Jorge Derpic
Assistant Professor, Sociology & Latin American and Caribbean Studies
(University of Georgia )
Chile is in the process of harmonizing the first draft of a potential new constitution with national and international legal frameworks. If further approved through a national referendum, the new constitution could turn Chile into the third Latin American state to embrace the concept of plurinationality as one of its core principles. Ecuador in 2008, and Bolivia in 2009, incorporated the concept into their most recent constitutions. While Bolivia officially changed its name from Republic to Unitary Social State of Plurinational and Communitarian Law, both countries went beyond officially recognizing indigenous and Afro-American peoples and nations within their national territories. They also established different degrees for the autonomous governance of indigenous peoples while respecting their self-determination. The Chilean constitution promises to follow the same path.
Chile is in the process of harmonizing the first draft of a potential new constitution with national and international legal frameworks. If further approved through a national referendum, the new constitution could turn Chile into the third Latin American state to embrace the concept of plurinationality as one of its core principles. Ecuador in 2008, and Bolivia in 2009, incorporated the concept into their most recent constitutions. While Bolivia officially changed its name from Republic to Unitary Social State of Plurinational and Communitarian Law, both countries went beyond officially recognizing indigenous and Afro-American peoples and nations within their national territories. They also established different degrees for the autonomous governance of indigenous peoples while respecting their self-determination. The Chilean constitution promises to follow the same path.
In principle, the notion of plurinationality challenges Latin American states’ modernizing and multicultural projects of the last two centuries. In first place, it challenges the idea of an ethnically and culturally homogeneous nation-state, an imagined community of equals that live under and abide by similar rights and obligations within the same territory. Similarly, Plurinationality, challenges state modernizing projects of the early and mid-20th century which promoted mestizaje, or racial mixture, as a core Latin American feature that allowed states to move closer to (racially white) Eurocentric ideals of progress. Finally, Plurinationality offers to go radically beyond multicultural projects that in the late 20th century fostered the recognition of ethnically diverse populations living in Latin America since pre-Hispanic times. De-centering long-term social class and core-periphery struggles, the ideal of Plurinationality seeks to transform unequal power relations by placing diverse ethnic national identities at the center of renewed emancipatory and decolonizing nation-state projects.
Their transformative potential notwithstanding, the actual implementation of the ideals of plurinational state projects have generated a series of tensions and encountered many obstacles. Among them, the subordination of indigenous nations to nation-state development projects and ordinary justice systems, as well as the limited ability to deepen indigenous peoples and nations’ autonomous governance. In this article, I present an overview of some of the common themes found in 21st century constitutional plurinationality already present in Ecuador and Bolivia, and potentially emerging in Chile. I start by describing what plurinationality implies in the three constitutions, then center the attention on three key themes, the tension between extractivism and environmental protections, the limits of indigenous autonomy, and the subordination of indigenous justice systems. Following other authors, I conclude by pointing to the importance of plurinationality as an ideal and the need for further transforming the nation-state’s bureaucratic structure and ultimate goals to successfully respond to the needs of indigenous nations.
Plurinationality origins, goals, and principles.
Indigenous peoples have different shares of the overall population in Bolivia, Ecuador, and Chile. In 2012, when the last census took place, more than four million Bolivians, or 42 percent, self-identified as indigenous. While still significantly higher than its Latin American neighbors, the rough numbers of indigenous self-identification have remained practically constant, although the actual share went down by 20 percent in relation to the 2001 census. Ecuador, in turn, reported 1,1 million inhabitants (6 percent) of indigenous origin in the 2010 census. Distributed in 14 nationalities, more than eight out of ten individuals self-identifying as indigenous belong to the Kichwa nation. Lastly, 2,1 million (12 percent) self-identified as indigenous in the 2017 Chilean census with the overwhelming majority - almost 1,8 million – affirming to have Mapuche origins.
As noted above, one feature of Plurinationality consists of the nation-state’s official recognition of diverse ethnic nations and peoples which coexist with the mainstream identity of the nation-state. In Bolivia, for example, the 2009 constitution officially recognized 36 “native-peasant indigenous peoples and nations” (Article 5), which grew to 39 in the national census of 2012. Similarly, the Ecuadorian constitution from 2008 broadly recognized the existence of “indigenous communities, peoples and nations, the Afro-Ecuadorian people, the back-country people (montubios) of the inland coastal region, and communes.” (Article 56) And the Chilean constitutional draft specifically mentions eleven “pre-existent indigenous nations and peoples” opening up the possibility for more official recognition in the future (Article 4).
