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

[Dr Shea Elizabeth Esterling is a Senior Lecturer Above the Bar in the Faculty of Law, University of Canterbury (Christchurch, Aotearoa New Zealand), 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 International Law 

Set amid the struggle for indigenous ownership of ancestral lands in Argentina, this series examines the resolution adopted by the Chamber of Deputies of the Province of Mendoza on 23 March 2023, which asserts that the Mapuche peoples should not be considered Argentine Indigenous Peoples. Specifically, it offers 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.” Part I in this series analyses the Mendoza resolution through the lens of the challenge of reconciling historical injustices and the claims of Indigenous Peoples within the contemporary Argentine legal system highlighting the challenges in relation to the implementation of indigenous rights within Argentina. It ultimately demonstrates at the crux of these challenges are the complexities of Argentina’s federal system and the lack of political will to implement indigenous rights.  Yet, the Mendoza resolution also sheds light on matters that reach beyond Argentina’s [colonial] borders. To flesh out these matters, this second instalment analyses the Mendoza resolution through the lens of the challenge of reconciling historical injustices and the claims of Indigenous Peoples under international law drawing out its implications particularly in relation to indigenous rights to recognition and land. In turn, this analysis contextualizes the global nature of the indigenous struggle for justice and makes manifest that the historical claims of Indigenous Peoples and the implementation of indigenous rights are ultimately complicated by the interplay between domestic and international law.  

The Mendoza Resolution: International Context

To fully understand the Mendoza resolution, it also needs to be examined in light of the broader international context of the indigenous struggle for justice. Flowing from this struggle, is a well-established body of international law pertinent to the promotion and protection of indigenous rights. Consequently, states have sought to reject or at least tightly prescribe indigeneity as a way to deny rights to indigenous individuals and communities including through the guise of the protection of cultural identity and integrity (for example Lovelace v. Canada). Common state strategies here centre on exclusionary practices surrounding recognition including rejection of indigenous self-identification as well as the denial of citizenship, nationality and residence to Indigenous Peoples. It is here within exclusionary practices that the Mendoza Resolution sits. Specifically, advocates of the resolution seize on national origin as an exclusionary criterion asserting that the Mapuche are not indigenous to Argentina but rather are “native to the Chilean Araucanía [region]”. The aim of this exclusion is to restrict access to the protections afforded to Indigenous Peoples under the Argentine constitution and international law. The Mendoza resolution provides that “Mapuches should not be considered Indigenous people of Argentina in the terms of […] the National Constitution and International Treaties” (emphasis added). Aside from international law, as noted in the first instalment of this series, the 1994 reform of the Argentine Constitution also secures indigenous rights. It empowers Congress “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…” (Art. 75(17)). In taking this exclusionary approach, the Mendoza resolution is out of step with both burgeoning indigenous-specific jurisprudence in international law as related to nationality as well as entrenched international and regional indigenous and human rights. 

Regarding indigenous-specific jurisprudence, in Desautel v Canada, the Canadian Supreme Court found that a non-citizen indigenous man was entitled to exercise constitutionally protected traditional hunting and fishing rights on the traditional lands of his ancestors in British Columbia. Desautel, a member of the Lake Tribe in Washington State and a U.S. citizen and resident, was entitled to exercise these constitutionally protected aboriginal rights as a result of his ancestral ties to the Sinixt peoples, a pre-contact Indigenous Peoples whose traditional territory is arbitrarily divided by the Canadian-US border. The key factor in the ruling was that the court interpreted the expression “aboriginal peoples of Canada” in the Canadian Constitutional Act to include the successors of pre-contact indigenous societies that occupied current Canadian territory at the time of European conquest. Ultimately, the judgment provides that non-citizens and non-residents can claim aboriginal rights under the Canadian Constitution. In effect, indigenous rights including constitutional rights are owed to Indigenous Peoples outside of the sovereign state in certain instances; in this case where there is a spiritual connection to the lands, which, as the court emphasises, can survive contact and material dispossession. By extrapolation, constitutional protections for Indigenous Peoples are not dependent on state sanctioned recognition in any of its myriad forms including nationality, citizenship, residency etc. In turn, this judgment undercuts the exclusionary practices of states as a core facet of sovereignty. Indeed, in granting Desautel and the Lake Tribe constitutional rights, the Crown argued that this was incompatible with Canadian sovereignty. Yet, the Supreme Court reasoned that this purposive interpretation is necessary as it “serves to recognize the prior occupation of Canada by Aboriginal societies and to reconcile their contemporary existence with Crown sovereignty”. The Court noted that if such an interpretation was not taken, excluding Aboriginal peoples who were displaced from Canada, that this would risk perpetuating “the historical injustice suffered by Aboriginal peoples….” In turn, Desautel suggests within the context of reconciling historical injustices and the claims of Indigenous Peoples that recognition is a political act that distracts from the real challenges of the implementation of indigenous rights. Rather, whether than considering if the Mapuche of Mendoza are indigenous to Argentina or Chile, the implementation of indigenous rights within the contemporary Argentine legal system requires a purposive approach to balancing the imperatives of state sovereignty with indigenous customs, cultures, and laws.  

