The Indigenous World 2023: Argentina
Argentina is a federal country made up of 23 provinces plus an autonomous city (Buenos Aires, the capital), with a total population of close to 47 million people, according to initial data from 2022. The 2010 national census gives a total of 955,032 people self-identifying as descending from or belonging to Indigenous Peoples, and there is still no final data from the last census conducted in 2022.
There are 35 officially-recognised Indigenous Peoples although the process of identity recovery is a dynamic one and so this number is fluid. Legally, they have specific constitutional rights at the federal level and in several provincial states. In addition, a set of human rights contemplated in various international instruments, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, are in force, forming part of the constitutional body of law. ILO Convention 169 takes precedence over national laws (it does not form part of the constitutional body of law), was ratified in 2000 and has been in force since 2002. In Argentina, the United Nations Declaration and the American Declaration on the Rights of Indigenous Peoples are also in effect and are of normative force.
The ambivalence of State policies: recognition of and disregard for Indigenous rights
2022 was marked by ambivalent and contradictory political and judicial decisions regarding the recognition of Indigenous Peoples’ rights.
Alongside an historic ruling such as that of Napalpí, which recognises the genocide committed against Indigenous Peoples during the State-building process, came a judicial decision to imprison Mapuche women fighting for their territories.
Moreover, the government decided to extend the Territorial Emergency Law by means of a necessary and urgent decree but did not create the conditions necessary to discuss the Indigenous Community Property Law. The Ministry of Security decided to establish a unified security command – an unprecedented decision – to deal with a Mapuche community, Lafken Winkul Mapu that is recovering territory in the area of Lake Mascardi, Río Negro Province and a roundtable was convened by the government itself to reach an agreed solution.
Before giving further details about each of these stated policy lines, we will first explain the key ruling on the Napalpí[1] massacre, which related to the murder, persecution, torture and mutilation of some 500 Indigenous people from the Qom and Moqoit peoples in the Chaco territory in 1924. The ruling forms part of a judicial process of raising awareness and reviewing past events (in 2019, the Rincón Bomba[2] ruling recognised the massacre of the Indigenous Pilagá people in the territory of Formosa in 1947) with the aim of establishing the historical truth based on the collective memory of the Indigenous communities, and thus start a new path afresh.
This path will need to redefine a relationship with the State that has always been a traumatic one and thus overcome the impunity of those years, marked by a cover-up of the facts and prevailing racism, in order to open the door to the delivery of justice which, albeit late, sets out reparatory measures for the future with a view to building a different State.
The May 2022 ruling of the Federal Court of Resistencia, in Chaco, was just one legal element that contributes to this redefinition of decades of stigmatisation of Indigenous Peoples, which resulted in episodes of annihilation and extermination. The powerful symbolism of the ruling was accompanied by concrete measures that should gradually transform a paradigm of barbarism into one of reparation. This ruling is undoubtedly not enough but it is a necessary and essential step in the process of knowing, repairing, and transforming.
The Winkul community was formed around its machi (spiritual leader) who “rose up” in the lands of Lake Mascardi, Río Negro. They are demanding the territorial recognition (which is also spiritual recognition) that has historically been denied them. Since the murder of Rafael Nahuel,[3] disagreements with State authorities have multiplied.
Added to this are other actions at play on the local level such as constant harassment, a militarisation of the territory and demands by private individuals for the security of their homes. A space called the “Bariloche consensus” has been established and consolidated, bringing together clearly “anti-Mapuche” sectors of society, including lawyers, businessmen and politicians, to build a discourse around the need to protect private property.
The burning of a traffic police sentry box by “hooded individuals” – it should be noted that there was no proof these hooded individuals were Mapuche given the impossibility of identifying them – precipitated the formation of a unified command of the federal security forces, which violently evicted the community on 4 October 2022. Seven women were arrested as a result of a joint operation on the part of four security forces, in territory that the Lafken Winkul Mapu community has been claiming as its own for years. Four of the women are still being held in pretrial detention with legal proceedings ongoing. These women have children, and one of them even gave birth in captivity.
As a final example of the vagaries of the political environment, in August 2022 the president of the National Institute of Indigenous Affairs (INAI) – the national government agency tasked with formulating and executing public policies for Indigenous Peoples – handed in her “resignation” following national and provincial political pressure caused by her role in the Mapuche territorial conflicts in the province of Río Negro. Her position has not yet been filled and this sends a clear message as to the relative importance this organisation holds in Argentine policy-making, with a negative effect on its day-to-day operations.
Also of concern is INAI's interpretation of the Territorial Emergency Law, and the moment when the Indigenous communities’ territories need to be surveyed. It seems that INAI believes there is a time limit, and this is the moment when the law was passed (2006), ignoring the traditional and ancestral occupation claimed by the Indigenous communities themselves, which should be decisive when conducting the task of identifying the Indigenous territories appropriately..
Finally, the United Nations Special Rapporteur on the rights of Indigenous Peoples conducted an unofficial visit to the country in August 2022, visiting regions in both the north and south. Although his arrival was not prompted by an invitation from the authorities, his visit was useful in terms of learning about the realities facing Indigenous Peoples in Argentina. In addition, representatives of Indigenous Peoples and communities were able to explain the violations of their rights and their demands to an international authority.
The vagaries of judicial decisions
It is becoming increasingly clear that judicial decisions which, in the first instance, are protective of the rights of Indigenous Peoples are later being reversed by higher bodies, resulting in the need to take the case to the Supreme Court of Justice. This situation is damaging because it means that proceedings drag on for an uncertain period of time with an ever present threat of condemnation hanging over the communities, and this has a detrimental effect on the lives of Indigenous community members.
