Indigenous Land Rights in Argentina Under Fire: The Significance of the Mendoza Resolution at Domestic and International Law

[Dr. Shea Elizabeth Esterling is a Senior Lecturer Above the Bar at the Faculty of Law at the University of Canterbury, New Zealand. She is Co-Chair of the American Society of International Law Rights of Indigenous Peoples Interest Group (2021-24) and Chair of the Cultural Heritage and the Arts Interest Group (2024-27). She is the author of Indigenous Cultural Property and International Law: Restitution, Rights and Wrongs (Oxon: Routledge 2024).]

Introduction: The Mendoza Resolution and Argentine Law

In February 2024, the courts in Argentina ordered the eviction of the Mapuche from lands in Bariloche situated in the province of Río Negro. Marking a significant legal and societal moment, this eviction is part of a broader campaign against the Mapuche and other indigenous communities in Argentina in relation to their efforts to secure recognition and land rights in an increasingly hostile environment. Set against a backdrop of racism, violence and demands for state sovereignty and provincial rights, this eviction is only the most recent in the ongoing struggle for indigenous justice in Argentina.  It finds its roots and momentum in a short, yet powerful resolution issued by its provincial neighbour Mendoza less than a year earlier.

On 23 March 2023, the Chamber of Deputies of the Province of Mendoza issued a resolution, which asserts that the Mapuche peoples should not be considered Argentine Indigenous Peoples in terms of the Argentine Constitution.  The resolution provides that “[o]n the basis of scientific, historical, anthropological contributions made at the time of [the resolution’s] treatment in a commission by specialists in the Indigenous issue, that Mapuches should not be considered Indigenous people of Argentina in the terms of […] the National Constitution and International Treaties.”  Rather, advocates of the resolution assert that the Mapuche are “native to the Chilean Araucanía [region]”. The resolution concludes by rejecting the extension of a legal ban on the eviction of Indigenous Peoples including the Mapuche from their traditional lands.  The following piece analyses this resolution through the lens of the challenge of reconciling historical injustices and the claims of Indigenous Peoples within the contemporary Argentine legal system. In turn, it sheds light on the complexities that underpin the implementation of indigenous rights in federal states as well as the complexities of the interplay between indigenous rights at domestic and international law as regards recognition and land disputes.  In this first instalment, it will focus on the Mendoza resolution in relation to the implementation of indigenous rights in Argentina while the second instalment will consider its implications under international law.

The Mendoza Resolution: Domestic Context

Regarding the domestic context, this resolution is best understood as a political gambit within a complex federal system that capitalizes on the separation of powers at the expense of the implementation of indigenous rights.  At the centre of this gambit is Law No. 26,160 (Indigenous Lands Emergency Law). Passed in 2006, it was initially conceived as a temporary emergency measure, which declared that it was illegal for Indigenous Peoples to be evicted from their land for four years while assigning to the National Institute of Indigenous Affairs (INAI) the task of carrying out surveys of the lands and territories claimed by Indigenous Peoples to determine traditional occupation and guarantee collective titles. In turn, with the INAI falling woefully behind schedule, the law has undergone numerous extensions. The most recent extension is through November 2025 as stipulated in National Decree No. 805/21, which suspends “judgments, procedural or administrative acts, whose object is the eviction or vacating of lands.”

This extension of the law is in part the driver behind the Mendoza resolution. Article 2 of the resolution explicitly notes it is a “repudiation of National Decree No. 805/21.” What underlies this rejection of the extension to the land eviction sentences, ostensibly is a series of constitutional concerns.  Law No. 26,160 and its extension through National Decree No. 805/21 finds its roots in the Argentine Constitution, which provides at Section 75(17) that “Congress is empowered … to recognize … the community possession and ownership of the lands they traditionally occupy; and to regulate the granting of other lands adequate and sufficient for human development…”  However, Mendoza asserts that this provision does not grant to Congress the power to make a decree like Law No. 26,160 without further action by Congress to operationalize this provision.  Prior to the Mendoza resolution, Víctor Ibañez, the Minister of Government, Labor and Justice for Mendoza noted that National Decree No. 805/21 is of questionable validity as “the Constitution has not been configured to dictate a rule of this nature [National Decree No. 805/21] and even less [to] extend an emergency whose declaration [and] determination of the term and scope is the … exclusive attribution of the National Congress.” 

