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III. Background

The Mapuche people are among the poorest in Chile.3 According to an official socioeconomic survey, 32 percent of Chile’s indigenous population lives in poverty compared to 20 percent of the non-indigenous population.4 Social and economic conditions in the Araucanía, where Mapuche unrest has been most acute, are among the worst in the country.  Of all Chile’s regions, it scores lowest on the Human Development Index.5 Mapuche women from the region, who are often in the front line of protests, score lowest of all.6 

Before the arrival of the conquistadores, the Mapuche people occupied an enormous swathe of territory reaching from the Limarí River in the north to the Island of Chiloé in the south, and from the Pacific Ocean in the west to the pampas (prairies) in what today is Argentine territory to the east. Those who lived north of the river Bío Bío accepted the Spanish presence and were quickly assimilated into the encomienda (tributary labor) system imposed by the crown. After Chile gained independence from Spain in 1810, most of the Mapuche in Chile worked as peons on the estates of private landlords. In the south, in contrast, the Mapuche fiercely resisted Spanish domination and by the end of the sixteenth century had expelled them from the Araucanía. For more than two hundred years this part of Chile was autonomous from the rest of the country and coexisted in an uneasy peace with the Chilean state.

A thirty-year military campaign to annex the territory ended in 1883 with the subjugation of the Mapuche. The inhabitants were eventually confined to about three thousand communal reserves (reducciones), which totaled some five hundred thousand hectares or approximately one-twentieth of the land they originally occupied. Alongside the communities, private owners accumulated large agricultural estates (latifundios), which they built up with the auction of public lands. Between 1931 and 1971, some 832 of the communities were divided up and much land was sold to or acquired by non-indigenous outsiders, representing a loss to the Mapuche of another one hundred thousand hectares, or a fifth of their remaining land.

The policy of dividing up indigenous land into individual plots reached its apex during the military government (1973-1990), when some two thousand Mapuche communities were affected. Rural Mapuche became even more impoverished, and many migrated to the cities.7 In addition, some 415,000 hectares of land in the provinces of Arauco, Malleco, and Cautín that socialist President Salvador Allende’s Agrarian Reform Institute had accumulated for redistribution were sold at ridiculously low prices to large forestry companies.

Government Policies

With the return to democratic rule in March 1990, the government of Patricio Aylwin pursued three important initiatives to reshape the relationship between the state and the country’s indigenous peoples. First, Law No. 19,253 of October 1993 made it the state’s duty to respect, protect, and promote indigenous rights and culture and to safeguard indigenous lands.  The law established priority “areas of indigenous development” and set up a National Corporation of Indigenous Development (CONADI). Among CONADI’s functions are to administer an “Indigenous Land and Water Fund” (Fondo de Tierras y Aguas Indígenas), subsidizing the purchase of additional lands for communities affected by land scarcity, and to finance mechanisms to permit the solution of land conflicts and the provision of water.8

The other two early initiatives—a constitutional reform recognizing the existence of Chile’s indigenous peoples and ratification of the International Labor Organization’s Convention 169 concerning Indigenous and Tribal People in Independent Countries—never got off the ground. Both failed to surmount determined objections from the opposition benches of Congress that have continued to this day.9

Indigenous rights advocates say that the legal reforms actually implemented fell far short of the aspirations of Chile’s indigenous peoples. The government’s original bill was hedged and modified after the parliamentary opposition objected to several principles considered by indigenous people to be fundamental, such as the right to be consulted before being moved from their lands and the right to control natural resources in their territory. Instead of being considered peoples and holders of collective rights, which indigenous leaders had sought, the law referred to them only as “ethnic groups” (etnías) and communities.

