Land tenure legislation in a pluri-cultural and multi-ethnic Society: The case of Bolivia
2006; Taylor & Francis; Volume: 33; Issue: 4 Linguagem: Inglês
10.1080/03066150601119975
ISSN1743-9361
Autores Tópico(s)Land Rights and Reforms
ResumoAbstract After considering notions of social justice as they are related to concepts of 'development', this article seeks to provide a regionally differentiated overview of the evolution of land tenure in Bolivia and the way arrangements for land tenure legalization have been contested and negotiated over time. It will show how the colonial 'reciprocity pact', which entailed recognition of indigenous tenure systems came under attack from liberalizing policies during the second half of the nineteenth century. The 1953 agrarian reform brought new arrangements and new agrarian policies that formally aimed at modernization. Yet another reform, in 1996, under the aegis of neoliberalism, brought a formal recognition of indigenous tenure systems which, however, has not yielded very satisfactory outcomes. This is due to a one-sided emphasis on tenure that disregards broader community organization and a slow and biased implementation favouring the traditionally dominant sectors. Acronyms CAT SAN= Saneamiento integrado al catastro legal Clarification of land rights linked to the setting up of a registry system CIDOB= Confederación de Pueblos Indígenas del Oriente Boliviano Confederation of Indigenous Peoples of Eastern Bolivia CNTCB= Confederación Nacional de Trabajadores Campesinos de Bolivia Bolivian Confederation of Peasant Workers COB= Central Obrero Boliviana Bolivian Workers' Central CONAMAQ= Consejo de Ayllus y Markas de Qullasuyu Council of Ayllus and Markas of Qullasuyu CONFEAGRO= Confederación Agropecuario National National Agibusiness Confederation CORACA= Corporación Agropecuaria Campesina Peasant Agrarian Corporation CSCB= Confederación Sindical de Colonizadores de Bolivia National Bolivian Confederation of Colonizer Unions CSUTCB= Confederación Sindical Única de Trabajadores Campesinos de Bolivia Confederation of Peasant Worker Unions of Bolivia ILO= International Labor Organization INC= Instituto Nacional de Colonización National Colonization Institute INKA= Instituto Naccional Kollasuyu-Andino-Amazónico National Institute Kollasuyu-Andes-Amazonia (proposed in 1994 by peasant and indigenous organizations) INRA= Instituto Nacional de Reforma Agraria National Agrarian Reform Institute INTI= Instituto Nacional de Tierras National Land Institute (proposed in 1994 by the government) MNR= Movimiento Nacionalista Revolucionario Revolutionary Nationalist Movement PIR= Partido de Izquierda Revolucionaria Party of the Revolutionary Left POR= Partido Obrero Revolucionario Revolutionary Workers Party SAN SIM= Saneamiento Simple Simple clarification of land rights SIRENARE= Sistema de Regulación de Recursos Renovables System for the Regulation of Renewable Resources SNRA= Servicio Nacional de Reforma Agraria National Agrarian Reform Service TCO= Tierras Comunitarias de Origen Original Community Lands TCO SAN= Clarification of land rights for TCO Notes 1 The Acta de Acuerdo Nacional of 21 June 2002, is reproduced in Betancur [2004: 141–4]. The agreement stipulated that only articles 230 to 233 of the Constitution would be modified to include a National Constituent Assembly as a mechanism of participatory democracy. 2 For background, see Assies and Salman Citation2003, Assies Citation2004, and Crabtree Citation2005. 3 The years in which reforms were introduced are taken from Deere and León Citation2000: 177]. They should be taken as indicative, not least because the 'reform of the reform' was more of process than a one-off event. 4 That even the MNR cast the 1952 revolution in term of class is evident from the first issue of its monthly journal, Cultura Politica (año I, No.1, La Paz, 9 de Abril de 1954), where words such as burguesia, clases sociales and clase dominante are used freely by the contributors, all of them MNR intellectuals. 5 Economic restructuring at the same time undermined the forces, such as the labour movement, that might have resisted such policies. 6 Rather than viewing redistribution and recognition as two mutually exclusive social justice paradigms, they can be regarded as complementary [Fraser, Citation2003. 7 The Inca empire, Tawantinsuyu with its centre in Cusco, was divided into four parts: Chinchaysuyu (northwest), Antisuyu (east), Cuntisuyu (southwest), and Collasuyu (south and comprising most of present-day Bolivia and part of Chile). 