Yet, the resolution does not stop here in challenging the suspension of evictions of the Mapuche in Mendoza. Representative Evelin Pérez, who supported the resolution, notes that “the procedures of Law 26,160 are flawed” and so the decrees issued by the INAI in relation to lands in Mendoza are void. In turn, the main driver of the resolution emerges: to reject the INAI’s decrees that recognize the traditional occupation of 26,000 hectares of land by Mapuche communities in Mendoza.  Two months prior to the resolution between 19- 26 January 2023, the INAI issued three decrees recognizing Mapuche land in Mendoza including: decree 36/2023 in relation to 23,370 hectares in San Rafael and the Mapuche community Lof El Sosneado; decree 42/2023 in relation to 3,500 meters in Malargüe and the Mapuche community Lof Suyai Levfv; and finally decree 47/2023 in relation to 4,477 hectares in Los Molles (Malargüe) and Mapuche community Lof Limay Kurref.

Constitutional concerns are again raised to support this position. Specifically, Pérez and other proponents of the resolution assert that National Decree No. 805/21 “is null and void and was issued against the separation of powers.”  Argentina’s federal system is characterized by the separation of powers. While it divides power among the various federal branches, it also stipulates that Congress and the provinces have overlapping or concurrent powers in many areas.  Of relevance here again is the power to recognize the “community possession and ownership” of lands traditionally occupied by Indigenous Peoples and to grant other lands suitable for human development.  Part of the 1994 constitutional reforms, the Constitution explicitly notes at Section 75(17) that Congress and the provinces “jointly exercise these powers.”  Consequently, the land surveys stipulated by Law No. 26,160 and extended by National Decree No. 805/21, require the participation of the provinces in carrying out surveys of lands and territories prior to issuing decrees recognizing traditional occupation of indigenous lands. Proponents of the Mendoza resolution charge that the INAI did not concurrently exercise this power with the province. Pérez notes, “there was no participation from the province or the different municipalities involved, which does not allow the interests of either the people of Mendoza or the different institutions to have been protected or represented.”  The governor of Mendoza, Rodolfo Suárez, who sponsored the resolution, notes that the province was left out of the INAI decision-making process regarding the INAI’s decree that recognize these lands. Yet, these statements ignore that fact that there was indeed participation by the province through its Executive Branch as well as other provincial entities including the municipalities involved and third parties with legitimate interests. Nonetheless, the resolution doubles down and notes that even if the province had knowledge of and participated in the survey that the decrees of the INAI were not issued in cooperation with Mendoza promoting and facilitating the participation of provincial representatives. In doing so, the Mendoza resolution exploits the challenges that arise from the complex coordination of surveys between the INAI and the provinces. The UN has observed this noting that there is “inadequate coordination between INAI and the provinces”. [UN Doc A/HRC/21/47/Add.2 (2012) at para. 32] This argument by Mendoza equates the concurrent exercise of powers with procedural flaws in the process undertaken by the INAI in issuing decrees to reject Mapuche land rights.  More deeply, this resolution demonstrates the fragility of indigenous rights in Argentina.

Ultimately, the Mendoza resolution asserts that national government’s decision to deliver land to Mapuche communities in Mendoza is unconstitutional. While the complexities of a federal system in the form of concurrent powers undoubtedly explains this strategy, again this is only part of the story.  More fundamentally, this resolution capitalizes on the weak architecture of Law No. 26,160 (Indigenous Lands Emergency Law), which is underpinned by a flawed foundation: the lack of political will to implement indigenous rights. The principal weakness of Law No. 26,160 stems from the fact that it does not address how the right to property should be operationalized lacking provisions in relation to the adjudication of traditional indigenous lands leaving the implementation of indigenous rights on shaky grounds. In numerous reports to the UN, former Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, highlights that Argentina has failed to take measures to ensure that its legislation in relation to indigenous rights including Law No. 26,160 is implemented. [UN Doc A/HRC/21/47/Add.2 (2012) at paras. 80-82; UN Doc A/HRC/37/5 (2017) at para.107.172; UN Doc A/HRC/53/5 (2023) at para. 134.251)] 

