Indigenous Peoples, Constitutional States and Treaties or Other Constructive Arrangements between Indigenous Peoples and States

By René Kuppe; Richard Potz | Go to book overview

PENDING CONSTITUTIONALITY:
AN ANALYSIS OF THE
MEXICAN LEGAL REFORM PROCESS
CONCERNING INDIGENOUS PEOPLES

Magdalena Gómez Rivera


Introduction

It has now become possible to reconstruct the juridification of Indigenous peoples’ demands for legality with the support of legitimacy in Mexico1. However, a sophisticated inventory of defences has been built up by the Mexican state, thus rendering explicit (albeit 011 the grounds of euphemistic sovereignty and national unity) its gradual reluctance to substantially change the standing nature of the legal order or to advance pluriculturality as one of its constituent principles. With regards to the issues of Indigenous peoples, there is undoubtedly a great deal of ignorance, prejudice and discrimination by mainstream population and even by the state in Mexico. However, there is also a new and more profound awareness about the conflict that exists between neo-liberal goals as well as the desire to move towards globalization, and the need to acknowledge new subjects of law who demand constitutional autonomy. This autonomy shall be the basis for the establishment of fundamental rights in accordance with the recognition of these subjects as peoples, and must be rooted in their own forms of government. Some fundamental aspects of the content of the Indigenous demands need to be highlighted: their desire to be inserted in the public life of the Nation without sacrificing their own culture, access

1 For details of this process of ‘juridification’ see some of the author’s writings: ‘Defensoria jurídica de presos indígenas’ in: Entre Ia ley y la costumbre, edited by R. Stavenhagen and D. Iturralde, IIDH-III, 1990; ‘Las cuentas pendientes de la diversidad jurídica: el caso de las expulsiones por motivos religiosos’, presented at the ‘Orden Jurídico y Formas de Control Social’-Colloquium, Fortín Veracruz, 1992, based on the public hearing organised by the Congress of the State of Chiapas on the proposal to classify the crime of expulsions (see Report of the Congress, 1992); Derechos Indígenas – Lectura comentada de! Convenio 169 de la Organización Internacional del trabajo, edited by INI, Mexico D,F., 1995, second edition; ‘La pluralidad jurídica y la jurisdicción indígena’, El Cotidiano. Universidad Autónoma Metropolitana, May, 1996; ‘El derecho indígena en la antesala de la Constitución’ in: Economia Informa, UNAM, September, 1996; see also the books co-edited by the author: Donde no hay abogado, INI, Mexico D.F., 1990; Derecho Indígena, an edited collection of the contributions to an international seminar held in May, 1997, and published by INI-AMNU.

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