Colonization and State Building in Chile The Creation of Indigenous Constitutional Exclusion

Colonization and State-Building in Chile: The Creation of Indigenous Constitutional

Exclusion

The Spanish colonized the region that would become the state of Chile beginning in 1540.

These campaigns destroyed entire native populations, restricted their access to ancestral lands, and

disallowed them a role in political life. Indigenous populations that were not subjected to violent

policies of genocide were enslaved and used as the main labor force for agriculture and mining

projects. These projects expropriated the land’s wealth and sent it directly to the European

continent (Jofre 2007). From this point in history native populations were barred from political

activity and citizenship.

The exploitation and marginalization of indigenous peoples continued from independence

through the state building process. The Chilean state was officially founded in 1818, and its new

government immediately began plans to dismantle indigenous communities even further and sold

off native lands to non-indigenous citizens at an increasing rate (Lucic 2005). From 1860-1883,

the state carried out a policy of military conquest in the indigenous Araucania territory. But the

state met fierce resistance from the Mapuche nation, and the result was full out warfare between

the new, independent Chilean government, and its original peoples. The result of the conquest was

further decimation of native populations, and the creation of 3,000 indigenous reserves where

remaining populations were forcibly relocated. Between 1884 and 1919, the Mapuche nation was

largely eradicated, and those that survived were forced onto national reserves. Their lands were

sold off as private property, and are now owned by transnational companies, like

Ralcohydroelectric in the native AltoBioBio region (Jofre 2007). At the conclusion of this era, the

Mapuche nation was left with less than 5% of its original territories (Rodriguez and Carruthers

2008).

After reducing and restricting remaining native populations, the Chilean government

created policies that established a homogenous Chilean national identity. Coined as

“Chilenización”, or “Chilenezation”, the state pushed a white, or European, identity, and

excluded indigenous populations from national citizenship (Postero, Risor, and Montt 2018). In

this way, Chilean nation-building ideologies reinforced racial hierachies that elevated white

European anscetry and negated the existance of indigenous peoples.

Consistent with cases across the region, the colonial period was one that meant the

genocide, enslavement, and the desecration of indigenous communities. Spanish colonial law

deemed native populations as non-citizens, barring them from political rights and protection. The

fate of the original nations did not change when the colonies in Chile declared their independence

from the Spanish crown. Instead, indigenous peoples were gathered into and restricted in

reservations by Chilean forces and excluded from national citizenship. These conditions set the

precedent for continued marginalization of indigenous political interests in Chile’s more recent

political history.

Summary of Indigenous Rights Adoption in Chilean Constitutional Law: Non-Incremental

Adoption of Rights in Chile

From the institution of the nation’s first constitutional document in 1818, indigenous

populations have remained excluded from representation at the national level. As of 2022, Chile

remains only one of two nations in the Latin American regions to not adopt any indigenous rights

provisions. Therefore, there can be no summary of current rights provisions that protect these

populations in national law. This research finds that there is no mention of indigenous

constitutional protection in any version of these laws in Chile.

Just as there can be no discussion of indigenous rights provisions in this discussion of

Chilean law, but there is also no historic evidence of incremental representation for their

communities. The most recent attempt to revise the constitution included the input of indigenous

leadership in its drafting, and the head of the committee is a Mapuche representative. Proposed

indigenous provisions in the document included not only political recognition and the

representation of their communities, but also the creation of new plurinational institutions and

rights to self-government. The following sections will first outline domestic impacts on rights

adoption. Then, I will briefly discuss public opinion on the current referendum in Chile, which

shows evidence that the absence of an incremental adoption process of indigenous constitutional

rights hurt the likelihood that the proposed document would pass referendum.

Democracy and Indigenous Constitutional Rights in Chile

Recent political history in Chile includes both periods of democracy, and decades of

violent authoritarian rule. A shift to democracy did not motivate the adoption of equally

representative rights for native citizens. Quantitative models presented in chapter 3 show that

states with lower democracy scores adopt indigenous recognition and equal rights early in the

democratization process and is negatively associated with the adoption of indigenous resource

rights. But the evidence presented here suggests that recent decades of indigenous laws that

repressed indigenous participation have not yet been done away with completely.

Violent policies of indigenous removal from land instated in the colonial era accelerated

under recent authoritarianism in Chile. Anti-indigenous policies became entrenched and remained

after the end of this authoritarian era. Despite the country’s relatively high democracy score in

recent years, there is continued repression and destruction of native lands and populations despite

some governmental attempts to adopt more inclusive laws. Shifts in democracy have not yet

impacted the status of indigenous constitutional representation in Chile. Below I will outline a

brief overview of recent democracy in the Chilean state and its impact on the status of indigenous

constitutional citizenship.

In 1970, Salvador Allende was democratically elected as president of the Chilean republic.

His Socialist platform included agrarian reforms that, by 1972, returned 69,436 hectares of stolen

land to 201 Mapuche communities (Lucic 2005; Rodriguez and Carruthers 2008). This period

represents a shift in state attitudes toward indigenous citizens, although no constitutional rights

were adopted for their communities under the Allende presidency.

Allende was removed via military coup in 1973, and all agrarian reform policy in favor of

indigenous communities came to a halt. The military government under general Pinochet reformed

national laws to favor state interests. These interests included expedited extraction of

Chile’s natural resources, most of which exist on native lands. Of the previously recovered

Mapuche lands under Allende, 28.36% of lands were returned to private property owners,

33.08% were given to campesinos, 6.94% were transferred to institutions, and 31.62% were

publicly auctioned. Overall, native lands were divided into 26,000 private land deeds (Lucic

2005). Pinochet decreed the prohibition of traditional land use by indigenous communities under

law 2.568, and furthermore established laws of state paternalism over indigenous peoples. These

laws outlined state ownership of indigenous lands, resources, and communities, in the interests of

native peoples, who were deemed unable to govern themselves (Rodriguez and Carruthers 2008).

