The following piece was selected as one of two winners of the Harvard Human Rights Journal’s Winter 2021 Essay Contest. The contest, Beyond the Headlines: Underrepresented Topics in Human Rights, sought to share the work of Harvard University students with a broader audience and shed light on important issues that popular media may overlook.
At the Margins of the Indigenous Rights Ecosystem: Underrepresented Struggles for Self-Determination
Angel Gabriel Cabrera Silva[*]
Indigenous rights are one of the most prominent issues in human rights law. In fact, very few legal regimes can boast of having the degree of international codification and institutionalization that indigenous rights have attained. A simple google search demonstrates that human rights violations against indigenous communities are neither scarce nor low-profile in global media.
Given the amount of institutional and media attention they receive, it might be odd to suggest that indigenous rights could be considered an underrepresented topic in human rights. What more could be said on this already prolific topic? Readers may perhaps be thinking that this text could do little more besides presenting the case of another indigenous community struggling against a government or corporation. However, my purpose is actually to run against that perception.
The overarching argument of this essay is straightforward: certain types of indigenous claims (not specific cases) have captured the global spotlight, while others are being pushed into the background. By problematizing the current dynamics inside indigenous rights movements, this piece offers an invitation to look beyond the prototypical cases that dominate the global headlines, in order to uncover the struggles for indigenous self-determination that remain hidden underneath.
The Indigenous Rights Ecosystem: Who makes it to the headlines?
Contemporary human rights movements are complex sociological formations that admit multiple types of analysis. One particular way to grapple with their complexity is through an “ecosystem approach.” When it was originally proposed, this ecological allegory served to highlight the diversity of actors that coexist within the broad field of human rights. This essay, however, borrows this metaphor to evoke a more problematic aspect of natural ecosystems: the fact that even among coexisting life-forms, some species are more dominant than others.
Social inequalities have been a long-standing concern of human rights scholars This preoccupation has inspired crucial contributions to our understanding of social change, and the possibilities to subvert hegemonic structures. However, a frequent shortcoming of these studies is that they overlook the fact that power asymmetries also exist among those that inhabit subaltern spaces. Bringing these disparities to light can help us understand that the “indigenous rights ecosystem” is not just a diverse field, but it is also a space where certain politico-economic arrangements determine who thrives – and who doesn’t.
As in all ecosystems, the indigenous rights field has a dominant life form. If we look into how media portrays indigenous struggles, we will soon realize that a few species of claims capture most of the attention. These cases normally present a prototypical type of conflict where an indigenous community resists the activities of a corporation or a government. Correspondingly, they also tend to rely on defensive legal frames such as a violation to the right to Free, Prior and Informed Consent (“FPIC”) standards for environmental preservation or rights to cultural survival.
It is not hard to explain why these species of claims are so dominant. Strategically speaking, they are very effective in leveraging the support of advocacy networks, which is often essential for the success of indigenous rights campaigns Given their tactical usefulness, it might be counterintuitive to consider that their popularity could also be problematic; however, their effectiveness comes with a cost. As these defensive claims have captured the attention of activists, media, and institutions, the ecosystem has gradually become less hospitable to other claims that could bolster more ambitious, indigenous-driven projects. This point is perhaps best appreciated by looking back to the recent history of the indigenous movement. Many activists still remember the Zapatistas and their radical program for indigenous autonomy; they nostalgically recall the assemblies and insurrection of the 1990s, but often forget that human rights were also a part of that struggle. Not only were human rights important to turn the Zapatista movement into a transnational network; at a local level, Zapatista communities could also appropriate the language of rights to interpret their struggles, organize their resistance and voice their claims.