Up to 2002, the most recent year for which statistics for the Mapuche are available, CONADI’s land and water fund assigned resources to increase Mapuche land by about 50,000 hectares, benefiting about 4,617 families. It also secured Mapuche tenancy of 120,000 additional hectares of ancestral lands already long occupied by Mapuche, benefiting 3,697 families.10 Despite these important achievements, the still unsatisfied need for land of the Mapuche is estimated to be at least 150,000 hectares.  Parliamentary critics have accused the government of misguidedly granting land to groups that used violent pressure, a policy that they have insisted encourages violence. In March 2002, President Lagos warned that those who use violence or occupy land would in the future be excluded as beneficiaries.

The Spread of Commercial Tree Plantations in Ancestral Mapuche Lands

Important as they have been, government reform initiatives are insufficient to mitigate the negative effects of economic development schemes on Mapuche communities. During the 1990s Mapuche lands were profoundly affected by the expansion of investment in forestry, hydroelectric projects, and road construction. By the year 2000, an estimated 1.5 million hectares in ancestral Mapuche territory had been planted with commercial pine and eucalyptus. Two Chilean companies alone, Mininco and Arauco, accrued more than one million hectares of exotic trees, many of its plantations encircling Mapuche communities. Community members fiercely opposed encroachment by the forestry companies. They complained that the pine tree farms dried up their water sources, eroded the soil, and blocked the light needed to sustain the rich undergrowth of the native woods, on which Mapuche still rely for medicinal and ritual needs. At the same time, the Mapuche found only limited employment with the companies. For more than a decade, anger at what they considered the plunder of their livelihood exploded in public protests, occupations of forestry land, road blocks, and burning of trees, forestry vehicles, and equipment.

In response, the forestry companies denounced Mapuche leaders in the courts and invested in armed guards to protect their plantations and installations. Some communities reached agreements with government authorities to purchase forestry land through CONADI, regulate water rights, and institute bilingual education programs. However, in many areas the relationship between the communities and the forestry companies and government continued to deteriorate. These conflicts provide the backdrop to the prosecutions discussed in this report.

Another deeply conflictive development was the construction of a large scale hydroelectric project on the upper reaches of the river Bío Bío, ancestral lands of the Mapuche-Pehuenche people.  The construction of a dam at Ralco, a project administered by the national electricity company Endesa, went ahead only after then-President Eduardo Frei intervened to secure its approval by the national environmental agency and by CONADI. Two CONADI directors who had opposed the Ralco dam were fired in quick succession. The project received a green light against the express wishes of the two indigenous communities directly affected, and of the Mapuche people in general.

Six Pehuenche families who refused to accept resettlement by the government led the protests against Ralco, gaining wide support from environmental and indigenous rights organizations across Chile.11 Many of the protests were broken up by the security forces. In March 2002, carabineros violently routed a group of families from the community of Quepuca Ralco who were blocking an access road to a construction site.  Carabineros indiscriminately hit children, women, and old people and arrested about fifty protestors, who were presented to the military prosecutor in Chillán.  As a leading Chilean environmentalist has argued recently, approval of the Ralco project without sufficient consultation with the affected indigenous families has inflicted profound damage on the government’s credibility with the Mapuche people.12

Mapuche Mobilization

Since 1992, Mapuche communities and political groups have tried to draw national and international attention to their cause and to press for the return of lands they believe to have been grabbed illegally by the forestry companies and private owners. Protest activities have ranged from traditional non-violent demonstrations—such as marches, hunger-strikes, and occupation of public buildings—to acts involving the use of force, such as the blocking of roads, occupation of disputed land, felling of trees, setting fire to manor homes, woods, and crops, and sabotage of machinery and equipment.

The police often fail to distinguish peaceful protest from illegal actions that present a genuine threat to public order by clamping down equally hard on both, sometimes with indiscriminate violence and racist insults. We document some cases of police abuse in Chapter V of this report. With some notable exceptions, Mapuche activists often face an unsympathetic and uncomprehending attitude from government officials, politicians, and the press. They are often seen as violent agitators who are opposed to the economic development of the country and advocate secession of the Araucanía from the state.13 In point of fact, the Mapuche seek greater autonomy in the administration of their affairs within their ancestral territory, but they do not advocate secession. 

