In Defence of Rakgo Mapu: Building a case for Mapuche self-determination

In Defence of Rakgo Mapu:

Building a case for Mapuche self-determination

Ben Morton - February, 2004

The Mapuche Nation is situated in what is known as the Southern Cone of South America , in an area now occupied by the Argentine and Chilean states. For over 350 years the Mapuche Nation successfully defended their territory against a European invasion that began with the Spanish arrival in 1540. From 1641-1825, their military strength forced the governments of Spain and Chile to recognise Mapuche territory and independence through a series of parlamentos or treaties. This paper will argue that the parlamentos were not extinguished by the actions of the Chilean state. The war of 1882 that ended Mapuche military resistance, the setting up of reservations and the expropriation of over 22 million acres of Mapuche lands were illegal acts . By continuing to ignore the demands of the Mapuche Nation for self-determination and land restitution, the Chilean state is in contravention of its own civil law and widely accepted principles of international law.

Introduction

Rakgo Mapu [1] is dominated by multi-national resource based industries, particularly logging, agricultural and mining interests. Since the return of Chilean democracy in 1989, the Mapuche have increased their pressure on the state for land redistribution, protection of cultural rights and political and territorial autonomy. In 1993, the Chilean government passed the National Indigenous Law, which aimed at re-distributing land to indigenous communities - approximately 150,000 hectares over a six-year period. However, the glacial pace of implementation combined with the state's continuing procrastination in signing ILO 169 have not satisfied the aspirations of the Mapuche. This paper's objective is therefore twofold: first, to suggest an argument that might support a comprehensive claim to Mapuche self-determination throughout their traditional territory; and second, to establish whether international developments in indigenous rights can offer the Mapuche recourse in their struggle for self-determination. To this end, the paper begins with an historical overview of the Mapuche Nation [2] and the process of dispossession, leading to an examination of the parlamentos , signed between Spain , the Republic of Chile and the Mapuche. It concludes with the provision of some policy recommendations, directed at both the Chilean State [3] and Mapuche Nation.

The Mapuche Nation: Dispossession

The Mapuche Nation is situated in what is known as the Southern Cone of South America, in the area now occupied by the Argentine and Chilean states. Prior to the arrival of the Spanish, their lands bordered the Inca Empire north of the Maule River (Marhikewun , 2001). The amount of land occupied by the Mapuche once constituted about a quarter of Chile, some 31 million hectares, and stretched from the Maule River on its northern limit all the way to Tierra del Fuego on the continent's southern tip (Mapuche Foundation, 2001). Their clear sense of nationhood and unquestionable desire to maintain their self-determination and freedom led to armed resistance, first against the Inca Empire and then for over 350 years against the Spanish and later the Chileans. This latter period is known as "la Guerra de Arauco" or "Araucanian War."

One hundred years after their arrival, the Spanish were forced to sign the Parlamento General de Quillín (1641), acknowledging their failure to defeat the Mapuche people. The peace established with this agreement recognized the independence of the Mapuche people and fixed the Bío-Bío River [4] as the boundary between the Spanish colony and Mapuche territory. Nevertheless, wars between the parties continued to take place throughout the eighteenth century, largely in the form of local armed conflicts. In the years following Chilean independence in 1818, the Parlamento General de Quillín (1641) continued to be built upon by subsequent parlamentos between the Republic of Chile and the Mapuche Nation. However, as European immigration increased, pressure to extend Chilean jurisdiction into Mapuche lands undermined these agreements. In 1852 and 1866, a series of land allotment acts unilaterally imposed Chilean sovereignty over Mapuche territory, [5]beginning a process of land re-distribution to non-indigenous settlers; a dispossession of territory consolidated during the "Pacification of Araucania" and the removal of surviving Mapuche onto "reducciones" or reserves. [6]Today, the Mapuche reserved lands cover about six percent of their former territory. Although the word Mapuche means "people of the land," with government land seizure and logging of their traditional territory, approximately 60% of the Mapuche have been forced to migrate to the nation's two largest cities in search of jobs ( Instituto Nacional de Estadísticas, 1992).