Despite its seeming novelty in relation to homogenizing nation-state projects in Latin America, the official recognition of ethnic diversity is rather a continuation of multicultural policies from the 1990s. Known as state-sponsored multiculturalism (Hale 2002) these policies encouraged states to officially recognize certain indigenous peoples’ rights, customs, and traditions. However, under multiculturalism, unequal power relations between the state and indigenous peoples remained practically untouched. Partially rooted in international conventions, such as the 169 International Labor Organization’s Indigenous and Tribal Peoples Convention (1989), multiculturalism tended to emphasize elements of indigenous identity that did not challenge the primacy of the central state. For instance, in the constitutional reform from 1994, the Bolivian government officially recognized the economic, social, and cultural rights of indigenous peoples and took a first step towards the recognition of their own mechanisms of conflict resolution.
The ideal of plurinationality, in contrast, opened the opportunity for indigenous peoples and nations to have a greater control and decision power over specific matters that interest them. Key to these goals are the notions of indigenous self-determination and autonomous governance, originated in the long-term struggles of indigenous peoples in the Latin American Andes, against the impositions of the Colonial and Republican states (Rivera 1986; Hylton & Thomson 2007; Thomson 2002). Indigenous self-determination and autonomy consist of these peoples’ aspirations to govern themselves through their own principles and mechanisms and their ability to choose their political destinies, something that multiculturalism tended to leave out.
Additionally, while multicultural policies emphasized harmonious relations between mainstream national identities and indigenous peoples and nations, plurinationality addresses unequal relations of power. Specifically, the constitutions based on plurinational principles offer indigenous and other nations living within the nation-state territory greater control and decision power over their ancestral land while enjoying the benefits of natural resources located within their territories.
Similarities and Differences
The constitutions of Ecuador, Bolivia, and Chile express the plurinational ideal in similar terms although with slight variations in some cases. The three countries maintain the primacy of the nation-state and the Constitution while simultaneously recognizing cultural rights and granting different degrees of decision power and self-governance prerogatives to indigenous nations and peoples. Similarly, they assert their intention to protect indigenous peoples’ collective rights, languages, and ancestral land territories as well as allow indigenous nations to apply their traditional and ancestral mechanisms of conflict resolution in certain cases. Finally, all these constitutions acknowledge indigenous nations’ rights to prior consultation for state laws and decisions that affect them.
Differences emerge when looking at the specific content of some of these items. For instance, while the three countries maintain Spanish as an official national language, Chile and Ecuador place it above regional indigenous languages. Although initially recognized as official through a Supreme Decree in 2000, Bolivia’s plurinational constitution places the 36 official indigenous languages side by side with Spanish. Ecuador adds two additional official languages for intercultural purposes (Kichwa, and Shuar) and, like the Chilean constitutional project, proposes a tiered hierarchy of languages. In Chile, Spanish remains the official language of the country while indigenous languages become official within indigenous regions or where there is a high-density of indigenous population (Article 12).
Interestingly, Chile and Bolivia dedicate exclusive representation slots for indigenous peoples within the national legislatures. Additionally, Bolivia grants indigenous representatives exclusive representation slots in state institutions such as the Electoral and Constitutional courts. The mechanisms for electing indigenous legislators vary as well. In Chile, the new constitutional draft proposes a single national district with a yet to be defined number of indigenous candidates that, once elected, will be added to the current members of Congress. In Bolivia, the Electoral Court created seven special indigenous districts in different places of the country. Per the constitution, each of these districts counts with one representative elected in areas where indigenous peoples are a minority. As a pre-condition, these areas should count with continuous territorial and cultural geographical areas that do not overlap or surpass departmental (the equivalent of the states in the U.S.) boundaries.
The reality of plurinationality in Bolivia and Ecuador
Despite its promises and potential, the plurinational projects of Ecuador and Bolivia have encountered some obstacles along the way, and, at times, have fallen into contradictions when applied on the ground. National development projects and extractive industries that affect the environment; the slow and often difficult introduction of indigenous autonomies; as well as the limits imposed on indigenous justice jurisdictions are worthy of attention.
Nation-state development. The problem with extractive industries
In first place, both Ecuador and Bolivia have incorporated the post-developmental principle of Vivir Bien or Buen Vivir (Living Well) in their constitutions. Based on indigenous peoples’ ontologies and epistemological perspectives about the environment (Merino 2016, Postero 2017), Vivir Bien promotes a harmonious relationship with the environment. The concept is also associated with the Rights of Nature, which Ecuador incorporated as a constitutional principle in 2008 (Akchurin 2015), and Bolivia recognized through a law in 2010. The Chilean constitutional project includes the Rights of Nature to protect, regenerate, and maintain the environment (Chapter 5. Art. 5).