A carabineros (uniformed police) tank in the community of Temucuicui, Province of Malleco.  December 2001.
© 2003 Archivo Periódico Azkintuwe   

In the late 1990s the press reported that some of the leftist revolutionary groups that had led the armed resistance to the military government had gained entry to Mapuche organizations and were now orchestrating the illegal actions. In coverage of the land conflicts in leading newspapers and journals, writers continue to emphasize the “infiltration” of Mapuche communities, reinforcing a view of the Mapuche as subversives and terrorists.14 Whatever the historical merits of such claims, nearly all of the scores of people now facing criminal prosecution are Mapuche from the communities directly affected by the conflicts.

Pressure for Firmer Government Action

As the number of violent incidents mounted, the governments of Eduardo Frei (1994-2000) and of current President Ricardo Lagos came under increasing pressure from the opposition in Congress, southern landowners, and the forestry companies to act with a firmer hand against Mapuche protesters.

Carabineros (uniformed police) in the community of Temucuicui, Province of Malleco.  December 2001.
© 2003 Archivo Periódico Azkintuwe  

Scores of Mapuche faced prosecution during the Frei government on charges like arson, theft, land grabbing, kidnapping, or wounding. In addition, public officials opened three separate proceedings under the Law of State Security (LSE).15  Proceedings under this law are intended to be faster than ordinary criminal prosecutions. The minister of the interior or an intendente (regional local government official) initiates the prosecution, and an appeals court judge conducts the investigation and trial under special rules that apply to military courts in peacetime. These rules set fixed time limits for each stage of the trial, give judges greater discretion in evaluating evidence, and limit rights of appeal. Instead of using the LSE, the Lagos government has opted to prosecute those it sees as the ringleaders of the violent actions on terrorist charges.

In a March 2002 senate debate, the senator for the Araucanía, Alberto Espina, urged that violent Mapuche groups be combated “[w]ith the full rigor of the law, since their conduct has created a state of insecurity and fear that is incompatible with the full functioning of the rule of law.”16 Led by Espina, a specialized Senate committee met for more than a year to discuss the public security aspect of the Mapuche conflict. The result was a 160-page report issued on July 9, 2003. Fifteen prominent landowners whose properties had suffered repeated attacks testified to the committee, but only one Mapuche representative was invited. Rather than probe the roots of the conflict and examine strategies for dealing with it, in essence the report was a vehicle for the grievances of the landowners.

A draft published in May 2003 provoked debate because of its harshness and one-sidedness. At the recommendation of one of the committee members who disagreed with the report’s conclusions, Sen. Rafael Moreno, the committee agreed to hear some Mapuche leaders. While not justifying the violence, all of the Mapuche spoke of the plunder of their people’s lands and the refusal of the state to recognize their traditions and culture. Marcial Colín, a Mapuche leader from Villarica, put the problem in a nutshell. As summarized by the committee, Colín said that it was “[d]ifficult to analyze public security in the Araucanía because from the Mapuche point of view their security has been under threat for a long time….That’s why a Mapuche understands the term security differently from how it is understood by the Chilean State.”17

Defending the government’s record, the minister of the interior, José Miguel Insulza, submitted a long list of the legal actions taken by the state against the perpetrators of the attacks, as well as police measures to protect the victims. As of October 2003, he explained, two hundred Mapuche were facing charges for crimes committed during the protest actions. The great majority (85 percent) were awaiting trial under some form of restrictive measure, such as bail, but were not in detention.18

Chile’s “Terrorists”

All but one of those sentenced or accused of terrorism are said to belong or have belonged to the Coordinadora de Comunidades en Conflicto Arauco Malleco (the Arauco Malleco Coordinating Group of Communities in Conflict, CAM), a Mapuche organization that can be traced back to a February 1998 meeting organized by the Lafkenche Territory Coordinating Group (Coordinadora Territorial Lafkenche) attended by many Mapuche organizations.19 The CAM was set up at a second meeting held in 1998 in Tranakepe, Tirúa. Formed from communities defending or asserting land claims, the group undertook to support all communities in the region involved in conflicts over land and offered to incorporate them into the organization if they and their leaders approved.20 

