**2. Indigenous peoples as vulnerable people**

### **2.1 The invention of America: the indigenous peoples and their status as "miserables of Castilla"**

Indigenous peoples have been defined as those ethnic groups within the State that are characterized by a very long-term settlement within a given territory, an ancestral linkage with the land, and a high vulnerability to progress [4]. It is a very widespread definition: these people have a special connection with their ancestral territory, but these lands do not pertain to them.

In Chile, before their independence from the Spanish Crown, the Mapuche occupying the present territory were subjected to the draconian statute compiled under the label of "Laws of the Indies" norm that—on the pretext of protecting them—grouped them into "encomiendas" which were delivered to the Spanish "encomenderos" for their administration and care. Regrettably, both the "encomenderos" and the "general protectors of natives" abused the natives, forcing them to pay annual tributes, depriving them of all political representation, and providing, in fact, a slave trade despite the fact that the laws proclaimed their freedom [5].

It is known that, once installed in America, the conquerors denied humanity to the indigenous people. Later, they were considered human beings, although abject, almost beasts, because in the opinion of the Europeans, the natives were simply "amentes" since psychological or cognitive abilities of them were clearly diminished, a policy that endorsed the extermination, only appeased for the mercy of a sector of the Catholic Church, specifically through the discourse of the activists like Fray Bartolomé de las Casas or Francisco de Vitoria [6]. Even so, both agreed on the need to provide them with tutelage, for that reason the Catholic Church became the classic protector and defender of the indigenous people, in the Latin American context, and the Indianous Law granted them the legal status of "miserable of Castilla," assigning them "patrons" because, despite recognizing own political organization and own law, the Europeans said that the Indians were not able to self-determine, and, therefore, facing the hegemonic law, they were "relatively incapable" [7].

#### **2.2 Republican Chile: indigenous are equal citizens (but incapable)**

Chile declared its independence from the Spanish empire in 1810, and, along with it, it freed itself from that hegemonic law. For the indigenous peoples who

**133**

were not paid [5].

*Decolonizing Indigenous Law: Self-Determination and Vulnerability in the Mapuche Case*

of this custom was subject to the decision of the Chilean legislator.

has been affirmed that it is one of the "most notable disabilities" [9].

Christian, and Western conduct set by the IHRL [10].

occupied this territory, however, the situation worsened because, henceforth, they had to submit to the yoke of the new Chilean elites that—as heirs of the European cultural imaginary—began the stage of "internal colonialism" [8]. It is somewhat paradoxical to assume it, but despite the conquest or "invention" of America, the Spanish empire continued recognizing some ways of self-government for Mapuche people, specifically in the title "Of the Indians of Chile," included in the "Digest of the Laws of Kingdoms of the Indies" (1680). After the formation of the Chilean republic, however, Mapuche's Law came to be considered as a mere "indigenous custom." This sovereign law—validated and respected by the Spanish empire—was victim of the modern Chilean "epistemicide," because the validity and application

Art. 1146 of the Chilean Civil Code prescribes: "All person are legally capable, except those that the law declares incapable" and, subsequently, in Art. 1447 lists those people considered incapable. And although neither at the time of its coming into force (1857), nor now, this Code has expressly declared the indigenous as incapable, the truth is that different Chilean laws have prohibited indigenous people from carrying out certain legal acts—in particular, alienating their lands—hence it

Chile, after the advent of the republic, even recognized the indigenous constitutionally, benefiting them with equality, freedom, and ability to exercise their legal rights and obligations, even though the latter was extremely limited, particularly with regard to the autonomy of the will and the possibility of selling their lands, an issue that continues to this day as a mark of the historical treatment as incapable. On this, Chilean legal scholars criticized in his opportunity the equality of rights granted to the natives, because it was harmful for them, they were easily deceived and granted contracts of sale of their land for ridiculous prices, or they

However, that disability has not only been considered in free traffic of goods and services but also into Chilean criminal law. In this sphere, indigenous peoples have been declared inimputable due to their "amencia," that is, it is assumed that they have a psychological, social, or economic inferiority that prevents them from adapting to the normative requirements imposed by the modern State and ratified by the "Ingenious Act" and Chilean criminal code. This is an extremely controversial issue at the time of its practical application, because it is influenced by legal issues, both in substance and form. However, the "essentialist" construction of indigenous peoples—which "internal imperialism" continues to do up to now—turns out to be decisive, since it is assumed that they continue to live in barbarous and uncivilized conditions and, therefore, are unable to comply the standards of civilized,

