Nobody’s Fault but Mine: Judicialization of indigenous politics in Chile

Extremely rough draft – do not cite w/o permission | v. Mar.24

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Nobody’s Fault but Mine:

Judicialization of indigenous politics in Chile+

Domingo A. Lovera Parmo∗

Abstract

Although a contested and multifarious concept, judicialization of politics brings a

negative charge. It suggests that by leaving courts to step in there is something we, as a

political community, lose. In fact, judicialization of politics assumes there are certain

matters that should be addressed (the legitimacy critique) or that are better dealt with

(the technical capacities argument) in political avenues rather than in judicial

chambers.

This work contributes to assess the legitimacy critique in Chile regarding indigenous

peoples policies. It does so from a constitutional law perspective. It begins framing

courts willingness to hear citizens’ demand within a process largely felt throughout the

Latin American region. It then shows the precarious political and social status of

indigenous peoples in Chile, admittedly one of the reasons that have taken them to seek

redress in the judicial arena. However—as it then explains—the cases Chilean courts

have been dealing with have not had comprehensive political impact, but have been

narrow in both scope and political effects (most of them limited to enforce rights

legislatively provided). It ends suggesting that judicialization has been a two-‐way

process; as will be noted, the state has played its part in transferring key political

matters to courts.

+ Draft to be presented at the workshop “Re-‐thinking the State: Law and Politics in the making of inequalities in Latin America,” organized by the International Research Network on Interdependent Inequalities in Latin America, Lateinamerika-‐Institut, Freie Universität Berlin (April 4-‐5, 2014). ∗ Assistant professor, Universidad Diego Portales (Chile).


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Introduction

Judicialization has become a common word in Chilean newspapers op-‐eds and notes

analyzing mining, energy and environmental projects. Its negative effects, it is

normally argued, are evident: judicialization increases transaction costs for investors,1

it promotes uncertainty,2 and it generates a waste of technical agencies that are better

suited—so they claim—to make (again) technical decisions.3 Eventually, economic

development is threatened as Chile is no longer an attractive land to invest4 while the

menace of future power outages is around the corner.5

Many, if not most, of these critiques are directed against judicial decisions passed on

complaints indigenous communities have brought before domestic courts.6 Most of

these cases in fact deal with the breach of the state’s duty to,

consult the peoples concerned, through appropriate procedures and in

particular through their representative institutions, whenever consideration is

being given to legislative or administrative measures which may affect them

directly.7

1 Proyectos mineros y de energía paralizados superan US$40 mil millones … por judicialización o alza en los costos [Mining and energy projects stopped reach US40 millions … because of judicialization and increasing costs], LA SEGUNDA ONLINE, May 22, 2013, available at: http://www.lasegunda.com/Noticias/Economia/2013/05/849415/proyectos-‐mineros-‐y-‐de-‐energia-‐paralizados-‐superan-‐us40-‐mil-‐millones-‐por-‐judicializacion-‐o-‐alza-‐en-‐los-‐costos (last accessed Jan. 12, 2014). 2 Presidente justifica déficit en energía y acusa judicialización de proyectos [The President justifies energy deficit and denounces judicialization of projects], LA TERCERA, May 22, 2013. 3 Judicialización de las calificaciones ambientales [Judicializing environmental resolutions], LA TERCERA, Apr. 2, 2012. 4 Desaliento en la inversión minera [Discouraging mining investment], EL MERCURIO, Mar. 7, 2014. 5 La Tormenta perfecta [The perfect storm], EL MERCURIO, Apr. 3, 2012. 6 Dificultades para aplicación del Convenio 169 [Difficulties applying Convention 169], LA TERCERA, Aug. 01, 2013. 7 Article 6(1)(a) of the International Labour Organization, Convention No 169, 27 June 1989 (hereinafter ‘the Convention’).


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Both the government,8 with then President Piñera taking the leading voice,9 and local

associations of investors and merchants10 have claimed the terms of the Convention to

be too vague and definitions there contained too ample and open to

miscomprehension, thus inviting uncontrolled (there is no way to stop it)11 as well as

unnecessary (let the technical agencies do their job)12 judicialization.

Yet a contested and multifarious concept, judicialization of politics brings a negative

charge. It suggests that by leaving courts to step in there is something we, as a political

community, lose. In fact the judicialization of politics assumes there are certain

matters that should be addressed (the legitimacy critique),13 or that are better dealt

with (the capacities objection),14 in political avenues rather than in judicial chambers.

According to the legitimacy critique, the one I will mainly focus on here, “the

legislative power is supposed to be exercised, directly or indirectly, by the people; and

power for and by the people is the principal source of direction and legitimacy in a

8 Consulta indígena del Convenio 169: Tiempo de definiciones [Indigenous consult in the 169 Convention: Time for definitions], QUÉ PASA, Aug. 29, 2012. 9 Piñera advirtió por “judicialización excesiva” de proyectos energéticos [Piñera warned “exesive judicialization” of energy projects], NACION.CL, Jan. 8, 2013, available at: http://www.lanacion.cl/noticias/economia/energia/pinera-‐advirtio-‐por-‐judicializacion-‐excesiva-‐de-‐proyectos-‐energeticos/2013-‐01-‐08/093336.html (last accessed Jan. 12, 2014). 10 Sofofa respaldó críticas del gobierno a la Suprema por Castilla y fallos ambientales [Sofofa backed governmental critiques against the Supreme Court for its environmental decisions], LA TERCERA, Oct. 25, 2012. 11 Futuro reglamento indígena no garantizará fin de judicialización de proyectos de inversión [Future indigenous regulations will not guarantee the end of judicialization of projects], DIARIO FINANCIERO, Oct. 14, 2013. 12 Judicialización de proyectos eléctricos [Judicialization of electric projects], LA TERCERA, Jan. 12, 2013. 13 JEREMY WALDRON, LAW AND DISAGREEMENT (1999) (arguing in a democracy it is the people or the legislators who have to make core political decisions, not the judges) [hereinafter WALDRON, LAW AND DISAGREEMENT]. If courts were to make substantive decisions instead of the representative branch, then it would be acting in a way that creates democratic difficulty. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16-‐22 (2d ed. 1986). 14 Cite


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democratic government.”15 In fact it is politicians subordination to the people, mainly

through elections, but also by means of whichever way public opinion gets shaped,16

where legitimacy stems from.17

That the people are the final source of legitimacy also explains the specific meaning

political arbitrariness acquires here. For arbitrariness here is not related to the lack of

predictability or reasonability in decisions (the usual touchstone of arbitrariness), but

to the fact that we have reserved for our representatives or ourselves the power to

make core political decisions.18

Therefore when courts—not directly accountable, however responsive, to the

people—19step in to make core political decisions there is a justifiable sense of

political offense the people might feel. For courts would be, to use the words the

Chilean Constitutional Court once used, replacing the will of the legislator or that of

the President for its own will.20 There may be nothing substantively wrong with the

judicial will, except from the fact it is a will exactly defined by its independence from

the people.21 By placing themselves as the final expositors of relevant sections of the

15 John Ferejohn, Judicializing Politics, Politicizing Law, 65 LAW AND CONTEMPORARY PROBLEMS 41, 44 (2002) [hereinafter Ferejonh, Judicializaing Politics] 16 ROBERT C. POST, DEMOCRACY, EXPERTISE, ACADEMIC FREEDOM: A FIRST AMENDMENT JURISPRUDENCE FOR THE MODERN STATE 14-‐5 (2012). 17 Martin Shapiro & Alec Stone Sweet, Law, Courts, and Social Science, in MARTIN SHAPIRO & ALEC STONE SWEET, ON LAW, POLITICS, AND JUDICIALIZATION 1, 4 (2002) [hereinafter, Shapiro & Stone, Law, Courts, and Social Science]. 18 WALDRON, LAW AND DISAGREEMENT, at 167-‐8. 19 Ferejonh, Judicializaing Politics, supra note XX, at 53. 20 Tribunal Constitucional de Chile [Constitutional Court], Case No 591, Jan. 11 2007 (cons. 9) (“En efecto, al resolver, dentro del concepto chiovendano, el Tribunal sustituye la voluntad de los sujetos involucrados en el conflicto, haciendo prevalecer su voluntad por sobre la del órgano controlado. En otros términos, el Tribunal Constitucional sustituye la voluntad de los parlamentarios o la del Presidente de la República.”). 21 Shapiro & Stone, Law, Courts, and Social Science, supra note XX, at 4-‐5; WALDRON, DIGNITY OF LEGISLATION 1-‐2 (1999); J. HARVIE WILKINSON III, COSMIC CONSTITUTIONAL THEORY: WHY AMERICANS ARE LOSING THEIR INALIENABLE RIGHT TO SELF-‐GOVERNANCE 21 (2012) (The imperfections of democracy [intolerant, biased, venal …] are the imperfections of the human condition, which, by the way, have not passed the


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Constitution (i.e. rights), something that definitively impacts the contours of politics,22

courts alter the appropriate balances of power.23

Of course judicialization cannot amount to the mere fact of having courts making

decisions that (in one way or another) have public impact. A decision of a court that

prosecutes a public servant for having misappropriated public funds that impacts the

political landscape says little, if any, about the legitimacy issue I’m dealing with here.24

After all, as I will say below, the Rule of Law (with capitals) implies a restriction as to

the form that governmental acts can take.25

What is relevant from the legitimacy viewpoint occurs when courts step in to decide

matters that were previously decided in arenas other than the judicial chambers as

well as the pervasive presence of “judicial processes and of courts rulings in political

and social life, and the increasing resolution of political, social, or state-‐society

conflicts in the courts.”26 As Ran Hirschl puts it, judicialization occurs where there is a

