, which has often been accompanied by violence.

The Civil War

Of particular – and tragic – relevance is the thirty-year-long Civil War (1960 to 1996), during which time Guatemala’s Mayan population was targeted by a systematic policy of massacres, disappearances, displacement and destruction of their villages. Within the framework of the Peace Accords, the The Historical Clarification Commission found that these crimes were tantamount to genocide and acknowledged the colonial origins of violence. The fact that Ríos Montt was brought to trial and convicted on charges of genocide, is hugely important for Indigenous peoples in Guatemala, although the Constitutional Court ultimately overturned the conviction. Another important step forward in the legal sphere was the trial of a group of soldiers who were sentenced to between 120 and 240 years in prison for the rape and sexual enslavement of 15 Maya Q’eqchi women. In August of this year, it was announced that two former army generals would also stand trial for genocide. These victories in the courts can be considered a huge step forward for the acknowledgement of Indigenous suffering in Guatemala.

A Partial Multiculturalisation

It is also important to note that there has been a very partial multiculturalisation of the Guatemalan state, which began in 1985 – during the military dictatorship – with the inclusion of two articles on the right to cultural identity (Art. 58) and the protection of ethnic groups (Art. 66). However, it was the ground-breaking Agreement on the Identity and Rights of Indigenous Peoples signed in 1995 that most clearly acknowledged Indigenous identity and discrimination, and which establishes a catalogue of rights, including: the rights of Indigenous women; cultural rights; and civil, political and social rights, including customary law. The Agreement also outlines a series of steps that the Guatemalan government must take to successfully implement these rights. In 1999, a group of constitutional reforms – including the acknowledgement of Guatemala as a pluricultural and multi-ethnic state and the right of Indigenous people to have their own authorities and customary law – was rejected in the “popular consultation” (referendum). Despite this, the 1995 Agreement gave rise to a series of legal reforms that can be considered progressive in terms of the protection of Indigenous rights, including three laws of decentralisation allowing for Indigenous participation in municipal governments and a series of measures to improve access to justice. It is also worth noting that the Guatemalan state has adopted several highly relevant international instruments including 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, and the FAO Policy on Indigenous and Tribal Peoples.

Consultation and Free, Prior and Informed Consent

One particular issue over which there has been considerable mobilisation and contention in recent years is the right to consultation and free, prior and informed consent, in line with the international and regional frameworks and jurisprudence, and in keeping with the experience of other Indigenous Peoples in Latin America. As Lucía Xiloj notes, there is currently no specific legislation to regulate the implementation of prior consultation processes in Guatemala; there have been several legal cases brought by Indigenous leaders over the omission of prior consultation and the Constitutional Court has determined that consultations must be carried out prior to extractive projects. The Court has also urged Congress to draw up legislation to protect this right and there have been several attempts to do so, all of which have been rejected by Indigenous leaders due to a lack of participation and disregard for international and regional standards on the matter. Faced with this legal lacuna, Indigenous communities have carried out internal, community consultations (within the framework of their self-determination) and have also used municipal consultations as a means to defend their land.

Concluding Remarks: An Ongoing (Internal) Colonialism

Despite a degree of progress regarding the acknowledgement of Indigenous identity, culture and rights over the past thirty years, the violence against Indigenous peoples is still widespread and impunity is rife. Consequently, the scant progress at the legal level can be seen as a necessary but still insufficient step forward. As Lu’K’at Pedro Us Soc notes in an opinion piece published by the San Carlos University of Guatemala, with reference to the celebrations of the bicentenary of Independence: the colonial relationship in real terms has remained largely intact, as is evidenced by the continuous exclusion, subordination, marginalisation and poverty experienced by Indigenous peoples. Indeed, the celebrations of the Bicentenary – as is common throughout Latin America – usurped the cultural traditions of the Maya, Xinka and Garífuna Peoples, reducing them to simple folklore. In theory – as Us Soc notes – this juncture could give the Guatemalan State and Indigenous organisations in general an opportunity to re-consider and restructure the colonial relationships that continue to underpin social, economic and political relationships. However, such a conversation is yet to have taken place and Indigenous leaders have recently denounced the ongoing, internal colonialism to which they are still subjected.

Claire Wright is a Research Fellow at the School of Law, Queen’s University Belfast.

Suggested Citation: Claire Wright, ‘Guatemala: Ongoing Struggles Over Indigenous Rights, 200 years After Independence’ IACL-AIDC Blog (12 October 2021) https://blog-iacl-aidc.org/independence-and-indigenous-peoples/2021/10/12/guatemala-ongoing-struggles-over-indigenous-rights-200-years-after-independence-zd894-exrnj.