Photo by Santiago Navarro F
Translated by Schools for Chiapas in collaboration with Avispa Midia
In late June, President Claudia Sheinbaum announced the launch of a consultation process on the proposed General Law on the Rights of Indigenous and Afro-Mexican Peoples. According to the timeline announced by the government, the consultation with communities will be completed by mid-September, and efforts are underway to ensure that the proposal is submitted to the Chamber of Deputies on October 12, which marks “Pluricultural Nation Day.”
In Mexico, there has long been a call for constitutional recognition of indigenous rights, including indigenous territories, so the initiative has been met with anticipation and even some enthusiasm from organized civil society. Members of indigenous communities and experts interviewed for this report acknowledge that it could represent a watershed moment for agrarian and indigenous issues in Mexico. That is why “the proposal must be analyzed with great care,” as Mixtec attorney Francisco López Bárcenas warns in an interview with Avispa Mídia.
Currently, according to the National Agrarian Registry, approximately 51% of the land in Mexico is collectively owned by agrarian communities (communal lands and ejidos), the result of the land distribution that began with the Mexican Revolution—widely recognized as the most significant land distribution ever to take place in all of Latin America.The relationship between communal land ownership and indigenous peoples runs deep. Approximately 16,200 of the more than 32,500 agrarian communities in the country have an indigenous population. Research by the Geocomunes collective corroborates this relationship. At least 51.34% of the population of agrarian communities lives in indigenous households.
In its analysis, Geocomunes argues that, although Mexico does not formally have indigenous territories, there is “undoubtedly a constant, deeply rooted process of construction and daily appropriation of the territory by indigenous peoples, and it is in this process of appropriation and struggle for the territory that the existence of agrarian communities (ejidos and communities) is very important—not so much because of what the Mexican state recognizes, but because of what the indigenous peoples have made of it.”
As the Mexican government acknowledges, 80% of the country’s forests and rainforests, as well as a great deal of agricultural and genetic diversity, are located in ejidos and communities, and it is there that the country’s greatest cultural and biodiversity wealth is concentrated.
However, in agrarian law—the legal framework governing agrarian communities—it is the peasantry that is recognized as holders of rights, not indigenous peoples. “The aim [of the law] is to recognize areas where indigenous settlements and their cultural practices are located, regardless of the agrarian regime—whether they are ejidos or communal lands—even in cities,” explains attorney Guillermo Luévano Bustamante, a professor and researcher at the Autonomous University of San Luis Potosí, who has been working with indigenous peoples and communities on territorial issues for 15 years.The Chief Justice of the Supreme Court of the Nation, Indigenous attorney Hugo Aguilar Ortiz, at an event at the Agrarian Prosecutor’s Office, even went further and argued that “we are facing the possibility of shifting from agrarian law to territorial law.”
The question on the table—in addition to the intentions of various actors and the rhetoric that has circulated, especially in official government media—is: on what terms does the proposal address issues such as land and territory, natural resources, and the autonomy of indigenous peoples?
At Avispa Mídia, we set out to listen to different voices and read various documents to gain a specific understanding of these terms, without attempting to cover all 453 articles divided into 8 books that make up the proposal. According to attorney Francisco Bárcenas’s analysis, the proposal—“and I have to say this in fairness to those who drafted it—is well-written, elegantly written, but I believe that’s where the catch lies.”
Subjects of law, until authorized by the INPI
Photo by Santiago Navarro F
The 2024 amendment to Article 2 of the Constitution constitutionally recognized indigenous peoples as subjects of public law, rather than objects of public law; in other words, indigenous peoples and communities now have their own legal status, assets, and the legal capacity to engage directly with the State.However, the proposed law stipulates that this “recognition” is not automatic; there is a lengthy bureaucratic process involved. An internal consultation must be held, followed by a regional assembly; then a regional statute must be drafted, specifying the name, powers, and assets of the community; a dossier must be compiled and submitted to the National Institute of Indigenous Peoples (INPI). The institute reviews the dossier and, according to Article 20 of the bill, “if applicable, will issue a ruling.”