Given how hard it is to articulate similarly ambitious claims today, indigenous rights advocates often lose track of their radical past. This does not mean that these proactive indigenous programs went extinct, they were simply marginalized by a gradual process of ecological re-composition. After the adoption of International Labor Organization (“ILO”) Convention No. 169, the indigenous rights ecosystem began welcoming many “exotic” actors, including human rights organizations, but also uncanny institutions like the World Bank and development agencies. As these new species arrived, they not only brought their networks and resources, but also their power and interests to transform an ecological balance that eventually reproduced the politico-economic structure of the global economy inside a subaltern space. As the anthropologist Charles Hale described, many of the legal and policy reforms that were promoted during those years molded indigenous rights to fit within the project of “multicultural neoliberalism.”
A consequence of this re-composition was the hyperinflation of claims relevant to hegemonic agendas. To use Tsing’s concepts, indigenous rights partially became a device to expand the “frontiers of capitalism.” Whenever capital wanted something that belonged to a community, indigenous rights were there to rationalize power and discipline resistance. Sometimes these standards would keep markets at bay and others they would legitimize the extraction of indigenous resources. However, they slowly pushed indigenous politics into a defensive position, and by doing so capitalist interests were ensured to have an upper hand.
The posterchild of this dynamic is the right to FPIC, an entitlement that is simultaneously promoted as a manifestation of self-determination and as a mechanism to mitigate the damages of economic development. From a capitalist perspective, FPIC mechanisms are useful to legitimate projects that may produce social backlash. For instance, a study of Bolivian experiences with FPIC revealed that corporations were not just able to manipulate an indigenous consultation but could also use these processes to divide communities and debilitate indigenous organizations. In contrast, for indigenous peoples, FPIC usually means very little until someone tries to harm them.
Overall, as these claims became dominant, other indigenous agendas had a harder time thriving inside their ecosystem. Today, a community´s initiative to self-govern is less likely to make it to headlines, at least not through the language of human rights.
Budgetary Self-Determination: An example of what remains at the margins?
These power asymmetries have multiple manifestations and consequences. This essay will focus on their effects over one particular context. Based on my experience in activism, I will refer to the legal strategies used by some indigenous communities to dispute the distribution of public budget in Mexico.
This struggle originated in the purhépecha plateau, a rural region of the Mexican State of Michoacán, where more than a hundred purhépecha communities live under the jurisdiction of a couple dozen non-indigenous municipalities. Even if these communities have the right to preserve their culture and internal organization, municipal governments manage all of the public funds that are meant to be invested in their jurisdiction. Unfortunately, this means that much of the budget ends up going to larger towns instead of indigenous villages.
The purhépecha have complained about this inadequate distribution of funds for decades. They repeatedly express their discontents by organizing road blockages, demonstrations, and electoral boycotts. While these tactics are sometimes enough to reach temporary arrangements, they also leave the underlying problem unaddressed. It was not until 2015, when the community of Pichátaro experimented with a new legal strategy, that a deeper solution began to emerge.
After several months of unsuccessful protests, Pichátaro decided to judicialize their claim for a fairer distribution of public budget. Assisted by the “Colectivo Emancipaciones,” a local activist group, the community brought a lawsuit before the Federal Electoral Court arguing that they had the right to directly manage public funds. Among other provisions, their claim was grounded on Article 4 of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), which recognizes that indigenous communities are entitled to the “means for financing their autonomous functions”.
The claim was successful. The Court ordered the government to transfer a proportional part of the public funds directly to the indigenous authorities of Pichátaro. After a complicated process of compliance, Pichátaro became the first sub-municipal community in Mexico to have an “official” self-government with budgetary autonomy. This precedent paved the way for many other communities in Mexico; today more than 30 communities have filed similar judicial actions and at least 8 already enjoy budgetary autonomy.
These cases are an example of how human rights claims can nurture indigenous-driven agendas. For the purhépecha, human rights law was not a defensive tool. Rather, it was the opposite; these communities invoked the UNDRIP to extract from the State the resources they needed to pursue their own projects.