In Bolivia and Ecuador, these principles have entered into tension with two types of problems. On one hand, they have run into national development projects led by the central state. On the other hand, the central state and private actors’ reliance on extractive industries to obtain revenue or accumulate wealth have jeopardized the environmental protections established in the constitution. As Roger Merino (2016) has noted, one of the problems with the Vivir Bien ideals is that its proponents have not addressed the political economy of international relations. Latin American nations who depend on extractive industries to subsist do not have the luxury of purely getting rid of the revenue obtained from exploiting their natural resources. However, preserving revenue over other ideals has generated other tensions.
Indeed, within the last decade, Ecuador – and Bolivia – have been immersed in different confrontations between anti- and pro-extractivist paradigms. Using the language and some articles from the 2008 constitution, Ecuadorian indigenous and left-wing anti-extractivist organizations have mobilized against central state attempts to exploit natural resources. They did it through strategic interpretations of the constitution and the environmentally conscious and indigenous self-determination principles it enshrines (Riofrancos 2020). On the other end, pro-extractivist state officials, also ideologically aligned to the Left, mobilized anti-Imperialist sentiments and national development ideals to promote the exploitation of natural resources (Riofrancos 2020). The changes produced in the ideological orientation of the central government due to recent elections have not ended, but rather, exacerbated the tensions. In the more recent waves of protests led by indigenous organizations in 2019 and 2022, they continue to demand the state to respect indigenous self-determination in matters that affect their territory, especially when it comes to the exploitation of natural resources.
In Bolivia, the administration of former president Evo Morales heavily relied on the revenues produced by natural resources as well. In 2011, this excessive reliance led the government to attempt imposing a new highway through the Isiboro Sécure National Park and Indigenous Territory (TIPNIS). Resuscitating a decades-long project the Morales’ government acted like some of its predecessors by omitting getting consent from the indigenous nations living in the area to move forward with the project. While the government presented the highway as an effort to integrate the region to the national road network, two underlying objectives became patently clear. First, the government’s intention to ignite natural gas resources exploration. And second, the intention to benefit migrant communities aligned with Morales’ party, the Movement Towards Socialism (MAS), by granting them land ownership within the TIPNIS. Coca-leaf growers from the MAS’ core base of support from nearby the national park were going to be the main beneficiaries.
The highway project triggered local-indigenous and national-level mobilization, which in the case of indigenous marchers, the government heavily repressed. However, failing to tame the protests, in October of 2011, Morales saw himself forced to sign a law that declared the TIPNIS an intangible territory protected from natural resources exploitation. This victory for indigenous residents of the TIPNIS, however, stood in place only momentarily. In early 2012, Morales signed a controversial prior consultation law to ask TIPNIS inhabitants if they agreed with the intangible status of the TIPNIS. Five years later, based on the results of the consultation process, Morales signed a new law that made the TIPNIS national park once again available for natural resources exploitation.
Unable to protect their lands through Bolivian legislation, indigenous organizations from the TIPNIS reached out to the International Rights of Nature Tribunal as a last recourse. In 2019, after an on-site visit, the Tribunal concluded that the Morales’ government had not carried out a fair consultation process and had violated two kinds of rights: The Rights of Nature and the collective rights of indigenous nations living in the area. Consequently, the Tribunal demanded the Bolivian government to offer restitution to indigenous nations for the abuses committed against them, as well as to halt any colonization project whether for coca-leaf growing or oil expansion (International Rights of Nature Tribunal 2019).
Indigenous Autonomy and Justice in Bolivia
In addition to the tensions around land and the management of natural resources, Bolivia has faced two additional shortcomings in key areas of the plurinational constitution. The implementation of indigenous autonomies has been far from an expedite process while indigenous justice has remained subordinated to the ordinary justice system with even less prerogatives than under the preceding multicultural policies. Moreover, the way indigenous justice has conceived detaches it from the current social dynamics of highly mobile and connected indigenous peoples (Goldstein 2012). While it may be still too soon to reach definitive conclusions, the problems in these two areas raise questions about the feasibility and potential reach of the plurinational ideal.
In order to become an autonomous government, indigenous nations in Bolivia need to follow a series of bureaucratic steps and operate under the sight of the central state. These steps include, a local referendum to approve the decision to become an autonomous government; elaborating, filing and getting their statutes (their local constitutions) approved; and the official approval of indigenous autonomy via a law signed by the Plurinational Legislative Assembly. As noted by Costas and López (2022), the state intervenes in each of these steps, reducing the ability of indigenous nations to exercise their self-determination. For instance, besides voting to request becoming an autonomous government, indigenous nations seeking to become autonomous need to obtain two certificates from the central government. One confirming that they are indeed “ancestral peoples” and another one demonstrating that a local government is actually feasible. Then, the Constitutional Court checks the indigenous statutes for consistency with the constitution and international rights conventions. If the Plurinational Constitutional Court approves it, the Plurinational Legislative Assembly grants the indigenous autonomous government official status via a law. Prior to 2019, a second referendum where the indigenous community voted to approve the statutes was also needed, further complicating the application process.
