Why are Chile's Indigenous people rejecting proposed new constitution?

On December 17, Chile is set to vote on a potential new constitution for a second time in less than two years.

But it’s unlikely to be approved. A recent poll has found at least 46 percent of voters plan to reject the draft, which emerged from a far-right dominated process.

As the vote nears, some analysts say the final result may be closer than expected.

The text is meant to replace the 1980 constitution put in place under General Augusto Pinochet. He came to power in 1973, after ousting democratically elected Marxist president Salvador Allende in a brutal coup.

Yet, many critics say the conservative draft text is not enough of a departure from the current document.

In Chile, Indigenous people are recognised under international law, as well as a 1993 domestic law. But the military junta's constitution–which despite reforms, remains in place nearly 34 years after the return to democracy–makes no mention of indigenous peoples. That essentially erases the basis for expanded indigenous rights in the document that forms the basis for all Chilean law.

After being elected the only indigenous representative to the second constitutional convention in May, Mapuche lawyer and academic Alihuen Antileo said: "In the plebiscite in December, if there are no enshrined rights for indigenous peoples, [our leaders] will call for people to vote to reject [the draft].”

Though the final proposal recognises the existence of indigenous peoples, it makes vague promises to promote their political participation and protect their rights. It goes no further.

In a post on X, Antileo promoted an event organised by a Mapuche group, calling on voters to reject the draft. “We’re against inequality, against marginalisation, against discrimination, against the abusive elite,” he wrote.

If the draft fails, it will likely put an end to a lengthy effort to replace Pinochet’s constitution. In October 2020, Chile voted overwhelmingly to replace the military rule-era charter. Two years later, about 62 percent of voters rejected the progressive draft that emerged from that process.

The 2022 draft was portrayed as an attempt to right historical wrongs, especially against Indigenous peoples. The convention that penned it allocated proportional representation for the indigenous population, while the first elected head of the constitutional committee was Elisa Loncon, a Mapuche leader.

The document included new rights for broad sectors of society — from gender parity to protections for the environment — and adopted a progressive stance on Indigenous rights.

The draft would have afforded Indigenous peoples the right to their own justice and governance systems. It would have also designated Chile a 'plurinational' state, recognising the existence of multiple nations within its borders, including the Mapuche people, the majority Indigenous community.

Chile's right-wing waged an extensive and expensive disinformation campaign against the progressive 2022 draft. Opponents falsely claimed it would abolish private property and allow the government to take people's homes.

But for many analysts and voters, the campaign against the first draft seemed to hinge on a rejection of expanded indigenous rights. Even some Mapuche people had reservations about it, citing a lack of trust in the government.

Right-wing opponents claimed indigenous peoples would have the right to secede and act with impunity under a parallel justice system. Campaigns to reject the draft suggested it would give undue privileges and rights to indigenous communities at the expense of the rest of Chile.

Though none of the claims were true, efforts to reject the 2022 proposal seemed to tap into a reluctance to reckon with Chile's colonial past.

'Social outburst' and Indigenous resistance

Had it not been for the Estallido Social, or 'social outburst', there may have been little prospect of a new constitution.

The push for a new charter was widely seen as an attempt to douse growing anger over a subway fare increase that had led to a series of huge protests starting in October 2019. The demonstrations exploded into popular rage over inequality, a backlash to the legacy of Pinochet's neoliberal project and a rejection of the political establishment.

Despite being labelled South America's 'success story', Chile's neoliberal experiment has resulted in wider income and wealth inequality. The economic policies imposed by the regime have not trickled down as improvements across society.

And that experiment came at a great human cost. The military junta and its civilian accomplices killed more than 3,000 people between 1973 and 1990, including Indigenous leaders. This number included those who disappeared without a trace, believed to have been killed by the regime. Tens of thousands more people were imprisoned and tortured.

During the 2019 uprising, protesters chanted the slogan: 'it's not 30 pesos, it's 30 years', referencing the fare hike and the three decades Chile has been grappling with the legacy of the military rule.

But Indigenous activists shifted the scope from the inequality stemming from neoliberalism — to the injustices inherent in the colonial project. They amended that popular slogan to 'it's not 30 pesos, it's 500 years' — since colonisation began.

Indigenous communities took a prominent role in the demonstrations. The 'wenufoye' or Mapuche flag became a fixture at marches. Some protesters began to target monuments honouring Spanish colonisers. That tactic would gain popularity in the US during the Black Lives Matter protests against monuments to the Confederacy, which had defended slavery.

The Estallido Social drove a broader conversation on grievances between Indigenous people and wider society, the results of which were apparent in the 2022 draft constitution.

The failure to enshrine Indigenous rights in the second draft is part of a long colonial history of erasure, repression and violence – a history that should have been addressed in the proposed text.

In mainstream discourse, Chileans are perceived as broadly European. But like much of Latin America, many are mixed-race.

A 2014 study on Latin American genetic ancestry estimated Chile’s genome is roughly 48 percent Indigenous. The same study found that Mexico, perceived as among the most indigenous nations in the Americas, has roughly 56 percent indigenous ancestry.

Such studies are a poor indicator of a nation's identity, but it underscores how Chile's Indigenous roots have been obscured.

When Spanish colonisers arrived, Mapuche communities had already resisted subjugation by the Inca empire in Wallmapu, the Mapudungun word for Mapuche territory in the south of modern-day Chile, from the Biobio River and traversing swathes of Argentina.