Moreover, the exclusionary approach based on national origin promulgated by the Mendoza resolution is out of step with established international law in that it restricts definition of Indigenous Peoples and violates the prohibition against discrimination. As regards indigenous rights, neither International Labour Organization (ILO) Convention No. 169 nor the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) refer to the national origins of Indigenous Peoples. It is not used as a criterion of exclusion or obstacle to access provisions. Indeed, indigenous rights make clear that Indigenous Peoples are indigenous regardless of their legal status (ILO Convention No.169, Art. 1(b)) and rather contemporary emphasis in relation to defining indigeneity is placed on self-identification (ILO Convention No.169, Art. 1(2); UNDRIP, Art. 33).  Further any such practice of exclusion based on national origin violates the norm of non-discrimination, which along with equality underpins all human rights at both the regional and domestic levels (American Convention on Human Rights, Arts. 1 & 24; UDHR, Art. 7; International Covenant on Civil and Political Rights, Arts. 2.1 & 26; International Covenant on Economic, Social and Cultural Rights, Art. 2.2; International Convention on the Elimination of all forms of Racial Discrimination, Art. 5). Further, the prohibition of discrimination is a peremptory norm of international law, which renders it a norm from which no derogation is permitted, and therefore any distinction based on national origin like the Mendoza resolution would necessarily constitute a discriminatory act. 

This analysis leaves the remaining question: what if the Mendoza resolution is successful in excluding the Mapuche as Indigenous Peoples of Argentina? In short, it will undermine something far more important and fundamental than national origin: the relationship that Indigenous Peoples have with their lands. The relationship Indigenous Peoples have with their lands extends beyond proprietary to include a deep spiritual connection that is core to the identity, well-being and even the existence of Indigenous Peoples. The impact of the Mendoza resolution in eviscerating this relationship violates indigenous land rights that are well established under both regional and international law. Indigenous rights have developed extensive protections relating to land including rights to maintain and strengthen their spiritual connection with their lands, to own, use, develop and control the lands that they possess by reason of traditional ownership or other traditional occupation, to collective ownership of lands they possess and a right to restitution in respect of lands that they have lost (UNDRIP, Arts. 25-8; ILO Convention No.169, Arts. 13-19). In particular, these indigenous rights have been secured within the regional context of Latin America through the jurisprudence of the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR). Beginning with the inaugural case of Awas Tingni v Nicaragua, there is a host of jurisprudence from these regional bodies that confirms the close spiritual relationship that Indigenous Peoples have with their lands that is pertinent to their identity as well as their economic, social and cultural development and well-being. This jurisprudence recognizes that this relationship is not dependent on continuous or current occupation or on recognition by the state of property rights also making clear that Desautel is in line with international law. This jurisprudence further requires the recognition and protection of indigenous lands, which necessitates state obligations including the demarcation and issuance of collective titles to property as well as the provision of internal mechanisms to make effective the collective nature of indigenous lands and the restitution of lands no longer in indigenous possession (for example Yakye Axa Indigenous Community v Paraguay; Sawhoyamaxa Indigenous Community v Paraguay; Saramaka People v Suriname; Kichwa Indigenous People of Sarayaku v Ecuador; Case of the Indigenous Maya Q’eqchi Agua Caliente Community v Guatemala).

