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Alchemy in un mundo al revés: Gold, “Raw Law” and Indigenous Law in Colombia’s armed conflict

L’alchimie dans “un mundo al revés” : L’or, le “raw law” et le droit autochtone dans le conflit armé colombien
Alquimia em “un mundo al revés”: O ouro, o “direito cru” e o direito indígena em um conflito armado na Colômbia
Viviane Weitzner
p. 135-156

Résumés

Utilisant le concept d’alchimie comme base conceptuelle, cet article explore les effets des diverses pluralités juridiques sur le peuple autochtone Embera Chamí qui vit sur la terre ancestrale riche en or du Resguardo Indígena Cañamomo Lomaprieta à Caldas, en Colombie. En m’appuyant sur dix ans de recherche collaborative et d’ethnographie, je développe ce que j’appelle le “raw law”, le droit des acteurs armés et hors-la-loi et leurs normes, sanctions et modus operandi, en apportant des idées qui repoussent les limites conceptuelles et ajoutent de la complexité aux analyses du “droit”. Je montre les “inter-il-légalités” à l’œuvre, alors que les Embera Chamí exercent leur propre droit sur leur “exploitation minière ancestrale”, qui se nomme elle-même et qui date de plusieurs siècles, comme une contre-proposition et un exercice d’autodétermination face à la loi de l’État qui criminalise cette exploitation aurifère et tente d’imposer des schémas de formalisation élaborés unilatéralement. J’examine les effets des technologies “alchimiques néfastes” déployées pour éroder la base territoriale des Embera Chamí et limiter leur autonomie et leur prise de décision, en soulignant les “alchimies positives” que les autorités traditionnelles utilisent pour affirmer leur autonomie et faire pression pour que leurs droits soient respectés. Je considère les types de flux transnationaux qui s’infiltrent chez les Embera Chamí et ce que ce contexte distinct et violent signifie pour l’analyse à travers la lentille des pluralités juridiques en Colombie, en Amérique latine, et au-delà.

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Notes de la rédaction

Texte reçu le 30 octobre 2019, accepté le 18 mai 2020

Texte intégral

Mil gracias to the people of the Resguardo Indígena Cañamomo Lomaprieta and the Palenke Alto Cauca for our ongoing exchanges and collaborations, and for enabling me to witness and write about day-to-day life as it unfolds in the Resguardo and the Palenke. Cahiers’ anonymous peer reviewers provided insightful comments that helped strengthen the final draft. Canada’s Social and Sciences Humanities Research Council (SSHRC) funded the doctoral and postdoctoral research that led to the fieldwork and analysis grounding this article; and the Fonds de Recherche du Québec-Société et Culture funded my postdoctoral research at McGill University. Mexico’s Conacyt and the Research Council of Norway co-funded my doctoral research at the Centro de Investigaciones y Estudios Superiores en Antropología Social (Ciesas-Mexico City).

1The date the world turned al revés—upside down, inside out, or perhaps backwards—was April 7, 2015.

2I had just arrived in Bogotá, Colombia, a stopover on route to Cauca, where I would be working with members of the Palenke Alto Cauca, the regional governance body of the Process of Black Communities (PCN). We were organizing a workshop bringing together Black and Indigenous peoples to dialogue about their own “ancestral mining”, a self-named type of mining outlawed by the Colombian State despite its origins. The workshop was the outcome of joint planning between the Embera Chamí Indigenous people in the Resguardo Colonial Cañamomo Lomaprieta, in Caldas, and the Black Communities of Northern Cauca, with whom I have been working on joint projects towards territorial defence since 2009. It was considered a critical step in joining forces between peoples to clarify concepts, and to push towards policy change at the national level. Also, to make visible the catastrophic effects of the invasion of criminal mining—mining by illegal armed actors—particularly in Cauca, and the impact of the interests of large-scale mining on the integrity of both Black and Indigenous ancestral territories.

3But the evening of April 7, just hours after arriving, I received this WhatsApp message from one of my closest collaborators in the Resguardo, current mining issues coordinator and former Chief, Héctor Jaime Vinasco:

“According to information via telephone message still to be confirmed, they’ve just shot and killed Fernando Salazar, compañero of ASOMICARS [the Resguardo’s ancestral mining association]. Viviane it’s urgent to move things at the highest level so that they quickly find those responsible”.

4It was 10:30 at night. I was having dinner with a lawyer colleague of the Forest Peoples Programme (FPP), an international non-governmental organization I work with as a policy advisor (consultant), alongside my academic work.

5My heart ached.

