Indigenous autonomies in Bolivia - Part I legal guidelines and gaps

The Andean Information Network, 03 February 2012, by Emma Banks

Bolivia’s new constitution sets important precedents for indigenous autonomy. Drawing from the 2007 United Nations Declaration on the Rights of Indigenous Peoples, the 2009 Constitution intends to grant greater self-determination to indigenous groups across the country. The 2010 Autonomy and Decentralization Framework Law outlines definitions and procedures for indigenous communities that wish to declare their autonomy. This legislation is an important step to grant indigenous peoples greater political rights by establishing government structures based on their own norms, procedures and institutions. Unfortunately, the bureaucratic process to declare and ratify autonomy is prohibitively complex. Many indigenous peoples have expressed frustration with this system and its potential implementation.

Their discontent reflects the gaps between theory and practice in applying a complex concept. While some indigenous groups have demanded autonomy since well before Evo Morales’ presidency, this “Framework Law” is the first official ratification of their right to self-determination. Several Bolivian municipalities are attempting to formalize their autonomy. While it is still too soon to tell how indigenous autonomies will take shape, legal and political analysis of the process reveals important challenges, possibilities, and future considerations.

Why indigenous autonomy?

Indigenous autonomy aims to recognize the rights of indigenous people to their own forms of government and social organization, in accordance with their identity, history, cosmovision, and culture. Furthermore, it seeks to challenge the colonial and post-colonial repression of indigenous peoples. In Bolivia, where almost 70 % of the population self-identifies as indigenous, autonomy represents an effort to recognize indigenous self-determination.

By redistributing political power and decision-making, the initiative attempts to permit self-governance, and is central to the MAS’s stated goals of “decolonization” and the construction of a plurinational state. During his presidential campaign, Evo Morales promised to restore the dignity of Bolivian First Nations. However, his administration has not prioritized the autonomy process, showing gaps between a discourse on indigenous rights and implementation of these promises. In particular, lowland indigenous groups including the Confederación de Pueblos Indígenas de Bolivia (CIDOB), which is the largest umbrella organization of lowland First Nations people, have rejected the new legislation for failing to incorporate their demands.

Legal framework: Important, but imperfect precedents

Defining and implementing indigenous autonomy is complicated by diverse needs, identities, and politics of indigenous groups and individuals. Furthermore, Bolivia is the first country to adopt indigenous autonomy after the signing of UN Declaration. As a result, no model exists to build on; nor would any other country’s system address Bolivia’s unique conundrums. The Constitution and Framework Law outline basic definitions and implementation guidelines, but unresolved issues remain. Furthermore, there is contradictory language in both documents.

The Constitution defines indigenous autonomy as: “self-governance through the free determination of indigenous peoples, First Nations, and campesinos who share a territory, culture, history, language, and legal, political, social, and economic organization or institutions.”

While this definition closely follows the UN Declaration, it does not clearly address the intersection of multiple ethnic groups, lack of language homogeneity, or the definition of ancestral territories. Tackling any of these issues is a messy process, but indispensable to properly implement indigenous autonomy. Different indigenous individuals and groups, particularly highland and lowland indigenous peoples, interpret autonomy distinctly.

Article 290 of the Constitution further clarifies how a community can claim autonomy: “Ratification of indigenous, original, campesino autonomy shall be based on ancestral territories, currently inhabited by these peoples and nations, and the will of the population, expressed in consultation, in accordance with the Constitution and the law.”

Basing indigenous autonomies on land rights is problematic as it may limit access and self-determination for several reasons. First of all, many municipalities in the highlands, where the majority of people are indigenous, are not necessarily pre-colonial territories, but the result of migration. Second, although in lowland areas many indigenous groups hold state-recognized territories (called TIOCs) and collectively manage their own lands and natural resources, these areas are fragmented among private landholdings and often share a designation as protected national parks; they are hardly unitary cohesive territories. Thirdly, many indigenous people live in integrated urban areas – in large cities in which there is no option for asserting indigenous autonomy.