Due to the difficulties in getting autonomies approved, at present, Bolivia counts with only five official indigenous autonomous territories and an additional one with an approved statute but still expecting the law from the Legislative Assembly. While the ideal of indigenous autonomy still holds potential for transforming the state “from below” (Copa, Kennemore and Canelas 2021), a deeper transformation of the bureaucratic structure and tutelage of the central state are necessary for indigenous peoples to obtain greater degrees of autonomous governance.
Finally, while the 2009 Bolivian plurinational constitution grants indigenous, native, and peasant justice (JIOC) systems the same status as ordinary justice, the subsequent legislation has, for the most part, reduced the prerogatives of JIOC (Derpic 2012). Indeed, the specifics introduced by the 2010 Jurisdictional Demarcation Law (Ley de Deslinde Jurisdiccional) which determines the boundaries of JIOC vis-a-vis state law, establish that JIOC authorities can only solve minor issues and are obligated to delegate the most serious cases to the ordinary justice system. For instance, indigenous peoples are not only expected to collaborate with the ordinary justice system in most cases, but their prerogatives have been reduced to contemplate only civil offenses.
While there are examples of the relatively successful application of indigenous justice mechanisms in some settings, such as in the case of Zongo (Copa-Pabón, Kennemore and López Canelas 2021), the way in which the constitution articulates indigenous justice seems outdated. Not only the JIOC label puts into the same bag a broad variety of indigenous mechanisms of conflict resolution (Goldstein 2012; Fernandez 2000). It also portrays indigenous justice as rural, racially pure, and located in the distant pre-Hispanic past. Such perspective denies the influence of the Colonial and Republican experiences in the life and forms of indigenous peoples, but also the fluid exchanges that indigenous peoples from today hold with the national, regional, and global cultures.
Conclusions
The plurinational constitutions of Ecuador and Bolivia, as well as the constitutional project of Chile offer an opportunity to re-think the basic principles and aims of Latin American nation-states. Plurinationality not only implies the further recognition of indigenous peoples and nations’ rights, but also promises new avenues to challenge long-standing unequal relations of power. Granting indigenous peoples greater degrees of autonomous governance and decision power, while recognizing their rights and forms of organization is definitely a step forward toward much needed reparations for the centuries of domination and oppression to which these populations have been subjected.
However, despite the transformative potential of the plurinationality idea, its on-the-ground application in Ecuador and Bolivia has arisen tensions and encountered different obstacles. Paradoxically, these sets of problems have emerged from the actions and inactions of the very governments that promoted the incorporation of plurinationality in their corresponding constitutions. Within this context, it seems indispensable for these countries to move toward a more profound transformation of the bureaucratic structure and ultimate goals of the nation-state. Only with this ideal in mind, perhaps Chile will be able to apply a new - not only heavily symbolic – perspective to plurinationality on the ground, but also the Bolivian and Ecuadorian states will begin to pay more attention to the needs of the indigenous nations living within their territories.
Works cited
Akchurin, Maria. 2015. “Constructing the Rights of Nature: Constitutional Reform, Mobilization, and Environmental Protection in Ecuador”. Law & Social Inquiry 40(4): 937-968. doi:10.1111/lsi.12141
Convención Constitucional de Chile. 2022. Propuesta de Borrador Constitucional. Retrieved from: https://www.chileconvencion.cl/wp-content/uploads/2022/05/PROPUESTA-DE-BORRADOR-CONSTITUCIONAL-14.05.22.pdf. Access date: June 1, 2022.
Copa-Pabón, Magali V., Amy M. Kennemore and Elizabeth López-Canelas. 2021. “El thaki (camino) de las autonomías indígenas en Bolivia. Una mirada desde el territorio del Jatun Ayllu Yura de la Nación Qhara Qhara.” Pp. 381-405. In Autonomías y autogobierno en la América Diversa, edited by M. González et al. Universidad Politécnica Salesiana. Ecuador
Costas M., Patricia and Pabel López. 2022. “Autonomías indígenas en Bolivia. Los desafíos en la construcción de un nuevo pacto social plurinacional.” Pp. 25-48 In Luchas territoriales por las autonomías indígenas en Abya Yala: Diálogos de saberes desde la Amazonía sur, Bolivia, edited by Luciana García G. and Fátima Monasterio M. El Colectivo.