“reliance on courts and judicial means for addressing core moral predicaments, public

judicial branch by”); Erwin Chemerinsky, In Defense of Judicial Review: A Reply to Professor Kramer, 92 CAL. L. REV. 1013, 1016 (2004) (claiming that assuming popular constitutionalism postulates would mean that “[c]onstitutional interpretation would be transferred from an institution largely insulated from political pressure to one that is highly majoritarian”). 22 Pilar Domingo, Judicialization of Politics of Politization of the Judiciary? Recent Trends in Latin America, 11 DEMOCRATIZATION 104, 117 (2004). But see, MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 17-‐21 (1999) (showing how political branches normally resort toa large array of strategies to circumvent core judicial decisions); KENT ROACH, THE SUPREME COURT ON TRIAL: JUDICIAL ACTIVISM OR DEMOCRATIC DIALOGUE (2001) (emphasizing courts are but one of the participants in a broader and ongoing political dialogue related to constitutional meaning); Carol Nackenoff, Is there a political tilt to “juristocracy”?, 65 MD. L. REV. 139, 147-‐8 (2006) (arguing that even if judicial decisions were final constitutional expositions, political deliberations teach that a single issue has several other related aspects at stake). 23 Rachel Sieder et al., Introduction, in THE JUDICIALIZATION OF POLITICS IN LATIN AMERICA 1, 2 (Rachel Sieder et al., eds 2005) [hereinafter Sieder et al., Introduction]. 24 Although, as Ferejohn has shown, simple crimes can be, and have been, used by courts to outlaw practices considered as regular by political parties. Ferejonh, Judicializaing Politics, supra note XX, at 61. 25 See below, notes XX-‐XX. 26 Sieder et al., Introduction, supra note XX, at 3.


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policy questions, and political controversies.”27 Reliance denotes a practice sustained

in time where core, and not any, political issues are transferred to courts.

Furthermore, that there are certain matters that have been transferred to courts also

indicates that those were issues beforehand addressed in political avenues.

Drawing on this conception of judicialization28 I will argue that the critiques in the

Chilean scenario are, at least when it comes to indigenous politics, overexaggerated.

There is nothing in the cases related to indigenous peoples in Chile that can be framed

under what Hirschl calls ‘mega-‐politics,’ that is questions of “electoral processes and

outcomes, restorative justice, regime legitimacy, executive prerogatives, collective

identity, and nation-‐building.”29 I want to argue that the mere fact of having courts

stepping in is not enough a reason to outcry politics is lost. In fact, as I want to suggest,

there are situations where courts can actually enrich the political debate.30

I will do this from a constitutional law perspective. The following section (I) describes

what has been termed Latin American Social Constitutionalism and the new role

courts play in it, admittedly one of the factors that has crucially influence the

transferring of political matters to judicial chambers. It then proceeds to (II) briefly

27 Ran Hirschl, The Judicialization of Politics, in THE OXFORD HANDBOOK OF LAW AND POLITICS 119 (Gregory A. Caldeira et al. eds., 2008) [hereinafter Hirschl, Judicialization of Politics]. 28 Admittedly this is not the unique prism through which judicialization has been analyzed. Along with the (decisive) influence of courts ruling in politics and the increasing reliance on courts to solve political disagreements, scholars have also highlighted the influence the legal discourse has had in politics as well. This is what Huneeus and others analyze under the umbrella of what they have called legal cultures; an ever-‐expanding concept which takes the view beyond institutionally-‐produced legal meanings to consider, “norms and understandings … produced within a huge range of nonformal, subnational, and transnational spheres, spheres that are invariably interconnected.” Alexandra Huneeus et al., Cultures of Legality: Judicialization and Political Activism in Contemporary Latin America, in CULTURES OF LEGALITY: JUDICIALIZATION AND POLITICAL ACTIVISM IN LATIN AMERICA 3, 6-‐8 (Javier A. Couso et al. eds., 2010). 29 Hirschl, Judicialization of Politics, supra note XX, at 138 30 As I shall say below, it is not that courts themselves will enrich the deliberation, but they might contribute to do so by bringing politically displaced and marginalized voices in.


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describe the political panorama of indigenous peoples in Chile. I will do this in light of

their historical, and subsequent political, marginalization. It is this marginalization

what has taken them to seek redress in the judicial arena. However—as I will argue in

(III)—the cases Chilean courts have been dealing with have not had comprehensive

political impact, but have been narrow in both scope and political effects. Most of the

cases that have turned the lights of judicialization on, are procedural cases related to

the enforcement of participatory rights. Some constitutional theory argues this can

only enhance, rather than diminish, democratic politics, and I will explain how this

could be such a case. It ends suggesting (IV) that judicialization has been a two-‐way

process. As will be noted, governments have played their part in transferring key

political matters to courts. It is this top-‐down judicialization the one that should worry

us the most.

I. Latin American constitutionalism31

What explains courts recent openness to citizens’ demands in the Latin American

region?32 Current constitutional analyses agree the region exhibits common features

that have been termed Latin American social constitutionalism, a term coined to

described processes of constitutionalization beginning on mid-‐1980s—to some the

“first true wave of constitutionalism.”33 This wave is mainly characterized by

31 These paragraphs are based on a section of Natalia Angel & Domingo Lovera, Latin American Social Constitutionalism: courts and popular participation, in SOCIAL AND ECONOMIC RIGHTS IN THEORY AND PRACTICE: A CRITICAL ASSESSMENT (Helena Alviar et al. eds., Routledge forthcoming 2014). 32 This is what some have called the institutional features that partly explain judicialization. Hirschl, Judicialization of Politics, supra note XX, at 129-‐132. 33 Rodrigo Uprimny, The Recent Transformation of Constitutional Law in Latin America: Trends and Challenges, 89 TEX. L. REV. 1587, 1599 (2011) [hereinafter, Uprimny, Recent Transformations].


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transformative, as opposed to preservative, constitutions;34 schemes committed to

transitioning to a robust democracy and to guaranteeing basic rights and welfare for

all, on the one hand, and political participatory openness, on the other.

A. Transformative constitutionalism

First, and as it has been sufficiently shown,35 most of the countries of the region have

constitutionally recognized socio-‐economic rights (SER). SER have been conceived as

proper rights rather than mere political guidelines or programmatic principles36—but

for few exceptions.37 To some these reforms signal a special feature of Latin American

constitutionalism that moves towards a “thick conception of the rule of law.”38 This

conception,

[includes] not only the defense of civil and political rights but also the

enforceability of social rights; the judicial economic structures; the empirical

verification of how general principles of justice apply in practice; the

development of associative strategies between lawyers and social movements;

and the promotion of a new legal culture.39

34 Karl Klare, Legal Culture and Transformative Constitutionalism, 14 S. AFR. J. HUM. RTS. 146 (1998). See also, Uprimny, Recent Transformations, supra note XX, at 1600. 35 Uprimny, Recent Transformations, supra note XX, at 1587-‐8. 36 Id., at 1587, 1591. 37 Christian Courtis, Judicial Enforcement of Social Rights: Perspectives from Latin America, in COURTS AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES. AN INSTITUTIONAL VOICE FOR THE POOR? 169, 170 (Roberto Gargarella et al., eds. 2006). Because it will be important in noticing the influence some international covenants have had on indigenous rights, it is worth emphasizing some authors have claims this trend towards constitutionalzing SER has been provoked in part by the international body of law. See Javier A. Couso, The Changing Role of Law and Courts in Latin America: From and Obstacle to Social Change to a Tool of Social Equity, in COURTS AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES. AN INSTITUTIONAL VOICE FOR THE POOR? 61, 68-‐9 (Roberto Gargarella et al., eds. 2006). 38 Arturo J. Carrillo & Nicolás Espejo Yaksic, Re-imagining Human Rights Law Clinic, 26 MARYLAND J. INTL’ L. 80, 86 -‐7(2011). 39 Id.


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Along with SER, constitutions in the region have also recognized their plurinational

composition. This tendency—which exhibits, as I shall show, Chile as one of the few

exceptions—is aimed at paying retribution to historical injustices committed against

indigenous peoples, whose relation to governments has been that of forced

subjugation, extermination, and political marginalization.40 By recognizing indigenous

peoples in the most relevant political decision, the constitution, the region aspires to

restoring their political dignity.41 In fact, constitutional recognition in the region has

been marked by an emphasis on cultural diversity, before obscured under strong

nationalist trends.42 But it has also being aimed at giving back their rights to self-‐

determination,43 and enhancing their political participation,44 conceived as the

powers, “to determine their own destiny and assume the management of their lands,

territories, natural resources, education, health, and in the end, their own economic,

social, political, and legal systems.”45

B. Participatory twist

These changes at the level of textual recognition of rights have also been coupled with

reforms at organic level.46 No doubt that in this process courts have resulted

invigorated as new powers of review have been allocated to them. Although powers of

40 Florencia E. Mallon, Indigenous peoples and nation-states in Spanish America, in THE OXFORD HANDBOOK OF LATIN AMERICAN HISTORY , 281, 283-‐4 (Jose C. Moya ed. 2011). 41 Id., at 297-‐8. 42 Gonzalo Aguilar et al., The Constitutional Recognition of Indigenous Peoples in Latin America, 2 PACE INT’L L. REV. ONLINE COMPANION 44, 54-‐7 (2010). 43 Id., at 58-‐63. 44 Id., at 63-‐9. 45 Id., at 65. 46 My intention here is only to show this reorganization at organic level has resulted in granting new powers, and transfer old ones, to courts. The reforms at the organization-‐of-‐powers level, however, have been scarce in promoting more egalitarian structures, therefore threatening the whole transformative project. See Roberto Gargarella, Deliberative Democracy, Dialogic Justice and the Promise of Social and Economic Rights, in SOCIAL AND ECONOMIC RIGHTS IN THEORY AND PRACTICE, supra note XX.


