Causes and Consequences of Indigenous Rights Legislation in Latin America, 1979-2018

Abstract

About 42 million Indigenous people live in Latin America. They trace their descent to the pre-Colombian inhabitants of the continent. For centuries, Indigenous peoples have suffered from external and internal colonization, exploitation, subjugation, and forced assimilation, resulting in severe socio-economic, cultural, and political inequalities. With the inclusionary turn of the past decades, international and constitutional law has increasingly recognized Indigenous rights. However, they are not always implemented adequately, and inequalities persist. I argue that prior research has neglected the role of ordinary law as the necessary transmission belt to implement higher-order norms. Therefore, I have collected the INDILEX database, which contains the complete Indigenous rights legislation adopted in sixteen Latin American countries from 1979-2018. The INDILEX database represents the main contribution of my cumulative dissertation and facilitates comprehensive and systematic studies on the causes and consequences of Indigenous rights legislation in Latin America. In the first paper of the dissertation, I analyse the domestic determinants of Indigenous rights legislation. Rooted in the political representation literature, I contrast descriptive representation with alternative explanations for the substantive representation of Indigenous peoples. I find that leftist presidents, Indigenous civil society, and democracy promote Indigenous legislation. A broad constitutional mandate to protect Indigenous rights also facilitates the adoption of Indigenous legislation. In this policy area, constitutions can be interpreted as “mission statements” but not as specific instructions for legislators to fulfil. The second paper complements the first one with an international approach. In a regional perspective, Latin American Indigenous rights legislation has significantly converged over the past decades. Bilateral diffusion processes, however, cannot explain this convergence. Instead, the assimilation of domestic legislation towards the standards set in the ILO Indigenous and Tribal Peoples Convention has led to the growing similarity of Indigenous rights policies. The third paper investigates the consequences of Indigenous rights legislation on Indigenous peoples’ satisfaction with democracy. As group rights, Indigenous rights can be attributed to individual group members or collectively to the group as such. Combining Indigenous and Western political theory, I argue that the collective approach recognizes the inherent sovereignty of Indigenous peoples more adequately. Empirically, I find that the codification of Indigenous rights in a collective fashion increases Indigenous satisfaction with democracy, which shows that it matters how constitutional Indigenous rights are specified in ordinary law. Furthermore, recognizing collective rights does not harm non-Indigenous people’s perception of democracy.