Derpic, Carlos. 2012. "Nueva Constitución Política del Estado y jurisdicción indígena originario campesina en Bolivia." Revista de Derechos Humanos y Estudios Sociales (REDHES) 7(1):43-63.
Fernández Osco, Marcelo. 2000. La Ley del Ayllu: Práctica de Jach'a Justicia y Jisk'a Justicia (Justicia Mayor y Justicia Menor) en las Comunidades Aymaras. La Paz: Fundación PIEB.
Goldstein, Daniel M. 2012. Outlawed: between security and rights in a Bolivian city. Duke University Press.
Hale, Charles R. 2002. “Does Multiculturalism Menace? Governance, Cultural Rights and the Politics of Identity in Guatemala.” Journal of Latin American Studies 34(3): 485–524.
Hylton, Forrest, and Sinclair Thomson. 2007. Revolutionary horizons: Past and present in Bolivian politics. Verso Books.
International Rights of Nature Tribunal. 2019. Case of the Isiboro Sécure National Park and Indigenous Territory (TIPNIS). Final Judgment. Retrieved from: https://www.rightsofnaturetribunal.org/wp-content/uploads/2018/04/sentence-tipnis.pdf. Access date: July 20, 2021.
Merino, Roger. 2016. "An alternative to ‘alternative development’?: Buen vivir and human development in Andean countries." Oxford Development Studies 44(3): 271-286.
Postero, Nancy, 2017. The Indigenous State. Race, Politics, and Performance in Plurinational Bolivia. University of California Press.
Riofrancos, Thea. 2020. Resource radicals: From petro-nationalism to post-extractivism in Ecuador. Duke University Press.
Thomson, Sinclair. 2002. We alone will rule: native Andean politics in the age of insurgency. University of Wisconsin Press.
República del Ecuador. 2008. Constitución de la República del Ecuador.
Rivera Cusicanqui, Silvia , 2003. Oprimidos pero no vencidos: luchas del campesinado aymara y qhechwa, 1900-1980. Aruwiyiri, Editorial del Taller de Historia Oral Andino (THOA).
Solón, Pablo. 2017. “TIPNIS: the Saga for the Rights of Nature and Indigenous People.” Retrieved from: https://www.counterpunch.org/2017/12/08/tipnis-the-saga-for-the-rights-of-nature-and-indigenous-people/ Access date: June 10, 2022.
In principle, the notion of plurinationality challenges Latin American states’ modernizing and multicultural projects of the last two centuries. In first place, it challenges the idea of an ethnically and culturally homogeneous nation-state, an imagined community of equals that live under and abide by similar rights and obligations within the same territory. Similarly, Plurinationality, challenges state modernizing projects of the early and mid-20th century which promoted mestizaje, or racial mixture, as a core Latin American feature that allowed states to move closer to (racially white) Eurocentric ideals of progress. Finally, Plurinationality offers to go radically beyond multicultural projects that in the late 20th century fostered the recognition of ethnically diverse populations living in Latin America since pre-Hispanic times. De-centering long-term social class and core-periphery struggles, the ideal of Plurinationality seeks to transform unequal power relations by placing diverse ethnic national identities at the center of renewed emancipatory and decolonizing nation-state projects.
Their transformative potential notwithstanding, the actual implementation of the ideals of plurinational state projects have generated a series of tensions and encountered many obstacles. Among them, the subordination of indigenous nations to nation-state development projects and ordinary justice systems, as well as the limited ability to deepen indigenous peoples and nations’ autonomous governance. In this article, I present an overview of some of the common themes found in 21st century constitutional plurinationality already present in Ecuador and Bolivia, and potentially emerging in Chile. I start by describing what plurinationality implies in the three constitutions, then center the attention on three key themes, the tension between extractivism and environmental protections, the limits of indigenous autonomy, and the subordination of indigenous justice systems. Following other authors, I conclude by pointing to the importance of plurinationality as an ideal and the need for further transforming the nation-state’s bureaucratic structure and ultimate goals to successfully respond to the needs of indigenous nations.
Plurinationality origins, goals, and principles.