From 1979-1982, the government repressed indigenous political movements and activity,

disallowed their political participation, and employed campaigns of suppression and imprisonment

where communities were deemed an issue. Over 80 indigenous community leaders went missing

during this time, while the state imprisoned countless other native activists (Lucic 2005). Where

the previously elected president began to embrace indigenous communities, authoritarian rule

under a military government was especially harsh to indigenous citizens in Chile.

The constitution instituted by the Pinochet regime conceived the Chilean nation as

ethnically white, and homogenous. Constitutional rights created during this era stressed equality

regarding rights, and indigeneity remains absent in national law. While many of the countries in

Latin America were adopting some sort of indigenous recognition into their constitutional law,

Chile remained gripped by authoritarianism and a constitution that defined the nation as ethnically

white and prohibited the traditional use of native lands.

Democracy ultimately came to Chile late in the 1980’s after a highly orchestrated exit by

the Pinochet regime. However, the democratizing state of Chile would inherit the repressive

constitution enacted under the previous military dictatorship. This included lifetime appointments

for political elites, many of whom were allies of Pinochet. Additionally, the rights of civilians were

restricted in favor of military authority. In broad strokes, the constitution of this democratizing

regime was not put in place by a nationally representative body and remained authoritarian in

nature (Couso 2011).

This period was the first peaceful one for the nation after decades of violent military rule.

However, democracy did not fully stabilize in the region until the 1990s. But indigenous

populations remained absent from constitutional law despite high gains in democracy scores. The

restrictive constitution from the Pinochet era is only now being debated and rewritten. Despite

democratization and a shift in the treatment of indigenous communities, deep rooted issues

remained.

The transitional Aylwin government continued the use of harsh repression of indigenous

political activity. The state punished indigenous political activists under anti-terrorism and

security laws that included harsh jail sentences for community leaders and citizens. Aylwin also

remained committed to the pursuit of hyper extractive neoliberalism, and the mass export and

commercialization of Chile’s natural resources in predominantly indigenous territories (Lucic

2005; Rodriguez and Carruthers 2008).

Under the same democratic government in 1993, attempts to reform the constitution to

include rights protecting indigenous representation, education, development, and access to land

were rejected by a group of conservative senators. Future endeavors to recognize indigenous

peoples in the constitution by President Lagos in 2004 were ignored by Congress and native

citizens remained absent from national law (Lucic 2005; Postero, Risor, and Montt 2018;

Rodriguez and Carruthers 2008). The UN’s ILO 169 was ratified by the government in 2008, but

these laws were never adopted into national constitutional law (UN; Constitution of Chile

Actual). Indigenous practices, such as the dissemination of native languages and culture in public

schools, for example, remains legally unconstitutional in Chile under the current document.

Finally, Chile’s elections have been riddled with issues in native communities since

democratization. Issues historically include low indigenous voter turn-out, missing ballots from

original communities, and widespread voter registration errors. Indigenous representation in the

state’s democratic elections remains underrepresented. Most recently, right wing leader Sebastian

Pinera was re-elected in 2018. He continues to pursue neoliberal resource extraction and

embraces a hegemonic view of Chilean national identity (Postero, Risor, and Montt 2018;

Rogriguez and Carruthers 2008).

Recent shifts toward democracy in Chile have been insufficient in creating indigenous

constitutional representation. Some leaders acknowledged native issues, but all have failed to

facilitate actual changes in the law. Many politicians, including former President Pinera, support

an ethnically homogenous national identity. Current President Bolic (elected to office in 2022)

oversees the country’s constitutional referendum that proposed expansive social rights, including

numerous native provisions. The reforms have, until this point, failed, and Bolic’s political

opposition name some indigenous rights a danger to the nation’s unity and sovereignty (El Pais

2022). Native populations remain underrepresented in Chile’s recently established democracy, and

their place in its historically exclusive society is still a debated topic.

In sum, Chile experiences a very recent history of violent authoritarianism. This era brought

accelerated resource extraction and repression of native populations throughout the state.

Though Chile experienced increased democracy scores since the late 1980’s with the removal of

the authoritarian Pinochet, Chilean leaders have failed to implement constitutional changes that

would benefit its native citizens. Instead, indigenous political activists continue to be punished

under harsh anti-terrorism laws as threats to national security. Current constitutional negotiations

are ongoing, but Chile’s native populations remain unrepresented under current national law and

indigenous inclusion is considered a threat by many to national unity.

Figure XXXI:

Figure 32 plots Chile’s democracy score from 1960 to 2012. Democracy scores remain

low throughout the 1980’s during military rule. A sharp increase begins in the late 80’s and is

followed by a high score from the 90’s on. Notably, Chile’s democracy scores from the 1990’s

are slightly higher than both Brazil, the medium indigenous rights example, and Bolivia, the

state with the most native protections in the constitution. But the Chilean constitution remains

without constitutional provisions for its indigenous populations.

Indigenous Mobilization in Chile

The estimated indigenous population proportion in Chile is one of the smallest in the

region- 0.3% of the national population. This means that the proportion of indigenous to

nonindigenous citizens is very low, and the potential for indigenous mobilization to cause sustained

political instability is comparatively low. Sustained campaigns of indigenous assimilation

remained intact in Chile through the 1980’s military dictatorship, and further dismantled existing

populations and indigenous organizations. Low populations are posited to lead to low likelihood

of political representation in constitutional law, and the results of this case study counter statistical

conclusions which show that smaller indigenous populations are more likely to gain access to

constitutional recognition and equal rights (see Chapter 3).

Along with having one of the smallest indigenous population proportions in the Latin

American region, Chile’s native groups are the least fractionalized with only three different

recognized groups. Theoretical prospects argue that less fractionalization facilitates political

coordination among groups and promotes indigenous mobilization capacity. Simply, there is less

room for discord among the differing political interests of various indigenous nations. The Chilean

case does not represent this proposition. Low native fractionalization has not helped secure any

constitutional representation for these groups in Chile as of January 2023. But this case does

support statistical models that show that higher fractionalization, or more separate indigenous

nations, are more likely to live in a state that adopts rights that are both equalizing and divisive.