According to the organization Indígenas 3D, those three words—“if applicable”—are what matter. “It doesn’t say it will issue it; it says it will issue it if applicable, and the institute itself is the one that decides whether it’s applicable. Our legal existence ultimately depends on a signature in a federal government office,” they clarify in a document the organization describes as a “shadow booklet,” which was “created to find what is missing” from the explanatory booklet for the Proposed General Law on the Rights of Indigenous and Afro-Mexican Peoples, drafted by the federal government, its organizers explain.
The proposal contradicts the Constitution itself, warns the organization Indígenas 3D. Article 2 of the Constitution, amended in 2024, stipulates that “awareness of one’s Indigenous identity must be a fundamental criterion”—not a bureaucratic process, they argue. “A law cannot impose conditions that the Constitution did not impose.”
For Luévano Bustamante, the bureaucratic process homogenizes the diverse organizational, political, and cultural realities of the indigenous peoples and communities that exist in Mexico. For example, many indigenous peoples do not have written statutes because they have systems of office, traditional authorities, and forms of consensus that have functioned for centuries without the need for paper—and that are difficult to fit into a single format.Furthermore, in this process, “it is the state that determines which groups are and are not recognized as communities (…), and these are forms of state control exercised through administrative requirements,” argues attorney Bustamante, “because in order to be recognized as subjects of public law—and thus gain access to funds and defend their rights collectively—they must be included in the official registry, the census, and the catalog.”
The “shadow booklet” continues to question the role of the INPI in this “recognition” process. According to the proposed law, the institute can “accompany us from the outset, provide us with technical and methodological assistance, and also ‘assist in resolving potential disputes.’” If disagreements arise over how we apply our own regulatory systems, the institute “may conduct the corresponding mediation. Let’s take stock, then, of the powers the institute is accumulating: it advises us, mediates our internal conflicts, and then rules on whether our process was valid. Even if those who work there have the best of intentions, someone who advises, mediates, and rules at the same time can hardly be impartial. And when an outside authority steps in to mediate our internal disputes, it is already making decisions about our internal affairs.”
Researcher Mayvelin Flores Villagómez, a professor in the UNAM School of Economics and a specialist in Latin American studies, agrees that the state seeks to institutionalize community life and create mechanisms that intervene in the internal dynamics of communities. “Tensions must be resolved in a community assembly. Furthermore, these mechanisms will generate more tensions among the different groups that coexist within the communities themselves,” she warns.
Peoples without State authorization
Berenice Sánchez is an Otomí from San Francisco Magú, in the State of Mexico. “We knew that we existed as a people within our territory—that we are Otomís—we simply existed within the boundaries of our territory. That was enough for us.” From childhood, her mother explained to her how their community was governed, how Magú was organized. Her mother told her that it was a “little Mexico” within another Mexico. “The thing is, in Magú there’s no hesitation when it comes to talking about autonomy. The general assembly is the one that decides.”
In 2012, they had to launch a campaign to defend their forests—“a territory we knew was ours but that was taken from us through [false] notarized deeds”—in the face of plans for a residential real estate development comprising 11,000 homes. “To be perfectly clear, we never asked ourselves why the government never consulted us; rather, we asked ourselves why the government allowed them to encroach on a territory that didn’t belong to them.”
Berenice explains that in her community, they didn’t know this was called “indigenous jurisdiction” and that, in order to claim it, they had to be included in the state’s registry of indigenous peoples. And to be included in this registry, it’s not enough simply to say, “We are an indigenous people; we are aware of our identity; we have inhabited this territory for generations; we preserve our customs and traditions.” There must be a favorable ruling from the INPI.“We used to say, ‘We’re not shoes that need to be in a shoe catalog. Shoes, even if they’re not in a catalog, are still shoes. And we don’t want to be listed in this catalog—maybe we’re huaraches, or maybe we’re boots.’”
However, it became necessary. The municipality of Nicolás Romero used the legal argument to deny our existence and, therefore, all our rights. “They told us, ‘What territorial rights are you claiming if you aren’t even indigenous?’ This affront is degrading; it is humiliating, given all these centuries of resistance that we indigenous peoples have endured.”