As a corollary to this section, we can affirm that currently in Chile, in order to manifest consent and validly bind themselves before the law, people must be fully able. The legal disabilities, on the other hand, can be physical or biological, as well cognitive or psychological as it happens, for example, with deafness, muteness, or dementia. Some are congenital, but there are also supervening ones, considering also those of human ontogenesis as occurs, for example, with childhood and old age. Probably, the historical explanation for this would have to be sought at a time when subjective rights were considered "able-do" faculties, in other words, that human rights could have as many rights as their physical and mental capacity allow [11]. However, other disabilities have been included in Chilean legislation, linked to race, gender, or working population. In fact, this was the case until 1943 with the so-called civil death that prevented the individual who issued religious solemn vows to retain or acquire ownership of things. The same happened until 1989, because the Civil Code declared married woman incapable; only with the enactment of the Act

*DOI: http://dx.doi.org/10.5772/intechopen.89020*

#### *Decolonizing Indigenous Law: Self-Determination and Vulnerability in the Mapuche Case DOI: http://dx.doi.org/10.5772/intechopen.89020*

occupied this territory, however, the situation worsened because, henceforth, they had to submit to the yoke of the new Chilean elites that—as heirs of the European cultural imaginary—began the stage of "internal colonialism" [8]. It is somewhat paradoxical to assume it, but despite the conquest or "invention" of America, the Spanish empire continued recognizing some ways of self-government for Mapuche people, specifically in the title "Of the Indians of Chile," included in the "Digest of the Laws of Kingdoms of the Indies" (1680). After the formation of the Chilean republic, however, Mapuche's Law came to be considered as a mere "indigenous custom." This sovereign law—validated and respected by the Spanish empire—was victim of the modern Chilean "epistemicide," because the validity and application of this custom was subject to the decision of the Chilean legislator.

Art. 1146 of the Chilean Civil Code prescribes: "All person are legally capable, except those that the law declares incapable" and, subsequently, in Art. 1447 lists those people considered incapable. And although neither at the time of its coming into force (1857), nor now, this Code has expressly declared the indigenous as incapable, the truth is that different Chilean laws have prohibited indigenous people from carrying out certain legal acts—in particular, alienating their lands—hence it has been affirmed that it is one of the "most notable disabilities" [9].

Chile, after the advent of the republic, even recognized the indigenous constitutionally, benefiting them with equality, freedom, and ability to exercise their legal rights and obligations, even though the latter was extremely limited, particularly with regard to the autonomy of the will and the possibility of selling their lands, an issue that continues to this day as a mark of the historical treatment as incapable. On this, Chilean legal scholars criticized in his opportunity the equality of rights granted to the natives, because it was harmful for them, they were easily deceived and granted contracts of sale of their land for ridiculous prices, or they were not paid [5].

However, that disability has not only been considered in free traffic of goods and services but also into Chilean criminal law. In this sphere, indigenous peoples have been declared inimputable due to their "amencia," that is, it is assumed that they have a psychological, social, or economic inferiority that prevents them from adapting to the normative requirements imposed by the modern State and ratified by the "Ingenious Act" and Chilean criminal code. This is an extremely controversial issue at the time of its practical application, because it is influenced by legal issues, both in substance and form. However, the "essentialist" construction of indigenous peoples—which "internal imperialism" continues to do up to now—turns out to be decisive, since it is assumed that they continue to live in barbarous and uncivilized conditions and, therefore, are unable to comply the standards of civilized, Christian, and Western conduct set by the IHRL [10].

As a corollary to this section, we can affirm that currently in Chile, in order to manifest consent and validly bind themselves before the law, people must be fully able. The legal disabilities, on the other hand, can be physical or biological, as well cognitive or psychological as it happens, for example, with deafness, muteness, or dementia. Some are congenital, but there are also supervening ones, considering also those of human ontogenesis as occurs, for example, with childhood and old age. Probably, the historical explanation for this would have to be sought at a time when subjective rights were considered "able-do" faculties, in other words, that human rights could have as many rights as their physical and mental capacity allow [11]. However, other disabilities have been included in Chilean legislation, linked to race, gender, or working population. In fact, this was the case until 1943 with the so-called civil death that prevented the individual who issued religious solemn vows to retain or acquire ownership of things. The same happened until 1989, because the Civil Code declared married woman incapable; only with the enactment of the Act

*Education, Human Rights and Peace in Sustainable Development*

**2. Indigenous peoples as vulnerable people**

territory, but these lands do not pertain to them.

**"miserables of Castilla"**

brought about by modernity and my Mapuche-Chilean "border" position, I propose to advance in the construction of a proper, local, and pertinent discourse on the situation of the Mapuche-Chilean as a way to advance toward the decolonization of Indigenous Law and, definitely, that the Chilean State recognizes and validates the Mapuche as a sovereign people, politically, legally, and territorially. For this, my essay is divided into two sections. Into the first, entitled "The indigenous people as a vulnerable human group," I review the main subjectivity assigned by imperialism—from the colonial category of "amentes" to the current classification of "vulnerable"—always under the assumption that the Indigenous people are disabled. In the second section, the title corresponds to the hypothesis offered by this essay—"Mapuche self-determination, an oxymoron?"—since, under the current legal configuration, it becomes a paradox, not because Indigenous Law itself and the Chilean courts deny it, but because the IHRL constitutes a paradigm of contemporary imperialism and the "coloniality of power" [3] under which not only

political self-determination is closed, but even cultural is extremely limited.