Indigenous peoples have different shares of the overall population in Bolivia, Ecuador, and Chile. In 2012, when the last census took place, more than four million Bolivians, or 42 percent, self-identified as indigenous. While still significantly higher than its Latin American neighbors, the rough numbers of indigenous self-identification have remained practically constant, although the actual share went down by 20 percent in relation to the 2001 census. Ecuador, in turn, reported 1,1 million inhabitants (6 percent) of indigenous origin in the 2010 census. Distributed in 14 nationalities, more than eight out of ten individuals self-identifying as indigenous belong to the Kichwa nation. Lastly, 2,1 million (12 percent) self-identified as indigenous in the 2017 Chilean census with the overwhelming majority - almost 1,8 million – affirming to have Mapuche origins.
As noted above, one feature of Plurinationality consists of the nation-state’s official recognition of diverse ethnic nations and peoples which coexist with the mainstream identity of the nation-state. In Bolivia, for example, the 2009 constitution officially recognized 36 “native-peasant indigenous peoples and nations” (Article 5), which grew to 39 in the national census of 2012. Similarly, the Ecuadorian constitution from 2008 broadly recognized the existence of “indigenous communities, peoples and nations, the Afro-Ecuadorian people, the back-country people (montubios) of the inland coastal region, and communes.” (Article 56) And the Chilean constitutional draft specifically mentions eleven “pre-existent indigenous nations and peoples” opening up the possibility for more official recognition in the future (Article 4).
Despite its seeming novelty in relation to homogenizing nation-state projects in Latin America, the official recognition of ethnic diversity is rather a continuation of multicultural policies from the 1990s. Known as state-sponsored multiculturalism (Hale 2002) these policies encouraged states to officially recognize certain indigenous peoples’ rights, customs, and traditions. However, under multiculturalism, unequal power relations between the state and indigenous peoples remained practically untouched. Partially rooted in international conventions, such as the 169 International Labor Organization’s Indigenous and Tribal Peoples Convention (1989), multiculturalism tended to emphasize elements of indigenous identity that did not challenge the primacy of the central state. For instance, in the constitutional reform from 1994, the Bolivian government officially recognized the economic, social, and cultural rights of indigenous peoples and took a first step towards the recognition of their own mechanisms of conflict resolution.
The ideal of plurinationality, in contrast, opened the opportunity for indigenous peoples and nations to have a greater control and decision power over specific matters that interest them. Key to these goals are the notions of indigenous self-determination and autonomous governance, originated in the long-term struggles of indigenous peoples in the Latin American Andes, against the impositions of the Colonial and Republican states (Rivera 1986; Hylton & Thomson 2007; Thomson 2002). Indigenous self-determination and autonomy consist of these peoples’ aspirations to govern themselves through their own principles and mechanisms and their ability to choose their political destinies, something that multiculturalism tended to leave out.
Additionally, while multicultural policies emphasized harmonious relations between mainstream national identities and indigenous peoples and nations, plurinationality addresses unequal relations of power. Specifically, the constitutions based on plurinational principles offer indigenous and other nations living within the nation-state territory greater control and decision power over their ancestral land while enjoying the benefits of natural resources located within their territories.
Similarities and Differences
The constitutions of Ecuador, Bolivia, and Chile express the plurinational ideal in similar terms although with slight variations in some cases. The three countries maintain the primacy of the nation-state and the Constitution while simultaneously recognizing cultural rights and granting different degrees of decision power and self-governance prerogatives to indigenous nations and peoples. Similarly, they assert their intention to protect indigenous peoples’ collective rights, languages, and ancestral land territories as well as allow indigenous nations to apply their traditional and ancestral mechanisms of conflict resolution in certain cases. Finally, all these constitutions acknowledge indigenous nations’ rights to prior consultation for state laws and decisions that affect them.
Differences emerge when looking at the specific content of some of these items. For instance, while the three countries maintain Spanish as an official national language, Chile and Ecuador place it above regional indigenous languages. Although initially recognized as official through a Supreme Decree in 2000, Bolivia’s plurinational constitution places the 36 official indigenous languages side by side with Spanish. Ecuador adds two additional official languages for intercultural purposes (Kichwa, and Shuar) and, like the Chilean constitutional project, proposes a tiered hierarchy of languages. In Chile, Spanish remains the official language of the country while indigenous languages become official within indigenous regions or where there is a high-density of indigenous population (Article 12).
Interestingly, Chile and Bolivia dedicate exclusive representation slots for indigenous peoples within the national legislatures. Additionally, Bolivia grants indigenous representatives exclusive representation slots in state institutions such as the Electoral and Constitutional courts. The mechanisms for electing indigenous legislators vary as well. In Chile, the new constitutional draft proposes a single national district with a yet to be defined number of indigenous candidates that, once elected, will be added to the current members of Congress. In Bolivia, the Electoral Court created seven special indigenous districts in different places of the country. Per the constitution, each of these districts counts with one representative elected in areas where indigenous peoples are a minority. As a pre-condition, these areas should count with continuous territorial and cultural geographical areas that do not overlap or surpass departmental (the equivalent of the states in the U.S.) boundaries.