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judicial review are not new on the region, this is not the case of courts faculties to

constitutionally assess socio-‐economic policies. According to Couso, rights protection

in Latin America, previously confined to political branches, has started to be also (my

emphasis) a judicial matter.47

Second, transformative constitutions have been integrated with what Uprimny calls a

radical democratic twist.48 New Latin American constitutions have brought, except for

some exceptions, new constitutionally recognized avenues for citizen participation,

truly a deliberative turn. Once again, indigenous rights play also a relevant role here.

For indigenous peoples have been attributed with constitutional entitlements to

define and settle their own matters.

* * *

It is not hard to see why some scholars have warned about a paradox this wave of

constitutionalization brings built-‐in. The paradox steams from the fact that Latin

American constitutionalism promises a reinvigorated popular participation while, at

the same time, it transfers crucial political powers to courts.49 If new constitutions are

aimed at promoting popular participation in defining key political matters by opening

new participatory avenues, then how could transferring the definition of key political

matters to the least (if at all) accountable branch be justified?50

47 Javier Couso, Models of Democracy and Models of Constitutionalism: The Case of Chile’s Constitutional Court, 1970-2010, 89 TEX. L. REV. 1517, 1523-‐7 (2011). 48 Uprimny, Recent Transformations, supra note XX, at 1594-‐6. 49 Roberto Gargarella, Grafting Social Rights onto hostile Constitutions, 89 TEX. L. REV. 1537, 1540-‐1 (2011). 50 To be sure the conflict between rights, on the one hand, and democratic decisions that cannot decide on the areas rights have already shielded, on the other, has been a pervasive paradox for advocates of constitutionalism. This is a contradiction that becomes more pressing before a right-‐based approach to political participation. See Jeremy Waldron, A right-based critique of constitutional rights, 13 OXFORD JOURNAL OF LEGAL STUDIES 18 (1993).


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According to Uprimny, this paradox is one of the most pressing debates Latin

American scholars should focus on: how to conceal (if possible at all) Latin American

strong constitutionalism (characterized by an ample charts of rights and unelected

supervisory bodies such as courts) with a strong democratic and participatory

deliberation?51 This work navigates upon this paradox to suggest experience shows

that, at the moment, the right balance lies somewhere in-‐between—at least in

countries where democratic credentials are weak.52

II. Indigenous politics in Chile

Having mentioned some of the institutional reasons for judicialization, I now turn to

what I see as one, however crucial, political determinant: (A) the historical socio-‐

economic weakness to which indigenous peoples have been pushed, intertwined with

(B) participatory exclusion. As this section will briefly show, Chilean politics toward

indigenous peoples has transited from assimilation to extermination, and eventually

political exclusion. Their crucial demands, namely: constitutional recognition, land

restoration and control of their natural resources, remain unattended. Being this case,

it should not come as a surprise that indigenous peoples test institutional avenues as

they become available in order to advance their rights and historical claims.

A. Socio-economic weakness

51 Uprimny, Recent Transformations, supra note XX, at 1606-‐8. 52 I, with my colleague Natalia Ángel, have made a similar claim, although regarding exclusively SER, in Natalia Ángel & Domingo Lovera, supra note XX.


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As official data shows, in 2011 8,1 percent of Chile’s population was declared to be a

member of (an ethnic group of) indigenous peoples.53 The proportion of indigenous

individuals living in poverty was 19,2 percent in 2011 (compared to the 14 per cent of

nonindigenous).54 They remain the poorest of the poor. Although some well-‐known

conservative historian has suggested indigenous peoples are themselves to blame for

their current socio-‐economic situation,55 a deeper assessment of Chile’s history shows

greater colonial and governmental responsibility. Land transactions were

accompanied by waves of ethnic cleansing and forced integration. Even today,

indigenous-‐governmental relations occur in the shadow of broadly applied anti-‐

terrorist legislation.56

Whereas Spaniard conquerors were forced by resistance to recognize indigenous

peoples as independent—by setting up dialogues with them through parliaments—

they were unwilling to consider them as a people inside a nation. This process got

only radicalized once Chile’s independence started to take shape in 1810.57 A mixture

of both strategic and economic reasons explains this reluctance.58 Chile’s earlier

expansionist impulse—admittedly aimed at strengthening the then nascent state— 53 GOBIERNO DE CHILE, CASEN 2011: Pueblos Originarios, available at: http://observatorio.ministeriodesarrollosocial.gob.cl/layout/doc/casen/Pueblos_Indigenas_Casen_2011.pdf (last accessed Mar. 12, 2014). 54 Id. 55 SERGIO VILLALOBOS, 2 HISTORIA DE LOS CHILENOS [HISTORY OF THE CHILEANS] 145-‐6 (1997) [hereinafter VILLALOBOS, HISTORIA DE LOS CHILENOS] (arguing that indigenous peoples were seduced by the temptations brought by Spanish conquerors to Latin America, mainly alcohol and trinkets, that they became involved in commercial negotiations, “not always understand[ing] what buying entailed”). 56 UN Commission on Human Rights, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Mr. Rodolfo Stavenhagen,submitted in accordance with Commission resolution 2003/56, Mission to Chile (Sixtieth session, 2004), UN Doc. E/CN.4/2004/80/Add.3 (2004), paras. 29-‐40. 57 JOSÉ BENGOA, HISTORIA DE UN CONFLICTO: LOS MAPUCHES Y EL ESTADO NACIONAL DURANTE EL SIGLO XX [HISTORY OF A CONFLICT: THE MAPUCHE AND THE NATION STATE DURING THE XX CENTURY] 33-‐4 (2007) [hereinafter BENGOA, HISTORIA DE UN CONFLICTO]. 58 JULIO FAUNDEZ, DEMOCRATIZATION, DEVELOPMENT, AND LEGALITY: CHILE, 1831 TO 1973 23 (2007) [hereinafter FAUNDEZ, DEMOCRATIZATION, DEVELOPMENT, AND LEGALITY].


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included a face of internal colonialism which was directed against indigenous peoples

living south of the Bío-‐Bío river—the frontier previously negotiated by the Spanish in

the parlamentos.59

Considering northern aridity, regions across the Bío-‐Bío provided potentially fertile

agricultural lands. According to Faundez, the initial idea was to allow commercial

exchange of lands between Chileans and Mapuche, but this founded on different

notions of property ownership and the latter’s resistance triggered in 1850, a two-‐

decade-‐long military campaign “resulting in the death of hundreds of Mapuche people,

the destruction of their way of life, and the expropriation, without compensation, of

agricultural land”.60

The confiscation of natural resources, imposition of a new economic system,

individualization of property relations and introduction of western culture were made

possible through armed force, the primary objective of which was the removal of

“obstacles to the Nation’s progress.”61 This project of State building continued into the

twentieth century with the final settlement (radicación) of the Mapuche in designated

areas; a process that lasted fifty years and which became deepened under Pinochet’s

59 Id. 60 Eventually, in 1866, the government passed a law dispossessing Mapuche people of their lands, making “provisions for the sale of individual plots by the state to eligible buyers”. FAUNDEZ, DEMOCRATIZATION, DEVELOPMENT, AND LEGALITY, supra note XX, at 25-‐6. See also Jorge Contesse, The Rebel Democracy: A Look into the Relationship between the Mapuche People and the Chilean State, 26 CHICANO-‐LATINO LAW REVIEW 131, 139 (insightfully addressing the close link existing between the expropriation of indigenous lands and current social protest movements headed by Mapuche). 61 GABRIEL SALAZAR & JULIO PINTO, II HISTORIA CONTEMPORÁNEA DE CHILE: ACTORES, IDENTIDAD Y MOVIMIENTO [CONTEMPORARY HISTORY OF CHILE: ACTORS, IDENTITY AND MOVEMENT] 140 (1999) [hereinafter SALAZAR & PINTO, HISTORIA CONTEMPORÁNEA] (my translatiom). Villalobos has his own account: “Chile’s economic development required an agricultural expansion where methodic and well-‐guided practices should either complement or improve that of the indigenous, always limited by their primitiveness, laziness and drunkenness.” VILLALOBOS, HISTORIA DE LOS CHILENOS, supra note XX, at 148 (my translation). He more recently held: “The Araucans possessed large extensions of land and they only used those closer to their homes. This was a waste to the Chilean Nation that needed to be remedied.” Sergio Villalobos, Letter to the editor, Intendencia de La Araucanía, EL MERCURIO, Mar. 19, 2014 (my translation).


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dictatorship as attempts were made to remove all legal exceptions favoring

indigenous peoples.62

B. Political exclusion

Considering this historic background, laws and public policies addressing indigenous

interests have unsurprisingly been implemented without their intervention.

Accordingly, indigenous peoples consider these rules forced regulations imposed

upon them, rather than expressions of their own beliefs and interests. If involving the

people in designing laws (and public policies regarding their own interests)

recognizes their own sense of justice,63 the panorama I’m about to describe shows,

quite the contrary, political oppression and colonization.

