Response to slanderous and insulting comments in the Newspaper El Mercurio, Santiago, Chile

Temuco, 15 March 2002

To: The Editor, El Mercurio newspaper

In my capacity as legal representative for many indigenous communities resident south of the Bio Bio, who are fighting to reclaim their lands through the medium of lawsuits which are being conducted in the city of Santiago, I consider myself as holding a legal and moral obligation to respond to the slanderous and insulting comments by the journalist Rodrigo Barria Reyes, published in the ‘Reportajes’ section on 3 and 10 March, concerning the “indigenous conflict”, on the basis of the following points:

1. The titles of the newspaper articles are, “Unruly Decade” and “Big Harvest of Terror” respectively. Barria goes on to argue regarding “the indigenous conflict”, claiming to demonstrate that the very serious problems which have arisen on the Mapuche lands south of the River Bio Bio have been caused by the “indigenous people”, citing, for example, “land grabs”, “forest fires”, “arson of houses, goods and other property”, “burning of trucks”, “ the fear or state of terror” which the present landowners must put up with in indigenous territories caused by “indigenous terrorists”. These articles comment from a slanted, tendentious and false angle many times on these same facts, without developing a historical and cohesive exposition of these same facts. Above all there is no systematic, exhaustive or in-depth analysis of the legislation which has applied in this territory from the colonial era until the present day. Nevertheless, amongst others, lawyer and doctor of law of the University of Wurzburg, rector of the Autonomous University and professor at the University of Chile, don Teodoro Rivera, and the historian don Jose Bengoa are endorsing the opinions of the above mentioned journalist.

The newspaper columns indicate not journalistic information but fall short of the truth, are extremely superficial and, without prejudice, through sloppy thinking, show colossal ignorance of the basic facts concerning the subject of “indigenous conflict”, which will be set out below.

From the beginning, the writer sets out to lead the Chilean authorities, those who currently rule this country, to be more severe, to apply the law with an iron hand, without concessions, etc., against the Mapuche people who are fighting to reclaim their lands which have been wrenched or usurped from them, by means of virtually terrorist intimidatory laws, which in their totality were outside the reliable legislation of Chile, as contained in all the Political Constitutions which have been enunciated, especially the “Codigo Civil”. In this way, it is intended, by a series of slanderous and untruthful newspaper articles, to create a public opinion that the Mapuche are “terrorists” and, by this subliminal and consequent route, use this journalism to anticipate the Chilean government applying the anti-terrorist law, promulgated by mere decrees, during the “governorship” of Augusto Pinochet Ugarte. The comments of the “journalist” are so insistant against those who wish to reclaim their lands that, to speak the plain truth, it seems that those ruling this country would carry out a second Araucanian pacification, on terms similar to those realised in the first one, in the period 1860-1883, in which the newspaper El Mercurio participated actively, through open incitement as now, according to abundant historical archive material which we have for legal purposes.

For all this, the comments referred to appear at best to be political propaganda, directed with extreme xenophobia against the indigenous communities who I represent legally. Furthermore, they show a frightening superficiality, which professes ignorance, or pretends to profess ignorance, of the facts and the laws which are behind these conflicts, commenting as they do on matters of extreme importance, but which are mere adjuncts or final results of atrocities committed by the Chilean authorities: the judicial and legal executive, working with those who have basic interests in the conflict, or with those who previously held interests in the same: multinational and others.

2. We must remind the “journalist” and insidious political commentator of certain singularly important historical and legal facts, which have been deliberately omitted from his comments...

a) That in the year 1600 the indigenous communities of Lumaco led by the Mapuche commander Pelantaru, defeated a Spanish army commanded by the Governor Martin Garcia Oñez de Loyola, at the Battle of Curalaba, with the resultant definitive collapse of Hispanic power south of the river Bio Bio, forever, with sovereignty recognised expressly in the Parliament of Quillin on 6 January 1641. This judicial fact, of singular importance for all the indigenous communities of Arauco, contains the first declaration of human rights for the individual, without dominion and subjugation by Governors, Kings, Emperors, Presidents, Congressional Bodies, etc. etc., centuries before the French Revolution and the Independence of the United States of America.

Subsequently, there followed 27 parliaments or International Treaties, the last of which was the General Parliament at Negrete, held on 3,4,5 March 1803. We have in hand the records of 28 Parliaments in total, held during the Colony; all these documents are laws or declarations of constitutional rights for the communities I represent. Nevertheless, these documents have been overlooked on a grand scale by the “journalist” Barria in his articles, as well as by the doctor of law, don Teodoro Rivera and the eminent historian don Jose Bengoa, who endorse in their way the productions of the El Mercurio columnist.

b) On 7 January 1825, during the governorship of Ramon Freire, the General Parliament of Tapihue was held, between a Chilean representative and soldier and a representative from the indigenous communities south of the river Bio Bio, from which article 19 fixed this river as the border between Chile and Ragko Mapu (Arauco in Spanish), thereby ending a war which had lasted at least fourteen years, with the Republic of Chile. In addition, article 18 “prohibits any Chilean from residing south of this river as it would constitute a threat to public order and an evident danger to the peace.” In equal measure, article 25 proclaims that any party which violates this international accord is guilty of “transgression of national boundary”.