Despite their astounding success, these claims remained under the radar of big human rights non-governmental organizations (“NGOs”) and institutions. For some reason, the purhépecha were left at the margins of the indigenous rights ecosystem of Mexico. At first, this relegation was not a problem; their lawsuits were successful without having to interact too much with the media, NGOs, or other actors. However, the disadvantages of their peripheral position manifested themselves over time. For instance, these communities eventually sought legislative recognition of their self-government and – after years of struggling – only just recently managed to advance a few changes in the municipal law of Michoacán. However, promoting a more substantive legislative change at a larger scale would require the support of broader human rights coalitions. Unfortunately, the purhépecha claims for budgetary autonomy could barely find a space in these agendas – even among NGOs advocating for indigenous rights.
Another worrying consequence of this marginalization transpired a few months ago, when the Federal Electoral Court suddenly decided to stop hearing these claims. Citing an obscure decision by the Mexican Supreme Court, the judges considered that budgetary claims were not part of the political aspects of self-determination, and should therefore not be heard by electoral courts (which can only adjudicate on political rights). Soon afterwards, a federal appellate court ruled that indigenous peoples had no right to exercise direct budgetary powers. The unexpected dismissal of these cases has since raised numerous questions about the future of this project for indigenous autonomy. As of the time of writing, it is not clear whether the lack of a judicial forum may demobilize the communities that were already seeking budgetary autonomy or if, on the contrary, it would force them to rely on other – perhaps more transgressive – tactics.
Under these circumstances, the power of human rights networks would be crucial to resist backlash and preserve the budgetary dimension of the right to indigenous self-government. At the very least, advocacy networks could denounce the adverse effects these decisions will have on indigenous communities. However, since the purhépecha claims remain outside the dominant frames of indigenous rights activism, access to the ecosystem’s networks and resources is very limited. Up to this day, the issue has not made it into the national – much less international – agenda of indigenous rights.
The predicament of the purhépecha speaks to the overarching argument of this essay. It is not only that a few communities are unable to recruit the solidarity of advocacy networks or fail to receive media attention. The case exemplifies a distributional dynamic that prioritizes certain indigenous claims over others. Despite its explicit relation to human rights law, the process by which the Mexican State is diminishing this project of indigenous self-government is not perceived as a relevant indigenous rights issue.
However, amidst all these problematic aspects this case also shows a sliver of optimism. The purhépecha experience demonstrates that ambitious indigenous-driven projects can still burgeon inside the indigenous rights ecosystem (even if at the margins). Who knows how many similar projects may exist around the world. Maybe, if we start looking beyond the claims that dominate the headlines, we could create a more equitable ecosystem for them to thrive.
[*] SJD Candidate ’23, LL.M. ’16, HLS; LL.B. University of Guadalajara, Mexico; Student affiliate at the Weatherhead Center for International Affairs, Research Cluster on Comparative Inequality and Inclusion; DRCLAS Summer Research Fellow-2020. Angel Cabrera’s current research utilizes ethnographic methods to study indigenous movements, human rights and struggles for budgetary autonomy in Mexico. The author also thanks the University of Guadalajara for their support.
 César Rodríguez-Garavito, The Future of Human Rights: From Gatekeeping to Symbiosis, 11 Sur – Int´l J. on Human Rights 499–509 (2014).
 One could trace this concern back to the early critiques of human rights; see David Kennedy, The International Human Rights Movement: Part of the Problem?, 14 Harv. Hum. Rts. J. 245-67 (2001). Since then, scholars have worked to conceptualize the potential of human rights to address various forms of inequality. See Margot E. Salomon, Why Should it Matter that Other Have More? Poverty, Inequality, and the Potential of International Human Rights Law, 37(5) Review of Int’l. Studies 2137-2155 (2011) (arguing that the right to development could allow human rights law to move beyond poverty alleviation and towards addressing socio-economic inequalities). See also, Boaventura de Sousa Santos & César Rodriíguez-Garavito, Law, Politics and the Subaltern in Counter-Hegemonic Globalization, in Law and Globalization from Below: Towards a Cosmopolitan Legality 1-27 (Cambridge U. Press, 2006) (arguing that subaltern groups can use human rights to subvert different forms of marginalization).