Conclusions

As Mapuche spokesman Fabricio Silva notes, “[b]eing Argentine has nothing to do with not being indigenous, and being indigenous has nothing to do with not being Argentine.” Yet, the Mendoza resolution conflates the two in such a fashion so as to restrict access to the protections afforded to Indigenous Peoples under the Argentine constitution and international law through reading into both the criterion of national origin as a means of exclusion. Consequently, the Mendoza resolution is out of step with both burgeoning indigenous-specific jurisprudence in international law as related to nationality as well as in violation of entrenched international and regional indigenous and human rights in particular rights in relation to recognition and land. Ironically, the resolution capitalizes on the propensity of indigenous rights to turn indigeneity into a resource and to raise the fear of special privilege. It does so specifically by creating cultural difference between indigenous and non-indigenous Argentines as well as creating cultural difference among Mapuches. As regards the latter, the resolution seeks to create cultural difference where difference does not exist among Mapuche peoples in Chile and Argentina. Proponents of the resolution use arbitrary colonial borders and tap into the pervasive drive for authenticity that permeates settler state rhetoric and laws surrounding indigenous rights such as native title, which perversely place emphasis on continuity and priority in time and space requiring that Indigenous Peoples pretend that they have not been subject to colonial campaigns of disenfranchisement from lands and resources in order to obtain recognition and ultimately access rights. This rhetoric creates momentum for resolutions like that issued in Mendoza and for its sponsors like the Governor of Mendoza, Rodolfo Suárez, to assert that lands issued by the National Institute of Indigenous Affairs (INAI) are awarded to “pseudo-Mapuches.”  Politicians like Suárez are not alone here, they rely on the complicity of historians, archaeologist and anthropologist amongst others to support these efforts. As proponent of the resolution and Minister of Government, Labor and Justice for Mendoza, Víctor Ibañez explains, “[a]ll the historical background that we have collected from historians and archaeologists affirm that there were never Mapuches in the south of the province. They are not ancestral communities.”   

The result is that the Mendoza resolution perpetuates recognition as a political act by the state necessary for access to indigenous rights. In turn, states like Argentina can recognize indigenous rights per se but if they do not recognize the existence of Indigenous Peoples as stakeholders then the rights are hollow as Indigenous Peoples are both the target but also the source of such claims (ILO Convention No.169, Art. 1(2); UNDRIP, Art. 33). Consequently, the Mendoza resolution perpetuates historical injustices against Indigenous Peoples by focusing on concerns over recognition and deferring or at least glossing over addressing thorny political and economic issues like colonization and reparations. Indeed, this explains how the Mendoza resolution in the same breath provides that it must “guarantee respect for their [indigenous] identity and the right to a bilingual and intercultural education; recognize the legal status of their [indigenous] communities, and the community possession and ownership of the lands they traditionally occupy.” What then becomes manifest through this analysis is that the challenge of reconciling historical injustices and the claims of Indigenous Peoples within the contemporary Argentine legal system cannot be read in isolation. Contextualizing the indigenous struggle for justice within broader international law sheds light on the complexities of the interplay between indigenous rights at domestic and international law. It demonstrates that although the legislation of Argentina recognizes the collective nature of indigenous lands and places international treaties on the same footing as the constitution, this is no guarantee of the promotion, protection and implementation of indigenous rights on the ground.  

Collectively, these analyses through a domestic and international lens demonstrate that the contemporary Argentine legal system is ripe for resolutions like that of Mendoza and that this resolution is likely to set the tone for the approach to future land disputes. Ultimately, as Argentina continues to grapple with reconciling historical injustices and the claims of Indigenous Peoples, these analyses emphasize that legal clarity, dialogue and respect for indigenous realities and experiences will be paramount to equitable solutions in a modern multicultural state. 

Photo attribution: “Mapuche woman chile” by Raul Urzua is licenced under CC by 2.0.