On September 4th, 2022, Chileans overwhelmingly rejected the text drafted by the Constitutional Convention, even after achieving levels of citizen participation that were widely considered unprecedented. The “reject” (“rechazo”) option alone garnered over 350,000 more votes than the total number of votes cast in the referendum that began the constituent process two years ago. The proposal of the Constitutional Convention was rejected in every single one of Chile’s 16 regions and in 338 of 346 counties. The numbers show that counties with the largest indigenous populations decided to reject the proposal by even larger margins than most counties. In Alto Biobío, where 84.2% of the population is indigenous, the “reject” option received 70.75% of the vote share. In Saavedra, where the indigenous population is 79.6%, the “reject” option won 68.05% of the votes. An extreme case is Colchane, where the “reject” option won an astounding 94.7% of the votes. In short, the text lauded as the “Indigenous Constitution” was roundly rejected by most of those it claimed to represent.
While it is impossible to identify all the factors that led to the draft’s failure, I highlight a few that illustrate the alienation of the Indigenous Peoples (“pueblos originarios”) from the Constitutional Convention as well as the rift between Chileans and the “Indigenous Constitution” drafted by the Constitutional Convention.
The relevance of mestizaje
A new constitution was an opportunity to construct a new social pact between Indigenous Peoples and the Chilean state. For this reason, leaders and political parties decided to reserve seats for Indigenous Peoples in the Constitutional Convention. Of the 155 Convention members, 17 were indigenous. This number was significant considering that 12% of the Chilean population identifies as indigenous according to the 2017 census, or perhaps somewhat higher based on the rate of participation registered by the Indigenous Peoples.
The indigenous members of the Constitutional Convention were chosen through a special electoral registry, which included all members of the Indigenous Peoples. However, only 22% of the voting-age indigenous population (283,473) voted for their preferred candidates in this special election to the Constitutional Convention. The remainder either did not vote or voted as part of the non-indigenous electoral registry. Some indigenous candidates were elected to the Convention after receiving less than 70 votes, and many others did not garner even 1,000 votes, while in the regular electoral registry several candidates obtained more than 20,000 votes.
Furthermore, the indigenous members of the Convention supported the most radical provisions considered by the Convention. One early empirical analysis based on the Convention members’ votes show that indigenous members often voted far to the left on the political spectrum. For example, a violent uprising occurred in the southern part of Chile during the Convention, and the Mapuche representatives had great difficulty rejecting violence as a method of political action.
Nevertheless, there is another factor that any analysis of the indigenous issue in Chile must consider. Chile has a high degree of mestizaje between indigenous peoples and other groups, meaning that it has a large mixed-race population. This means that there are many people who, while identifying themselves as indigenous, also identify themselves as Chileans. Thus, the worldview of the Indigenous Peoples is mixed with the national symbols of Chile, generating combinations and multi-dimensional identities that are difficult to classify. An example of the high degree of mestizaje in Chile is the enormous influence of Christianity among the Mapuche people. In Araucanía and in rural areas, the proportion of Catholic Mapuches tends to be the same as in the rest of the country, and the proportion of Evangelical Mapuches is double the national average. Moreover, the situations of the distinct groups of Indigenous Peoples are different in many respects. In other words, the social realities of the Mapuche people are not the same as those of other, smaller indigenous groups that were decimated in the early years of Chile’s colonization. Beyond the question of national identity, there are other major issues relevant to this area, such as the influence of drug trafficking organizations and radical indigenous groups that have declared war on the Chilean state.
The scant participation in the indigenous electoral register, the triumph of candidates who defended the most radical indigenous agendas, and the distance between those agendas and some people who identified themselves as members of an indigenous group are partly explained by the key facts outlined above. There is also the question of whether reserved seats are the best way to represent the enormous diversity among Indigenous Peoples in Chile. This question was relevant throughout the drafting process, as one of the proposals of the Constitutional Convention was to grant reserved seats to Indigenous Peoples in all state institutions, without considering these tensions.
One of the most heavily debated concepts during the constitutional discussion was plurinationality. According to its supporters, plurinationality as proposed by the Chilean Constitutional Convention followed the example of New Zealand and Canada. Leaving aside the fact that these countries have a completely different reality from Chile and do not have a long history of mestizaje, the main influence of the Chilean plurinational model was the 2009 Bolivian Constitution.
Although the members of the Constitutional Convention declared that it was a “concept-in-construction” and experienced serious issues defining it, plurinationality had many practical consequences and generated plenty of doubts in the citizenry across the country. Nearly every nationwide survey over the last four months indicated that one of the principal reasons to reject the proposal was plurinationality and its effects on people’s lives and on the relationship between Chileans and indigenous peoples. Despite the uncertainties, the Convention never fully accepted that the concept generated problems. When it became evident that the rejection campaign enjoyed a considerable advantage, the solution of Convention members was to qualify some of the effects of plurinationality through agreement on constitutional reforms, in the event that the “approval” campaign were to win. But it was already too late.