Such is the case of Lof Buenuleo[4] in the province of Río Negro. This community was accused of usurping the land, and the Provincial Court of Appeal decided to dismiss the case stating that the substantive issue was not a criminal matter but should be resolved through the civil courts, urging the resolution of the conflict by means of dialogue and mediation.[5] In 2022, the Higher Court of Justice of Río Negro overturned this ruling. In its operative part it resolved: “(..1) to annul Judgment No. 207 issued by the Court of Appeals on 24 November 2021; 2) to declare ex officio the nullity of the intervention of the Public Prosecutor's Office in which it adhered to the request for dismissal without a reasoned and legal motivation; 3) to forward the file to the Judicial Office of the III Higher Court of Justice Viedma Judicial District in order to continue the corresponding procedural acts from the review hearing held on 6 and 10 August 2021, and 4) to notify the Attorney General due to the importance and serious nature of the issue that demonstrates a clear dysfunction, to the detriment of the constitutional and legal principles that govern the actions of the Public Prosecutor's Office under his charge”.
In the case of Lof Millalonco Ranquehue in Bariloche, province of Río Negro, a federal judge of the first instance ordered the national government to transfer the ownership of 180 hectares of land – allegedly belonging to the Argentine Army – to INAI free of charge in order to award it to the Indigenous community. The State appealed this decision with the result that the Supreme Court of Justice of the Nation had to review the ruling. This territorial dispute is indicative of a dispute between powers, since the Attorney General claims that the judiciary is unduly interfering in matters that lie solely within the scope of the legislature, which should grant such lands by law.
On the other hand, as an example of a good judicial decision, a federal judge issued an injunction ordering a gated neighbourhood to take down part of its fence to allow the free transit of a community that had been “de facto trapped” by the real estate development, condemning them to travel a long distance to reach their community. Arelauquen Country Club had closed the road to Lofche José Celestino Quijada, preventing its members from going to school, work, or to the hospital.
In this case, INAI stated that there was an obligation to demarcate the lands occupied by Indigenous communities and the Ministry of Defence of the Nation (since army lands were also involved), the Ministry of the Interior of the Province of Río Negro and the Nahuel Huapi National Park administration were notified. Although the injunction was issued at the end of 2022, the gated neighbourhood continues to insist that this will cause irreparable harm, and the municipality is arguing that its domain has been undermined.
An injunction filed by civil society organisations and the Wichí Misión La Loma Indigenous community In the province of Salta for the application and regulation of the Intercultural Health Law resulted in the Provincial Court confirming a precautionary measure that sets down an obligation to have intercultural facilitators accompany decision-making and practices involving Indigenous children. The recurrent deaths of children in departments in the northern part of the province due to malnutrition and other health problems, caused by their living conditions, led to the declaration of a social and health emergency in the region. The ruling in the first instance, ratified by the Provincial Court, is binding upon the State and focuses on improving access to health care for Indigenous children.
Conclusions
The line of historical continuity that can be seen from an analysis of the State policies of different government administrations only serves to demonstrate the systematic racism and resistance of the different State bodies to recognising and respecting Indigenous rights. Although Argentina includes a set of rights in its legal system that would appear to uphold an intention to build a genuinely egalitarian State, political and judicial decisions send another message.
Over the last year, hate speech that stigmatises Indigenous Peoples, based on arguments such as defending national sovereignty or defending private property from attack, has re-emerged with a vengeance in the south of the country.[6] The justice system is responding to a political line that resists recognising Indigenous territories. Increases in both extractive activities and the real estate business are contributing to an exacerbation of the conflicts.
The Indigenous communities as “guardians” of the territory, preserving the natural commons and contributing to their conservation, precisely because of the special relationship they maintain with their habitat – based on their philosophy of “buen vivir” [good living or living well in nature] – are aspects which, in the final analysis, are seen as “a danger” to the economic interests at stake. Disputes and tensions remain, and the possibility of reaching a consensus through which to achieve a harmonious coexistence with Indigenous Peoples remains a prospect that does not seem achievable in the medium term.
Silvina Ramírez is a lawyer and Doctor of Law. She lectures at the Faculty of Law at the University of Buenos Aires (UBA) and the University of Palermo and other universities in the country and across Latin America. She is a founding member of the Association of Lawyers in Indigenous Law (AADI), academic adviser to CEPPAS (Centre of Public Policies for Socialism) and a member of the Board of Directors of the Institute for Comparative Studies in Criminal and Social Sciences (INECIP). She is the Argentina reference point for the Latin American Network of Legal Anthropology (RELAJU). Contact: This email address is being protected from spambots. You need JavaScript enabled to view it..
This article is part of the 37th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. Find The Indigenous World 2023 in full here.
Notes and references
[1] Napalpí Massacre re. Truth Trial. Federal Court of Resistencia. June 2022.
[2] Federation of Indigenous Communities of the Pilagá People v PEN re. Damages. July 2019.
[3] For more information see: Silvina Ramírez. “Argentina”. In The Indigenous World 2022, (IWGIA), 2022. Available at https://iwgia.org/en/argentina/4661-iw-2022-argentina.html
[4] “Buenuleo Ramiro et al (Buenuleo Community) re. usurpation” – Extraordinary appeal – Art. 242 (File MPF-BA-04875-2019).
[5] For more information see: Silvina Ramírez. “Argentina”. In The Indigenous World 2022, (IWGIA), 2022. Available at https://iwgia.org/en/argentina/4661-iw-2022-argentina.html
Tags: Global governance