**2.1 The invention of America: the indigenous peoples and their status as** 

Indigenous peoples have been defined as those ethnic groups within the State that are characterized by a very long-term settlement within a given territory, an ancestral linkage with the land, and a high vulnerability to progress [4]. It is a very widespread definition: these people have a special connection with their ancestral

In Chile, before their independence from the Spanish Crown, the Mapuche occupying the present territory were subjected to the draconian statute compiled under the label of "Laws of the Indies" norm that—on the pretext of protecting them—grouped them into "encomiendas" which were delivered to the Spanish "encomenderos" for their administration and care. Regrettably, both the "encomenderos" and the "general protectors of natives" abused the natives, forcing them to pay annual tributes, depriving them of all political representation, and providing, in fact, a slave trade despite the fact that the laws proclaimed their freedom [5]. It is known that, once installed in America, the conquerors denied humanity to the indigenous people. Later, they were considered human beings, although abject, almost beasts, because in the opinion of the Europeans, the natives were simply "amentes" since psychological or cognitive abilities of them were clearly diminished, a policy that endorsed the extermination, only appeased for the mercy of a sector of the Catholic Church, specifically through the discourse of the activists like Fray Bartolomé de las Casas or Francisco de Vitoria [6]. Even so, both agreed on the need to provide them with tutelage, for that reason the Catholic Church became the classic protector and defender of the indigenous people, in the Latin American context, and the Indianous Law granted them the legal status of "miserable of Castilla," assigning them "patrons" because, despite recognizing own political organization and own law, the Europeans said that the Indians were not able to self-determine, and, therefore, facing the hegemonic law, they were "relatively incapable" [7].

**2.2 Republican Chile: indigenous are equal citizens (but incapable)**

Chile declared its independence from the Spanish empire in 1810, and, along with it, it freed itself from that hegemonic law. For the indigenous peoples who

**132**

No. 18.802 was it possible to eliminate this impediment, despite the fact that it will continue to doubt their full legal capacity [12].

Regarding the indigenous people, on the other hand, this incapacity continues to affect us; for that reason, to consider ourselves fully autonomous or capable before the Chilean law is highly questionable. In fact this happens, for example, as a result of racism and discrimination that prevents us, among other things, access to good jobs even having merits for it: "socioeconomic inequality in Chile has had an ethnic and racial connotation," said a recent study by the United Nations Development Programme (UNDP). What is more, when categorizing surnames and social position—in people born between 1940 and 1970—"Aillapán" is one of the 50 surnames whose family does not have a single prestigious professional in this country [13].

In the legal sphere, the antecedents are diverse, beginning with that established in Art. 13 of Act No. 19.253, and by virtue of which it is limited to the natives to freely dispose of their lands [14]. However, the most important precedent comes from IHRL because it recognizes to indigenous peoples' "right to self-determination" and "self-government," but conditioning their exercise to respect human rights and fundamental rights was agreed internationally by the States. In a sentence, right to self-determination will be effective—only—"to the extent possible," as prescribed in Art. 7.1 of the ILO Convention No. 169.

### **2.3 The indigenous peoples as a "vulnerable" human group protected under the international human rights law**

Through the twentieth century, the historic exclusion suffered by many groups of people came to be shored by means of the anti-discrimination law, identifying those groups "disadvantaged" or "especially vulnerable" to then propose new paradigms of coexistence through positive discrimination and affirmative action [15]. During the first years of the current millennium, however, the social sciences have turned to redefining the concepts of "vulnerability" and "vulnerable human groups."

The concept of vulnerability is not new to western law. However, its current understanding and complexity responds to a typically European development [16]. And although these terms are not explicitly recognized in the European Convention on Human Rights (1950) or in another regional instrument, the truth is that its theoretical elaboration has been received and promoted by various human rights organizations attached to the UN and has even been expressed in the European jurisprudence of national and regional courts [17]. Subsequently, it has also spread to Latin America and Chile, a country that often describes indigenous peoples as "vulnerable," language used not only in academic area but also by the courts, by the government, and, in general, by citizens [18].