Compared to the other country cases in this chapter, Brazil and Bolivia, the indigenous

share of Chile’s national population is much smaller. Chile’s native communities have much less

leverage in terms of population size vis a vis other citizens due to their low mobilization capacity.

This not only limits the legitimacy of indigenous claims to representation at the national level but

makes it highly unlikely that they will achieve rights beyond those that establish terms of equal

citizenship. Small native population proportions in Chile are theorized to hurt the prospect of the

adoption of native constitutional rights due to their limited mobilization capacity against

entrenched national institutions.

Of the native populations in the Chilean state, the Mapuche are the largest group with

territorial roots in the southern Auracania region. The second largest group is the Aymara, but

most Aymara live in Bolivia, and there are fewer in Peru. The smallest Aymara population resides

in Chile, comparatively (Jofre 2007). The map below outlines indigenous population estimates

as a total percentage of the region. Then, Table 16 lists estimates of indigenous group populations

in the Chilean state.

Figure XXXII: Indigenous Populations in Chile

Map from ECLAC(2020)

Table 21:

Indigenous Groups in Chile, Census 2002

Mapuche

604, 349

Aymara

48, 501

Atucameno

21, 015

Quechua

6, 175

Rapa Nui

4, 647

Colla

3, 198

Kawashkar

2, 622

Yamana

1, 685

Total

692, 192

*Estimations from Lucic (2005): Challenges in Chilean Intercultural Policies

Overall, there is a concentration of regions in the north, and a few scattered throughout

central and southern Chile where indigenous peoples make up at least half or more of the

population. Notably, many of these regions are also less sparsely populated overall. Total census

estimates in raw numbers show a fairly low indigenous population proportion that is dispersed

throughout the Chilean state.

As expected, low population numbers contribute to a low mobilization capacity. But this

is not the only issue facing indigenous movements in Chile. Indigenous populations in Chile have

had periods in which they were militant. But state efforts and suppression effectively culled these

movements in recent political history. The result is a weak capacity for indigenous mobilization,

and non-existent constitutional representation. Without sustained grass roots movements over

time, native populations in Chile have lacked the force to bring state entities to negotiate

constitutional provisions in their favor. Weakened indigenous mobilization harms prospects for

the negotiation of constitutional rights on the behalf of the original populations.

From 1860-1863 indigenous communities fought to resist state led land seizures and

military conquests. The original nations were defeated and dismantled by Spanish forces during

this campaign. Those that survived these state-led campaigns were relocated to national native

reserves, and the state embraced policies of indigenous paternalism. The state pacified existing

indigenous movements under military occupation and increased surveillance (Jofre 2007;

Postero, Risor, and Montt 2018; Rodriguez and Carruthers 2008).

In the early 1960’s, mobilized Mapuche communities played a major role in the next wave of

indigenous movements. These groups were credited with the adoption of preliminary land

reform policies during Salvador Allende’s presidency in 1972. Furthermore, sustained Mapuche

revolutionary movements led to the recovery of nearly 70,000 hectares of ancestral land. But

1979 marked the beginning of intense indigenous repression under authoritarian rule.

Indigenous political movements and groups became illegal, and key community leaders were

imprisoned for political activism and protest activities (Lucic 2005; Rodriguez and Carruthers

2008).

Native mobilization was so harshly repressed under the Pinochet regime that there are no

indigenous organization headquarters recorded as established in Chile for the entirety of this

observation period. Though the Harvard Transnational Movement Organization Dataset likely

underestimates indigenous mobilization on the ground, Chile’s score of 0 relative to Brazil’s score

of 3 and Bolivia’s of 6, signals that native communities in Chile lack the mobilization networks

present in other countries. Organizational networks were harshly stamped out under

authoritarianism, and this repression crippled native mobilization far into the future.

Recent instances of indigenous political mobilization are evidence that movement

networks are beginning to recover. For example, militant indigenous groups participated in

violent land invasions against Forestal Mininco. But the state deployed the military to subdue

these efforts to protect their lands. Mass police brutality and imprisonment of native citizens

continued into the early 2000s (Rodriguez and Carruthers 2008). As of 2016, the quantitative

score for indigenous social movement presence in Chile remains 0, representing a continued

weak capacity for native mobilization.

Small populations and legacies of repression of indigenous activities, taken along with

proxy scores for mobilization strength suggest that Chile has a weak capacity for indigenous

mobilization. Under these conditions, indigenous movements in Chile are not strong enough to

positively impact rights adoption. This case shows evidence that without sustained mobilization,

the adoption of indigenous provisions is unlikely. These results confirm the findings of statistical

models, where indigenous social movements positively predicts the adoption of resource and

autonomy rights for indigenous citizens (see chapters 3 and 4).

Indigenous Political Representation in Chile

There is no required political representation for indigenous citizens in Chile. The country

is constitutionally considered a “mestizo” nation, and discussions about indigenous issues were

absent on both the left and right side of politics until recently. The state created the executive

Council for Indigenous Development (CONADI) after democracy resumed in the 1990’s with the

aim to negotiate representative rights for native citizens. However, the executive has historically

hand-picked both the indigenous and non-indigenous council members and included state

representatives such as the head of the ministry of agriculture, planning and development, and the

state general secretary (Rodriguez and Carruthers 2008). Given the issues of state centralism and

elitism present in CONADI, it has become an extension of state interests that is used by party

leaders to continue extractive projects in the original nations’ lands. The organization has also

failed to negotiate the adoption of constitutional rights, as promised.

Currently, native populations are hoping to increase their political representation through

the negotiation of a new constitution. Seventeen of 155 seats are reserved for indigenous

representatives on the constitutional committee, and the committee leader is a Mapuche women.

She promises to ensure that the interests of the original nations are represented in the new text.

But the content of the new constitution is still being debated, and a draft was rejected in 2022.

The protected representation of native populations in state government is left up in the air, for

now.