The Constitution. First of all, there is a crucial aspect of Latin American Social

Constitutionalism where Chile remains sadly an exception: constitutional recognition

of indigenous peoples and of its plurinational character.64 Having agreed with

indigenous peoples a new political treaty in the Acuerdos de Nueva Imperial (1989),65

then President Patricio Aylwin (1990-‐94) submitted to Congress a bill on indigenous

rights. It principally included a constitutional amendment promoting the recognition

of indigenous peoples. However, the amendment has remained dormant in Congress.

62 SALAZAR & PINTO, HISTORIA CONTEMPORÁNEA, supra note XX, at 150-‐2, 165-‐8; BENGOA, HISTORIA DE UN CONFLICTO, supra note XX, at 74-‐5. 63 WALDRON, LAW AND DISAGREEMENT, supra note XX, at 238. 64 As Aguilar et al. show, Chile, along with Belize, Uruguay and Suriname, “completely ignore the indigenous problem in their constitutions, despite the presence of these ethnic groups in their territories.” Aguilar et al., The Constitutional Recognition of Indigenous Peoples in Latin America, supra note XX, at 90. 65 These Acuerdos where agreed between the entering governing coalition (then the Concertación de Partidos por la Democracia) and indigenous communities, with the intention of setting the political agenda on indigenous matters once democracy were restored in the following years. The principal agreements in the Acuerdos included the filing of a constitutional amendment for the recognition of indigenous peoples and the discussion of a new law on indigenous peoples’ rights, which would be prepared by a committee open to indigenous participation and ratifying ILO Convention No. 169.


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The debate has particularly turned on the specific form of recognition: a significant

minority in Congress has opposed the use of ‘peoples’ (Chile is but one and indivisible

Nation, they claim).66

The Parliament. Participatory rights of indigenous peoples remain conceived as weak

governmental concessions. It should be first noted that there are not allocated seats

for indigenous minorities in Congress, but neither any constitutional nor legal

provision entitling indigenous peoples to have a say on proposed legislation affecting

them. This stands in stark contrast with other countries in the region such as Ecuador,

Venezuela, Mexico, Nicaragua, and, most notably, Colombia and Bolivia.67

It was in this institutional context where in 1993 the Congress passed the Indigenous

Law (Ley Indigena).68 The law addressed several demands included by the indigenous

peoples in the Acuerdos celebrated in 1989. Its original content, however, was

radically reshaped during three years of debate in parliament. Despite the suggestions

of the drafting commission, which included active indigenous participation, Congress

eliminated provisions providing for mandatory consultation with indigenous peoples

on public matters affecting them.69

66 Phrases such as “indigenous peoples,” “indigenous,” “indigenous peoples integrated in the Chilean Nation,” as well as recently proposed amendments, including the language of “indivisibility of the Chilean Nation,” have also been rejected. Miriam Henríquez, Los pueblos indígenas y su reconocimiento constitucional pendiente [Indigenous peoples and the pending constitutional recognition], in REFORMA CONSTITUCIONAL [CONSTITUTIONAL REFORM] 135-‐8 (Francisco Zúñiga ed., 2005). A detailed description of the bills discussed in Congress, and noting how all of them have failed in considering human rights standards, is available in Jorge Contesse, Indigenous Peoples in Chile: The Quest to Become a Constitutional Entity, 55 STUDIES IN LAW, POLITICS, AND SOCIETY 19, 25-‐30 (2011) [hereinafter Contesse, Indigenous Peoples in Chile]. 67 Aguilar et al., The Constitutional Recognition of Indigenous Peoples in Latin America, supra note XX, at 66-‐9. 68 Law 19.253 (1993). 69 Article 34 of the ‘Indigenous Law’ establishes indigenous participation consists “in listening and considering the opinion of indigenous organizations recognized by this law”.


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The Constitutional Court. There was initial hope things may start to change after the

Convention entered into force in Chile on September of 2009,70 for it explicitly

contemplates participatory and consultation rights. However, these rights have been

diluted, rather than strengthened, by the Constitutional Court’s intervention. Yet the

Constitutional Court has affirmed the compatibility between the Convention and the

Constitution, it has done so at the expense of reading participatory rights there

enshrined through domestic and sectoral legislation.71 Furthermore, according to the

Constitutional Court, consultation of indigenous peoples “involves not a mandatory

negotiation, but a means to gather opinions that being not binding, won’t impact the

sovereign powers of the authority …”72

The Administration. The administration has also neglected indigenous voices. In the

last 8 years, political coalitions in government—both Bachelet’s left-‐wing (2006-‐10)

and Piñera’s right-‐wing (2010-‐14) administrations—have issued comprehensive,

however not consulted, public policies on indigenous matters.73 These

administrations have also passed presidential decrees regulating the legal terms of

consultations. Whereas Bachelet’s Decree 124,74 which unduly restricted the terms

70 Diario Oficial de Chile (Official Gazzete) 14 October, 2008 at 3. 71 This is crucial to understand the scope of the cases I will describe below. For all these cases imply the upholding of participatory rights as read through the sectoral laws. On the other hand, it is worth noticing these sectoral laws have been considered to stand in higher relation as to indigenous rights, therefore difficulting indigenous protection. Anne Skjævestad, The Mapuche People’s Battle for Indigenous Land: Litigation as a Strategy to Defend Indigenous Land Rights, in CULTURES OF LEGALITY, supra note XX, at 225. 72 Jorge Contesse & Domingo Lovera, Pueblos indígenas y participación política en la óptica del Tribunal Constitucional [Indigenous peoples and political participation according to the Constitutional Court], 1 ANUARIO DE DERECHO PÚBLICO [PUBLIC LAW YEARBOOK] 21, 29-‐36 (2010) (my translation). 73 GOBIERNO DE CHILE-‐MINISTERIO DE PLANIFICACIÓN-‐CORPORACIÓN NACIONAL DE DESARROLLO INDÍGENA, Re-Conocer. Pacto Social por la Multiculturalidad [Re-Cognition. A new social covenant for multiculturalism] (2008); GOBIERNO DE CHILE-‐GOBIERNO REGIONAL DE LA ARAUCANÍA, Plan Araucanía: Invirtiendo en Personas y Oportunidades [Plan Araucanía: Investing in peoples and opportunities] (2009). 74 Diario Oficial de Chile (Official Gazzete), 4 September, 2009.


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and scope of consultation rights,75 was not consulted,76 Piñera’s Decree 6677 was

subjected to a very irregular and criticized process of consultation.78

* * *

Against this social and political panorama it is hard to be surprised indigenous

policies have been implemented, as I previously said, in a top-‐down fashion.

Indigenous peoples live in urgent social conditions while they remain subjects, rather

than actors, of public policies affecting them. Being formally excluded from the

political forum, policies passed in their interests have taken an assimilationist whiff in

a context of internal colonialism.79

III. Judicialization of politics? (reaching courts from ‘below’)

Last section showed the diminished political standing of indigenous peoples. Lack of

constitutional recognition, along with a polity that has turned its back on them, might

well explain why they have resorted to litigation—to which I now turn. By way of (A)

illustrating a couple of typical judicial decisions on indigenous matters, this section

contends that (B) these cases have had very limited impact, falling seriously short of

75 Jorge Contesse & Domingo Lovera, El Convenio 169 de la OIT en la jurisprudencia chilena: prólogo del incumplimiento [ILO Convention No 169 in the Chilean jurisprudence: a preface to noncompliance], 2 ANUARIO DE DERECHO PÚBLICO [PUBLIC LAW YEARBOOK] 127, 129-‐33 (2011). 76 CRISTIÁN SANHUEZA ET AL., NO NOS TOMAN EN CUENTA: PUEBLOS INDÍGENAS Y CONSULTA PREVIA EN LAS PISCICULTURAS DE LA ARAUCANÍA [THEY ARE NOT CONSIDERING US: INDIGENOUS PEOPLES AND THE DUTY TO CONSULT IN LA ARAUCANÍA’S PISCICULTURE] 35 (2013) [hereinafter SANHUEZA ET AL., NO NOS TOMAN EN CUENTA]. 77 Diario Oficial de Chile (Official Gazzete), 4 March, 2014. 78 Nuevo reglamento de Consulta Indígena en Chile: Más dudas que respuestas [New indigenous consultation bylaw in Chile: More doubts than answers], ELDINAMO.CL, Jan. 9, 2014, available at: http://www.eldinamo.cl/blog/nuevo-‐reglamento-‐de-‐consulta-‐indigena-‐en-‐chile-‐mas-‐dudas-‐que-‐respuestas/ (last accessed Mar. 15, 2014). 79 Sally Engle Merry, Law and Colonialism, LAW & SOC’Y REV. 889, 894-‐5 (1991) (arguing in its broader meaning colonialism “is a relation between two or more groups of unequal power in which one not only controls and rules the other but also endeavors to impose its cultural order onto the subordinated group(s)”). I’d like to thank Fatemah Alzubairi for having brought this work to my attention.


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their unattended demands. While this certainly shows (and we should welcome) the

limits of judicial politics, it also warns us not to overexaggerate claims of

judicialization—as defined above. In fact these decisions show that (B.1) courts might

well improve the democratic credentials of political avenues by enhancing

participation. (B.2) This argument holds also, and probably with much force, before

administrative decisions—largely the kind of regulations judicial decisions have dealt

with.

A. Typical cases of judicialization

Judicialization from ‘below’ places emphasis on the role of private individuals (or

groups), as opposed or different from public officials, reaching courts by way of

resorting to the language of rights.80 This is the case of indigenous peoples judicially

demanding to be consulted.