8 For an overview of Aymara history and culture, see AlbóCitation1988. In his classic study, first published in the 1950s, Murra Citation1980 characterized the ayllus as constitutive of what he termed 'verticality', an Andean system of exchange between ecologically complementary niches (= vertical archipelagoes). See also Riverstone [n.d.]. 9 The highlands (altiplano) roughly correspond to the present-day Departments of Potosí and Oruro and part of La Paz. The valleys (valles) correspond to parts of the Departments of Cochabamba, Chuquisaca and Tarija. The lowlands (tieras bajas) include the oriente region: the Department of Santa Cruz, the Chaco, parts of Santa Cruz, Chuquisaca and Tarija; and the Amazon region, which covers the Departments Pando and Beni, as well as the northern parts of the La Paz and Cochabamba Departments [Terceros, Citation2004: 23]. 10 This arrangement provided the basis for a system of indirect rule and the division of the colonies into a república de españoles and a república de indios. 11 Túpac Katari adopted this name in honour of his two heroes. His original name was Julian Apaza, but he combined the names of Túpac Amaru, the leader of the Cuzco revolt, with that of Tomás Katari, a local chieftan or cacique who fought the colonial authorities in the courts until he was murdered in early 1781. His two brothers then became leaders of a massive revolt in which Julian Apaza, alias Túpac Katari, came to play a key role as a military leader, seconded by his wife Bartolina Sisa. 12 In the highland region some 16 districts were formed to provide labour for the mines under the mita system [Cole, Citation1985; Klein, Citation2003: 39], which had roots in pre-colonial practices of service to the Inca state. 13 Indians, Spanish, etc. increasingly became juridical categories that only partly overlapped with ethnic or 'racial' classifications. On the Cochabamba region, see Gordillo Citation2000. 14 The hereditary principle was gradually replaced by an elective system, and the ayllu came to incorporate a civil-religious cargo system and became more 'territorialized'. 15 On the agrarian policy of Melgarejo, see Antezana Citation1971. 16 According to Lavaud Citation1991: 173] the number of communities declined from 11,000 in 1847 to 3,779 by 1950. 17 Haciendas would be worked under the colonato system according to which tenants received a small plot to work on their own account in return for a number of days of work on the hacienda lands, as well as a series of other obligations. The system tended to be more rigid in the highlands than in the valley regions. 18 The Federal War was basically a civil war between two factions of the oligarchy: the declining silver-mining sector, based in the capital of Sucre, and the ascending tin-mining sector centred on La Paz. With the defeat of the conservatives, La Paz became the seat of government. The opportunistic alliance between liberals and the Aymara barely veiled the racialist prejudice against the latter [Rivera, Citation2003. 19 For a discussion of this little studied episode, see Hylton Citation2003. 20 The barracas were based on a harsh system of debt peonage, with workers recruited in the Santa Cruz region. The local indigenous population in the northern forest areas was either exterminated or incorporated into the rubber producing economy. Forcible recruitment of indigenous labour (as rubber tappers or boatmen) in the Moxos plains further to the south triggered a messianic movement during the late-1880s. 21 It had little to do with a conflict over oil lands between Standard Oil of New Jersey and Royal Dutch Shell, with interests in Bolivia and Paraguay respectively, as is popularly believed. Only at the end of the war were Bolivian oil fields threatened by Paraguayan forces. 22 Wolf Citation1971 has noted the radicalizing effect on peasants of army service during wartime, when they encounter – perhaps for the first time – urban workers and revolutionary ideas. 23 As is evident from an analysis of the agrarian reform issue at this conjuncture [Sanjinés, Citation1932, there was also a fear that if things were not changed 'from above', they would – as in the case of Russia – be changed 'from below'. 24 A main characteristic of this period, lasting from 1936 to 1946, is so-called 'military socialism', for an account of which see Diaz Machicao Citation1957. 25 The other two important parties were the Trotskyist Partido Obrero Revolucionario (POR) and the Stalinist Partido de la Izquierda Revolucionario (PIR). For early accounts of the MNR, its political formation, its take on Bolivian history, and its economic objectives, see Peñaloza Citation1947; Citation1963. 