In Chile, there is no guaranteed indigenous representation in national government. Even

indigenous political councils, such as CONADI, are considered politically corrupt and highly

centralized. The absence of native representation in Chile’s national government means that many

indigenous issues have not been brough to the nation’s political agenda. Many indigenous issues

remained non-salient to the general population until recent attempts at constitutional referendums

beginning in 2019. Low political representation for native populations means that they are

unlikely to secure constitutional protections. The Chilean case supports this theoretical position,

as low representation coincides with low representation across all rights categories.

Results presented in chapter 3 also show that indigenous political representation

positively predicts the adoption of autonomy rights into national law. Some of these rights, like

the state’s recognition of indigenous nations, and their collective autonomous rights, were

included in the July 2022 draft that was rejected via popular referendum (Constitution of Chile;

Draft July 2022). However, survival modelling suggests that indigenous representation in

government precedes the adoption of autonomous rights for original populations. In Chile,

indigenous communities did not have state representation in political office before the attempted

adoption of autonomous rights. This shows that the timing of indigenous political representation

matters, and it is constitutionalized prior to autonomous rights.

In sum, there is a continued non-representation of indigenous communities in Chilean

national politics. CONADI is considered highly corrupt, and only recently have indigenous

citizens been consulted on a constitutional committee. The political underrepresentation of these

populations means that their grievances are left out of mainstream political policy, and the salience

of these issues has remained low in the national government. Future work should continue to

examine the recent changes in indigenous political representation in Chile, and how these impacts

rights outcomes in the future.

Resources and State Capacity in Chile

Chile, like many other states in Latin America, has a history of resource dependence and

economic models that rely on their extraction. High resource dependence is theorized to repress

the adoption of indigenous constitutional provisions. This is because state economic performance

highly relies on natural resources that reside in native lands. States with a high capacity to extract

resources and exert physical control over their territories similarly restrict rights that establish

native autonomies and protection of resources. This makes the state more capable of intervening

and exerting control over valuable lands, and less likely to cede protective resource rights and

regional autonomies. The Chilean state has increasingly occupied native lands. Private companies

are allowed to do the same. Recent state occupation and intervention negatively impacts the

likelihood of indigenous rights that protect these lands and its resource wealth. The country case

of Chile supports this position, but high resource dependence and state capacity to extract these

resources has helped block rights adoption for native populations.

Under the authoritarian Pinoche regime, laws were created that allowed the military

government to hand out individual land and water deeds to non-indigenous citizens across all

original nations. The goal was to make native land more profitable in the global market and

increase exports of state natural resources (Lucic 2005). No efforts have been made to change

course from this model, and the government continues to promote private resource extraction on

native lands. The current constitution, instituted in 1981, privatized means of production, and

strongly protects private property rights for individuals and companies (Constitution of Chile

1981). Pinochet era law number 701 granted heavy subsidies to companies extracting timber

from native lands (Chile D.L. 701). Under this same law, forestry companies currently enjoy up

to 75% state subsidies.

Native lands in Northern Chile are occupied by various mining companies, urban water

supply companies, and geothermal powerplants. These groups have gained access to water rights

in the region to the detriment of native populations. In the south, hydroelectric companies, timber

companies, and geothermal powerplants are highly invested. These sectors are also granted private

property concessions from the state (Postero, Risor, and Montt 2018). Overall, timber makes up

roughly 34% of all Chile’s exports (Rodriguez and Carruthers 2008), and resource rent dependence

as a total percentage of the state’s GDP fluctuates anywhere from 5-17%. The high end of these

estimates is higher than the peak resource rent dependence of both Bolivia and Brazil during the

observation period (WB: GDP).

Figure XXXIII:

Figure XXXIV:

State and private projects in native lands have been expedited since the 1970’s and remain

in practice today. The government increased the surveillance and militarization of native regions

alongside the arrests of activist native leaders as terrorists as recently as 2017 (Postero,

Risor, and Montt 2018). Statistical data scores Chile’s state capacity for violence and resource

extraction are comparable to Brazil’s, but stronger than Bolivia’s, and relatively strong relative to

other countries in the region. The situation on the ground suggests that native populations have

been subjected to military intervention consistently over the past 5 decades.

Higher resource dependence and state capacity are predicted to be negatively facilitated

indigenous rights adoption in national law since state entities want to protect these assets and can

do so. The case of Chile offers some evidence that increased government reach into native regions,

alongside higher resource dependence works against the creations of native provisions in

constitutional texts. Statistical models show that weak states are more likely to adopt all types of

native provisions into law, but the results for rent dependence are mixed. The overall trend in the

region is that rent dependence makes governments more likely to adopt rights that promote equal

citizenship, but negatively predicts the adoption of autonomy rights. Chile conforms to the trend

of increased capacity negatively predicting rights adoption. States with higher physical control

over its territories and extractive capabilities are less likely to recognize indigenous nations in

national law. Chile’s case shows that states with interest and reliance on the natural resource sector

are not likely to recognize indigenous aspirations of constitutional protection. The state itself has

invaded and occupied native lands in recent projects and campaigns of military conquest. This

signals that the capacity for the Chilean government to exercise control over these regions exists

through recent history and is evidenced with many instances of occupation.

Public Perceptions of Indigenous Rights in Chile – The Absence of Incremental Rights

Adoption

In October 2020, 78% of Chilean citizens voted in a national referendum to throw out its

authoritarian era constitution and create a brand-new binding document. The constitutional

committee debating the new laws includes seventeen native representatives and is headed by a

Mapuche woman. The proposed draft of Chile’s new constitution was put to a popular vote in

September 2022. This version of the constitution would have instated broad rights for all Chilean

citizens, including universal health care, welfare, and pension benefits. It also included reforms

that granted indigenous nations autonomy on their lands, recognized the state as plurinational,

and allowed their communities input in state and private project plans in ancestral regions

(Constitution of Chile -Draft 2022). But this version of the national constitution was rejected.

National polls suggest that while the people are for native recognition and

representation, the laws in the proposed draft went too far.

On September 4th, 2022, Chile’s population rejected the proposed new constitution.

Campaigns that opposed the document argued that the special status it afforded indigenous peoples

was too extreme. The current public opinion on the ground shows that while Chileans are ready to

adopt a new constitution, they are wary of granting rights that are nationally divisive. Instead, the

general public is more concerned about state policies that affect and benefit everyone. Native

concerns are less of a priority.