They staved off the Spaniards for hundreds of years until the Chilean state and settler colonialists from Europe wrestled away their territory. That campaign, known as the 'Pacification of Araucania', ended in 1883 — only 140 years ago.

That's the same year Italy's World War II fascist leader Benito Mussolini was born, and the Brooklyn Bridge was opened in New York, a reminder that in Wallmapu, colonisation is not ancient history.

By the 1880s, the Chilean state had invited a group of Bavarian missionaries to Wallmapu to Christianise and 'modernise' the indigenous peoples living there. The state parcelled off the land and sold it to European and non-indigenous farmers, while many native people were relocated to reservations. Indigenous communities faced disproportionate impoverishment and discrimination.

Though native people fared better under the Allende government, the junta undid many of those gains. Pinochet reversed Allende's progressive land reform programme, which benefited many Mapuche peasants.

The regime also passed decrees that effectively outlawed Indigenous collective ownership of land while allowing privatisation. The move opened Wallmapu to the forestry industry in particular, as Pinochet privatised state-run firms and subsidised timber plantations.

After the return to democracy in 1990, land conflicts broke out between Indigenous communities and the forestry industry, an issue that has lingered into the present. Some Indigenous activists organised industrial sabotage and occupations against timber companies. By the early 2000s, Chile started to employ a military rule-era anti-terror law against Mapuche land defenders in Wallmapu, including by the government of former president Michelle Bachelet, who was until recently the UN High Commissioner for Human Rights.

Many of the crimes for which Indigenous peoples have been charged under this law are considered property violence, not generally considered an act of terrorism under international law. The law allows for witnesses to remain anonymous, while the top court has reprimanded judges who contend it is not applicable to Mapuche activists.

Amnesty International has accused Chile of using the anti-terror law to criminalise Indigenous people, including in the case of Francisca Linconao. The Mapuche leader was prosecuted several times over the 2013 killings of an elderly couple. The proceedings were repeatedly challenged over a lack of evidence, as well as a lack of due process.

Linconao was eventually acquitted. But the charges had come after she had invoked the 1989 Indigenous and Tribal Peoples Convention to stop a logging company from illegally felling a native forest. In 2021, Linconao was elected to the Constitutional Convention as a Mapuche representative.

Long hand of the far-right

During a compulsory May vote for a constitutional committee for a second draft, the far-right Republicano Party won a majority, winning it veto power. The party is led by Jose Antonio Kast. His father was a former Nazi who fled Germany after the war.

Michael Kast and his son Christian were accused of participating in executions and forced disappearances of at least 70 peasants in the rural community of Paine during the early Pinochet years. And despite Jose Antonio's denials, his father died while under investigation.

Kast's other brother, Miguel, was a member of the Chicago Boys, the gang of US-educated economists who drove neoliberal reforms under Pinochet. The general later appointed Miguel as head of the central bank.

But Kast's family ties are only one of the factors that seem likely to have coloured this constitutional process.

Kast has long defended the Pinochet regime. In 1988, as most of Chile voted to return to democracy, a young Jose Antonio campaigned for Pinochet to remain in power. When Kast ran for president in 2017, he told the media: "If Pinochet were alive, he would have voted for me."

The Republicanos were initially against replacing the dictator's constitution. Yet they submitted 400 amendments to the current draft, including one that designates “morality, public order and the security of the country” as limitations on the freedom of education. The text could also restrict reproductive health services and also limit strike actions by workers.

The right-wing majority has rejected amendments critics contend would prevent another dictatorship, including one that read: "The Armed Forces must have unrestricted respect for the constitutional democratic order and human rights."

And the expert panel that reviewed the draft constitution is led by Hernan Larrain, who was a member of Pinochet's cabinet.

Larrain also blocked an investigation into a former Nazi cult leader who assisted the dictatorship in forced disappearances and torture of its opponents at a German colony known as Colonia Dignidad.

As a minister under President Sebastian Pinera, Larrain said the government planned to 'regulate' the right to free assembly during the Estadillo protests, before Covid-19 restrictions ultimately stifled the movement.

Some analysts view the fate of the second draft as a referendum on the far-right. Alejandra Kraus, a centre-left member of the Expert Committee that edited the first draft, told El Pais in September that the Republicano Party ‘has realised that, if it wants to govern, it must have the constitutional issue resolved’.

If the draft is rejected on December 17, left-wing President Gabriel Boric — who came to power on the strength of his role in the Estallido Social — has said he won’t pursue a third constitutional process.

That would leave the 1980 text in place. But it may be preferable to approving a document that neglects even the most basic indigenous rights protections, with heavy influence from the figures of the Pinochet era. Accepting this draft would likely close the door on a potential new charter for years to come.

After Elisa Loncon was elected head of the first convention in 2021, she said of her hopes for a new constitution:

‘It is possible, brothers and sisters, to reform this Chile, establish a new relationship between the Mapuche people, the native communities, and every nation that this country is made of…We need to widen our democracy, we need to widen participation, we need to involve every last corner of Chile.’

In Mapudungun, the rallying cry 'marichiweu' means ‘we will win 10 times over’. If Loncon's victorious vision is to be possible, it starts with rejecting the Republicano’s constitution and depriving them of political momentum.

To do otherwise would be to risk handing the government to the far right, and with it, the ability to further rollback rights for Indigenous and other marginalised peoples across Chile.