IN FOCUS: Indigenous Reform, What Is At Stake?

According to the Miguel Agustin Pro Human Rights Center and SERAPAZ (Peace Services and Consulting), the following are basic differences between the COCOPA legislative proposal on indigenous rights (based on the San Andres Accords) and the constitutional reform that was finally approved by the Congress.

1. The COCOPA draft calls for the amendment of Articles 115, 26, 53, 73 and 116. The reform that was approved concentrates all issues related to indigenous rights in a new Article 2. The concern these organizations have expressed in this respect is that it may be left “as an isolated issue that will not permeate the text of the Constitution as a whole to make explicit and to permit the conditions that would make possible the exercise of the collective rights of the indigenous peoples.” Specifically, the absence of the reforms to the other articles eliminates constitutional guarantees of key elements for the exercise of self determination, as well as the definition of the spheres of action at the county and regional levels and the representation and political participation of the indigenous peoples.
2. The reform that was approved eliminates the recognition of indigenous communities as entities with legal rights (derecho público) and instead defines them as entities of public interest (interés público). This change re-creates the vision of indigenous people as nothing more than the recipients of public policies and not subjects with rights who participate in the organization of the Mexican State. As a first example, Article 2-B defines the components of the public policies of the State for indigenous peoples.
3. The reform that was approved eliminates any recognition of the right of indigenous peoples to their lands and territories. Instead it refers only to “the places where communities dwell and which they occupy.” Consistent with this limitation, the right of access for the collective use and enjoyment of the existing natural resources in their territories is suppressed and instead only the right to the “preferential use” of such resources is recognized.
4. Indigenous rights are limited to the community level or at most to the county level, and the possibility of association of indigenous counties is eliminated. In contrast the San Andres Accords and the COCOPA legislative proposal recognize the possibility of regional association.
5. The determination of indigenous rights and their potential scope is relegated to secondary laws or to the state constitutions. This arrangement carries the risk that some rights will be limited in some states and non-existent in others and that some matters of minority rights that should be guaranteed by the Constitution will be left to the discretion of majority groups. This is even more of a problem for indigenous peoples whose culture and territories extend to two or more states.