A New Beginning? Indigenous Peoples in Chile After Its Bicentenary

Alexandra Tomaselli

Institute for Minority Rights of Eurac Research

Introduction: The New “Constitutional Convention”

Chile is currently living in constitutional momentum. A constituent assembly (the so-called, Constitutional Convention, Convención Constitucional) comprising 155 elected delegates began its work on 4 July 2021. On  25 October 2020, a historical referendum that asked Chileans whether they wanted a new constitution – despite the difficult COVID-19 situation that had already postponed the referendum from 26 April to October – saw one of the highest participation rates of recent years. A vast majority (78.2%) voted for having a new constitutional reform and an assembly whose members were to be elected by the citizens. Elections for the constituent delegates were held last May 2021. Out of the 155 seats, 17 were reserved to Chile’s ten recognized indigenous peoples. Moreover, the President of the Constitutional Convention is not only a well-known female academic but, and most importantly, an indigenous Mapuche woman: Elisa Loncón Antileo. In its third session, delegates have already discussed and adopted a declaration on the importance of both human and indigenous rights and the victims of violence and repressions with a specific reference to the indigenous Mapuche people. After more than two centuries of proclaimed independence, Chile is thus finally setting its roadmap to write a new Constitution and put aside the obsolete Pinochet’s Constitution of 1980. The independence of Chile was formally announced in 1818 but dated back in 1810, despite back then a vast part of the Chilean territory was still disputed between Creoles and indigenous peoples. The current constitutional reform may also finally give indigenous peoples and their rights a long-due constitutional recognition, as it will be discussed below. 

A Long-Due Debt: The (Still) Missing Constitutional Recognition of Indigenous Peoples 

Indeed, Chile is among the very few Latin American countries that is yet to constitutionally recognize the indigenous peoples that live within its borders. They are the Aymara, Chango, Colla, Diaguita, LikanAntai (also called Atacameños), Mapuche (the most populous one), Quechua, Rapa Nui, Yagán o Yámana, and Kawésqar peoples (Art. 1, para. 2 of the “Indigenous Law” [Ley Indígena], Law No.19.253 of 1993, as modified by Laws Nos. 20,117 of 2006 and 21,273 of 2020). Nevertheless, Chile’s indigenous law is poorly applied and describes them as “ethnicities” (etnias) although more than 2 million of Chileans (approx., the 12.8% of the whole population) have self-identified as indigenous in accordance with the 2017 census. 

A constitutional recognition of indigenous peoples in Chile is due since the restoration of the democracy in 1989 and was included in the so-called (first) Agreement of Nueva Imperial that was signed by Patricio Aylwin (the then presidential candidate and first democratically elected President after the dictatorship) and some indigenous representatives. Since then, there have been several attempts to amend the Constitution but none was ever successful despite also a recent – but contested – Indigenous Constituent Process (Proceso Constituyente Indígena) in 2016. To constitutionally recognize indigenous peoples and their rights is thus one of the key tasks of the current Constitutional Convention. 

The New Steps in the New Millennium and Pending Issues

Since 2005, progressive steps have been taken to recognize rights of the indigenous in Chile. Under the (first) term of President Michelle Bachelet (2006-2010), the ILO Indigenous and Tribal Peoples Convention of 1989 (C169) was finally ratified in 2008. It entered into force on 15 September 2009. Chile also voted in favor of the adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007, and, in 2016, under the second mandate of President Bachelet, the 2016 American Declaration of the Rights of Indigenous Peoples. Both C169 and UNDRIP have been used by national courts to give a further guarantee to indigenous rights, particularly to their right to consultation. Since 2009, several consultation processes, also on the constitutional reform, were also put forward, although with no concrete result. Moreover, the right to consultation of indigenous peoples in Chile continues to be ruled by the very contested Decree No.66 of 2013 that limits the (wider) scope of Articles 6 and 7 of the C169. 

In addition to these developments, other crucial steps have been taken in the last few years. They include the official apology to the indigenous Mapuche people for the past atrocities and errors committed or tolerated by the Chilean State by President Bachelet in 2017; the recognition of the indigenous Chango people in 2020; and the recognition of the National Day of Indigenous Peoples on the Chilean winter solstice (around 21 June) from 2021 onwards. Nevertheless, Chile remains a country with high socio-economic inequalities that heavily affect indigenous peoples and that tend to prioritize economic interests over human rights as the protests in late 2019 have clearly shown. Vis-à-vis indigenous peoples, historical land dispossession and the failure of the Chilean state in providing them with a coherent and fair protection system of their rights has resulted in several socio-environmental conflicts. 

Since the late 1990s, indigenous peoples and their organizations have used different instruments ranging from peaceful marches and hunger strikes to protests as well as some frustration-led land occupations to denounce the implementation gap of their rights. The Chilean state has often (if not, always) austerely repressed the manifestations and it has also widely used the military justice system under the Antiterrorism Law (Law No. 18,314 of 1984) instead of applying the civil or criminal standard of justice. The Antiterrorism Law is another inheritance of the dictatorship and it not only allows the application of longer penalties than the standard civil or criminal standard of justice but it also allows the use of unidentified witnesses (testigos sin rostro) during the trial, that is, witnesses who cannot be identified by the defendants' lawyers and whose credibility cannot be questioned. The use of the Antiterrorism Law has been condemned also by the Inter-American Court in the case Norín Catrimán and Others v. Chile in 2014. Moreover, the few preserved or restituted indigenous lands are constantly challenged by the neoliberal economic priorities pursued by the Chilean state. These include, inter alia, the constructions of hydroelectric plants (especially in the south), the aggressive extractivist agenda (principally in the north), the massive exploitation of forest resources, and the intense salmon farming in coastal areas. 

Concluding Remarks: A New Beginning?

Chile is undeniably experiencing the most critical political and constitutional momentum since the restoration of its democracy. It is also a historical moment for the inclusion and the recognition of indigenous peoples that, in this country, have been made invisible more than in other neighboring Latin American states. More than ever, there is the hope that this will be a new beginning and that the historical debt Chile owes vis-à-vis indigenous peoples living within its borders, and, in general, to all its citizens for the full compliance of human rights, will be finally paid after 200 years. 

Dr Alexandra Tomaselli is a Senior Researcher at the Institute for Minority Rights of Eurac Research (Italy) and member of the IACL-AIDC Research Group “Constitutionalism and Societal Pluralism: Diversity Governance Compared”

Suggested Citation: Alexandra Tomaselli, ‘A New Beginning? Indigenous Peoples in Chile After its Bicentenary’ IACL-AIDC Blog (28 October 2021) https://blog-iacl-aidc.org/independence-and-indigenous-peoples/2021/10/28/a-new-beginning-indigenous-peoples-in-chile-after-its-bicentenary.