Mapuche demonstration in the community of Juan Maril de Puren. Demonstrators are demanding the withdrawal of police forces stationed in the fundo El Rincón, owned by the forestry company Mininco.  November 13, 2001.
© 2003 Archivo Periódico Azkintuwe  

The CAM draws most of its support from Mapuche communities in the districts of Collipulli, Traiguen, and Lumaco, in the Araucanía, as well as some parts of the Bío Bío Region. It calls for the “reconstruction of the Mapuche nation,” and has adopted a strategy of “territorial control.”21 In essence this involves what the CAM calls the “productive recovery” of disputed land, meaning that land occupations are intended to be permanent, rather then merely symbolic. The CAM’s hope is that this form of direct action will spread to other zones and change the balance of forces in favor of the Mapuche.22

Although some of its members are said to come from the Communist Party and radical left-wing groups that engaged in armed opposition to the Pinochet dictatorship, the CAM has also strongly questioned Chile’s left-wing parties, criticizing them for trying to manipulate it. It also criticizes more moderate Mapuche organizations, which it says have been “co-opted” by the state.  The organization has been significantly weakened since 2002 by the imprisonment of its leaders.

Leaders of the CAM have admitted to engaging in some violent actions in “defense of the territory and self-defense of the communities.”23  Clearly, some of what its members consider defensive actions is in fact criminal actions that warrant prosecution.

It was in this context of conflict that President Lagos created, in January 2001, the Commission of Historical Truth and a New Deal (Comisión de Verdad Histórica y Nuevo Trato). The commission, composed of about twenty indigenous and non-indigenous representatives and chaired by former president Patricio Aylwin, was set up to advise the government and propose a new policy to address the root problems faced by Chile’s indigenous peoples. In its final report, published in October 2003, the commission dealt with issues related to the history of the indigenous peoples and their relationship to the state and to Chilean society. It made a series of recommendations for the design of a new policy aimed at “advancing toward a new deal by Chilean society and its re-encounter with the indigenous peoples,” such as the introduction of legal and political reforms and the ratification of OIT Convention 169, steps that still remain to be taken. It did not, however, tackle the conflicts that have arisen since the promulgation of Law No. 19,253 of 1993 that are described here.

Concern over the continuing land conflicts also motivated a visit to Chile, in July 2003, by the United Nations special rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Mr. Rodolfo Stavenhagen. In his report on his mission, the rapporteur noted that “[a]lthough significant progress has been made on indigenous questions in the country in the last ten years, indigenous people continue to live in a situation of marginalization and denial that leaves them cut off in significant ways from the rest of the country.” On the issue of justice, he recommended that “[u]nder no circumstances should legitimate protest activities or social demands by indigenous organizations and communities be outlawed or penalized.” He added that “[c]harges for offences in other contexts (‘terrorist threat,’ ‘criminal association’) should not be applied to acts related to the social struggle for land and legitimate indigenous complaints.” He further proposed that “[t]he Chilean Government should consider declaring a general amnesty for indigenous human rights defenders on trial for social and/or political activities in the context of the defense of indigenous lands.”24

Chile’s New Criminal Justice System

Each of the anti-terrorism trials completed or still underway has been conducted under Chile’s new code of criminal procedure. Approved in October 2000, the new code entered into force in December 2000 in the Araucanía and Coquimbo (Fourth Region, in northern Chile).  The new system, however, will not be introduced in the capital, Santiago, until 2005. Under the new code, oral, public, and adversarial hearings protecting the due process rights of the defendant replace written, inquisitorial procedures.