Even though we weren’t registered there, “we had to be there, because it was the guarantee of our existence; now the INPI refers to us as a people; we saw ourselves as a people, made up of 12 communities, yet this reference—which we had very clearly defined—that we are a people with cultural and territorial integrity and a system of autonomy has been taken away from us.”
Regarding the proposed bill, he sums it up by saying: “It’s shaping up to be a ‘straightjacket.’”
Our own natural resources, as long as they are not located in strategic areas
Article 33 of the proposed bill guarantees that indigenous peoples may manage their natural resources, “except for those located in strategic areas,” according to the text.
The bill does not specify what these strategic areas are. “It is therefore left to the State to decide. The problem is that the exception ends up nullifying the rule, because strategic areas are precisely where companies are looking for resources: minerals, oil, electricity, and water,” the “shadow booklet” argues. According to researcher Flores Villagómez, in general terms, the proposal grants indigenous communities and peoples the possibility of having their authorities and internal regulations recognized, as well as the right to participate in decisions regarding what does or does not happen on their territory; however, in her assessment, these are minor projects, such as deciding on a clinic, a school, or the route a road will take.
Granting them a say in decisions, she continues, does not imply granting them ownership of the territory or its resources. “So, let’s say that, from my point of view, that’s where the catch lies,” Villagómez explains. “Full autonomy would also imply recognizing their authority to make decisions regarding their lands, their territories, and their resources—including the soil, subsoil, and aerial resources.”
Thus, as the draft bill is currently worded, “it does not in any way alter the central role the state plays in making these decisions regarding mining and megaprojects, and—very importantly—it will not change the model of accumulation either,” argues researcher Villagómez.
Right to consultation, if the State allows
Photo by Santiago Navarro F
The proposed bill sets forth the steps for conducting a consultation. According to the proposal, a consultation is required in cases where a project is to be carried out or a legislative or administrative measure is to be adopted that could “affect or have a significant impact on the lives or environment of the peoples,” as stated in Article 325. In contrast, according to Mixtec attorney Francisco Bárcenas, international law establishes that indigenous peoples must be consulted whenever an action is likely to affect their rights.
The National Institute of Industrial Property (INPI) and the Ministry of the Interior, following a lengthy bureaucratic process, will be the ones to decide whether a project, an economic activity, or a legislative measure has a “significant impact” on a community. Pursuant to Article 331, the two bodies will jointly issue, based on their own technical reports, a ruling on whether the consultation is appropriate or inappropriate. “Neither international law nor the Constitution establishes any requirements for the exercise of that right, yet the proposal does. I find this requirement quite dire,” explains the Mixtec lawyer.
An exception was made for the energy sector. “In the case of projects related to energy production, the competent authority itself must submit ‘the authorization for the Energy Sector's Social Impact Statement’; this document shall have the corresponding legal effects for determining whether the consultation is admissible or inadmissible,” states the text of the proposal.
“In other words, a document produced by the energy sector itself influences whether or not we are consulted. And this happens precisely in the projects where we have been most dispossessed—wind farms, solar farms, gas pipelines, and dams—where consultation is tied to the timeline of energy policy. One might ask why, of all the sectors that can affect us, this one has its own special process,” questions Indígenas 3D.'
Article 332 of the text allows communities to challenge the outcome of the ruling—if they disagree—through an internal appeal to the same authority, “with no guarantee that a judge will review it in a timely manner or that the work will be halted in the meantime.” “And on the ground, once the machinery has already moved in, the damage doesn’t wait for the appeal to be resolved,” adds Indigenas 3D in its “shadow booklet.”
Attorney and researcher Luévano Bustamante warns that the proposed bill provides tools for the State to challenge the decisions of community assemblies, disregarding the principles of agrarian law—namely, that the assembly is the highest authority in a community, and not even the State can question its decisions. “If an assembly that disagrees with a megaproject decides not to accept it, the State can argue, ‘You know what, you didn’t follow the steps for conducting the consultation, and you have to follow them.’ That puts a check on the territory—it puts a lock, so to speak, on the communities’ autonomous decision-making.”
