The Contentious Vote in Chile That Could Transform Indigenous Rights

TEMUCO, Chile — The Mapuche people beat back Inca invaders. They fended off Spanish colonizers. And centuries later, they have continued to wage a battle for the recognition of their territories in modern Chile.

Now, in what could be one of the biggest victories for Indigenous groups in modern history, the Mapuches are on the verge of achieving much of what they have been fighting for.

On Sunday, Chileans will vote on a new constitution that, if approved, would enshrine some of the most extensive rights for Indigenous people anywhere in the world, according to experts. If the text is approved, more than two million Indigenous Chileans, 80 percent of whom are Mapuche, would be able to govern their own territories, have their own courts and be recognized as distinct nations within Chile, a nation of 19 million people.

But those changes have also become the most contentious part of the proposed charter, and a focal point of the campaign to reject it. The campaign’s efforts appear to be working: The option to reject is leading the polls ahead of the referendum. Even the governing left-wing government recently promised to narrow down some Indigenous rights if the constitution is approved, though how, or if, that would happen is unclear.

“When we started this constitutional process, we never imagined that this would be the topic on which the outcome of the plebiscite will probably be defined,” said Javier Couso, a constitutional expert at Diego Portales University in Santiago, the capital.

The convention that was elected last year to write Chile’s new constitution was heralded as one of the most inclusive political bodies anywhere. It had gender parity and 17 of its 155 seats were reserved for Indigenous representatives. Its first president was Elisa Loncón, a Mapuche linguist who wore traditional dress to the plenary sessions and often greeted other convention members in Mapudungun, the Mapuche language.

The Indigenous representatives left their mark on the draft text. The first article of the new constitution would declare Chile a “plurinational” state, meaning that multiple nations would be recognized within Chile’s borders.

It would enshrine quotas for Indigenous people in all elected bodies, including at the national, regional and municipal levels. Indigenous people would have their own autonomous territories and gain protection over their lands and the natural resources on them. Most controversially, a parallel Indigenous justice system would rule in cases that do not affect fundamental rights or international treaties signed by Chile.

“I think this constitution effectively puts itself in the vanguard,” said Antonia Rivas, a lawyer and anthropologist who advised several first nations representatives at the convention. “Indigenous rights got into every part of the text because they became an orienting principle.”

In all, 56 of the constitution’s 388 proposed articles touch on Indigenous rights, said Sebastián Donoso, a board member of the country’s National Human Rights Institute. Some, such as the demarcation of autonomous territories or deciding what cases will be tried by Indigenous courts, will have to be interpreted by Congress if the charter is approved.

Many of the rights in the proposed constitution already exist in international accords, such as the United Nations Declaration on the Rights of Indigenous People from 2007, which was signed by 144 countries in 2007, including Chile. It includes rights to self-determination and nudges governments to obtain the free, prior and informed consent of Indigenous groups before implementing laws that may affect them.

The Chilean text would oblige the state to actually receive Indigenous people’s consent, and not just try to obtain it — going further than what is required by international law.

Some rights also exist in other countries with large Indigenous populations. The Maori people of New Zealand, for instance, have had quotas in Parliament since 1867. Bolivia and Ecuador also define themselves as plurinational.

By some measures, the United States is at the forefront of Indigenous rights. “Though far from perfect, there is no comparison in the world with the degree of self-governing powers U.S. Indian tribes have,” said Robert Williams Jr., an Indigenous rights expert at the University of Arizona. “Our tribes have their own courts, their own jails and jurisdiction over their own members.”

But Chile’s proposed text would be more comprehensive in some ways. “The Canadian Constitution protects aboriginal and treaty rights, the Sami people in Norway, Sweden and Finland have their own parliaments, and there are various regions with autonomous jurisdiction in Mexico,” said Claire Charters, a professor of Indigenous law at the University of Auckland in New Zealand. “But the Chilean constitution brings all of that together into one written constitution — and that is unique.”

So unique that it has put many Chileans off: In a recent wide-ranging survey by the Center for Public Studies, or CEP, a Chilean research institute, a majority of Chileans — including Mapuches — were not in favor of calling their country plurinational, preferring the term “multicultural” or making no distinction at all.

One right-wing representative to the constitutional convention has warned that the text would create an “Indigenous monarchy.” Another called the draft constitution “indigenist” and “racist.”

The harshest criticism has been reserved for the proposed parallel legal system.

“Why should there be two types of justice if justice is supposed to be blind?” asks one man in a television advertisement funded by opponents to the new constitution. When the leader of an extremist Mapuche group was arrested last week, one right-wing senator falsely claimed that he would have probably walked free “within minutes” under an Indigenous justice system.

“This idea has taken hold that Indigenous peoples will have privileges,” Ms. Rivas said. “When the truth is that Indigenous peoples have, historically and in the present, been the most excluded group. To have them be called a new elite or privileged class, that really hurts.”

Even more surprising is the rejection, or at least ambivalence, of some Mapuches to the draft text.

“They’re selling us a car without an engine,” said Jaime Huenchiñur, the leader of a Mapuche business association. “What good do quotas do when many Mapuches don’t know how they’re going to put food on the table tomorrow?” He said the real focus should be on economic development in Mapuche areas.

In interviews with almost a dozen Mapuche people in and around Temuco, a town in southern Chile in the heart of traditional Mapuche territory, many were skeptical about politics in general and said they had not decided how they would vote or would not cast a ballot at all.

According to the CEP survey, only 16 percent of Mapuches trusted the Indigenous representatives in the constitutional convention, far below the share who said they trusted their local leaders or shamans.

Still, many Mapuche activists have pushed for recognition of their rights, turning a historic page in the convention. Chile is one of only a handful of Latin American countries whose constitutions do not mention Indigenous groups, even though they make up around 13 percent of the population, according to the latest census from 2017.

In the 19th century, after gaining independence from Spain, the Chilean state set up offices in Europe to attract migrants to populate the south, promising to give them lands that it claimed were unoccupied, but often belonged to Mapuches.

Tens of thousands of migrants, especially from Germany and Switzerland, flocked to the fertile land. Towns in southern Chile have breweries with names like Kunstmann and coffee shops where cake is called “kuchen,” a German word.

“My grandchildren go to the German school, we speak German, we are Lutherans,” said Rosemarie Junge, the rector of Saint Thomas University in Temuco. “The Chilean state permitted us to do this — but the Indigenous groups that were here before us weren’t allowed to do the same for decades.” Since the country’s return to democracy in 1990, at least a dozen constitutional reforms have been proposed in Congress to recognize Indigenous people, all of which have failed.

Polarizing things further is an ongoing conflict in the country’s south, which has its roots in a nearly two-decadelong dictatorship that ended in 1990. Back then, the regime opened up large swaths of land to logging. Some Mapuche groups have increased attacks against the industry since the return to democracy.

The conflict has recently gotten worse. The number of recorded violent incidents, including arson attacks against trucks that carry wood and potshots at police officers, increased from 150 in 2011 to more than 1,700 last year.

The new left-wing government called a state of emergency in the south in May, and, weeks later, Chile’s Lower House voted to declare four violent Mapuche groups “illicit organizations of a terrorist character.”

But some Mapuches are hoping that the new constitution could bring more peace.

“What does it mean if this constitution is approved?” Ms Loncón said. “It means that a Chile without racism is possible, that an inclusive democracy is possible, and that having a different identity doesn’t harm the unity of this country, but rather enriches it.”

Jack Nicas contributed reporting from Santiago, Chile.