The reality of plurinationality in Bolivia and Ecuador
Despite its promises and potential, the plurinational projects of Ecuador and Bolivia have encountered some obstacles along the way, and, at times, have fallen into contradictions when applied on the ground. National development projects and extractive industries that affect the environment; the slow and often difficult introduction of indigenous autonomies; as well as the limits imposed on indigenous justice jurisdictions are worthy of attention.
Nation-state development. The problem with extractive industries
In first place, both Ecuador and Bolivia have incorporated the post-developmental principle of Vivir Bien or Buen Vivir (Living Well) in their constitutions. Based on indigenous peoples’ ontologies and epistemological perspectives about the environment (Merino 2016, Postero 2017), Vivir Bien promotes a harmonious relationship with the environment. The concept is also associated with the Rights of Nature, which Ecuador incorporated as a constitutional principle in 2008 (Akchurin 2015), and Bolivia recognized through a law in 2010. The Chilean constitutional project includes the Rights of Nature to protect, regenerate, and maintain the environment (Chapter 5. Art. 5).
In Bolivia and Ecuador, these principles have entered into tension with two types of problems. On one hand, they have run into national development projects led by the central state. On the other hand, the central state and private actors’ reliance on extractive industries to obtain revenue or accumulate wealth have jeopardized the environmental protections established in the constitution. As Roger Merino (2016) has noted, one of the problems with the Vivir Bien ideals is that its proponents have not addressed the political economy of international relations. Latin American nations who depend on extractive industries to subsist do not have the luxury of purely getting rid of the revenue obtained from exploiting their natural resources. However, preserving revenue over other ideals has generated other tensions.
Indeed, within the last decade, Ecuador – and Bolivia – have been immersed in different confrontations between anti- and pro-extractivist paradigms. Using the language and some articles from the 2008 constitution, Ecuadorian indigenous and left-wing anti-extractivist organizations have mobilized against central state attempts to exploit natural resources. They did it through strategic interpretations of the constitution and the environmentally conscious and indigenous self-determination principles it enshrines (Riofrancos 2020). On the other end, pro-extractivist state officials, also ideologically aligned to the Left, mobilized anti-Imperialist sentiments and national development ideals to promote the exploitation of natural resources (Riofrancos 2020). The changes produced in the ideological orientation of the central government due to recent elections have not ended, but rather, exacerbated the tensions. In the more recent waves of protests led by indigenous organizations in 2019 and 2022, they continue to demand the state to respect indigenous self-determination in matters that affect their territory, especially when it comes to the exploitation of natural resources.
In Bolivia, the administration of former president Evo Morales heavily relied on the revenues produced by natural resources as well. In 2011, this excessive reliance led the government to attempt imposing a new highway through the Isiboro Sécure National Park and Indigenous Territory (TIPNIS). Resuscitating a decades-long project the Morales’ government acted like some of its predecessors by omitting getting consent from the indigenous nations living in the area to move forward with the project. While the government presented the highway as an effort to integrate the region to the national road network, two underlying objectives became patently clear. First, the government’s intention to ignite natural gas resources exploration. And second, the intention to benefit migrant communities aligned with Morales’ party, the Movement Towards Socialism (MAS), by granting them land ownership within the TIPNIS. Coca-leaf growers from the MAS’ core base of support from nearby the national park were going to be the main beneficiaries.
The highway project triggered local-indigenous and national-level mobilization, which in the case of indigenous marchers, the government heavily repressed. However, failing to tame the protests, in October of 2011, Morales saw himself forced to sign a law that declared the TIPNIS an intangible territory protected from natural resources exploitation. This victory for indigenous residents of the TIPNIS, however, stood in place only momentarily. In early 2012, Morales signed a controversial prior consultation law to ask TIPNIS inhabitants if they agreed with the intangible status of the TIPNIS. Five years later, based on the results of the consultation process, Morales signed a new law that made the TIPNIS national park once again available for natural resources exploitation.
Unable to protect their lands through Bolivian legislation, indigenous organizations from the TIPNIS reached out to the International Rights of Nature Tribunal as a last recourse. In 2019, after an on-site visit, the Tribunal concluded that the Morales’ government had not carried out a fair consultation process and had violated two kinds of rights: The Rights of Nature and the collective rights of indigenous nations living in the area. Consequently, the Tribunal demanded the Bolivian government to offer restitution to indigenous nations for the abuses committed against them, as well as to halt any colonization project whether for coca-leaf growing or oil expansion (International Rights of Nature Tribunal 2019).