26 Wálter Guevara Arze Citation1955, who was later briefly President in 1979, set out the ambitious MNR programme at this conjuncture. 27 'Movimiento Nacionalista Revolucionario: Sus bases y principios de acción inmediata', reproduced in Arze [2002: 605–43]. 28 It is important to note an exception to this assimilationist discourse at that conjuncture, in the shape of Fausto Reinaga Citation1953. Not only did he argue staunchly for a recognition of the ethnic/cultural basis of rural emancipation in Bolivia, an analysis awarded a prize at the First Bolivian Sociology Congress in 1952, but his ideas have been influential on those leading recent indigenous movements in the countryside. 29 For a discussion of Bolivian indigenismo, see Salmón Citation1997. 30 For the struggles by tenants in Ucureña during the 1935–52 period, and the development there of peasant unionization, see the classic ethnography by Dandler Citation1969. 31 For an historical account of the form taken by labour-service obligations in Bolivia, see Reyeros Citation1949. 32 In 1946, Villaroel was hanged by a mob, heralding a return to power by the conservatives for the next six years. According to Rivera Citation2003: 103–4], the lynching was connected to the fact that, on the eve of the Congress, Villaroel had lifted the 1925 restrictions on the presence of Indians in the streets and plazas of La Paz. 33 In 1956 the decree became law. The fact that President Víctor Paz Estensorro signed the decree in Ucureña was meant to underline the prevailing view of the agrarian reform. Ucureña was the cradle of trade unionism, considered more modern than the peasant-indigenous authority systems of the highlands, while the existence of independent smallholders in the interstices of the local hacienda system provided a model for the type of productive organization the government pursued. 34 Arze Citation2002: 162] cites different data, but they are no less dramatic. See also Thiesenhusen Citation1995: 54]. 35 On the drafting of the decree, see Arze Citation2002: 160–1]. 36 The formal criterion here clearly was the productivity of land, rather than profitability. 37 Despite legislation, communities persisted in their adherence to the pro-indiviso principle of collective title and the distribution of lands, according to customary rules of inheritance, transfer and land management. 38 The institutional set-up included the president of the republic who would sign titles, make final decisions and could order the revision of already concluded agrarian processes. Next came a National Agrarian Reform Council, dependent on the Ministry for Peasant Affairs, then the agrarian judges, rural agrarian reform boards and rural inspectors [Hernaíz and Pacheco, Citation2000: 70–6]. 39 Thus the reform process often followed situations created on the ground by different political factions vying for power within or on the margins of the MNR. This was especially the case in the early years, which were characterized by rivalries and attempts by various factions to control peasant unions and their armed militias. Effective regularization and titling could take years or decades to complete, and sometimes never even finished. 40 That the Santa Cruz area was initially targeted by the MNR for agro-industrial development projects is clear from Wálter Guevara Arze Citation1955: 100ff., 154ff.]. 41 The abandonment is also reflected in the shifts in agricultural credits. Between 1955 and 1964 the highlands and valleys absorbed 16.1 and 26.4% of the credits of the Banco Agrícola, while the Eastern region received 57.5%. By the early 1970s, however, the highlands and valleys received only 4.75 and 6.61% of the credits, while the Oriente received the lion's share, 88.63%[Arze, Citation2002: 167]. The neglect of peasant agriculture also had to do with the availability of highly subsidized cheap food imports from the US and, later, from Europe [Barraclough, Citation2001: 32]. 42 A recent document from the Ministry of Peasant and Agrarian Affairs [República de Bolivia/MACA, Citation2005: 9, 16] confirms 'that 87% of agricultural land (28 million hectares) is in the hands of 7% of the owners; peasants possess 4 million hectares (13% of the land) … The agrarian units of 5 hectares or less, which includes traditional agriculture, represent 68% of the agricultural units and 1.4% of the total agricultural surface; the peasant properties of 1 hectare or less represent nearly a third of the total number of properties and only 0.1% of the agricultural surface. On the other hand, 85% of the surface is occupied by agricultural units larger than 500 hectares and represent 1.8% of the total of agricultural units.' 