For example, Maria Eugenia Muse, a 57-year-old health insurance worker, was polled

after voting in the referendum with her mother. Both women voted to throw out the old

constitution and create a new one. But both women voted against the most recent draft of the

national document. When asked about her feelings on a plurinational Chile, she responded:

“Fue un fiasco, una verguenza lo que hicieron. La constitucion que hicieron no es la constitucion

de Chile, del pueblo de Chile. Es de un grupo.”

“It was a fiasco, an embarrassment what they made. The constitution that they created isn’t the

constitution of Chile, of the people of Chile. It is for one group.” --Maria Eugenia Muse (Nicas 2022).

The current left leaning opposition party leader, Jose Antonio Kast, called the vote a

“triunfo del sentido comun,”, a “triumph of common sense”. The opposition takes the position

that plurinationalism and indigenous autonomy rights are dangerous to national sovereignty

(Fors 2022).

Similar IPSOS public opinion polls were held from November 11th-14th, after the

constitution was rejected in September 2022. 44% of respondents think that the constitution needs

to be a completely brand-new document, and the government should scrap the dictator era version

from the 1980’s. But 42% of citizens think that the old document can be revised into a modern

legal contract with less drastic changes. There is also a substantial portion of respondents that

prefer to keep the old Pinochet constitution in place (El Pais 2022; IPSOS 2022). These

perspectives show that the population is divided between a revolutionary recreation of the

constitution, and an incremental adaptation of the old one. Chile is a conservative nation that has

recently stabilized into a democracy, and the public is having difficulty backing extreme

constitutional change. Moreso, 40% see the change as urgent, and that it needs to take place in the

next year. 31% see the issue only as semi-urgent, something that can happen in the next 1 or 2

years (IPSOS 2022). The public is similarly divided over how quickly new laws need to be created.

Overall, many Chileans prefer incremental, more conservative change over rapid revolution of the

document.

Although the public largely believes that indigenous peoples should be present on the

constitutional committee (74%), most feel that it should be headed by legal professionals (59%).

The current committee is headed by indigenous leaders, and many voters prefer that this was not

the case. Only 26% of poll respondents have a positive view of the current committee, and 66%

have a negative view of the committee and the negotiation process (IPSOS 2022). Public opinion

leans toward a distrust of the current group debating the new state constitution, made up of several

indigenous representatives alongside other Chilean representatives. They also question its

indigenous leadership and prefer that those with previous expertise oversaw creating the new text.

From this perspective, many view that native populations are overrepresented on the current

committee and question the legitimacy of the deliberation process.

Finally, there is the issue of indigenous laws that are seen as compatible with Chile’s

current democracy and political institutions. 46% of respondents think that the state should

include recognition of native citizens (IPSOS 2022). But this response applies to recognition

broadly – the recognition of native culture, and language, for example. Voters believe, at least,

that indigenous peoples should be recognized as citizens under law.

Other native constitutional aspirations presented in the draft are more controversial.

Additional polls find that the top two reasons that voters rejected the draft of the constitution

were, “no todos van a ser iguales ante la lay” (39% of respondents “not everyone be equal before

the law), and “la plurinacionalidad de Chile corre riesgo de dividirse” (31% of respondents

“plurinationalism in Chile runs the risk of dividing us”) (El Pais 2022).

While Chileans support indigenous representation and presence on the constitutional

committee itself, survey data shows that most feel that native populations are overrepresented in

the process. Recognition of native populations is popular among voters, but the data also show

what kind of rights worry the general population. Rights that elevate indigenous status, or give

them special recognition under the law, for example led many voters to reject the most recent

draft. In the same vein, plurinationalism, or the recognition of multiple nations in Chile worries

many constituents. Concerns that the draft was not representative of the people in Chile motivated

its rejection, and again signals a populace that is wary of adopting well defined

protections for a currently unrepresented minority population.

In the absence of an incremental process that first recognizes previously excluded

indigenous populations and expands to eventually include the rights proposed in the most recent

draft, indigenous rights were too much for many voters. This outcome lends evidence to the

theories tested in chapter 4, that more expansive indigenous rights that are divisive to a unified

national identity are more likely realized through a step-by-step process of constitutional change.

Discussion

First, the Chilean case is a clear argument for an incremental approach to indigenous

rights adoption in national constitutions. Chile’s indigenous populations remain absent from

constitutional law and representation. Recent attempts to rewrite the constitution have failed in

public referendum, with many attitudes citing that some proposed rights for indigenous

populations went too far. Overall, the jump from indigenous non-citizenship to extensive

constitutional protections including the right to self-government may have been too much too fast

for many Chileans.

Against expectations, democratization in Chile in recent decades failed to lead to the

adoption of indigenous provisions in the constitution that promote equal terms of political

citizenship for these populations. Survival models in chapter three show that countries with low

democracy scores are highly likely to adopt initial indigenous recognition in the constitution- but

this is also not the case in Chile, where both authoritarian and democratic regimes have failed to

adopt and indigenous provisions into law.

Chile has a very low indigenous population proportion and informs that the mobilization

capacity of indigenous groups is relatively weak. But Chile’s indigenous populations are made up

of three main groups. Low fractionalization of ethnic populations is posited to facilitate political

coordination and positively impact rights outcomes. But here this is not the case. Chile has no

recorded social movement headquarters that serve specifically indigenous political interests,

according to the Harvard Database for Social Mobilization. The weak capacity for indigenous

mobilization in Chile is expected to negatively impact the likelihood that these groups can

negotiate various constitutional representation. With no current indigenous protection in

constitutional law, the expectation aligns with the outcome.

No required or recent indigenous political representation at the national level in the state

of Chile plays a partial role in the non-expansion of constitutional citizenship to these

populations. Representative councils that were created by the state are considered highly

centralized with state loyalists as representatives, thus explaining their failure to expand

constitutional citizenship to indigenous populations, as promised. In quantitative models,

nonrepresentation was associated with the adoption of minimal indigenous recognition rights in

the constitution. But the indigenous populations in Chile do not yet even have this right.