Indigenous Autonomy and Justice in Bolivia
In addition to the tensions around land and the management of natural resources, Bolivia has faced two additional shortcomings in key areas of the plurinational constitution. The implementation of indigenous autonomies has been far from an expedite process while indigenous justice has remained subordinated to the ordinary justice system with even less prerogatives than under the preceding multicultural policies. Moreover, the way indigenous justice has conceived detaches it from the current social dynamics of highly mobile and connected indigenous peoples (Goldstein 2012). While it may be still too soon to reach definitive conclusions, the problems in these two areas raise questions about the feasibility and potential reach of the plurinational ideal.
In order to become an autonomous government, indigenous nations in Bolivia need to follow a series of bureaucratic steps and operate under the sight of the central state. These steps include, a local referendum to approve the decision to become an autonomous government; elaborating, filing and getting their statutes (their local constitutions) approved; and the official approval of indigenous autonomy via a law signed by the Plurinational Legislative Assembly. As noted by Costas and López (2022), the state intervenes in each of these steps, reducing the ability of indigenous nations to exercise their self-determination. For instance, besides voting to request becoming an autonomous government, indigenous nations seeking to become autonomous need to obtain two certificates from the central government. One confirming that they are indeed “ancestral peoples” and another one demonstrating that a local government is actually feasible. Then, the Constitutional Court checks the indigenous statutes for consistency with the constitution and international rights conventions. If the Plurinational Constitutional Court approves it, the Plurinational Legislative Assembly grants the indigenous autonomous government official status via a law. Prior to 2019, a second referendum where the indigenous community voted to approve the statutes was also needed, further complicating the application process.
Due to the difficulties in getting autonomies approved, at present, Bolivia counts with only five official indigenous autonomous territories and an additional one with an approved statute but still expecting the law from the Legislative Assembly. While the ideal of indigenous autonomy still holds potential for transforming the state “from below” (Copa, Kennemore and Canelas 2021), a deeper transformation of the bureaucratic structure and tutelage of the central state are necessary for indigenous peoples to obtain greater degrees of autonomous governance.
Finally, while the 2009 Bolivian plurinational constitution grants indigenous, native, and peasant justice (JIOC) systems the same status as ordinary justice, the subsequent legislation has, for the most part, reduced the prerogatives of JIOC (Derpic 2012). Indeed, the specifics introduced by the 2010 Jurisdictional Demarcation Law (Ley de Deslinde Jurisdiccional) which determines the boundaries of JIOC vis-a-vis state law, establish that JIOC authorities can only solve minor issues and are obligated to delegate the most serious cases to the ordinary justice system. For instance, indigenous peoples are not only expected to collaborate with the ordinary justice system in most cases, but their prerogatives have been reduced to contemplate only civil offenses.
While there are examples of the relatively successful application of indigenous justice mechanisms in some settings, such as in the case of Zongo (Copa-Pabón, Kennemore and López Canelas 2021), the way in which the constitution articulates indigenous justice seems outdated. Not only the JIOC label puts into the same bag a broad variety of indigenous mechanisms of conflict resolution (Goldstein 2012; Fernandez 2000). It also portrays indigenous justice as rural, racially pure, and located in the distant pre-Hispanic past. Such perspective denies the influence of the Colonial and Republican experiences in the life and forms of indigenous peoples, but also the fluid exchanges that indigenous peoples from today hold with the national, regional, and global cultures.
Conclusions
The plurinational constitutions of Ecuador and Bolivia, as well as the constitutional project of Chile offer an opportunity to re-think the basic principles and aims of Latin American nation-states. Plurinationality not only implies the further recognition of indigenous peoples and nations’ rights, but also promises new avenues to challenge long-standing unequal relations of power. Granting indigenous peoples greater degrees of autonomous governance and decision power, while recognizing their rights and forms of organization is definitely a step forward toward much needed reparations for the centuries of domination and oppression to which these populations have been subjected.
However, despite the transformative potential of the plurinationality idea, its on-the-ground application in Ecuador and Bolivia has arisen tensions and encountered different obstacles. Paradoxically, these sets of problems have emerged from the actions and inactions of the very governments that promoted the incorporation of plurinationality in their corresponding constitutions. Within this context, it seems indispensable for these countries to move toward a more profound transformation of the bureaucratic structure and ultimate goals of the nation-state. Only with this ideal in mind, perhaps Chile will be able to apply a new - not only heavily symbolic – perspective to plurinationality on the ground, but also the Bolivian and Ecuadorian states will begin to pay more attention to the needs of the indigenous nations living within their territories.
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