6Fernando was one of the most dedicated men in the Resguardo, working on behalf of the Cabildo, the Traditional Authority, to ensure its rules and regulations around mining and environmental management were enforced in the Resguardo’s ancestral gold mines. I had spent many hours with Fernando over the last two years as he took me on visits to the gold mines, explaining the complex dynamics and conflicts taking place there, and efforts by the Cabildo and Asomicars to control these through their own laws. Fernando had taken his job very seriously, ensuring Cabildo law was upheld. And for this dedication and loyalty, he had now been killed.

7My FPP colleague and I were shocked into action. What followed was a scramble of phone calls and emails, and changes in travel plans. We drafted a press note, contacted ambassadors from embassies supporting our work, and also national and international allies. We drafted letters to Colombian State officials demanding a high-level investigation into Fernando’s assassination, and additional protection for other now especially at-risk leaders in the Resguardo.

8And then I got on a plane to Pereira. From there, I travelled the two-and-a-half-hour journey up the switchback roads lining the mountains that took me to the Resguardo. I made it just in time to join the funeral procession leading to the cemetery. Fabio Moreno, President of Asomicars, who everyone joked was Fernando’s husband, because they spent so much time together and were so close, was so shaken he refused to enter the cemetery to watch his friend’s burial. He waited outside, tears in his eyes.

9I stood side-by-side Héctor Jaime in the cemetery, watching as Fernando’s coffin was slid carefully into a ceremonial wall. A cemetery worker began slowly cementing up the niche opening with a trowel.

10As we watched, Héctor Jaime said to me quietly: “These are the characteristics of un mundo al revés. For being so loyal, for defending our rights, this happens.”

Introduction: A sharper focus in lethal contexts

  • 1 This paper draws on and contributes to a growing body of research underscoring the important role o (...)

11I begin with this ethnographic moment to give a sense of the layers of complexity involved in trying to assert self-government and autonomy over gold-rich ancestral lands in the context of Colombia’s armed conflict. A landscape of lethal violence which, I argue, demands a different treatment, or a different way of thinking, about legal pluralities.1

12By way of background, Colombia has arguably one of the most progressive normative frameworks for protecting Indigenous and Afro-Descendant rights. Its Constitution enshrines Indigenous people’s special jurisdiction over administering their territories, and it has provisions that call for any exploitation of natural resources within Indigenous territories to be done with their participation in decision-making, and “without compromising the cultural, social and economic integrity of indigenous communities” (art. 330). Colombia has also ratified several international treaties (among these, ILO Convention 169, the Convention for the Elimination of Racial Discrimination and the American Convention on Human Rights), approved the United Nations Declaration on the Rights of Indigenous Peoples, and its Constitutional Court has also made numerous leading-edge decisions upholding the rights of Indigenous and Afro-Descendant peoples.

13Yet this framework and these cutting-edge Constitutional Court decisions remain mostly on paper. Largely, on account of the internal armed conflict that has wracked the country for the last five decades, as well as lack of political will.

14Indeed, the Santos government (2010-2018) worked hard to steamroll ahead with policies around what Santos called the locomotora minera, the mining engine of growth, a key government platform to fuel the country’s economy. This involved issuing mining concessions over ancestral lands, and over some of the most fragile ecosystems protecting the country’s biodiversity; as well as diluting and further compressing timeframes around prior consultation leading to consent. A political stance that Duque’s conservative government (August 2018–present) continues today.

  • 2 These include the Revolutionary Armed Forces of Colombia (Farc), the National Liberation Army (ELN) (...)

15But at the same time, since the mid 2000s, the country’s various outlaw armed actors2 turned to gold mining as a far easier way to launder their profits from narcotrafficking, setting their own unofficial mining locomotive careening over ancestral lands. While in many parts of the country outlaw armed actors operate their own medium-scale, mostly open-pit mines using bulldozers and harmful substances—as is the case for example with the invasion of criminal miners in Cauca—, they also engage in related activities, such as exacting payments from operators and companies, among other types of extorsion [OECD, 2017, 2018].

16In short, this is a very specific and lethal context in which to assert Indigenous law and self-government over ancestral gold. A substance coveted by the national government as a means of fuelling national economic growth, with much effort made to attract foreign investors; yet a substance also coveted by Colombia’s outlaw armed actors to fuel their own activities. Meanwhile the country’s original miners—its Indigenous peoples, and also its Afro-Descendant people who were brought to Colombia to mine gold for the Spaniards—are being actively criminalized for their own mining which is inextricably related to their cultural and spiritual identity and is a mainstay also of their economic livelihood.