Article 2 of the Constitution defines rights to autonomy as pre-colonial and therefore pre-state existence.

• While this is a valid effort to recognize the history of indigenous people – and again, this is consistent with the UN Declaration – it creates a contradiction. Only by incorporating into the state can indigenous peoples recognize their autonomy, yet their autonomy is also considered pre-state. Real self-determination would allow indigenous peoples to decide the form of relationship they maintain with the state. However, reverting back to pre-colonial systems of indigenous governance is also problematic, since indigenous peoples – to varying degrees – have for centuries been subjugated and incorporated into the colonial and republican state systems.

Local politics complicate autonomy

As some communities move toward autonomy, local politics have stalled the process. These complications reflect the difficulties in implementing an ambitious legal framework. Furthermore, the intricacies of the laws means technicians and politicians from outside the communities have become involved in order to advise the process, bringing with them their own political agendas and ideas.

• These intermediate steps reveal the complicated logistics of local politics. In three of the twelve municipalities that held referendums in December 2009, more than 40 % of the population voted against autonomy. In Curahuara de Carangas, autonomy lost the popular vote entirely. In several municipalities local MAS activists campaigned hard for the “no” vote, reflecting internal MAS conflicts over supporting the autonomy process versus maintaining local power.
• Eleven municipalities voted for autonomy and are now in the process of drafting or approving their statutes. According to Jason Tockman, “As of January 2012, autonomy statutes have been approved in four municipalities – Chipaya, Totora and Pampa Aullagas in the department of Oruro, and Mojocoya in Chuquisaca,” “In a fifth – Jesús de Machaca in La Paz – an autonomy statue was approved; however, one of the two markas that made up the Autonomous Assembly (MACOAS, the upper marka) walked away from the process in pursuit of their own statute, while indigenous authorities of the cabildo voted to suspend the proceedings for two years.” Frequently, the elaboration of statutes has been slow and wrought with tension.
• In additional, some local leaders fear they would lose power with the ratification of autonomy statutes. For example, conflicts between different community organizations in Jesús de Machaca, led to the municipal council’s to postpone the drafting of the autonomy statutes potentially missing the deadline, given the two-year time limit.
• According to John Cameron, some highland municipalities debate the return to ayllu – communal organizations that predate Spanish colonization–strategies of governance or retain their existing municipal and union structures. Vague wording in the Constitution – especially defining indigenous autonomy as pre-colonial – translates poorly to reality.

Autonomy conversion: Complex and slow

The Autonomy and Decentralization Framework Law outlines three methods to declare indigenous autonomy: through municipalities, indigenous territories (TCO’s, now called TIOCs), or regions. In general, municipal conversion is most compatible with highland communities, which have historically been more incorporated into local, regional, and state governments. Lowland indigenous people, especially those that live on communally-owned territories are more likely to opt for regional conversion. However, this process has proven tedious and complicated, and few of the communities are able to meet the bureaucratic requirements.[xviii] Although two lowland communities have opted for municipal conversion and one for regional, the framework law largely excludes the large population of indigenous peoples living in TIOCs.

The basic autonomy process involves seven steps – which vary depending on the route (municipal, regional or territorial) the community choses.