As explained before, according to the Constitutional Court consultation rights are self-‐

executing, but non-‐binding for the State. How then are these instances “of gathering

information” to be carried out? Although the relation between the Constitutional

Court and ordinary courts remains difficult to determine—the most recent

commentator argues the latter have proved difficult to permeate—81 the Court’s

rationale has prevailed. Indeed the invariable jurisprudence of ordinary courts has

been that domestic laws regulating a specific matter (sectoral norms) are the

appropriate means to channel citizens’ participation (among them, indigenous

80 Hirschl, Judicialization of Politics, supra note XX, at 135-‐6. 81 GASTÓN GÓMEZ, LAS SENTENCIAS DEL TRIBUNAL CONSTITUCIONAL Y SUS EFECTOS SOBRE LA JURISDICCIÓN COMÚN [CONSTITUTIONAL COURT’S DECISIONS: THEIR IMPACT OF ORDINARY COURTS] (2013).


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peoples consultation). The problem is that processes of consultation are rather the

exception and, where available, placed well below in the ladders of participation.82

One of the few laws regulating citizen participation is the ‘Environmental Law,’83

where participation amounts to information sharing.84 Though a period of public

consultation is opened to citizens, it is limited only to its preliminary stages. Second,

practical evaluations have showed only responding reports submitted by the

government are (partially) reviewed. Information submitted by citizens interested,

however, is not.85 Third, and most importantly, not all development projects are

submitted to public participation. This distinction is made in articles 10, 11 and 12 of

82 Nevertheless, it has been argued that some Supreme Court decisions have read and tried to adjust sectoral norms to the requirements of the Convention, although without suggesting how. Therefore while consultation rights are still read through sectoral norms, some decisions have asked these sectoral processes of participation not to neglect international standards. SANHUEZA ET AL., NO NOS TOMAN EN CUENTA, supra note XX, at 42. See also below the brief account of the Paguanta case. 83 Law 19.300 (1994). It is worth emphasizing that this law was primarily conceived to facilitate, rather than, regulate market-‐oriented policies. As some have put it, this law, along with Chile’s environmental policymaking, “expresses a strongly market-‐enabling quality instead of the market-‐regulating character commonly ascribed to environmental law and policy.” David Tecklin et al., Making the environmental law for the market: the emergence, character, and implications of Chile’s environmental regime, 20 ENVIRONMENTAL POLITICS 879 (2011). 84 Pamela Meunier, La Participación Ciudadana en el Sistema de Evaluación de Impacto Ambiental Chileno [Citizen participation in the Chilean Environmental Assessment System], in PREVENCIÓN Y SOLUCIÓN DE CONFLICTOS AMBIENTALES: VÍAS ADMINISTRATIVAS, JURISDICCIONALES Y ALTERNATIVAS [PREVENTING AND SOLVING ENVIRONMENTAL CONFLICTS: ADMINISTRATIVE, LEGAL, AND ALTERNATIVE WAYS] 51-‐72 (Centro de Derecho Ambiental-‐Universidad de Chile, 2004). However, it should be noted that a package of amendments was passed in 2010 in order to (among others things) improve citizen participation in the law. Their detailing was not issued but until late 2013. Decree 40, Diario Oficial de Chile (Official Gazzete), 12 August, 2013. Yet this recently published decree mentions the administration may request the technical assistance of agencies dealing with, among others, indigenous matters (article 83 sec. 2), and that there are specific requirements for consulting indigenous communities (articles 85 and 86), there is no specific provision in it enshrining the standards of the Convention. This decree was, of course, neither consulted in the terms of the Convention; but on the basis of a process designed by the own administration. Instituto Nacional de Derechos Humanos [National Institute of Human Rights], El deber de consulta Previa en la Propuesta de Reglamento del Sistema de Evaluación Ambiental [The duty to consult in the proposed Bylaw for the Environmental Evaluation System], Sesión Extraordinaria 152, 13 May 2013, at 22-‐4, 24-‐30, available at: http://bibliotecadigital.indh.cl/handle/123456789/529 (last accessed Mar. 19, 2014 ) (noting theses recent regulations violate both procedurally and substantively the standards set in the Convention) [hereinafter, Instituto Nacional de Derechos Humanos, El deber de consulta]. 85 Meunier, La Participación Ciudadana en el Sistema de Evaluación de Impacto Ambiental Chileno, supra note XX, at 69-‐70.


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the ‘Environmental Law.’ According to its regulations, developments with high impact

(enumerated in article 11) must be submitted for governmental assessment by means

of an Environmental Impact Study (EIS),86 thus triggering public participation. The

rest of the projects not enumerated will be assessed without citizen engagement. In

fact, instead of a study they simply require what the law terms an Environmental

Impact Declaration (EID).87

This is enough to understand what has happened at judicial level.88 In Mini Central

Cayucupil, plaintiffs asked the Court of Appeals of Concepción to nullify an

administrative decision authorizing the construction of a hydroelectric power plant in

the Cayucupil basin.89 They argued in the proceedings that the area where the power

plant was to be built is a biodiversity sanctuary, and that no consultation was carried

out with respect to those indigenous lands thus violating the Convention.90 The

project had been submitted to evaluation through an EID where no participatory

instances are available—as noted. The Court dismissed the claims, explaining that the

environmental assessment “is a complex procedure, of a technical nature”, and that

86 These studies are defined as a comprehensive and detailed description of the project, which must be accompanied by data gathered to predict, identify and interpret the possible impact on the environment. It also has to describe how adverse impact will be minimized. Article 2, i) of ‘Environmental Law’. 87 It is defined as a descriptive document that will allow governmental authority to assess its environmental effects. Article 2, f) of ‘Environmental Law.’ It is worth noting that despite the fact participatory instances are not mandatory in cases of Declarations, these procedures still open certain instances of engagement. Recent regulations introduced by means of the Decree 40 also restrict indigenous consultation to projects submitted by EIS, but not EID. Instituto Nacional de Derechos Humanos, El deber de consulta, supra note XX, at 26-‐9. 88 Translations of the following cases are mine. 89 Corte de Apelaciones de Concepción [Concepción Court of Appeals], Case No. 401-‐2010, 1 December 2010. 90 Id.


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arbitrariness or illegality was not present as several institutions were involved in

justifying the conclusion reached.91 Legality, the Court noticed, has been respected.92

Could a court reverse an administrative authorization admitting an EID and requires

the higher standard of citizen participation as regulated for EISs?93 In Parque Eólico

the administration authorized the building of a wind farm in the south of Chile,

following an EID previously filed. Claimants argued the administrative decision

authorizing the project affected their consultation rights—as described in the

Convention—since the plant would affect the indigenous community’s traditional way

of life. The Court of Appeals of Puerto Montt dismissed the claim.94 In its view, the

authorization was passed according to the norms of the ‘Enviromental Law.’95 After

quoting article 6(1)(a) of the Convention, the Court of Appeals concludes that these

rights have been respected by the intervention of authorities that assessed all relevant

facts that deserved consideration.96

The case reached the Supreme Court, which reversed the decision.97 The Court

reviewed the instances of participation the environmental authority implemented,

even though the project had been submitted by way of an EID. It held, “voluntary

meetings and instances of information to the community are far from satisfying the

91 Id. ,para. 5th. 92 Id., para. 9th. 93 This is a crucial matter for, as some commentators have put it, it implies that courts assume the task of evaluating the merits the administrative agency had when authorizing a EID instead of a EIS. SANHUEZA ET AL., NO NOS TOMAN EN CUENTA, supra note XX, at 48 94 Corte de Apelaciones de Puerto Montt [Puerto Montt Court of Appeals], Case No. 239-‐2011, 11 October 2011. 95 Id., para. 6th. 96 Id., para 7th. The Court went even farther in affirming consultation rights established in the Convention are to be reconciled with the participatory process detailed in the ‘Enviromental Law’, which in this case—so the Court contended—was legally carried out (para 8th). 97 Corte Suprema [Supreme Court], Case No. 10.090-‐2011, 22 March 2012.


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special characteristics of the process of consult claimants argue were omitted.”98 In

fact, the Court went on, “sharing information does not constitute an instance of

consult since those affected … have no actual possibilities of influencing the

implementation, the place and development of the project ….”99 Read in light of the

standards before explained, this statement clearly upholds indigenous peoples rights

to be consulted in a meaningful fashion. However, when it comes the time to lay the

final decision down, the Supreme Court, as it has had done before, simply orders that

the project is now to be assessed according to an EIS, again reading consultation rights

through sectoral laws.100

In the Paguanta case, finally, plaintiffs sought the nullification of an environmental

resolution authorizing prospective explorations in indigenous lands in northern Chile.

Just as it the previous case, here the project was also submitted to governmental

consideration by way of an EID. The Court of Appeals of Iquique held the

authorization on exactly the same grounds their southern colleagues have done it

before.101

The Supreme Court again reversed the decision.102 It first held the duty to consult

established in the Convention “becomes a mechanism of participation that assures

groups with their own cultural specificity, the essential right to participate and

98 Id., para. 8th. 99 Id. 100 Id., para. 11th. 101 Corte de Apelaciones de Iquique [Iquique Court of Appeals], Case No. 472-‐2011, 8 November 2011. It decided the decision had been adopted according to the law (paras. 4th and 5th); that the constitutional injunction filed by plaintiffs was not the legal mechanism to question technical assessments made by the technical authority “legally vested to do so” (para. 11th); and, that there is no arbitrariness as the decision had been reached after examining “several documents, reports and records with different reasoning and justifications that hold the decision” ( para 12th). 102 Corte Suprema [Supreme Court], Case No. 11.040-‐2011, 30 March 2012.