 For instance, Fraser’s concepts of “subaltern counterpublics” questioned the neutrality of modern democratic theories and conceptualized spaces where disadvantaged groups could communicate among themselves. However, it did not directly consider that power asymmetries could exist in those counterpublics. Nancy Fraser, Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy, 25/26 Soc. Text 56–80 (1990).
 Under international human rights law, this right implies the duty of States to “consult and cooperate in good faith with the indigenous peoples concerned… in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them” or implementing “any project affecting their lands or territories and other resources”. See G.A. Res. 61/295, Arts. 19 & 32.2, U.N. Doc. A/Res/61/295 (Sept. 13, 2007).
 Charles Hale, Neoliberal Multiculturalism: The Remaking of Cultural Rights and Racial Dominance in Central America, 28(1) Political & Legal Anth. Rev. 10-28 (2005).
 See José A. Muñoz, International Opportunities and Domestic Protest: Zapatistas, Mexico and the New World Economy, 5(3) Soc. Movement Stud. 251-274 (2006).
 See Shannon Speed, Rights in Rebellion: Indigenous Struggle and Human Rights in Chiapas (Stanford U. Press, 2008).
 Charles Hale, Neoliberal Multiculturalism: The Remaking of Cultural Rights and Racial Dominance in Central America, 28(1) Political & Legal Anth. Rev. 10-28 (2005).
 Anna Tsing, Friction: An Ethnography of Global Connection (Princeton U. Press, 2004) at 27.
 See Almut Schilling-Vacaflor & Jessica Eichler, The Shady Side of Consultation and Compensation: Divide-and-Rule Tactics in Bolivia’s Extraction Sector, 48(6) Dev. & Change 1439-1463 (2017).
 For a couple recent examples of how these tactics have been used in the purhépecha region, see Francisco Castellanos, Consejo Indígena Bloquea Carretera Contra la Instalación de Casillas Electorales en Michoacán, Proceso (June 28, 2018) https://perma.cc/BCA7-DJ5H. See also, Al-Dabi Olvera, Sin Casillas ni Partidos: Pueblos Indígenas Buscan Autogobernarse en México, Animal Político (May 27, 2018) https://perma.cc/5FUK-VKZA.
 For more details about this case, see Víctor Zertuche Cobos, ¡Arriba Pichátaro! Resistencia y Lucha de una Comunidad Indígena en Michoacán, México, 2 Revista Mexicana de Estudios de los Movimientos Sociales 74-94 (2018). See also, Orlando Aragón Andrade, La Emergencia del Cuarto Nivel de Gobierno y la Lucha por el Autogobierno Indígena en Michoacán, México. El Caso Pichátaro, 94 Cahier des amériques Latines, (forthcoming).
 G.A. Res. 61/295, Art 4, U.N. Doc. A/Res/61/295 (Sept. 13, 2007).
 TEPJF, SUP-JDC-1865/2015, Judgement of May 18, 2016 (Mex.).
 The purhépecha communities that already enjoy budgetary autonomy are (1) San Francisco Pichátaro; (2) San Felipe de los Herreros; (3) Arantepacua; (4) Nahuatzen; (5) Comachuén; (6) Sevina; (7) Santa Cruz Tanaco; and (8) Cherán-Atzicurín. A non-exhaustive list of other communities that have filed a judicial claim for budgetary autonomy across Mexico is in file with the author.
 These modifications would simply establish a process to request the autonomous administration of part of the municipal budget and would only be applicable to communities that are officially “catalogued” as indigenous by the government. They were discussed by the State Congress of Michoacán but are yet to enter into force. See Congreso del Estado de Michoacán, Gaceta Parlamentaria, 3ª. Época, T.III, No. 131 A (Feb. 15, 2021).
 TEPJF, SUP-JDC-131/2020, Judgement of July 8, 2020 (Mex.).
 SCJN, 2nd Chamber, AD 46/2018, Judgment of May 8, 2019 (Mex.).
 2do T.C. en Materias Civil y Administrativa del XIII Circuito, AD 590/2019, Judgement of September 21, 2020 (Mex.).