The Process Before the Promise: Ensuring Indigenous Recognition from the Chilean Constitution

Part I of this Note provides a background and overview of the relatively recent surge in the constitutionalization of indigenous rights and recognition in Latin America, and the state of constitutional reform in Chile. Part II lays out a theoretical understanding of the powers of a constitution as a mechanism for societal reformation and as a platform for bringing legal claims, as played out in Brazil and Bolivia. Part III demonstrates the ways in which practical manifestation of that theoretical power stops short. More specifically, both intentional and incidental barriers dampen the effectiveness of the constitutional mechanism for ensuring indigenous rights and recognition. Next, Part IV explains how the region’s indigenous peoples experience this resultant gap between the possession of constitutionally enshrined recognition and the inability to realize the accompanying rights. Lastly, in Part V, this Note proposes supplemental measures to complement a Chilean constitution-making process that mitigates this undesirable outcome. The principal argument is simple: More deliberate mechanisms must be in place to understand indigeneity. The proposal is twofold. Firstly, state actors and constitution drafters must obtain a foundational understanding of indigeneity at the outset, as those who are tasked with envisioning and achieving the constitutional aspiration of indigenous empowerment would have no conception of what this entails otherwise. Secondly, there must be an establishment of consultative bodies to provide continued consultation and representation to foster this understanding and respect in constitutional practice. This Note makes these proposals with specific consideration of the constitutional reform context in Chile. This abstract has been taken from the author's introduction.