The main tensions behind the concept of plurinationality were indigenous consent, legal pluralism, land restitution policy and the creation of autonomous indigenous territories.
According to the draft text, Indigenous Peoples “have the right to use the resources they have traditionally used or occupied, which are found in their territories and indispensable for their collective existence” (Article 79). It also established that “restitution constitutes a preferential mechanism of reparation, of public utility and general interest” (Article 79). Along with this, a Land Restitution Commission was created, composed exclusively of representatives of the indigenous peoples, which was to decide which territories belonged to them and how they would be recovered. This provision was proposed in a context of increasing violence between radical indigenous groups and Chilean citizens, without considering how this step could intensify conflicts between the state and ethnic groups, as well as between landowners and members of the Native Peoples claiming lands. As the discussion progressed, the number of radical indigenous groups claiming land rights increased, not only in the south of the country, but also in the central zone. The proposal was also rather unclear: what exactly constitutes the “general interest”? What would be the costs of these expropriations given the fact that there is still no complete land register? How would the resources and territories of the indigenous peoples be defined? What level of influence would the indigenous peoples have in this decision? The Convention never managed to answer any of these questions in a clear and convincing manner.
Autonomous indigenous territories
The Convention’s proposal established the creation of autonomous indigenous territories, “where indigenous peoples and nations exercise rights of autonomy” (Article 234). It also stated that they should “have the necessary competencies and financing for the adequate exercise of the right of self-determination of indigenous peoples and nations” (Article 235). However, the proposal was risky: today the Chilean state has serious difficulties maintaining security and public order, to the point that the country’s central authorities are forbidden from entering certain areas. For instance, in the early days of President Gabriel Boric’s government, former Minister of the Interior Izkia Siches visited an indigenous community in the south of Chile and was expelled by an armed attack. What would happen to Chileans living in these indigenous territorial autonomies that do not belong to that ethnic group? What capacity would the Chilean state have to maintain the rule of law in these areas? People’s doubts about security increased when the Convention reduced some of the central government’s powers to take charge of public order, such as the state of emergency. However, the Convention never managed to address these doubts.
The Constitution draft recognized “the legal systems of Indigenous Peoples, which by virtue of their right to self-determination coexist on an equal footing with the National Justice System” (Article 309). In principle, a well-defined indigenous justice system could help to solve specific problems. Such a system, for instance, does work reasonably well in Colombia. However, the Convention’s proposal did not exclude criminal matters from indigenous justice, generating many doubts among the citizenry. In addition, it was indicated that people who did not belong to an indigenous group could also be brought before this justice system, which would be administered by indigenous authorities and not by Chilean judicial authorities. Furthermore, the enormous diversity of the indigenous population in Chile was once again ignored: do all native peoples have justice systems and rights known to the parties? Do all the ethnic groups have advanced enough systems to fulfill the legal requirements of a complex society? Is there an issue with equating the Mapuche people with the other indigenous peoples of Chile that are much smaller in size? What law would govern those who live within autonomous indigenous territories and do not belong to that ethnic group? Once again, the Convention never managed to answer any of these questions.
According to the Convention’s draft text, native peoples “shall be consulted and give their free, prior and informed consent” (Article 191) in all matters that affect them at the territorial level. This requirement generated enormous doubts since plurinationality and its implications are present throughout the entire text, so such a rule could increase the blockage of political deliberation and cause severe difficulties in designing public policy. In addition, it would grant disproportionate power to indigenous peoples to decide issues in which they would not be the only relevant actors. Finally, this formulation exceeded the criteria of ILO Convention 169: the standard of “free, prior, and informed consent” is not the general rule and is limited to specific cases. The Convention never managed to address this matter, and doubts about these issues persisted until the referendum.
This brief discussion describes some of the tensions created by the Constitutional Convention’s treatment of indigenous issues in the draft text. There were many issues in different areas, such as the political system, and the territorial organization of the state.
All these tensions suggest that the majority of the Constitutional Convention members did not understand that while it is true that Chileans wanted profound changes to the constitutional order, they also wished to maintain stability and avoid uncertainties. By taking a radically transformative approach, the members of the constituent body disconnected themselves from the general public. In other words, the profound failure of the Chilean constitutional design process is not explained by fake news but by the way the Convention played politics and failed to meaningfully address the myriad problems within their proposal. The Convention did not fully grasp that to design a constitution in a democracy necessitates transversal agreements that make sense to the majority of the public.
Despite the issues of the Constitutional Convention discussed above, there is no doubt about the desire for and movement toward a new constitution in Chile. We hope that the failures of the Convention provide us with lessons to avoid repeating the same mistakes in the process to come.
Suggested citation: Guillermo Pérez, The Illusion of Indigenous Representation, Int’l J. Const. L. Blog, Sept. 29, 2022, at: http://www.iconnectblog.com/2022/09/the-illusion-of-indigenous-representation/