The old system contained built-in limitations on rights to due process and a vigorous defense. The fact that a single judge conducted the investigation, formulated the charges, and pronounced the sentence and penalty greatly limited the possibilities of the defense. Pretrial detention was the norm rather than the exception. Trials were largely conducted in writing, the investigation was secret, the press had no direct access to the proceedings, and indigent defendants had virtually no access to competent legal representation. Under the new system, prosecutors attached to Chile’s autonomous Public Ministry conduct criminal investigations and face trained lawyers from the Public Defenders’ Office, who represent the defendants before a three-person court.  Proceedings are open to the public and press.

During the pre-trial phase a judge responsible for the pretrial hearings (juez de garantía) supervises the fairness of the criminal investigation and must ensure that defendants are not held in detention unless strictly necessary. Defendants may request their release pending trial and have their pretrial detention periodically reviewed.  Most notably, the Public Defender’s Office provides needy defendants for the first time with professional legal counsel. Attorneys attached to the Temuco-based Mapuche Defense Office (Defensoría Penal Mapuche) have defended the rights of Mapuche suspects and often litigated successfully on their behalf. Mapuche may at any time during the proceedings call for a bilingual interpreter. Not only has the institutional apparatus of Chilean justice been transformed, but there have also been substantial investments in infrastructure. The court, Public Prosecutor’s Office, and public defenders’ headquarters in the city of Temuco are all housed in new, elegant, and well-equipped modern buildings.

Unfortunately, the guarantees available to ordinary criminal defendants under the new system are denied, at least in part, to Mapuche accused of terrorist offences. Under the anti-terrorism law, the public prosecutor is allowed to conduct criminal investigations in secret for long periods; pretrial release is usually denied for months, sometimes for longer than the eventual sentence received; defendants are not allowed to know the names of many of their accusers; and judges are given wider powers to allow prosecutors to intercept their correspondence, inspect their computers, and tap their phones than in normal criminal investigations. 

Prosecutors fervently deny discrimination. Yet the application of terrorist legislation to Mapuche involved in land conflicts constitutes selective and unequal treatment, in that criminal offenders responsible for homicide, rape, or other grave crimes against the person enjoy more guarantees than Mapuche defendants, and often receive lower sentences. Under art. 26 of the International Covenant on Civil and Political Rights, Chile must ensure that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law.”

[3] Some 4.6 percent of Chile’s population of fifteen million belongs to an indigenous people, and 87 percent of Chile’s indigenous people is Mapuche. Their current number is estimated at around six hundred thousand. 

[4] The facts cited in this background are taken from Los Derechos de los Pueblos Indígenas en Chile: Report of the Program of Indigenous Rights, Institute of Indigenous Studies, University of the Frontier (Santiago: LOM, 2003), ch. 6.

[5] The United Nations Development Program (UNDP) uses the Human Development Index (HDI) to rank countries on human development. The Human Development Index focuses on three measurable dimensions of human development: living a long and healthy life, being educated and having a decent standard of living. Thus, it combines measures of life expectancy, school enrolment, literacy, and income to allow a broader view of a country's development than does income alone. (Cited in UNDP, Human Development Report 2004: Cultural Liberty in Today's Diverse World) [online], (retrieved September 27, 2004). 

[6] Los Derechos de los Pueblos Indígenas, ch. 6 (4.4), pp. 265-274.

[7] At the time of the 1992 census some 80 percent of the Mapuche population was recorded as urban.

[8] CONADI’s director is appointed by the president, and its sixteen-person governing council includes eight indigenous representatives proposed by indigenous communities and associations and designated by the president.

[9] Among the rights of indigenous peoples recognized under ILO Convention 169 are “[r]ights of ownership and possession of the peoples concerned over the lands which they traditionally occupy.” Art. 7 (1) of the Convention states that  “[t]he peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.” Mexico, Colombia, Bolivia, Costa Rica, Paraguay, Peru, Honduras, Guatemala, Ecuador, Argentina, Venezuela, and Brazil have ratified the Convention. Chile is the only country in the Latin American region with a sizeable indigenous population that has still to do so.