Steps one and two: Autonomy approval

• To declare autonomy, regions, TIOCs or municipalities must document shared ancestral territory, culture, history and language(s). Furthermore, they must prove they have sufficient social, political, judicial, and/or economic institutions to establish an autonomous local government.
• Municipalities and regions must hold a referendum, authorized by the Autonomy Ministry, within a sanctioned period, which can coincide with local, departmental, or national elections. Anyone living within the designated municipality or region who meets voter requirements (such as age and citizenship.) can vote for or against starting the autonomy process.
• There has only been one sanctioned referendum period since the ratification of the constitution. Unfortunately there was insufficient time for communities to jump through the necessary bureaucratic hoops to hold a referendum, and six of the 18 communities applying failed to obtain authorization. Furthermore, the first referendum period was before the ratification of the Framework Law, meaning voters were unclear what exactly they were voting on when they voted “yes” or “no” to autonomy.
• The initial autonomy declaration varies greatly between municipalities, regions, and TIOCs. TIOCs do not have to hold a referendum, because these zones have already proven shared heritage. Communities can opt to convert to TIOCs if their autonomy cannot be achieved through municipal or regional conversion. This process skips the referendum, but requires another level or bureaucratic clearance.
• Further complicating the path to autonomy is defining boundaries between municipalities, regions, and TIOCs. For example, if a region overlaps multiple municipal or departmental boundaries, it must define how the separate levels of jurisdiction will apply as well as clearly define its borders. For example, Raqaypampa – a community in the process of implementing its autonomy statutes – is part of the Mizque municipality and is made up of two overlapping TIOCs. Problems with defining territorial boundaries at the initial stage of autonomy reflect the complexity of applying constitutional reforms to indigenous political and social organizations.

Steps three and four: Statutes

• If the Ministry of Autonomy approves the request for autonomy – and in the case of a municipality the referendum receives majority approval (50% plus one votes) – the locality must elect an Autonomous Assembly to draft the AIOC’s autonomy statute, the set of governing rules and principles of the indigenous autonomy including the structure of government, the system of justice, and plans for development.
• The community must debate and approve the statutes within 360 days of starting the autonomy process, although this time line can be extended an additional 360 days. This process can be thorny, especially when unions and ayllus within the community have competing visions or interests at stake.
• Autonomous indigenous governments’ responsibilities and jurisdictions are similar to municipalities’, and include human development, environmental protection, public infrastructure, and transportation. They also have the right to “culturally appropriate” management of natural resources, political structures, and cultural patrimony.
• It is unclear how much autonomy will change existing municipal structures – especially in highland areas where local leaders are often already indigenous people and sindicatos and ayllus are dominant institutions. In many ways, the Framework Law mirrors the 1994 Popular Participation Law, which granted greater electoral and political power to municipalities. However, the introduction of indigenous statutes may change the organizational structure of municipalities, depending on how individual localities decide to restructure governance.
• Autonomy in lowland indigenous territories will be more complicated, as TIOCs and regions often contain multiple ethnic groups and towns. Furthermore, these territories are usually less integrated into state politics than highland municipalities.

Steps five through seven: Autonomy approval and implementation

• After the municipality or territory agrees on statutes, it must formally present them to the Ministry of Autonomy. If the statutes are approved, the community then votes in a referendum whether to approve the autonomy statute.
• If the community approves the statute, it must receive formal constitutional approval.
• Implementation will include forming local governance structures according to the statutes and implementing development plans.[xxxv] Since communities are still in the process of implementation, only time will tell how existing political structures will shift. As with the entire process of declaring autonomy, formalization of statutes will be challenging and unwieldy. Hopefully, the difficulties will be worthwhile for the communities undertaking this awesome project.

Conclusions

Indigenous autonomy is cumbersome and complicated. It is too soon to tell what indigenous autonomy will really look like. Bolivia is the first country to so boldly follow the UN Convention – representing an important turning point for indigenous rights. However, the legislation leaves many gaps. The MAS administration has not invested sufficient time or money in the autonomy process. Given increased conflicts between indigenous groups and the MAS government made visible during the TIPNIS march where lowland indigenous people rejected government plans to build a highway through their territory without consultation, the Morales administration should provide more support for autonomy. The lack of attention to the indigenous rights agenda reflects internal conflicts with MAS as well as the disconnect between its discourse on indigenous rights and its prioritizing of other policy.

The existing legal framework is insufficient for the actualization of indigenous autonomy. Particularly, highland communities are favored in municipal conversion, while lowland indigenous peoples must more drastically alter their system of governance to pursue autonomy. Only two lowland municipalities are currently declaring autonomy: Charagua in Santa Cruz and Huacaya in Chuquisaca. Many challenges must be resolved in order for autonomy to guarantee indigenous self-determination. Bolivia’s attempts to implement autonomy highlight the complexity of applying broad theories to reality.

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