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intervene in equal conditions” in decisions that may affect their spiritual and material

life.103 Therefore, any process that may affect their “reality … must be considered in

light of their own particularities.”104 After reviewing the instances of participation

opened in the process, which consisted in information meetings, the Court held

“information-‐sharing meetings do not amount to consultation processes since

indigenous communities have no actual chances of influencing neither the design nor

the development of the measure.”105 Same as above, when it comes the time to make

the final decision, the Supreme Court unanimously orders the project to be assessed

according to an EIS.106 Here, however, the Court went a little beyond when holding the

process of participation triggered by submitting an EIS “has also to be accorded to the

terms in which ILO Convention 169 grants consultation rights.”107

As can be seen, ordinary courts—in a sense, following the Constitutional Court—have

read the consultation rights recognized in the Convention through sectoral laws.

Although the Supreme Court has required that instances of citizen participation

established in those laws to be carried out in accordance with the Convention, so far

there is no case where it has challenged the process of participation established in the

‘Environmental Law’ itself.108

103 Id., para. 5th. 104 Id. 105 Id., para. 9th. 106 Id., para. 11th. 107 Id. 108 There is only one case (El Morro) where the Supreme Court has reversed an authorization granted after an EIS had been filed. However, it did so because the developers had opened instances of participation to some communities while arbitrary ignoring others. Although the Court resorted to the standards of the Convention to explain what a consult is, it was the arbitrary discrimination the developer incurred in where it eventually grounded its decision. Corte Suprema [Supreme Court], Case No. 2.211-‐2012, 27 April 2012. In Pepiukelen the Temuco Court of Appeals held that, even when development projects are filed to governmental evaluation by means of an EID, consultation rights as


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B. Judicialization?

Investors and merchants are ready to outcry all the benefits we see in the rule of

law—to name a few, publicity of laws, avoidance of retroactivity, and clarity—109but

they seem to have trouble when others claim the same, allegedly, universal

principles.110 For there is a sense, a sense they certainly share, in which the rule of law

come precisely to limit the extent and scope of politics. To be sure I’m not suggesting

that politics is thus subjected to law, as politics can always have the last say and law

itself is the product of human agency. But I’m certainly implying that in a working

democracy the Rule of Law stands undeniably as limiting the exercise of politics, at

least in the sense of establishing contours within which political authority shall move.

Indeed one of the most salient features of the Rule of Law is precisely that it limits the

range of actions (and omissions, to a large extent) that political power can pursue.

Aimed at preventing abuses of political power, the Rule of Law “insists on a particular

mode of the exercise of political power: governance through law.”111 These contours,

on their turn—and this is also taken to be one of the main traits of the Rule of Law—

provides the people information they can count.112

This section ends arguing the cases above reviewed should take us to dismiss the

claim that Chilean courts are involved in overt judicialization of cases related to

indigenous policies. I want to show how the functioning of these courts might actually

established in the Convention must be respected. However, on later appeal, the Supreme Court dismissed this requirement. SANHUEZA ET AL., NO NOS TOMAN EN CUENTA, supra note XX, at, 44-‐5. 109 See generally, LON L. FULLER, THE MORALITY OF LAW 33-‐94 (1969); JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 214-‐9 (1979). 110 JEREMY WALDRON, THE RULE OF LAW AND THE MEASURE OF PROPERTY (2012) 90-‐4 (arguing a pro-‐investment Rule of Law model has been promoted by international agencies as the World Bank rather than in academic circles). 111 Jeremy Waldron, The Concept and the Rule of Law, 43 GA. L. REV. 1, 11 (2008-‐2009). 112 Id., at 43.


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(1) help to strengthen the democratic credentials of politics—what in turns demands

compliance with, and respect for, its decisions—and, finally, (2) why the

administrative nature of governmental decisions should also be considered.

1. Procedural courts

Generally speaking, as mentioned above, having courts to make substantive decisions

instead of the administration or the parliament would amount to a violation of the

legitimacy principle upon which democracy was (and is still constantly) built.113 A

second alternative, admittedly one less intrusive, shows courts not acting against

parliaments, but interpreting the discretionary spaces the parliament has left to the

Administration to fill them.114 But this alternative still causes legitimacy problems. For

the Administration ranks higher than courts—although, as I shall note below, lower

than legislatures—as it has accepted “elective credentials.” Moreover, this alternative

supposes changing discretionary decision-‐making power from the hands of the

administration to that of the judges.

There is still a third alternative I would like to suggest; a procedural approach. John H.

Ely published in 1980 his ground breaking work Democracy and Distrust.115 There, Ely

suggested that courts, rather than undertaking themselves the work of making

substantive decisions, should policy democratic processes in order to keep them open 113 JEREMY WALDRON, LAW AND DISAGREEMENT, supra note X, at 167-‐8 (arguing in a democracy it is the people or the legislators who have to make core political decisions, not the judges). If courts were to make substantive decisions instead of the representative branch, then it would be acting in a way that creates democratic difficulty. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16-‐22 (2d ed. 1986). But see, RONALD DWORKIN, FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION (1996) (arguing political legitimacy is much more than respect to the majoritarian premise; it is also about outcomes courts are better suited to reach). 114 In a sense, this is what courts do when they assess the way the Administration uses its discretionary faculties. Lorne Sossin, Law and Intimacy in the bureaucrat-citizen relationship, in PERSONAL RELATIONSHIPS OF DEPENDENCE AND INTERDEPENDENCE IN LAW 120, 130-‐2 (Law Commission of Canada ed. 2002). 115 JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980).


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to different voices, particularly the voices of those insular and discrete minorities

usually excluded from regular politics. By acting in this way courts would behave as

referees of the political process, instead of being directly involved in making

decisions.116 To be sure it is the duty of the political process to address substantive

values; but the processes where those values are to be defined—Ely suggested—are

to be kept “open to those of all viewpoints on something approaching an equal

basis.”117

Admittedly Ely opened several flanks for attack as his is a normative interpretation of

the Constitution that courts should embrace. That is to say, courts would still be

engaged in substantive interpretations when reading, say, equality before the law

provisions as demanding opening instances for marginalized communities to have a

say118—let alone the fact of reading an often conflicting body, the Constitution, as

anchored in a single master principle.119 But the set of Chilean cases above described

demand nothing of the sort from courts. Quite the contrary, those cases show courts

116 Id., at 73. 117 Id., at 74. As for feasibility, consider a couple of decisions issued by the South African Constitutional Court where it calls provincial legislatures to promote public participation, without telling them how to promote such constitutional requirements. Doctors for Life International v. Speaker of the National Assembly & Others 2006 (12) BCLR 1399 (CC) (S. Afr) and Matatiele Municipality and Others v. President of the Republic of South Africa & Others (1) 2006 (5) BCLR 622 (CC) (S. Afr). According to section 118(1)(a), of the Constitution of South Africa, “provincial legislatures must (a) facilitate public involvement in the legislative processes of the legislatures and its committee.” Or its recent doctrine of meaningful engagement, where it calls parties—municipal governments on the one hand—to come together in a deliberated search for a solution, without forcing a specific outcome. SANDRA LIEBENBERG, SOCIO-‐ECONOMIC RIGHTS: ADJUDICATION UNDER A TRANSFORMATIVE CONSTITUTION 293-‐303 (2010) (“Participants must approach the process with openness and respect for the human dignity of the other party as well as the constitutional rights and values at stake. They should be open to reason and persuasion and not cling implacably to fixe positions … [The process] should be designed to enable and empower disadvantaged and marginalised communities to participate meaningfully in the process”). 118 RONALD DWORKIN, A MATTER OF PRINCIPLE 67-‐9 (2001 repr.). 119 Michael C. Dorf, The Coherentism of Democracy and Distrust, 114 YALE L. J. 1237, 1239 (2004-‐5).


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applying clear legal provisions—like those of the Convention—120that impose on the

state the duty to consult indigenous communities.121

Ferejohn thinks the contrary.122 He thinks courts have also stepped too far in

imposing ‘deliberative requirements’ on politics by asking legislatures to “provide a

reasoned justification for its authority to enact certain statutes.”123 But I don’t think

the profile of the cases under analysis here fall in that category. Although procedural

reviews are based on their own political and moral principles, as noted in the previous

paragraph, it is one thing demanding legislatures and administrative agencies to open

their doors to excluded groups (supra notes 115-‐7Ely), quite another to force them to

give substantive reasons for their decisions.124

120 See Tribunal Constitucional de Chile [Constitutional Court], Case No 309, Aug. 4, 2000 (paras. 6th-‐7th) (deciding provisions of the Convention enshrining participatory and consultation rights to be self-‐executing because of their imperative and clear terms). 121 Jeremy Waldron, for one, has criticized Ely arguing that the values of democracy imply not only that the people must be granted a definitive say on substantive matters, but on procedural issues as well. Therefore there is an affront to democracy every time substantive matters are removed from the people, but also when we deprive the people to make similar choices on procedural grounds. WALDRON, LAW AND DISAGREEMENT, supra note XX, at 295-‐6. In a similar sense see Richard Bellamy, Republicanism, Democracy, and Constitutionalism, in REPUBLICANISM AND POLITICAL THEORY 159, 173 (C. Laborde and J. Maynor eds., 2008) (“when policies are reviewed on procedural grounds, such review either proves vacuous or involves a hypothetical account of what policy ought to have been adopted in ideal procedural circumstances. In other words, it turns into the outcome or results-‐based substantive approach”). However, it should be noted that courts in the cases above described are not entertaining into determining which procedures we should adopt, but simply enforcing those we have already, and sovereignly, adopted. 122 Ferejohn, Judicializing Politics, supra note XX, at 62-‐3 (arguing against courts imposing deliberative requirements). 123 Id., at 62. 124 And still another, to pass decisions on the substantive matters at hand. As some have argued, procedural review works as a surrogate for substantive issues involved. This is particularly crucial a matter for indigenous communities who inhabit under a culture of oppression and subjugation. See César Rodríguez-‐Garavito, Ethnicity.gov: Global Governance, Indigenous Peoples, and the Right to Prior Consultation in Social Minefields, 18 IND. J. GLOBAL LEGAL STUD. 263, 269-‐73 (2011) (noticing the danger of focusing too much on procedural instances that may well be utilized to consolidate and petrify cultures of oppression, thus bypassing substantive disagreements).