Indigenous representation in national government does predict the adoption of autonomy rights,

and the case in Chile lends some evidence to this outcome. In the absence of indigenous political

representation at the national level, constitutional rights that include regional autonomy have

failed to be adopted as recently as 2022.

Finally, evidence shows both a high investment in resource rents as a vital part of the state

economic system, and a high capacity for violence in ancestral territories. State policies over the

past five decades consistently included the securitization of indigenous communities and the

extraction of resources. Measures for resource rent dependence and state capacity concur with

these findings and suggest a high reliance on resource wealth and heavy state involvement in

indigenous territories. Per this work’s theoretical expectations, strong states with a heavy reliance

on resources as a portion of the GDP resist the adoption of rights that go beyond terms of equal

democratic citizenship and legitimize indigenous claims to regional sovereignties and

representation. But in Chile, these two factors contribute to a political environment where

indigenous populations are yet to be recognized in constitutional laws. These results confirm

statistical findings that show weak state capacity is associated with the adoption of indigenous

recognition, representation, and resource rights. Evidence for resource rents is more mixed and is

at first positively associated with indigenous recognition and representation in constitutional law.

Here, this is not the observation. Instead, rent dependence is negatively associated with adoption

of all rights types.

Future work should examine the continued constitutional debates that continue in Chile in

2023. It is likely that indigenous rights will have to be dialed back from the far-reaching

autonomies proposed in the most recent iteration proposed by the council. Since many indigenous

rights were a point of contention according to public opinion polls, first including indigenous

recognition and representation rights that equalize terms of citizenship would make a constitutional

referendum in Chile more likely to succeed. Today, much of the population is interested in

advancing the welfare of all citizens equally, and less so focused on establishing rights of

indigenous difference.

Chapter VIII: Conclusion

“Autonomy is not a gift, it is our victory,” Ronald

Andrés, indigenous leader of Charagua Norte,

Bolivia (IWGIA 2017)

Discussion of Argument and Findings

This dissertation examined the determinants of indigenous rights adoption in Latin

America. I show that from uniform political exclusion, constitutional law in the region evolves to

include indigenous citizens in numerous forms. I contribute meaningful insights into the patterns

of indigenous constitutional rights in Latin America, a topic that remains understudied in recent

scholarship. Through firsthand constitutional text analysis, I create and original dataset of

indigenous rights and find a high degree of variance in the political rights and status of indigenous

citizens in the region. Some states have yet to include indigenous provisions in their national

constitutions. Others have adopted several laws that not only recognize indigenous peoples as

equal political citizens with equal access to political resources, but also create terms of indigenous

national sovereignty, and the recognition of multiple national identities.

. The patterns of indigenous rights adoption into national constitutions showed that not all

rights are created equal. Terms and agreements vary, depending on the substantive content of the

provisions to be adopted. This is a novel approach, which accounts for the fact that some

indigenous aspirations run counter to those that stress united national identity and equal

democratic rights. The dataset constructed for this dissertation uses the content and political

implications of indigenous political rights to code and categorize indigenous rights adoption.

Future iterations of this data set should expand to include new revisions to indigenous

constitutional protections. It can also be used to aggregate patterns of minority rights adoption in

other regions of the world.

Due to the variance in the content of adopted indigenous provisions, I argue that the content

of indigenous constitutional rights impacts the likelihood of their adoption.

Constitutional provisions renegotiate terms of citizenship in numerous ways and have political

implications for both indigenous and non-indigenous citizens. Previous work on the expansion of

minority rights notes the difference between social and economic rights. But this work does not

consider that populations may have separate national identities and kinship ties (Benhabib 2005;

Marshall 1950; Shaman 2003). This work corrects these gaps and categorizes indigenous rights in

constitutional law in Latin America in four distinct categories: Recognition, Representation,

Resources, and Autonomy. Recognition rights simply legitimize indigenous populations as

political citizens. Representation provisions equalize rights to indigenous culture, education,

health, and more. Resource rights correct historical imbalances and inequalities that coincide with

indigenous heritage. Finally, indigenous autonomy rights define terms of self-government, and

create new political institutions that represent these communities. Governments in Latin America

have adopted these types of rights to various degrees over the past half century. The adoption of

recognition and representation for previously excluded indigenous populations represents a natural

extension of equal democratic citizenship. Both resource and autonomy

rights are considered to serve only indigenous populations and divide uniform political national

identities in constitutional law.

Next, the approach used in this dissertation is mixed methods in nature. I first use a

regional bird’s eye view approach to discern regional patterns of indigenous rights adoption in

national constitutions. Then, I use a nested case analysis by identifying three cases of interest for

a more in-depth view of causal mechanisms. This approach strengthens statistical findings and

helps identify key mechanisms for rights adoption at the state level (Lieberman 2005; Evertsson

2017). It is also used to assess whether results are similar or different across modelling choices.

Here, while large-n output shows one causal pathway toward rights adoption, case study evidence

shows that there may be multiple paths toward the creation of indigenous protections.

Second, I identify key domestic factors that impact the adoption of indigenous rights into

constitutional law from the literature. I argue that the impact of domestic on adoption is

important, but that the contribution of impact varies based on the content of the provisions to be

adopted. Democracy has been long associated with the expansion of citizenship to minority

populations (Jung 2003; Marshall 1950). But regional patterns reveal no positive statistical

relationship between democracy the expansion of equal constitutional rights to indigenous

populations, against theoretical expectations. In fact, democracy scores are lower when

indigenous recognition rights are adopted into the constitution.

However, though survival and logit models show no positive relationship between

democracy and the expansion of equal citizenship rights, some case study evidence identifies

ways in which democratization and early adoption of indigenous recognition and representation

rights coincide. A nested case approach shows that regional patterns tell one story, while case

studies show evidence of multiple causal pathways to rights adoption. Specifically, in Bolivia and

Brazil, democratization is associated with the creation of some indigenous provisions but is not

in Chile.