17In this article I “write out” [Emerson, Fretz & Shaw, 2011] from the ethnographic moment I describe at its outset to reflect on some key implications for the theory and practice of legal pluralities of what Héctor Jaime calls un mundo al revés. I ground my analysis in the baseline and perspectives of the peoples with whom I work, and for the purpose of this article, specifically the Embera Chamí people of Cañamomo Lomaprieta. The key question I ask is: What is the nature of the relations among the various actors disputing control over the Resguardo’s gold and affecting the landscape of legal pluralities, and what does this mean for asserting self-government and Indigenous law? I dialogue with relevant concepts from sociological and anthropological literature around encounters between diverse legal orders, developing my own concepts of “alchemy” and “raw law” to place into sharper focus the landscape of legal pluralities affecting the Resguardo and its implications. I close with some reflections on the current moment in Colombia’s history post Peace Accord, and its impact on the peoples I work with.

Alchemy as a conceptual backbone

18Before delving further into substance, I want to explain briefly why alchemy is a compelling conceptual backbone for my analysis, and how I understand and develop it throughout this article.

  • 3 Personal Communication, 2020.

19“Alchemy” is a persuasive trope for two main reasons. First, gold is inextricably related to the ancestral identity, spirituality, culture, livelihood, territoriality and history of the Embera Chamí Indigenous People of Cañamomo Lomaprieta. And second, gold is coveted by powerful external actors, and has been at the root of all strategies and attempts to dispossess the Embera Chamí of their lands, as recently underscored by Colombian historian Alvaro Mejía.3 Gold takes on a special meaning for territorial and cultural integrity; yet it also fuels territorial dispute. In this context, alchemy emerges as an especially apt concept for describing and analyzing the diverse strategies and tactics deployed by outsiders to dispossess ancestral peoples of their lands precisely because of the very gold these contain, but also for describing and analyzing the diverse strategies and tactics ancestral peoples use to counter these attempts.

20If we consider further what the concept comprises, alchemy has had various definitions, such as: “The medieval forerunner of chemistry, concerned with the transmutation of matter, in particular with attempts to convert base metals into gold or find a universal elixir”. Also, as “a seemingly magical process of transformation, creation, or combination”.4

21In the case of gold-rich ancestral territories, the gold already exists. The alchemies at work involve instead efforts to appropriate, regulate, control or use it through a variety of often “magical” means. This includes magic as trickery, driven mostly by outsiders coveting gold for profit, and magic as in laundering the proceeds from trafficking coca making it disappear, to magic that is healing and creative, and works towards territorial defence, driven by the Embera Chamí.

  • 5 Von Werlhof [2013] adopts the concept of alchemy in her critique of modernism and neoliberalism whi (...)

22Throughout this article I use “alchemy” to describe distinct processes of transformation by which diverse elements or matter are combined in a given medium or realm (e.g., practices, discourses, normative orderings) producing either negative or positive outcomes, or combinations of both.5 I evaluate alchemy with the analytical lens of the Embera Chamí, and whether particular transformations threaten—or maintain and strengthen—cultural and territorial integrity.

23I want to conclude this section underscoring why alchemy is such an appropriate concept for analyzing territorial disputes involving gold and their effects on the Resguardo Cañamomo going back in time, to a millenary form of alchemy. Héctor Jaime refers to as lo nuestro (that which is ours), the famous gold Quimbaya poporo, an artefact most people associate with Colombia’s renowned gold museum collection in Bogotá. Indeed, the Quimbaya people lived in the area where the Resguardo was established, and the Embera Chamí are said to descend from them.

24But it is the nature of the poporo and its use that further illuminates why alchemy is such a relevant concept. A poporo is a device several Colombia’s Indigenous peoples still use today for storing small amounts of lime. It is made up of a receptacle, often a gourd-like shape, and a lid that contains a pin or small stick used to take small amounts of lime to the mouth, while chewing coca. As they chew, users often move the pin around the top of the receptacle, in a circular motion; poporos have mystical powers, enabling users to think more clearly.

  • 6 I use these words carefully: “rupture” was the word used by one of the Resguardo’s most respected t (...)

25Gold and coca in ancient times—and for some Indigenous users today—combine to enable clarity of thought, a positive transformation or alchemy associated with ceremony and shamanism, with movement between the natural and the supernatural towards transformations that sustain peoples and their cultures [Reichel-Dolmatoff, 2005]. Yet in present day Colombia, coca and gold have become “transgressive substances” [Taussig, 2004] that combine to fuel the country’s political economy—its “raw” economy as I describe below. In this economy, ancestral gold miners and their Traditional Authorities struggle tenaciously to maintain control not only of their gold resources, but also, of their own ancestral gold practice and way of life. Other ways of thinking about gold, and of being in the world, bear down on—and “rupture” or “dismantle”, to use the descriptors of the people themselves6—their own. These are the effects, in short, of what Escobar [2016] calls “ontological” territorial occupation, a process of slow violence [Nixon, 2013] where a people’s cosmology and way of life is at risk. At work here then is a long-term and destructive ontological alchemy fueled by extractive capitalism that von Werholf [2013] associates with “patriarchal” alchemy, and that is the backdrop for all other transformations I outline in this article.