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Hirschl holds a different view. He thinks procedural aspects of the democratic process,

although regularly under the tutelage of constitutional courts, are to be decided

politically. In his words,

questions such as the regime’s legitimacy, a nation’s collective identity, or a

polity’s coming to terms with its often less than admirable past, reflect

primarily deep moral and political dilemmas, not judicial ones.125

And those issues should be decided accordingly; “by the populace itself, through its

elected and accountable representatives.”126 Of course Hirschl is assuming there is a

polity willing to decide—something I will briefly address in the last section.

But this is not the end of the picture. For the argument says nothing as to the

democratic credentials that very same polity is to exhibit.127 It is true that a court

might find little, if any, restrain in defining the boundaries of legislative and

administrative democratic credentials, and that is a danger we should be aware of. But

the set of cases under consideration here give courts not a blank cheque to be filled at

125 Hirschl, Judicialization of Politics, supra note XX, at 123. 126 Id. 127 The very fact of having “the populace” itself deciding the matter says something important, but nothing conclusive, as to the democratic character of a decision. See Jeremy Waldron, Precommitment and Disagreement, in CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS (Larry Alexander ed., 1998) (distinguishing between “the reason for carrying out a proposal with the character of the proposal itself”). Of course there is disagreement as to what these credentials should amount to, the very reason why we discuss the proper place for courts and that of the other branches. In fact, positions here range from those suggesting that once representatives are elected the people should return home to their private affairs, JOSEPH SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOCRACY 284 (1994) (“democracy does not mean and cannot mean that the people actually rule in any obvious sense of the term ‘people’ and ‘rule’”); to those arguing members of the parliament are to be continuously checked and held accountable by those whom they represent. Benjamin Constant, On the Liberty of the Ancients compared with that of the moderns, in CONSTANT POLITICAL WRITINGS 307, 326 (Biancamaria Fontana ed., Cambridge University Press: 2003, 9th print.) (“[T]he people who, in order to enjoy liberty which suits them, resort to the representative system, must exercise an active and constant surveillance over their representatives ….”). More recently these latter theories have pushed the line forward and claimed the people should not only play a vigilante role, but also be included in decision-‐making processes of core public matters—certainly in those decisions directly affecting them. BENJAMIN R. BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE (1984).


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will with what judges think better fits a democratic procedure, but a very specific and

concrete command: include the voices of those communities to be affected by a

governmental decision precisely because the community itself has decided to have

those voice in.128

In other words, indigenous peoples here resorting to courts are not bad losers who,

having lost in political chambers, resort to any other avenue where they could

overturn a decision politically adopted. What they are claiming is their right to be

present in that very debate so that they could be made responsible, and not simply

objects as well as subjects, of that decision. These are cases, therefore, where the

groups whose interests are addressed are excluded from the very discussion,

something that even authors that have consistently opposed judicial review

concede.129 Furthermore, as Cécile Fabre has argued, not every debate about rights is

always about ‘rights all members have,’ debates where one could admittedly lose. For

there are certainly cases where “the legislature decides whether homosexuals should

be granted all the rights heterosexuals have,” a case where they are clearly addressing

“rights for one group of the population, to wit homosexuals.”130

2. What politics?

There is another, often overlooked, fact we should consider when analyzing the

Chilean case law on indigenous claims: that most of governmental decisions

contended are administrative. Even those who have consistently opposed judicial

128 Whereas this is a standard difficult to assess absent the ‘indigenous variable,’ the collective character of communities involved give us more control over courts’ work. What the Convention calls political power to fulfill, and courts to tutelage, is that communities affected by a measure should be included and their voice heard. 129 WALDRON, LAW AND DISAGREEMENT, supra note XX, at 297. 130 Cécile Fabre, The Dignity of Rights, 20 OXFORD J. L. STUD. 271, 277-‐8 (2000) (her emphasis).


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review concede that democratic credentials are stronger when we are before

legislative decisions.131 Although there are those who, like Ferejohn, have argued

legislative power gets itself relocated in different governmental branches, certainly in

the administration,132 this does not preclude the people from demanding more

participatory avenues in executive offices, administrative agencies, and, of course,

why not, private contractors executing governmental functions.

Ferejohn himself claims that it is the legislatures where we are to influence and

decisively direct the formulation and adoption of public decisions.133 If legislative

power gets relocated in administrative agencies,134 the power of the people to

“monitor, criticize, oppose, and otherwise influence,”135 follows that relocation. In this

sense, Ferejohn writes, “administrative lawmaking is inevitably and justifiably

politicized.”136

So we can ask, once again, are the kinds of cases involving indigenous claims

subverting these foundational principles of democracy? The answer suggests the

opposite. Democratizing the administration demands decentralization of political

power based on the assumption that, having decisions affecting specific communities

to be locally defined by the intervention of that very same community, enhances

democracy.137 But beyond normative assumptions, it is also important to note

131 Jeremy Waldron, The core of the case against judicial review, 15 YALE L. REV. 1346, 1353-‐4 (2006) (“it is almost universally accepted that the executive’s elective credentials are subject to the principle of the rule of law, and, as a result, that officials may properly be required by courts to act in accordance with legal authorization.”). 132 Ferejohn, Judicializing Politics, supra note XX, at 49-‐50. 133 Id., at 46. 134 Id., at 50-‐1. 135 Id., at 50. 136 Id., at 51. 137 Jerry Frug, Administrative Democracy, supra note 24, at 574-‐6 (“Both workplace democracy and effective democratic control of the government require the decentralization of power”).


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empirically driven experiences that have proven instances of local policy making—

highly valued by the people138—to improve rates of compliance with proposed

measures,139 helping to keep “creative tension” alive through dialogues with the

citizenry,140 thus triggering improved and innovative policy solutions by relaying on

local knowledge.141

* * *

Overall what these cases show is precisely that courts may (although not always)

operate as reinforcing the democratic credentials of both the legislatures and the

administration. Politics need, sometimes, to be remembered that there are voices that

have been left out of the self-‐government enterprise. That is to say, that there are

people whose right “to have timely input and influence”142 on political decisions has

been severely perturbed.

Furthermore, the impact of these cases has been very limited in scope. And when they

have had comprehensive impact it has been, most ironically, against indigenous

communities themselves. For as the recent decree passed by the outgoing Piñera’s

administration shows, efforts have pointed towards guaranteeing foreign investors

that (what the government and investors see as) obstacles will not frustrate

138 Greg Halseth & Annie Booth, “What works well: what needs improvement”, Greg Halseth & Annie Booth, “What works well: what needs improvement”; lessons in public consultation from British Columbia’s resource planning processes, 8 LOC. ENV’T 437, 446 ff (2003) (describing the importance people attribute to local processes of policy definition). 139 César Viteri & Carlos Chávez, Legitimacy, local participation, and compliance in the Galápagos Marine Reserve, 3-‐4 OCEAN & COASTAL MGMT. 253 (2007). 140 Nancy C. Roberts, Keeping Public Officials Accountable through Dialogue: Resolving the Accountability Paradox, 26 PUB. ADMIN. REV. 658 (2002). 141 Elinor Ostrom showed an empirically-‐grounded challenge to these common assumptions in her Coping with Tragedies of the Commons, 2 ANNU. REV. POLIT. SCI. 493, 519-‐26 (1999). 142 Ferejohn, Judicializing Politics, supra note XX, at 49.


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business.143 This pro-‐investment agenda includes a cluster of laws aimed at the same

result: prevent what they have called, but I contend we could really see as,

judicialization.144

IV. Judicialization as a two-way process (reaching courts from ‘above’)

I want to finish this work calling the attention on the role the Chilean state has played

in promoting a sort of judicialization that should really worry us. I want to do so by

taking a look beyond its negation of participatory avenues, showing how the

government itself has preferred to judicialize indigenous matters—rather than

address them politically. This is an actor whose influence is often overlooked by

placing the emphasis on the institutional and claims coming ‘from below’ or where

accounts of ‘from above’ judicialization concern disputes among political elites.145

The kind of judicialization that should worry us is what Hirschl terms ‘mega-‐politics,’

questions of “electoral processes and outcomes, restorative justice, regime legitimacy,

executive prerogatives, collective identity, and nation-‐building … [and] increased

judicial scrutiny of core prerogatives of legislatures and executives in foreign affairs,

fiscal policy, and national security.”146

143 Ejecutivo apura iniciativas para evitar judicialización de grandes proyectos [The Executive put pressure on drafts aimed at preventing judicialization of big projects], LA TERCERA, Nov. 23, 2013. 144 Id. 145 See Sieder et al., Introduction, supra note XX, at 1-‐2, 4-‐5. 146 Hirschl, Judicialization of Politics, supra note XX, at 124, 138.


