Using and Refusing the Law: Indigenous Struggles and Legal Strategies after Neoliberal Multiculturalism

Abstract

ABSTRACTThis article begins with the contention that the three‐decade era of neoliberal multiculturalism is coming to an end. During that time, Indigenous peoples in Latin America gained a wide array of rights grounded in cultural difference by occupying spaces opened through the multicultural turn and using counterhegemonic strategies to push beyond their intended limits. Struggles in the judicial arena, and the accompanying work of the anthropological expert witness, played a crucial role in these strategies. I argue that the emerging era of racial retrenchment requires recalibration, starting with critical reflection on the counterhegemonic, and probing of alternative strategies, one of which I summarize with the phrase using and refusing the law. I draw on my participation in two moments of activist research in the legal arena—the 2003 landmark case Awas Tingni v. the State of Nicaragua, and a recent study of the relationship between Mapuche Indigenous people and the forest industry in southern Chile—as grounding. I conclude that while these two strategies and their associated sensibilities do stand in tension, they will need one another, as we seek effective means to contest the fierce onslaught of violence, marginalization, and roll‐back of rights for Indigenous peoples, and more broadly. [judicial pluralism, autonomy, Indigenous rights]