[10] CONADI, May 2003, and MIDEPLAN (Ministry of Planning and Cooperation), 2003, in Los Derechos de los Pueblos Indígenas, p. 291.

[11] In December, five Pehuenche women presented a complaint to the Inter-American Commission on Human Rights. In October 2003, under the commission’s auspices, Chile reached a friendly settlement with the Pehuenche families affected. The agreement included economic compensation to the plaintiffs and their families, as well as a variety of measures to strengthen the protection of indigenous rights in Chile, including the ratification of ILO Convention 169, which, as noted above, Chile has not yet done.  

[12] Sara Larraín, “La lecciones de Ralco,” El Mostrador, September 17, 2004 [online], (retrieved September 17, 2004).

[13] The clearest expression of this point of view can be found in a summary of the arguments presented by Alberto Espina, Senator of the Ninth Region, to the Senate’s Committee on Constitution, Justice, and Rules.          Comisión de Constitución, Legislación, Justicia y Reglamento, Informe de la Comisión de Constitución, Legislación, Justicia y Reglamento, recaído en el encargo que le hiciera el Senado respecto del conflicto mapuche en relación con el orden público y la seguridad ciudadana en determinadas regiones, Boletín No. S680-12, July 9, 2003 [online], (retrieved June 31, 2004).

[14] In a special debate on the "Mapuche conflict" in the Chamber of Deputies in June 2002, a parliamentarian argued that "[t]errorism was expanding in rural sectors of the Ninth region and in the southern part of the Eighth region," a product of the "instrumentalization" of the Mapuche by radicalized groups. (Intervention by Congressman Francisco Bayo, cited in Los Derechos de los Pueblos Indígenas), p. 225.

[15] In December 1997, at the formal request of the Arauco forestry company, the Intendente (regional government official) of the Araucanía, Oscar Eltit, ordered the prosecution under the LSE of the Mapuches responsible for the burning of three trucks laden with logs in an Arauco property in Lumaco. Twelve were arrested and five eventually convicted under the LSE and sentenced to three years in jail for the disorders.

[16] Comisión de Constitución, Legislación, Justicia y Reglamento,p. 5.

[17] Ibid., p. 79.

[18]Los Derechos de los Pueblos Indígenas, Appendix 2, “Situación Procesal de los mapuche imputados y/o condenados en el marco del conflicto territorial,” p. 419.

[19] Present at the gathering were the Council of Osorno Chiefs (Consejo de Caciques de Osorno), the Council of All the Lands (Consejo de Todas las Tierras) and the Coordinating Group of Mapuche Organizations and Institutions of Temuco (Coordinadora de Organizaciones e Instituciones Mapuche de Temuco), which includes various Mapuche groups, including Liwen, Xen Xen, Aukinco Domo, Nehuen Mapu, and the Asociación Ñancucheo de Lumaco. Also present were members of Meli Witran Mapu and the Mapuche Coordinating Group (Coordinadora Mapuche), both based in the capital, Santiago, and Mapuche students from Temuco y Concepción. This list is from Weftun, the official publication of the CAM, November 2001.

[20] Weftun, January 2002.

[21] “La lucha mapuche es nacionalista, anticapitalista y revolucionaria” (interview by Osvaldo González with a leader of the Coordinadora Arauco Malleco, published in the magazine Resumen Latinoamericano No. 58, March-April 2002). From the official website of the Coordinadora Mapuche de Comunidades en Conflicto Arauco-Malleco, Weftun [online], (retrieved August 18, 2004).

[22] “Planteamiento Político-Estratégico de la Coordinadora de Comunidades en Conflicto Arauco-Malleco (CAM),” Weftun [online], (retrieved August 18, 2004).

[23] “Principales Razones de Arauco-Malleco: Recuperar ahora....el Territorio Usurpado,” Weftun [online] (retrieved August 18, 2004).

[24] Report of the Special Rapporteur, Rodolfo Stavenhagen, paras 56 and 87.

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