43 This fragmentation can be related partly to the demographic transformation in the region, resulting in increased pressure on lands, which in turn results in soil degradation. 44 Also influenced by climatic phenomena, such as El Niño. 45 Originarios refers to the families with first claims, while agregados refers to latecomers with secondary claims to land. 46 The Summer Institute of Linguistics and the New Tribes Mission came to Bolivia with the object of 'civilizing' the indigenous population. 47 Often a distinction is made between katarismo and indianismo. Whereas katarismo would emphasize both class and ethnic identity, looking at reality 'with two eyes', indianismo would stress ethnic identity. 48 Following Lenin's classic 1899 study of the development of capitalism in Russia [Lenin, Citation1979. 49 It is commonly assumed that indigenous people constitute the majority of the Bolivian population. According to the 2001 census [Bolivia, Citation2003, the nation had nearly 8.3 million inhabitants, of which 62% (of those over 15 years) declared themselves to belong to an indigenous category, principally the Quechuas (31%) and the Aymaras (25%) of the Andean highlands and the colonization areas in the eastern lowlands. The remaining 6% accounts for some 30 different indigenous groups in the eastern Amazonian lowlands. 50 The decrees are reproduced in República de Bolivia Citation1996. 51 This Convention was drawn up in 1989 to replace ILO Convention 107 of 1957. The Convention is the only legally binding instrument to protect the rights of indigenous peoples, and has been ratified by Norway (1990), Mexico (1990), Colombia (1991), Bolivia (1991), Costa Rica (1993), Paraguay (1993), Peru (1994), Honduras (1995), Denmark (1996), Guatemala (1996), the Netherlands (1998), Fiji (1998), Ecuador (1998), Argentina (2000), Venezuela (2002), Dominica (2002) and Brazil (2002). 52 For a study of this period, see Van Cott Citation2000. 53 Taking account of opinion surveys, Sánchez de Lozada had invited a moderate Katarista leader, Víctor Hugo Cárdenas, to join him in the race for the presidency, and Cárdenas became Bolivia's first indigenous vice president [Albó, Citation1994; Van Cott, Citation2000. 54 Education Minister Hedím Céspedes and his Brazilian associates had obtained 100,000 hectares irregularly. 55 It should be stressed, however, that the push for reform of agrarian legislation also had other antecedents. In 1983–84 the CSUTCB had elaborated a Fundamental Agrarian Law, which was presented to president Siles Zuazo in 1984 'wrapped in ritual Aymara textiles'[Albó, Citation1991: 316], in line with katarismo customs. Albó suggests that this proposal was not simply about the redistribution of lands but contained an outline for a new vision of the state. It centred on the community, an original right to lands and resources, and the recognition of authorities and jurisdiction. It also proposed the creation of a Corporación Agropecuaria Campesina (CORACA), which would be involved in marketing produce and procuring inputs, and would be managed autonomously by the peasant and indigenous organizations. The initiative actually gained some ground and received support from Dutch development cooperation, among others, but it soon floundered due to 'administrative problems and over-dimensioning'[Albó, Citation1991: 333]. 56 The government was represented by the Ministry of Sustainable Development, two representatives of the 'CNRA-INC Intervention', and the Vice-Ministry of Ethnic Affairs. The business interests were represented by the Confederación Agropecuaria Nacional (CONFEAGRO). The indigenous population and peasants were represented by the CSUTCB, CIDOB and the Confederación Sindical de Colonizadores de Bolivia (CSCB) [Terceros, Citation2004: 38], an organization that had emerged in 1970 [García, Citation2004: 278]. 57 See CIDOB Citation1996, García Citation2004, Hernaíz and Pacheco Citation2000, Loayza Citation2000, Salvatierra Citation1996 and Terceros Citation2004. 58 The definition used in the law is clearly inspired on ILO Convention 169. 59 By 2000, in the context of an 'economic reactivation' programme launched by the Banzer government (1997–2002), the land tax was reduced to insignificance. 