One of the current world references of the thesis on "vulnerability," in the juridical field, is the American Martha Albertson Fineman. She says that all human beings are "vulnerable" and, thus, has tried to redefine the traditional operative concepts in anti-discrimination law, particularly, the liberal tendency that denies people their vulnerability, under the pretext of avoiding social stigmatization [19]. Yet, this thesis has received some critics that aim at the "universalization" of the vulnerability, because not all human experiences it in the same way [20], a question that Fineman has tried to explain. The problem, however, is that Fineman ignores that the state structures or "regimes" are constructed precisely to justify and validate inequities or "subordiscriminations," in order to justify the classic liberalism's calls for equality before the law for all peoples. Nevertheless, only recognizing and

**135**

assistance [23].

prison benefits [28].

least, in case of Mapuche people.

*Decolonizing Indigenous Law: Self-Determination and Vulnerability in the Mapuche Case*

transforming the systems—structures and relations—of power, like the State, can

According Fineman, human resilience is enough to overcome vulnerability's situations [21]. However, structural changes are neither influenced by this resilience nor even exercising a responsible and participatory citizenship. First of all, people should be treated as able of self-determination—individually or collectively—to organize themselves, to decide their future, and, just there, try to solve the situations of vulnerability that can affect them. Recall that in the basis of human rights theories, from political liberalism, underlies the widespread idea that not all human beings are holders of all rights, since only autonomous individuals can claim ownership and capacity to exercise their rights. In contrast, those who are disabled—voluntarily or involuntarily—to self-determine or lack economic or material sufficiency become dependent beings, that is, nonself-sufficient and, therefore, are justified to be deprived of the ownership of all or some of the rights or the ability to exercise them [22]. Special consideration deserves, in this point, the case of the indigenous peoples and the submissive relation that maintains with the western law, especially when Article 7.1 of the ILO Convention N° 169 recognizes self-determina-

**2.4 Victimhood: a strategy for recognition and enjoyment of indigenous rights**

Also linked to vulnerability—and in the context of the IHRL—is the phenomenon of "victimhood," that is, the legitimacy that certain people have to access the recognition and enjoyment of certain benefits as forms of State reparation after violations of their human rights are committed, generally, by agents of the State. On the juridical sphere, the situation of victims has historically been

approached from the perspective of civil law and, also, of criminal law. However in the political sphere, this happened during the twentieth century, linked to the socalled processes of "transitional justice" and where, the victim became a construction not only legal, but also historical, social, cultural, economic and political wide and with a precise objective: to establish the criteria or legal requirements so that people who qualify as victims can access repair plans and, in general, government

Currently, vulnerability is determined by "human embodiment" [24]. Previously, it had been argued that for the contemporary moral economy, the body and its suffering were extremely useful when it came to claiming and accessing the rights offered by the capitalist democracies. There is no doubt that this "politic of suffering" is extremely useful for those States that, without to change their structures of exclusion and discrimination, manage to respond to the claims of groups historically violated, indemnifying them and reintegrating them into their citizenship, although that yes: under the condition of "victims" [25, 26]. Certainly, we must not forget that if one or several people are recognized as victims, this may imply to enjoy a series of benefits [27], demonstrating why "victimhood," in the context of transitional justice, turns out to be extremely useful to the time to negotiate and generate repair programs. Moreover, this strategy of victimhood is being useful to those convicted of crimes against humanity who, claiming their status as "victims," demand respect for their human rights and the possibility of opting for

However, as I will explain below, despite the fact that "victimhood" entails certain benefits, this strategy is ineffective and even paradoxical when it comes to claiming self-determination and self-government, in the context of the IHRL. At

*DOI: http://dx.doi.org/10.5772/intechopen.89020*

tion, but only "to the extent possible."

better respond to the typically "systemic" vulnerability.

#### *Decolonizing Indigenous Law: Self-Determination and Vulnerability in the Mapuche Case DOI: http://dx.doi.org/10.5772/intechopen.89020*

transforming the systems—structures and relations—of power, like the State, can better respond to the typically "systemic" vulnerability.

According Fineman, human resilience is enough to overcome vulnerability's situations [21]. However, structural changes are neither influenced by this resilience nor even exercising a responsible and participatory citizenship. First of all, people should be treated as able of self-determination—individually or collectively—to organize themselves, to decide their future, and, just there, try to solve the situations of vulnerability that can affect them. Recall that in the basis of human rights theories, from political liberalism, underlies the widespread idea that not all human beings are holders of all rights, since only autonomous individuals can claim ownership and capacity to exercise their rights. In contrast, those who are disabled—voluntarily or involuntarily—to self-determine or lack economic or material sufficiency become dependent beings, that is, nonself-sufficient and, therefore, are justified to be deprived of the ownership of all or some of the rights or the ability to exercise them [22]. Special consideration deserves, in this point, the case of the indigenous peoples and the submissive relation that maintains with the western law, especially when Article 7.1 of the ILO Convention N° 169 recognizes self-determination, but only "to the extent possible."