As noted, Congress not only delegates to the INAI coordination between the provinces and the federal government in relation to land surveys to determine traditional occupation, Congress also leaves to the INAI carrying out these surveys of the lands and territories claimed by Indigenous Peoples to determine traditional occupation, which is a precursor to guaranteeing collective titles.  In effect, the formulation and execution of plans and policies for the adjudication of lands is left to the INAI. Not only is this ironic given that it was the failure of the INAI that led to the emergency state regarding indigenous lands, [UN Doc. A/HRC/21/47/Add.2 (2012) at para. 32] this approach by Congress does nothing to solve the real challenge of underlying land disputes between Indigenous Peoples and third parties that are at the centre of the historical and cultural claims of Indigenous Peoples.  The law delays reconciling historical injustices perpetrated against Indigenous Peoples with contemporary imperatives. In deferring this reconciliation, the law avoids addressing the thorny imperatives of politics and economics and so in its structure is unfit for purpose. While complicated by the fact that Argentina is a federal state, this failure demonstrates that the real perennial challenge to the implementation of indigenous rights is the lack of political will. Argentina has laws like Law No. 26,160 (Indigenous Lands Emergency Law) and treaties of constitutional rank in its hierarchy [Section 75(22)] that guarantee indigenous rights. However, in failing to operationalize Law No. 26,160 and to move forward other legislation in relation to the rights of Indigenous Peoples, provinces like Mendoza can capitalize on this lack of political will and issue such a resolution under the guise of constitutional concerns. At the same time, this lack of political will is further supported by a judiciary, which works to not apply even the weak laws that do exist.  Indeed, the Mendoza resolution came just days after the National Supreme Court of Argentina stopped the handover of 481 hectares of land to a Mapuche communities. In his UN report, Anaya observes:

It has been reported that the courts do not give proper consideration to, or are even completely unaware of, the rights of indigenous peoples under the current legislation. In addition, the courts of the different provinces do not apply the same criteria when authorizing evictions. For example, they sometimes do not recognize the indigenous communities registered by INAI in its national registry and do not take into account the results of cadastral surveys. [UN Doc. A/HRC/21/47/Add.2 (2012) at para. 54]

In turn, this enables the continued eviction of the Mapuche and other indigenous communities despite laws for the protection of Indigenous Peoples.  Indeed, most evictions have occurred since Law No. 26,160 entered into force in 2006 [UN Doc. A/HRC/21/47/Add.2 (2012) at para. 54] and they continue while only 43% of the surveys of indigenous lands and territories have been carried out by the INAI as of March 2024.

Conclusions

Ultimately, Law No. 26,160 pays lip service to indigenous rights that are caught in the cross hairs of the complexity of Argentina’s federal system and its lack of political will to implement indigenous rights. In turn, the Mendoza resolution is best understood as capitalizing on this fragility of both the law and the political system in which it exists. It encapsulates the failure of Argentina to strike a balance between reconciling the historical injustices perpetrated against Indigenous Peoples with present political and economic concerns.  In sacrificing the former, it favours the state imperatives of development and third-party rights and is an / [a continued] appropriation of indigenous lands, territories, and resources. 

Consequently, the Mendoza resolution is also out of step with international law. This has not gone unnoticed. There have been requests by indigenous communities in Argentina to the Inter-American Commission on Human Rights to come and visit as an effort to secure and oversee the implementation of indigenous rights. Indeed, this resolution is out of step with developments in regional and international indigenous rights jurisprudence. In turn, the next instalment of this piece will consider the Mendoza resolution in light of international law as well as exploring developments underway in other jurisdictions where Indigenous Peoples have had more success in their struggle for justice. In doing so, this next instalment both contextualizes the global nature of the indigenous struggle for justice and makes manifest that the historical and cultural claims of Indigenous Peoples and the implementation of indigenous rights are ultimately complicated by the interplay between domestic and international law.