Importantly, indigenous political mobilization is related to the adoption of representation,

resource, and autonomy rights across statistical models. This supports conventional knowledge

that mobilized groups on the ground can convince an unresponsive government to adopt minority

rights (Jung 2003; Seider 2002; Yashar 1998; Yashar 2007). But the results presented in this

dissertation uniquely show that indigenous mobilization is particularly important for all rights

adoption particularly for autonomy provisions (according to regional statistical analysis). When it

comes to country case level analysis, evidence from Bolivia shows that strong movements were

present in the country before the adoption of any provisions, and positively impacted the adoption

of all categories of constitutional provisions. Similarly, weak networks in Chile until recent years

has inhibited rights adoption. These cases show that strong indigenous mobilization is key to the

acquisition of protectional provisions in domestic law.

Indigenous political representation is found to be associated with all indigenous rights

adoption in the Latin American region. Strong representation in the case of Bolivia clearly helped

facilitate the adoption of both resource and autonomy rights after recognition and representation

were established. In Chile, on the other hand, where indigenous representation at the national

level only occurred in recent years, communities do not yet have any protection in the

constitution.

Next, weak state capacity and reliance on resource rents are expected to reduce the

likelihood of the adoption of resource and autonomy rights because of the government’s

increased extraction capability and its interest in resources on indigenous lands. Statistical

results, however, show no relationship between state capacity for control and extraction and the

adoption of indigenous constitutional provisions. Resource rents, on the other hand, are found to

predict the adoption of autonomy rights in statistical models. Case study evidence lends evidence

to the theory that strong state capacity and interest in resource rents negatively impacts the

adoption of resource and autonomy rights that protect original territories from encroachment. But

in Bolivia, where extensive resource and autonomy rights were implemented in 2009, strong state

involvement and rent dependence continues in lowland regions, that are less represented by

current indigenous protections in the constitution vis-à-vis large highlander populations.

Finally, I present evidence that indigenous constitutional citizenship evolves in steps. From

constitutional exclusion, indigenous peoples are recognized as political citizens as a minimum

threshold. Representation rights follow as a natural extension of equal democratic citizenship.

Previous literature has associated democratization with the expansion of minority rights (Benhabib

2005; Marshall 1950). But none have considered how these processes expand to the adoption of

nationally divisive rights, such as those that serve indigenous populations and create terms of

regional self-government. Additionally, this work contributes the incremental nature of indigenous

inclusion in national law- it opens first in terms of unspecified citizenship, and then evolves to

extend equal political access. After equal citizenship is established, constitutional rights evolve to

correct economic, societal, and political inequalities due to indigenous heritage. Finally, autonomy

rights are the last rights adopted in this process, and they outline indigenous territorial self-

government and create indigenous political institutions. These rights incrementally expand access

to political representation and state goods and become more divisive to unified national identities

as they expand. Statistical results show that from initial indigenous recognition in constitutional

law, recognition rights predict the future adoption of indigenous resource rights. Resource rights

are also positively associated with future adoption of indigenous autonomy rights in constitutional

law.

Case study evidence further supports the theory of incremental constitutional

rightsexpansion. In Chile, recent referendums failed partly due to the far-reaching indigenous

rights and autonomies defined in the rejected draft in 2022. Chilean proponents of reform

attempted to take their country’s framework from ‘zero’ indigenous rights inclusion, to one of the

most expansive in the region. In Brazil, only one constitutional revolution resulted in indigenous

representation, which include the adoption of indigenous recognition and representation, which

establish equal rights. But rights do not yet include resource or autonomy rights in Brazil. Finally,

in Bolivia, there is a clear case for incremental rights expansion. Indigenous populations were first

recognized as political citizens and afforded some constitutional representation rights in 1994. In

2005 these rights further expanded to include more representation rights that protected indigenous

education, culture, health, and language. Last, in 2009 multiple indigenous resource and autonomy

rights were adopted into the Bolivian constitution. Indigenous rights and access to political

resources in Bolivia increased in steps from 1994 to 2009.

Overall, much of the evidence from case country analyses supports quantitative results.

But the nested case analysis also drew unique insights that should be examined under future

research. Specifically, some case evidence shows conflicting impacts for the timing and impact

of democratization, rent dependence, and state capacity are found in these approaches. This

implies multiple pathways toward adoption, dependent on domestic conditions. Indigenous

mobilization is consistently important in the adoption of resource and autonomy rights in the

constitution, and for all indigenous rights creation in Bolivia. Similarly, strong indigenous

representation in government is positively related to the creation of all indigenous constitutional

rights in quantitative models and is supported by all three country case results. Results for

negative theoretical impacts on rights adoption are mixed across analytical approaches and

warrant further investigation. Last, both statistical and case level analysis support the theoretical

proposition that constitutional rights expand to include indigenous populations in steps. From

broad, general recognition, incremental access to political resources is created for previously

marginalized original populations. After recognition, states are likely to adopt representation

rights that define terms of equal citizenship in the constitution. Then, adoptions take form as

resource rights that correct societal and economic inequalities suffered by indigenous

communities. Finally, autonomy rights are adopted as the last step in the process according to

case results. Evidence of incremental rights adoption as a useful strategy for implementation is

demonstrated across all country cases.

Contributions

This dissertation contributes to current scholarly work in important ways. First, it includes

a unique categorization of indigenous constitutional rights that take the provisional context into

account. This adds knowledge to the recent shifts in indigenous political representation in the

Latin American region.

I argue that the content of indigenous rights in the constitution that politically include

previously marginalized communities needs to be examined when discussing the likelihood of

their adoption. Previous work discusses the expansion of democratic rights (Marshall 1950;

Benhabib 2005). But it has not considered that negotiations for rights often include provisions

that benefit indigenous populations specifically and can create multiple national identities within

the state.

Next, this research considers multiple key variables that impact the rights adoption

process while accounting for the timing and content of rights adoption. In broad strokes,

domestic features interact with the adoption process differently, depending on the current stage of

the adoption process. This means that the timing of rights adoption matters, and domestic inputs

have varied impacts, dependent upon the current phase in the rights adoption process.