In 10 lawsuits currently being conducted in the city of Santiago, the Ministry of Internal affairs of Chile has expressly recognised that there has been no declaration of war by Chile on the Mapuche nation, with the intention of altering the frontier recognised in article 19 of the Parliament of Tapihue, replying to the official letters sent by the afore mentioned courts, incriminating the above mentioned state (its three powers: executive, legislative and judicial) in de facto international criminal violation of the peace, with the crossing by the Army of the Frontier in spring 1860, under the governorship of Manuel Montt, on the south side of the river Bio Bio, in order to bring about the pacification of the Araucania. To aggravate the circumstance of responsibility for punitive aggression further, the establishment of public services in Mapuche territory, for instance administrative centres, governorships, internal tax revenue offices, “Tribunals of Justice”, notaries, and public records offices, police forces, the maintaining of an army of occupation from then until now, constitute a typical example of international crime against humanity, since they constitute a violation of the laws of the place where these crimes against the peace took place, in this case, the breaking of the treaties agreed by the General Parliaments. Furthermore, the crime of genocide, in terms of the massacre of 850,000 martyrs of the holocaust in the open air, was orchestrated by the State of Chile in order to realise the “Pacification of the Araucania”, against our people. Following the terrible Events Calendar of international aggression, treacherously and premeditatedly organised, more or less 11,000,000 hectares of Mapuche territory south of the Bio Bio were confiscated by means of mere sales at public auction by the Chilean authorities. The major part of this land is now in the hands of multinationals and individual land owners. Currently this same territory is being reclaimed directly by the communities, which action the above-mentioned journalist and the two people he quotes, the well known jurist and the no less distinguished Chilean historian, call “indigenous conflict”.

Such facts of atrocities or international crimes are sanctioned in generic form, in addition, in article 641 of the civil code, which essentially states, “booty taken by pirates, bandits and insurgents, does not constitute ownership … “, for which reason, those who are currently holding on to indigenous lands, Chilean individuals and multinational companies, are not the owners of these lands, holding them solely by virtue of “booty of bandits, pirates … “ and the land titles which they are said to hold are only fantasy or a mere cover-up or attempt at cloaking with legality and reliability: legally they only hold civil and penal responsibilities . They hold no rights whatsoever. With regard to this matter, in many lawsuits, these grave facts stand already absolutely proven.

3. “The laws of the state” to which the illustrious lawyer and doctor of law, don Teodoro Rivera, makes reference in his commentaries on the indigenous territory south of the river Bio Bio, do not exist. Here only genocidal and/or terrorist laws apply, such as those of 2 July 1852, government of Manuel Montt, 4 December 1866, government of Jose Joaquin Perez and all the decrees which stemmed from them, which parcelled up and sold at public auction (by the President of the Republic) more or less 11,000,000 hectares south of the Bio Bio. By virtue of article 19 of the Parliament of Tapihue, 7 January 1825 and the 28 parliaments held with Spain during the Colony, both laws are extra-territorial, that is to say they have been applied beyond the Chilean border and can be classified as an international crime of “transgression of national boundaries”, condemned in article 25 of the first and only Treaty or General Parliament held with the Republic of Chile. It is a violation carried out against our Mapuche nation which until now has remained uncontested, but the time has come for truth and the three powers of Chile must acknowledge responsibility for their deeds and their actions.

To reiterate, the application of the laws cited, by the Chilean authorities, cost the Mapuche nation, with a premeditated genocide, 850,000 martyrs, whose descendants are now loudly demanding justice. As the first step, they are calling for the complete restoration of all the lands legally ratified by the 28 parliaments or treaties held during the Colony and the Parliament of Tapihue, held with the Republic of Chile.

4. In conclusion, the comments of the journalist and the two academics quoted err in these respects:

Extreme superficiality of analysis and lack of weighing up of the facts or even most basic seriousness of approach.
They do not make even a minimal reference to the Treaties of the Parliaments, nor to the genocidal or terrorist laws of 2 July 1852 or 4 December 1866, which form the basis or “matrix” for the spurious institutions established by the three powers of Chile in Mapuche territory: an inversion or nazification of public order, in which the Mapuche, who are fighting in legitimate defence of their lands, are persecuted legally and, today, even with anti-terrorist laws in the defence of their land rights, in the defence of their dignity as a free people and, in general, in defence of their basic human rights.

The Commentators being called into question here are adding insult to injury, in the sense that they are even further persecuting the descendants of those who were massacred during the “Pacification of the Araucania”.

For this and other reasons, which in these brief lines we cannot undertake to analyse, there is no constitutional law south of the Bio Bio. Our recent discovery of the general parliaments or international treaties has shed an ultra violet light, highlighting the essentially terrorist nature of all the virtual legislation by Chile south of Bio Bio, which is applied with no consideration, against the members of the Mapuche community.

The law 19.253, the actual indigenous law, is no exception to this spurious legislation, since it contains in article 12, one of the most ignominious, racist and terrorist laws ever tabled in this country, that of 4 December 1866; this same law permitted the usurpation of more or less 11,000,000 hectares of indigenous land by mere decrees of supremacy and its subsequent sale at public auction to Chileans, leaving the price of the auction to the auctioneer, the State of Chile, a circumstance contravening international penal codes. Latterly and by means of articles 5 & 6, derisory concessions were made, the notorious titles of favour to those who survived the holocaust of the “Pacification of the Araucania”, no more than 500,000 hectares in total.

The well-known historian don Jose Bengoa, as President of CEPI, the special commission for indigenous communities, played a most prominent role in the elaboration of the law 19.253, promulgated on 5 October 1993, when “spring, happiness and democracy returned” to this country. Equally, the no less illustrious lawyer, doctor at law in a European University, possessor of various other titles, don Teodoro Rivera, was one of the members of the National Congress which discussed and approved this law unanimously in the above mentioned year.

Jose Lincoqueo Huenuman (Lawyer)
Centre of Studies of Indian Rights (CEDI)

Translated by Sarah Maude