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Since the return to democratic ruling Chile has transited a path of depoliticization,

forced by the institutional setting inherited from the dictatorship,147 as well as by the

subsequent political practice built upon it: a form of politics dramatically limiting

responsiveness to off-‐the wall (narrowly defined) consensus.148 Although

depoliticization does not immediately amounts to judicialization, it may well be one of

its causes. Notice, for instance, the definitive impact depoliticization had on

institutional arrangements such as the electoral system, designed to yield a virtual tie

in Congress between the two main political coalitions thus preventing responsiveness

to popular sectors,149 or the supra-‐majority quorums required to pass legislation on

key political matters.150

This trauma with politics, explained by a military-‐internalized idea that too much

politics and disagreement led Chile to the coup d’ etat in 1973, is one of the evident

reasons behind the institutional blockade of indigenous constitutional recognition.151

As Contesse explains, “groups that do not fit into the mainstream political forces easily

fall off the spectrum of voices with authority to influence public debate and, let alone,

obtain political victories, such as the granting of legal status.”152

147 Alejandro Corvalán, Institutional Design against Electoral Participation: the case of Chile, (Working Paper No 32, Universidad Diego Portales), available at http://www.udp.cl/descargas/facultades_carreras/economia/pdf/documentos_investigacion/wp32_Institutional_Design_Corvalan.pdf 148 Domingo Lovera, Implosive Courts, Law, and Social Transformation: the Chilean case, 3 CAMBRIDGE STUDENT LAW REVIEW 30, 32-‐3 (2007). 149 Paul W. Posner, Development and Collective Action in Chile’s Neoliberal Democracy, 18 POLITICAL POWER & SOCIAL THEORY 85, 97-‐9 (2007). 150 JAVIER COUSO ET AL., CONSTITUTIONAL LAW IN CHILE 66-‐70 (2011). I would like to thank Matías Guiloff for having brought the importance of institutional settings to my attention. 151 See Contesse, Indigenous Peoples in Chile, supra note XX, at 30-‐6. 152 Id., at 32.


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Therefore, as the practice has shown, when institutional designs along with political

passiveness conspire against reform, actors are taken to seek redress in avenues other

than politics; for instance, courts.153 As Hirschl has noted, a deadlocked political

system might well encourage the expansion of judicial power.154 In such a context,

complaining against judicialization in order to give a polity without politics a way,

seems, at least, question-‐begging.

This is partly what I have been trying to show with the law cases explained in the last

section. Certainly indigenous communities litigating such cases do not seek the

constitutional and political recognition the polity has denied them, but at least the

have found an avenue where they can advance their rights. However, what should be

of concern to us is how the state itself has preferred to transfer key political matters

onto the hands of judges.

To be sure there is a history to show. In 1978 the Military Junta passed an amnesty

decree aimed at conferring them criminal immunity. Once democracy was restored,

several victims of human rights violations started to seek political redress. Whereas

politics conveniently decided not to address these issues—admittedly a hot potato

with Pinochet still as acting commander in chief of the army—victims started to file

criminal suits. What was the result? The judicialization of—to quote Hirschl again—

the “polity’s coming to terms with its often less than admirable past.”155 As some

153 This is a variant of what Ferejohn termed the ‘fragmentation hypothesis,’ “that courts have more freedom to action when political branches are too fragmented to make decisions effectively. In such cases, policy making tends to gravitate to institutions that can solve disputes effectively.” Ferejonh, Judicializaing Politics, supra note XX, at 59-‐60 (mentioning qualified majority rules as one of the arrangements that prevents political institutions from making decisions). 154 Hirschl, Judicialization of Politics, supra note XX, at 136. 155 Id., at 123. To be sure, a sad trend in the region: Huneeus et al., Cultures of Legality, supra note XX, at 10.


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scholars have argued, this has amounted to the dilution of politics, and at the same

time the trivialization of the political terror infringed, into different single cases that

depend on individual judicial outcomes.156

Something similar, I contend, has occurred with one of the crucial vindications

indigenous peoples have claimed, namely: the restorations of their lands illegitimately

appropriated by the Chilean state. One of the most important claims made by

indigenous peoples in Chile is that related to land restoration. Politics has been both

slow and unwilling to definitively resolve the matter. Efforts, although relevant, have

been incomplete. The Land and Water Fund for Indigenous Peoples (Fondo de Tierras

y Aguas Indígenas), a fiscal fund destined, among other things, to grant indigenous

peoples subsidies to buy new lands and to acquire and regularize water rights, has

proved unsatisfactory.157 Whereas evidence shows there are some examples of

communities who have turned to courts bringing lawsuits against the state and

private settlers,158 there are also those who have preferred to resort to direct action,

156 See generally JUAN PABLO MAÑALICH, TERROR, PENA Y AMNISTÍA: EL DERECHO PENAL ANTE EL TERRORISMO DE ESTADO [TERROR, PUNISHMENT AND AMNESTY: CRIMINAL LAW BEFORE STATE TERRORISM] 29-‐41 (2010). I want to rescue here some congressmen who have raised their voice to show discomfort with this situation. In 2007, after the Supreme Court confirmed it is no longer resorting to the amnesty decree to thwart investigations, Sergio Aguiló, a socialist deputy, reasoned this decisions should be seen “as encouraging the administration and the Congress to definitively resolve issues related to the amnesty … we can no longer rest upon the criteria of judges. It is our time to do the job.” Fallo que rechazó la amnistía insta a parlamentarios a zanjar discusión [Judicial decision that rejected amnesty urges parliamentarians to resolve the debate], LA NACIÓN, Mar. 15, 2007. 157 UN COMMISSION ON HUMAN RIGHTS, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Mr. Rodolfo Stavenhagen, submitted in accordance with Commission resolution 2003/56, Mission to Chile (Sixtieth session, 2004), UN Doc. E/CN.4/2004/80/Add.3 (2004), para. 20; INSTITUTO DE INSTITUTO DE ESTUDIOS INDÍGENAS-‐UNIVERSIDAD DE LA FRONTERA, LOS DERECHOS DE LOS PUEBLOS INDÍGENAS EN CHILE 181-‐2 (2003). 158 Skjævestad, The Mapuche People’s Battle for Indigenous Land, supra note XX.


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including social protests as well as the “occupation of land or setting fire to property

or forestry machinery and vehicles.”159

The state’s answer? The application of anti-‐terrorist law. Although the state has been

taken before the Inter-‐American Court of Human Rights for the discriminatory

prosecution of indigenous by resorting to the anti-‐terrorist legislation,160 nothing

prevent us from seeing how the state itself has preferred to take a core political

matter—related to recognition and restorative justice—to courts. This is the sort of

judicialization we should be concerned with: cases where the state actively seeks to

transfer its political responsibility.161

Conclusions

Has there been judicialization of politics in Chile? It depends. On the one hand,

indigenous communities claims, as noted above, have all seek to open a space for

communities to have say, although not definitive veto, in decisions directly affecting

them. As political processes have turned their backs on indigenous peoples, they have

been taken to seek participation as opportunities become available. On the other

hand, there are crucial matters, not related to political inclusion, but certainly related

159 Id., at 216-‐7. 160 The Inter-‐American Commission of Human Rights issued a press release with links to relevant documents that can be accessed here: http://www.oas.org/en/iachr/media_center/PReleases/2011/094.asp (last accessed March 15, 2014). 161 As the recently appointed intendant for La Araucanía, Francisco Huenchumilla put is, it has been the Chilean state which brought both indigenous communities and settlers (and their descendants) to this uncomfortable situation; it is therefore the state the one that owes “a political debt that has been pending for more than 130 years …” Intendente Huenchumilla pide perdón al pueblo mapuche y a los descendientes de colonos [Intendant Huenchumilla asks forgiveness to the mapuche people and settlers descendants], ELMOSTRADOR.CL, Mar. 13, 2014.


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to core political matters, where the state itself has actively sought to escape political

costs. These cases, however, run often overlooked and reduced to normal criminal

persecution.

It is hard to say, as the idea of judicialization presupposes, that the first set of cases

have diminished democracy. In fact courts have served to open the channels of

political participation to communities that, otherwise, would remain subjects of top-‐

down policy implementations. Moreover, as the examples above illustrate, these

achievements have been, despite its consequences, individual and never addressing

the whole of a public policy.

Courts intervention—as used by indigenous communities as opportunities become

available and in connection with other forms of political struggle—has permitted

some improvements in political inclusion. However, structural claims remain largely

unsolved. It would be pitifully reductionist to suggest that court-‐centered strategies

would provide a definitive political solution.162 While this certainly shows the limits of

judicialization, it also should take us to pause an assess courts intervention in its

proper light before resorting to an empty, if not cynic, version of the legitimacy

critique.

162 See Glen S. Coulthard, Subjects of empire: Indigenous Peoples and the ‘Politics of Recognition’ in Canada, 6 CONTEMPORARY POLITICAL THEORY 437 (2007) (arguing processes of colonization cannot be overcome by accommodating indigenous participation within liberal recognition practices without first tackling both structural and subjective patterns of domination); Rodríguez-‐Garavito, Ethnicity.gov, supra note XX.

Nobody’s Fault but Mine: Judicialization of indigenous politics in Chile

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