The Contemporary Mapuche in Chile

The Chilean national constitution acknowledges the existence of one people, the Chileans (El Diario Oficial, 2002). Until the passage of the National Indigenous Law (1993), the Chilean government had virtually ignored the existence of indigenous peoples, except when dealing with their lands and the means to incorporate them into the individual property system. This denial extended into the Chilean identity, since literature and popular culture promoted the idea of the Chilean people as "the English of South America." [7]Chilean cultural perception of indigenous peoples is largely locked in the mythological past. The historical image of the indomitable Mapuche resisting the Spanish remains socially accepted and promoted (Aylwin, 1998).

Until recently, there was little awareness amongst non-indigenous Chileans of the contemporary Mapuche Nation and their aspirations and struggles. This situation changed in 1992, when the official population census showed that almost one million Chileans, of a total of thirteen, declared themselves to be Mapuche, the largest etnico [8] group in Chile (Instituto Nacional de Estadísticas, 1992). According to the census, fifteen percent of Mapuche live in the Araucania, the heartland of Mapuche traditional territory, where they make up 26% of the total regional population, the highest concentration in Chile . Forty-four percent of Mapuche live in the capital Santiago , where they make up approximately 10% of the population.

The 1992 census testified to the survival of the Mapuche Nation while documenting their Diaspora from Ragko Mapu, an experience that has been compared with the Palestinian exile ( Mapuche Inter-regional Council, 1999 ). According to the Mapuche organization, Consejo de Todas Las Tierras, the Mapuche Diaspora is a direct result of Chile 's illegal occupation of Mapuche land for over 116 years (Mapuche Inter-regional Council, 1999 ). The solution to overcoming this exile is Mapuche "self-determination" and an end to "the occupation of the Mapuche territory by Chile " (Nuñez and Diaz, 1993 ). However, despite the fact that the Mapuche Nation is the largest indigenous group in Chile, constituting approximately 10% the Chilean population, its political leverage in pursuing self-determination is limited to a single Mapuche congressman. [9]It is therefore important that the Mapuche develop a strong legal argument that can support their aspirations for land rights and self-determination, an argument that might raise the attention of the Chilean government and the international community.

This paper will now continue by providing such an argument, establishing the basis of a Mapuche claim to self-determination over the entire expanse of Ragko Mapu. It is a claim that will be established through three critical points: first, that the parlamentos signed between Spain, Chile and the Mapuche were nation-to-nation agreements; second, that the articles of the parlamentos and Chilean Civil Law fundamentally undermine the legality of Chilean territorial expansion into Ragko Mapu; and third, that despite assertions to the contrary, these historical treaties remain in effect, are subject to international treaty standards, and uphold Mapuche self-determination within their traditional lands.

1) The Parlamentos: Nation-to-Nation Agreements

In July 1999, the Mapuche Inter-regional Council (MIRC) appeared before the Working Group on Indigenous Peoples. [10]They presented evidence of an illegal war and a process of land dispossession levied by the Chilean state against the Mapuche Nation. The report argued:

Chile is occupying the land of a separate nation and has unilaterally violated the 28 parlamentos that were made during the colonial period between the Spanish and the Mapuche people; it has suppressed these international agreements and replaced them with its own legislation .a collection of hybrid measures.which sanction the genocide of the Mapuche people and as such are anathema to the principles of Western culture ( Lincoqueo, 1999).

As this statement suggests, the parlamentos are crucial to Mapuche legal defence of their traditional lands, and have become a lynch pin in the evolving Mapuche struggle for self-determination. They document an historical relationship between Spanish, Chilean and Mapuche peoples based on nation-to-nation agreements.

