Mexico’s timid reform on the rights of Indigenous people

“I'm my home.” Linocut © José Oscar García de la Rosa, Barrio Gráfico.

Opinion • Yuteita Valeria Hoyos Ramos • October 17, 2024 • Leer en castellano

Indigenous people in Mexico have demanded recognition for decades, which is why the recent approval of the Reform on the Rights of Indigenous and Afro-Mexican Peoples is so important. After waiting for almost five years for these issues to reach congress, we had initially hoped to see a comprehensive reform of 15 articles of the Constitution. 

The content of the proposed reform emerged from consultative forums that community representatives and local authorities organized throughout Mexico in 2019. These meetings were grounded in Indigenous peoples’ contexts and communities and sought to identify legal reforms that need to happen at a national level.

The original proposal for the Reform on the Rights of Indigenous and Afro-Mexican Peoples included (among other things) the recognition of Indigenous peoples as subjects of rights; the recognition of the right to land, territory, resources, biodiversity and environment; enshrining the connections between Indigenous legal systems and the national legal system and guaranteeing effective access to justice; and the participation and representation of Indigenous peoples in national, state and municipal decision-making bodies. 

But the proposal from the Federal Executive that finally made its way to Congress on March 5 only proposed to modify Article 2 of the constitution, leaving out the more sweeping reforms set out in the original proposal drafted in the 2019 forums.

The process of approving the package of constitutional reforms, which is referred to in Mexico as Plan C, began in September and led to modifications to various provisions of Mexico’s Constitution and secondary laws. The judicial reform is among the most controversial. It mandates a fundamental change in how judges are selected and thus in the administration of justice and the practice of democracy. This intersects with the Reform on the Rights of Indigenous and Afro-Mexican Peoples, especially in light of recent interpretations of collective rights by the Supreme Court.

In the final text of the reform to Article 2 of the Constitution, which was passed by decree and published in the Official Gazette on September 30, there are ambiguities that allow the state a great deal of discretion with regard to the practice of free, prior and informed consent that is culturally relevant and done in good faith, stripping Indigenous peoples of the autonomy that they so desire. 

In addition, it gives private companies undue influence over how the right to free, prior and informed consent is exercised. “When the administrative measure that is intended to be adopted benefits a private party, the cost of the consultation must be covered by the latter,” reads the decree. In other words, if the beneficiary of a project, mega-project or reform is a company or businessman (as it generally is), they will have to finance the process, which gives them economic power over it. 

When critics express themselves publicly in Mexico today, they become vulnerable to attack on social media and in public space and run the risk of being discredited publicly, sometimes by government authorities. That is why I want to emphasize that my perspective stems from my experience with community processes, as a practicing lawyer, a human rights defender with the National Network of Indigenous Women Lawyers and as an Indigenous woman with an ethical commitment to my people.

A step forward amid debate

The Reform on the Rights of Indigenous and Afro-Mexican Peoples was received in society with pomp and celebration, heralded as one of the greatest legal achievements for Indigenous peoples in recent years. This was mainly due to the narrative of the executive and legislative branches. Though there are undeniable steps forward in public law through the recognition of Indigenous peoples as subjects of rights, this measure was already set out in international agreements that are harmonized with domestic legislation. It also sets out formal recognition of the juridical personhood of Indigenous peoples as entities with specific rights and obligations within the Mexican legal system.

But from different organizations we have pointed out the limitations in this reform, that demonstrate the state’s resistance to recognizing Indigenous self-determination and to stopping structural racism. 

The approved reform has sparked disputes and leaves a debt to Indigenous people. Although it may be a legislative, juridical and politically necessary step, it does go far enough. It does not cover everything contained in the original proposal, and it leaves aside the voices of hundreds of people who attended the 2019 forums to express the needs and wants of our communities. 

We may indeed be happy to have a newly opened window to claim access to justice. But we cannot applaud congress when it could have opened the door by adopting the proposed reform in full, which it was in a position to do. Instead, it refused. 

Problematizing this historical moment opens the possibility of dialogue that undoes the tendency of the government to operate from absolutes: you are either with me or against me. Currently, there is disagreement among Indigenous leadership but proposals or visions of ideological, academic or epistemological growth are lacking.

 Rather, there is division, as has occurred with other issues of public interest. This brings to the fore the need for Indigenous people to question where, what, with whom and how we debate. We must question the importance of ideological dissidence and the plurality of political positions and ensure said diversity shows up in so-called Mexican humanism. 

In a context of widespread acceptance of the state narrative, it can sometimes be considered politically incorrect to point out that the reform proposal is assumed as the endpoint of our struggle, as if all Indigenous people agreed with the decree. Being critical means running the risk of being singled out and stigmatized as “right-wing,” “ambitious” or a “fifi” [a wealthy person]. 

A reform that leaves the door open to extractivism

The approved reform leaves open the risk that the extractivist project will continue to expand in Indigenous territories. The Constitution still does not recognize Indigenous property, nor does it protect territories more generally. Indigenous participation is limited to the care of the environment and natural resources, stripping land and territory of their social, spiritual and political character. 

The dispute over territory in Mexico, which dates back to colonial times, is ongoing. If the Constitution does not protect spaces for the reproduction of the culture and lifeways of Indigenous peoples and communities, it allows for their continued oppression. 

International conventions recognized the right to territory and to prior consultation decades ago, but actual practice contradicts written law, and administrative and legal trickery allows economic interests to bend legal interpretation in their favor. 

State and corporate extractivism continue to generate violence and dispossession. They damage Indigenous identity and spirituality by disrupting community organization in favor of the capitalist economic model, putting life itself at risk and failing to respect water and land as part of mother nature. 

There are still great debts owed to Indigenous people. People active in academia and in defense of human rights have noted that Zapatista Army of National Liberation demands, codified in the San Andres Accords which include respect for the territories and autonomy, have yet to be honored. 

Thinking through territory is a complex and ongoing task. Indigenous people are owed many debts in this regard. The recognition of self-determination and its role as a right that propels other rights is one of the debates that the government has been totally unwilling to discuss publicly. Doing so would reveal the racism that permeates state structures at the judicial, administrative and legislative levels, and which is expressed through all governmental actions.

Among other outstanding issues with regards to self-determination is the need to connect different forms of justice—that of the state and that of communities—in order to allow the full exercise of the right of access to justice with an intercultural, anti-racist and gender focus.