Furthermore, the consent of peoples and communities should only be required when the State considers the harm to be “permanent and irreversible.” Thus, “the State defines what constitutes significant harm. The State determines whether the harm reaches that level. The State decides whether consultation is required. And if it concludes that the harm was not significant, it can proceed without our consent, invoking the public interest and offering us compensation,” they summarize in the “shadow booklet."
Photo by Santiago Navarro F
Indigenous Territory, a Presidential Decree
The proposed bill creates a new type of property: traditional communal property. “This type of property isn’t in the Agrarian Law or the Constitution; it has no legal basis—they’ve literally made it up,” Bárcenas says sarcastically.
The new form of land tenure “may” be “recognized” by the “head of the Federal Executive Branch (...) by means of a [presidential] decree,” states Article 109 of the proposal. “It falls to the Office of the President of the Republic to determine which peoples will have their land restored and which will not,” notes Elisa Cruz Rueda, a lawyer and anthropologist who is a professor at the School of Indigenous Governance and Self-Development at the Autonomous University of Chiapas.
The lawyer points out that most peoples and communities in Mexico will not be able to exercise this right because they lack the means to enforce it or demand it. “That’s because they are besieged by organized crime, climate change, and drought; because they lack the media attention and government support needed to implement a justice plan; and because they lack the means to reach the government so it can restore their lands via a presidential decree.” She adds that, as a result, the right to territory may be subject to other factors, such as political and partisan considerations.
She criticizes the lack of a procedure for land restitution and notes that the one that did exist was repealed in 1992 as part of the constitutional reform—considered neoliberal—carried out by then-President Carlos Salinas de Gortari.
Another problem, pointed out by Bárcenas, is that it is not specified which law will apply to this type of property. “The Agrarian Law applies to ejidos and communities. Public property is governed by the National Assets Law. Private property is governed by the Civil Code. Which law will apply to this type of property? Who will register it? The National Agrarian Registry refuses to register it because it falls outside its jurisdiction. The Public Registry of Private Property refuses to register it. Well, that’s what they’re presenting as indigenous territories.”
Furthermore, the guarantee of maintaining this type of property is undermined, since a presidential decree can be revoked or rendered null and void either by the issuance of a new decree, by a ruling of the Supreme Court of Justice of the Nation (SCJN), or by a decision of the Congress of the Union.
Special System – The Special Agrarian System is also established. All ejidos and all agrarian communities that are predominantly indigenous may choose to transition to a special system.
When a communal or ejido entity is composed of an indigenous people or community, “the General Assembly may regulate its agricultural organization and operations in accordance with its own regulatory systems [and not necessarily under the rules of agricultural law],” states Article 112 of the proposal.
Specifically regarding the lands of indigenous peoples and communities under this special regime, Article 114 of the proposal stipulates that “they shall be subject to the special protection established in the Federal Constitution, this law, and international legal instruments on the rights of Indigenous Peoples.”
Consultation process
The federal government has set aside two and a half months to conduct the consultation on the proposed bill with 16,728 communities throughout Mexico, between July and mid-September. “They’re calling a process a ‘consultation’ when it isn’t one—at best, it will be an informational process. Honestly, I don’t see the capacity to hold so many assemblies in a single day; I don’t see the trained staff, and I also don’t see much interest in doing so,” says Bárcenas.
The Mixtec lawyer is also concerned about the context in which the consultation is being presented to the communities. “There are many conflicts in various regions of the country.”
He emphasizes that when a consultation takes place, there must be willingness and interest on both sides, “but I see a government committed to pushing forward megaprojects that are affecting the territories and natural resources of the communities, and, obviously, on the other side, I see the communities defending themselves.”
Photo by Santiago Navarro F
What Can We Expect from the Law?
Attorney Luévano Bustamante poses a question: What can we expect from the law? “Within the logic of the current legal system, the law is primarily a system that protects private property; it is a capitalist law, it remains a colonial law, and it remains a patriarchal law. While the law may offer some tools for defending collective rights, on its own it does not eliminate the current system of inequalities, racism, and internal and external forms of colonialism.”
As such, the researcher believes that advancing the rights of peoples will depend on forms of community organization, “as has always been the case—that is, where there is community organization, the territory is defended; where there is no coordination, we know that megaprojects are imposed and overpower everything.”