From the Parlamento General de Quillín in 1641 to the Parlamento de Tapihue in 1823, the treaties signed between Spain , Chile and the Mapuche recognised the independence of the Mapuche Nation. Chilean historians, such as José Bengoa, have documented the crucial role of the parlamentos to Spain 's administration of colonial Chile . In his seminal work, the "History of the Mapuche People," Bengoa refers to letters addressed by Manso de Velasco, governor of Chile , to the Spanish king in 1738. In these correspondences, Velasco acknowledges the importance of the parlamentos in maintaining peace, and noted his resentment of having to negotiate with the Mapuche as an "independent nation" (Bengoa 1985, p. 33 ). Further, Bengoa affirms that since Quillín in 1641, all of these documents acknowledged the existence of the frontier amongst the two peoples. Mapuche lands were a territory independent from the Capitanía General de Chile , and as such the Mapuche were unequivocally "an independent nation" (Bengoa 1985, p. 36 ).

The Parlamentos between Spain and Mapuche Nation

Following the Parlamento General de Quillín (1641), which established the territorial boundaries of colonial Chile and Mapuche Nation, many other parlamentos were held during the eighteenth century, among them those of 1716, 1726, 1738, 1746, 1756, 1760, 1764, 1771, 1774, 1784, 1787 and 1793. The last parlamento between Spain and the Mapuche Nation were agreed to in 1803 and 1816, on the eve of the establishment of the colonial regime. These agreements constituted the Spanish effort to obtain Mapuche support against the revolutionary movement leading to Chile 's initial independence from Spain in 1810, and final independence in 1818.

The most important of these treaties was the Parlamento de Negrete , signed in 1803. The articles of this treaty dealt specifically with issues of national security between colonial Chile and the Mapuche Nation. The Parlamento de Negrete established three requirements worthy of note: first, that a declaration of war was a necessary prerequisite to any aggressive conflict between Chile and the Mapuche Nation, and that the absence of a declaration qualified any aggression by either party as an act of "piracy and banditry" (Fuentes, 1998); second, that all non-indigenous peoples born in Mapuche territory were deemed Spanish, and that only Spanish and Mapuche could live south of the Bío-Bío River, to the exclusion of all other nationalities; and third, that an extradition agreement was to exist between both countries where the Mapuche would remove Spanish delinquentes from their territories to the custody of Spain (Fuentes, 1998).

The Parlamento de Tapihue and Chilean civil law

These 28 parlamentos signed with Spain connect with the contemporary Republic of Chile through the Parlamento General de Tapihue (1825), signed by the Mapuche and Chilean state during the government of Ramon Freire (1823-1826). The treaty ended a fourteen-year guerrilla war between the two peoples, one that had raged throughout the period of Chile 's struggle for independence from Spain. The Parlamento de Tapihue again recognised the Mapuche Nation, clarifying the frontier of the Republic of Chile and Ragko Mapu along the Bío-Bío River. It prohibited any Chilean from living south of the border and stated that any breach of this agreement by either party would be deemed to be a breach of international law (Mapuche International Link, 2001).

The Parlamento General de Tapihue also incorporated the articles of the Parlamento de Negrete (1803). Specifically, the pre-requisite of a declaration of war from the Republic of Chile or the Mapuche Nation before the commencement of hostilities, and the definition of such an act without declaration as "an act of piracy and banditry." The consequences of undeclared aggression were later addressed under Article 641 of the Chilean Civil Code (1857). This legislation stated that any illegal expropriation of property, or "acquisition through banditry, piracy or insurgency does not transfer ownership [and] those subject to such acts have the right to restitution" (Fuentes 1998). Furthermore, according to the Penal Code, Article 24 of the Law of Internal Security of the State, individuals or parties subject to acts of "piracy, banditry or insurgency" had the legitimate right to self-defence (Fuentes, 1998).

