“What are we asking for?” repeats Eulogio Frites. “Respect for the rights of the indigenous communities. One. Second, also, we do not want them to deprioritise the law of indigenous communities…that we have a pre-existing right, pre-dating the creation of the Argentine state, to the territory.”
Frites is the first indigenous lawyer in Argentina and an instrumental figure in the on-going struggle for the recognition of the rights of indigenous communities in the country.
Amongst Latin American countries, Argentina is known for having a relatively small indigenous population. Still, 35 indigenous communities were recognised in the 2010 national census, and a 2005 study at the University of Buenos Aires estimated that up to 56% of Argentines may have traces of indigenous blood.
Frites outlines the most important concerns for the indigenous communities today as the respect of the rights of “legal personhood [of the indigenous communities], territoriality, biodiversity and multiculturalism”.
The activist observes that representatives of the indigenous communities have been vocally advocating for these rights on the global level for more than 40 years.
Frites remembers the first world conference on indigenous rights, which took place in 1974 in Mexico. He recalls that the representatives of the indigenous communities “for the first time proposed that we want to practise our own culture with the support of universal science, within a reciprocal framework of respect for the cultures of other peoples, that we should recover territory as is due to us, that we should teach and learn in our own languages, without neglecting the official languages in each country”.
While many of these rights are now formally codified in law, Frites states, “we are toiling so that they might fulfil the requirements of the law, the laws and the constitution.”
The lawyer comments that another important topic of concern continues to be a lack of understanding about indigenous rights. “Therefore,” he states, “we have to seek greater awareness. This awareness will exist if we disseminate the law.”
Indigenous Community Property Rights
One of the most highly contested topics with regards to indigenous rights in recent years has been property rights pertaining to lands occupied by indigenous communities.
Few indigenous communities in Argentina hold community-based titles to the land that they currently occupy, although they have been living on this land for centuries. Instead, communities may occupy land that is public territory or that is the private property of an individual or business.
The Centre for Legal and Social Studies (CELS) observes in ‘La lucha por el derecho’, “Despite the progressive recognition of the rights of indigenous communities in the legislation, land rights continue to be subject to violations.”
In its 2012 Report on Human Rights in Argentina, the same organisation stressed, “the grave effects on the indigenous community and small farmers that come with the expansion of the industrial agricultural frontier, the lack of recognition of the peasant farming communities’ rights to the land that they occupy…and the institutional obstacles to advance the implementation of the rights specific to indigenous communities, particularly the right to land and territory.”
The conflict over territory is also closely intertwined with natural resources in Argentina. Frites observes, “they constantly come…to mine gold, to mine silver, to drill oil, to harvest the wood…and they leave us tossed to the side, with whatever pretext. This cannot be allowed.”
CELS also observed in its 2012 report that this “indiscriminate extraction” of natural resources has raised concerns both for the environment and for the health of surrounding communities, including concerns about communities’ access to potable water and adequate nutrition.
Frites questions, “this mentality…that you must make money in whatever way possible, what does it cost?”
He argues: “You do not have to treat the small farmers like animals” and insists that if a move is necessary, “they have to pay us and not run us off the land as if we were not people”.
Current Instruments Regulating Indigenous Rights
Frites argues that in many ways, “that all the laws exist”; that the necessary framework is present. Normatively, “it is a task that has already been completed,” he states.
Indigenous rights are recognised at several levels in Argentina. The most important instruments on the federal level are the 1994 revision of the constitution, the Law 23.302, and the Convention 169 of the International Labour Organization (ILO) to which Argentina is a party.
On the provincial level, constitutions also recognise indigenous rights, and many provinces have separate legislation to address the concerns of indigenous communities.
Indigenous rights are encoded in the constitution under Article 75, but only recently. Frites observes that in the 1994 revision of the constitution, “the Argentine state…recognises the pre-existing cultural and ethnic right of the indigenous communities in Argentina.”
He underscores, “This means that in the constitution, the right that we have pre-dates the creation of the Argentine state.”
The Law 23.302, Indigenous Policy and Support to the Aboriginal Communities, is also significant. The law was passed in 1985, but the chief concerns in its creation were similar to those Frites echoes today, “legal personhood, land rights, biodiversity and multiculturalism.”
Frites observes that the creation of the law was not easy, and had to be done largely by an “indirect route”.
Finally, Argentina is a party to the ILO Convention 169, which is particularly significant with regards to debates about property rights. The convention requires that when a state seeks to seize land for public works, it must have the “prior, free and informed consent of indigenous communities.”
This convention has been in effect since 3rd July 2001. Frites notes that the law was very difficult to pass in Argentina and grants the indigenous communities some rights that “Argentina has to respect”.
With regards to the debate about property ownership, Frites emphasises that in the ILO Convention 169, indigenous property rights are seen “as a recognition, not as a positive prescription.”
‘Positive prescription’ is the legal process by which a person acquires the title to a property on the basis of uninterrupted possession of that property.
Frites argues that ‘positive prescription’ is not appropriate for the case of community land rights because the indigenous communities “cannot request that they transfer a property to us when the property is ours, they have to recognise what they have taken from us.”
Still, in ‘La lucha por el derecho’, CELS observes that there is still, “no federal regulation that permits the communities to access their territorial rights.”
Indigenous Communities in Argentina
From 2004 to 2005, the National Institute of Statistics and Censuses (INDEC) launched the Complementary Survey of Indigenous Communities (ECPI). The survey was extended to those households who in the 2001 national census had registered at least one member pertaining to or descending from an indigenous community.
This survey – the first attempt by the government to survey the ethnic background of the population in over a century – estimated that 600,329 people in Argentina self-identify as indigenous or first-generation descendants of members of the indigenous community. This figure represented about 1.5% of the national population in 2005.
A 2005 study conducted by the UBA Service of Digital Genetic Fingertips suggested that the true percentage could be even higher. The study, which lasted more than a decade, analysed samples from more than 12,000 people across eleven provinces. The results showed that more than half of the subjects – a full 56% – carried traces of indigenous genes in their DNA. What’s more, 10% of the sample was found to have pure indigenous ancestry, without evidence of European heritage.
The vast majority of the indigenous population is concentrated in provinces to the north and south of the country. The north-western province of Jujuy and the southern provinces of Neuquén and Chubut have the highest proportions of indigenous persons.