Contrary to existing theories on the expansion of democratic citizenship (Marshall 1950;

Benhabib 2005), democracy is not significantly related to the adoption of indigenous recognition

or representation rights in national constitutions. These rights are posited to extend equal terms of

political citizenship to excluded political minorities. This work shows that democracy is not

significantly related to the adoption of these rights, but case study evidence shows that in some

instances, democratization coincides with the initial adoption of indigenous provisions in the

constitution.

Importantly, strong indigenous mobilization is related to the adoption of indigenous

autonomy rights throughout the Latin American region, and the relationship between

mobilization strength and all rights adoption is evident in case study analyses. Mobilization

strength is underestimated by current data, which explains the discrepancies in results between

regional patterns and case study results. Overall, indigenous mobilization is related to the

creation of most, if not all, indigenous provisions in modern Latin American constitutions.

Results across both quantitative and country case level analysis support previous work that argues

grass roots mobilization forces the government’s hand into adopting more representative rights

(Jung 2003; Seider 2002; Yashar 2007).

Indigenous representation is also found to be positively related to the creation of indigenous

rights. Particularly, more representation at the national level predicts a higher likelihood of the

adoption of all constitutional rights for original communities. These rights outline regional

sovereignties and create new political institutions that run parallel to existing state structures.

Future work should continue to examine the relationship between minority

representation and the creation of new rights for marginalized populations.

Last, I show that indigenous constitutional citizenship expands over time in steps. This

work shows that this is a viable strategy to adopt indigenous provisions into national law over

time. The step-by-step method of indigenous political inclusion are seen in both statistical and

case study models. Other work has noted that rights eventually go on to provide economic

benefits to some populations (Marshall 1950; Benhabib 2005). But previous studies do not

consider the presence of populations with different national heritage. This research considers that

rights not only evolve to create terms of equal democratic citizenship, but also go on to take the

form of provisions that create new political institutions and autonomies.

Finally, the framework used in this dissertation can be expanded to include future

indigenous rights adoptions in national constitutions in the Latin American region. Similarly, it

can be used to examine the constitutional citizenship and inclusion of excluded minority

populations throughout other parts of the globe. This includes ethnic minorities, women,

Afrodescendants, and other politically excluded minorities.

This work considers constitutional law to be a conflict resolution mechanism that can be

used to resolve the grievances of marginalized populations. Therefore, it is likely that other states

have used constitutional arrangements and access to citizenship as strategies to include previously

politically excluded groups.

Limitations and Implications for Future Research

The research conducted in this dissertation outlines the evolution of indigenous

constitutional representation in Latin America. Against conventional wisdom, democratization was

not statistically related to the adoption of indigenous provisions that are create terms of equal

democratic citizenship. More attention should be given to the non-impact of democracy on

indigenous constitutional rights.

Efforts must also be undertaken to provide a better measurement and analysis of indigenous

mobilization in a more direct form. Here, statistical measures for indigenous mobilization are

imperfect and indigenous political activity is likely stronger than what the data represents in

chapters 3 and 4. Future work will address these shortcomings. For example, future field research

should include interviews with indigenous political leadership in order to better discern their

specific political goals and aspirations as well. The political motivations of

mobilized groups can also be further measured through member interviews and field research.

The findings in the Bolivian case also call for additional research. The Bolivian

constitution, which created the most far-reaching indigenous provisions in the region, including

regional autonomy and plurinational courts, disproportionality benefits larger groups that are

originally for highland regions. Particularly, there is a need to examine the impacts of

constitutional rights that benefit the original populations, because their benefits are far from

uniform. Extensions of this work need to examine which indigenous groups can successfully be

able to leverage constitutional protections versus those who cannot and remain unrepresented.

The case in Chile, which is also well represented by the models presented here, should

continue to be monitored for indigenous rights outcomes. Failed reforms in 2022 included far

reaching indigenous rights that skipped an incremental adoption process. It is likely that

provisions that protect indigenous populations will be scaled back in future iterations of

constitutional drafts.

Next, this work provides important implications for constitutional law as conflict

resolution devices. The incremental inclusion of politically marginalized groups over time is a

viable strategy to address historical misgivings and modern grievances in society. This

perspective can be used to inform other legal strategies embraced by governments to include

excluded groups into the state apparatus. Frameworks of incremental inclusion of marginalized

populations are especially helpful to avoid conflict.

Many new questions are raised by this research. As indigenous mobilization is key in the

creation of indigenous constitutional provisions, future work should consider the coordination of

multiple groups in mobilization efforts. For example, indigenous interests intersect with those of

the poor working class, afro-descendant citizens, and environmentalists. Future iterations of this

work will more accurately capture the presence of coordinated mobilization efforts.

It should also be considered how this framework can be expanded to examine the political

rights of other marginalized groups. Many groups, including women, have been excluded or

continue to be excluded from political representation. Frameworks of incremental political

inclusion may similarly apply to other marginalized groups that were historically restricted from

political rights. However, the theory of incremental rights expansion as used in this dissertation is

especially useful in examining the creation of protections for groups that have different national

identities and aspire toward partial autonomy.

Finally, future work should expand case study analysis to continue the examination of

causal pathways and mechanisms that result in indigenous rights adoption. More case work will

further help illuminate the findings of statistical results presented in this study.

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Appendix A: Democracy Plots by Country

Appendix B: Resource Rent Dependence by Country

020°

°°

G2-

i9-

1960 1980 2000

Year

Resource

Rents:

Uruguay

1970-2016

40-

30-

°o

£20

1960 1980

2000

Resource

Rents:

Peru

1970-2016

40-

Year

Appendix C: State Capacity by Country

State

Capacity

State

Capacity

State

Capacity:

Ecuador

1960-2016

1960

1980

2000

Year

State

Capacity:

Salvador

1960-2016

1960

1980

2000

Year

Appendix D: Judicial Strength by Country

Appendix E: Neighborhood Effects of Recognition Rights by Country

Colonization and State Building in Chile The Creation of Indigenous Constitutional Exclusion

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