The 28 parlamentos signed with Spain and the Parlamento de Tapihue signed with the Republic of Chile alone, recognised Mapuche nationhood and independence. By absorbing the Parlamento de Negrete (1803) into the Parlamento de Tapihue (1825), Spanish colonial law became integrated with Chilean Republican law. As such, the parlamentos find recognition within the contemporary Chilean Constitution in article 5 that states:

The exercise of sovereignty acknowledges the limitations with respect to fundamental human rights. The State respects and promotes these rights, guaranteed in this Constitution, in the same manner that it respects those international treaties signed by Chile, that continue in effect. [11]

2) The Parlamentos: Chile 's illegal occupation of Ragko Mapu

As the legal foundation of an argument supporting Mapuche self-determination, the following assertions can be established. First, according to the Parlamento de Tapihue and the 28 other parlamentos signed with Spain, Chilean jurisdiction does not extend south of the Bío-Bío River. The land appropriation laws under Governor Montt, in 1852, and Governor Perez, in 1866, which parcelled out and sold over 11,000,000 hectares of land in Mapuche territory, were extra-territorial and illegal. Second, the final military campaign against the Mapuche from 1860-1883, known, as the "Pacification of the Araucania," was an undeclared war and in violation of the Parlamento de Negrete and Tapihue. This aggression constituted an act of "piracy and banditry," which, according to Chilean civil law, "does not transfer ownership." Therefore, either claim by the Chilean state to sovereignty based on settlement or military conquest is illegitimate. State assertion of sovereignty south of the Bío-Bío remains merely a "de facto reality but not a right" (Marhikewun, 2000).

A ccording to José Lincoqueo, a lawyer and Mapuche activist, this argument linking colonial and republican parlamentos with Chilean civil and constitutional law has the potential to stimulate a "social atomic bomb" amongst the Mapuche. It is a legal challenge that could re-invigorate Mapuche opposition to the legitimacy of Chilean sovereignty (Guzmán, 1998). Indeed, many Mapuche organisations regard the parlamentos as providing the foundation for a future model of self-determination throughout Ragko Mapu . Consejo de Todas las Tierras has stated that:

the rights the Mapuche people as a Nation claim today.[are] explicitly ratified in the Mapuche-Spanish Parlamentos . These documents.remain in effect today despite the fact that the Chilean and Argentinean states deny their validity. They constitute legal protection when it comes to the time of claiming Mapuche ancestral and collective rights, such as self-determination ( Consejo de Todas las Tierras, 1998).

3) The Parlamentos: Living Treaties

In an interview with Mapuche International, José Lincoqueo argued that "the signing of treaties between the Mapuche and Spain constituted a formal recognition of the existence and independence of each nation by the other[,].a solemn pact.irrevocable and unmodifiable, [where] neither party can argue that today we recognise you but tomorrow no "(Mariqueo 1999). The fact that these agreements were signed two hundred years ago does not make them irrelevant, argues Lincoqueo, since "a thousand years could pass and the terms of the parlamentos would remain valid " (Fuentes 1998). This perspective, while controversial, is gaining support within the international legal field. For example, the United Nations has taken up the challenge of examining the status of historical indigenous-settler treaties within the contemporary rule of international law.

According to the 1999 report by the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Lincoqueo's argument that the parlamentos remain in effect is in keeping with general principles of international law. Based on pacta sunt servanda , the cornerstone of international treaty law and enshrined in article 26 of the Vienna Convention, treaties signed with indigenous nations, "maintain their original status and continue fully in effect " (Martinez, 1997, p271). More specifically, t he continuing importance of the parlamentos is a view shared by the United Nations Special Rapporteur Miguel A. Martinez in his Final Report of the Study on Treaties . In his findings, Martinez concludes that, taking into consideration their origin, causes and development, the parlamentos can be compared, in some aspects, to certain Indigenous treaties in British and French North America (Martinez, 1997, p107). As such, "there are.juridical obligations.with the 'Indians' through negotiation and legally binding instruments." (Martinez, 1997, note# 108). With regard to the Mapuche Nation's status in the parlamentos vis-à-vis Spain and Chile, a 1992 UN report states that: "whatever present-day notions may be sustained about indigenous 'self-determination,' 'nationhood' and 'sovereignty,' the fact still stands that in the early juridical relations between indigenous and non-indigenous societies, the European parties were very much aware that their indigenous counterparts indeed acted as sovereign nations" (Martinez, 1992).