60 Reversion – without indemnification – to the state could occur as a result of 'abandonment' of the land. Payment of the land tax is considered proof that the land is not abandoned. Expropriation – with an indemnification according to the self-declared tax value – could occur if the social-economic function is not fulfilled, or for public utility goals. However, there was no clear definition of the social-economic function of property. Land obtained in this way could be used for regrouping holdings for redistributive purposes. More generally, reversed land would become part of the stock of the tierras fiscales (public lands), which were to be redistributed in favour of peasant and indigenous communities (not individuals) by way of endowment (dotación), at no cost. Peasant and indigenous organizations could thus demand land from the state, where and when it was available. Another method of redistribution was making land available at the prevailing market rate, through public auction. 61 Three Secretaries of State also have a seat, along with agribusiness interests (CONFEAGRO), the CSUTCB, CSCB (colonizers) and CIDOB. The director of INRA would be the secretary, with a voice but no voting rights. This commission was to propose distribution, regrouping and redistribution policies, and to monitor the carrying-out of agrarian policies. Similar commissions were created for each of the nine Departments. 62 For earlier critical overviews of the process, see Romero Citation2001; Citation2003. Fundación Tierra Citation2004: 30] comments that 'Saneamiento has been carried out as if agrarian reform has already ended, and all that remains to be done is the legal formalization of property rights.' 63 For a critical evaluation see Hernaíz, Pacheco, Guerrero and Miranda Citation2000. 64 Much of the history has still to be written. The CIDOB itself is subject to splits and realignments, as is CONAMAQ [García, Citation2004. 65 This goes in tandem with a formalization and codification of organizational structures and regulations as, for example, in the Estatuto de la Organización Originaria de Ayllus de Curawara Marrka, Provincia Sajama, Primera Sección – Depearamento Oruro, 1999 (typos in the original) and its corresponding Reglamento Interno. 66 The Uru are considered the most ancient surviving people of the Andes region, living around the Popoo lake in Bolivia and the Titicaca lake in present-day Peru. The story goes that the Incas considered them so poor that they only required them to fill a reed with fleas as tribute to the empire. 67 In 82 of the cases the demand is for endowment, and in the remaining 21 cases the demand is to convert lands titled to the community under the 1953 legislation into a TCO. 68 See also Zoomers Citation1998. 69 The debate over more market-based and individualized resource allocation versus communal management is ongoing and, on the one hand, it will have to take account of the often extremely complex forms of community- and inter-community-based resource management and allocation under difficult climatic and soil conditions while, on the other hand, it should take account of the changing situation that has been characterized in terms of a 'new rurality'. 70 The 'new rurality' perspective would emphasize changes in land use and the increased importance of extra-agrarian endeavours, including migration. In parts of the highlands, for example, the problem of the residentes– absentee community members, who mostly live in the city of El Alto – would be significant. Their livelihood strategies rely on extra-agrarian activities, while cattle raising in their home community becomes more important as traditional crops lose out in the market [Urioste, Citation2005. Additional informationNotes on contributorsWillem Assies Research for this article was carried out in the context of the project 'The Mystery of Legal Failure? A critical, comparative examination of the potential of legalization of land assets in developing countries for achieving real legal certainty' (NWO/SaRO 014-24-730). Research also benefited from support by the project 'Indigenous Peoples and State Reform', funded by the CONACyT, Mexico (Project No.45173) and the project 'Andean Society, Municipality and ethnicity in Northern Chile', funded by FONDECYT, Chile (Project No.1020442). An earlier version was presented for the workshop on Indigenous Peoples' and Local Customary Rights and Tenure Arrangements in the Conference 'Land, Poverty, Social Justice and Public Action', organized by the Institute of Social Studies (ISS) and the Inter-Church Organization for Development and Cooperation (ICCO), 12–14 January 2006, at The Hague, in the Netherlands
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