Two centuries of formal diplomatic relations, from 1641-1825, places the Mapuche in a unique position amongst the indigenous nations of Latin America . It imposes a treaty-based obligation on behalf of the Chilean state to address Mapuche demands for land rights and self-determination. It is an important legal tool, one built upon an historical and contemporary understanding that the parlamentos signed between Spain , Chile and the Mapuche were nation-to-nation agreements, recognising Mapuche self-determination. According to the principle of pact sunt servanda and other tenets of contemporary international law, these treaties continue in effect; the Mapuche remain an "independent nation" whose traditional territories exist, despite land allotment acts and military invasion, recognised and protected under Chilean civil and international law.

Having established that Mapuche nationhood and territorial integrity continue to exist, the paper will now examine whether international developments in indigenous rights, beyond pact sunt servanda , can offer the Mapuche recourse in their struggle for self-determination. Three key initiatives will be examined, the International Labour Organization's Convention 169, the UN Draft Declaration on Indigenous Peoples and the Organization of American States Proposal on Indigenous People. In reviewing these initiatives, the paper will examine the receptiveness of the Chilean government to these evolving legal standards and determine what impact they may have in relations between the Mapuche Nation and Chilean state.

Chile, the Mapuche and international indigenous rights

In 1997 the Unrepresented Peoples and Nations Organization (UNPO) [12] passed the "Resolution on the Mapuche of Chile." The declaration called on the Government of Chile to recognise the right of self-determination of the Mapuche Nation, requesting the government to respect and uphold its own and all international laws concerning indigenous peoples (UNPO 1997). Over the last twenty-years, international law concerning indigenous peoples has been evolving, attempting to accommodate indigenous demands for self-determination and autonomy. In 1970, the Sub-Commission on the Prevention of Discrimination and Protection of Minorities recommended a comprehensive study of the problem of discrimination against indigenous peoples. In 1971, Jose Martinez Cobo was appointed Special Rapporteur for the study. His final report was submitted to the Sub-Commission during the years 1981-1984. It became the foundation for future UN work relating to indigenous peoples. Following his landmark study, the United Nations founded a Working Group on Indigenous Populations (WGIP). [13]Since the establishment of the WGIP in 1982, a growing interest in accommodating indigenous aspirations has led to a number of other important initiatives.

The International Labour Organisation Convention on Indigenous and Tribal Peoples, Convention No. 169 (ILO 169), is international law's most concrete manifestation of the growing responsiveness to indigenous peoples' demands ( Anaya, 1997). Adopted by the ILO in 1989, it requires ratifying states to take "special measures" to protect the rights of indigenous peoples and their territories. For instance, Article 7 (1) promotes the right of indigenous peoples "to exercise control.over their economic, social and cultural development." According to commentator James Anaya, ILO 169 is significant insofar as it creates "treaty obligations among ratifying states in line with current trends in thinking prompted by indigenous peoples' demands" ( Anaya, 1997). These states, Anaya continues, have reached a "certain new common ground about minimum standards that should govern behaviour toward indigenous peoples" ( Anaya, 1997). As such, the ratification of ILO 169 by the Chilean government remains a key issue for Mapuche organizations and their supporters ( International Peace Bureau, 1998).

In 1992, the WGIP issued its Draft Declaration on the Rights of Indigenous Peoples, which was developed with substantial indigenous participation. The Declaration would be legally non-binding, even if ratified by the General Assembly. As such, t he UN Draft Declaration goes beyond Convention No. 169, especially in its bold statements in areas of indigenous self-determination, land and resource rights, and rights of political autonomy . The Draft recognises that "indigenous peoples, in agreement with international law, have the right to self-determination, for which they can freely determine their political status and their institutions, as well as decide the economic, social and cultural development they aspire to. This includes, as a fundamental part, their right to autonomy and self-government" ( United Nations Working Group on Indigenous Peoples, 1993).

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