“Raw Economy/Raw Law”: Alchemies of connivance and laundering illicit flows

26In thinking about what is happening in the violent contexts of the communities I work with in Colombia, whose lands are rich with gold, I find Mbembe’s [2012] concept of “raw economy” extremely useful, as well as its related concepts of racial subsidies or discounts. In his review of the Comaroffs’ “Theory from the South”, Mbembe states:

“This region [Africa] … tells us about the future of global capitalism—and not only of the kind that lies close to, but is always coincident with, the vast global shadow economy dependent on illegal activities like smuggling, drug and people trafficking and money-laundering through which trillions of dollars circulate around the globe outside formal legal reckoning. Let’s call this extractive economy of unprocessed raw materials the raw economy [Mbembe, 2012, p. 2, my emphasis].

27A key feature of the raw economy is its reliance on “racial subsidies”, where there is accumulation by dispossession and disenfranchisement that falls along racial lines engendering what Mbembe describes as a “renewed violence” and “extreme disorders” worldwide. While he speaks of Africa, Mbembe’s analysis is clearly relevant for other regions where the raw economy operates producing violent “racialized geographies” [Hernández Castillo, 2019], such as Latin America, with particular relevance for Colombia.

28Indeed, recent reports commissioned by the Organization of Economic Cooperation and Development summarize the nature of the Colombian gold supply chain and mining sector, and the entanglement of “illicit economies” that underpin it. In a nutshell, some 87% of gold mines operate “illegally”—that is, without a title. Outlaw armed actors are present in all gold-producing municipalities, generating income from gold mining and sophisticated extortion schemes, as well as drug trafficking. And narcotrafficking routes are the same routes used to bring in supplies and equipment for illegal mining. Yet while other countries in the region are also affected by illegal gold mining, what makes Colombia distinct is the very complex “alchemy” that takes place to transform illicit flows into licit ones involving trade of gold. More gold is exported from Colombia than is produced on account of contraband gold that is brought in from Panama, Ecuador and Venezuela, and traded into the “real” economy in Colombia, destined then for export [OECD, 2017, 2018].

29Unsurprisingly, because the ancestral lands of Indigenous and Afro-Descendant peoples are among the most gold-rich in the country, these are the areas that are also among the most coveted by actors involved in Colombia’s “raw economy”. This translates into these peoples being in effect rendered “disposable” or even superfluous to use Mbembe’s concepts, as these lands and resources are fiercely disputed by vying factions of legal and outlawed armed actors, with these areas subject to the most extreme violence in the country.

  • 7 Cajar [2020], for example, unearths nine patterns of complicity characterizing links between the pr (...)

30In short, this is not the mainstream transnational economy of large-scale extractivism: it is the underbelly of the global economy of unprocessed raw materials, operating largely in the shadows. Here the transnational actors include not only multinational companies and “mining capitalism” [Kirsch, 2014], but also transnational criminal groups who work to commercialize both gold and narcotics under the radar, while extracting profits also from multinational companies.7

31I argue that this “raw economy” and its racial subsidies operates in tandem with what I call “raw law”: where there is a raw economy, there is also raw law, namely the norms, codes, sanctions of illegal armed actors who attempt to assert control over the raw economy and its flows, often in connivance or entanglement with State representatives.

32Indeed, returning to Fernando’s assassination, the Cabildo’s analysis is that he was killed as a means to instill fear among the Traditional Authorities, so they would loosen their “grip” and control over their gold mines. In the words of the then Resguardo’s Cabildo Gobernador (Chief), speaking at our jointly organized inter-ethnic workshop on mining held in Cauca only nine days after Fernando’s assassination: “For some actors it’s bothersome that our [Indigenous] government asserts control. Because there are many interests, especially external.” And then, he stated, referring to Colombia’s Peace Process: “They tell us that Caldas is a postconflict zone. But the Cacique Pipintá and the Rastrojos [breakoff paramilitary groups] have their cells here. We don’t know postconflict. We know that we will continue to see more of our people killed.”

  • 8 This decision by Colombia’s highest court outlines measures to protect the fundamental rights of in (...)
  • 9 Colombia’s Ombudsperson’s Office (Defensoría) has issued several early warning system reports outli (...)
  • 10 In 2002, 40 Embera Chamí leaders received Precautionary Measures from the Inter-American Commission (...)

33In effect, the Resguardo’s lands have been—and continue to be—the target of interventions by paramilitary breakoff groups who have been the authors of multiple massacres and threats to the Resguardo’s leadership [Constitutional Court of Colombia, 2009;8 Defensoria-SAT, 2014, 2018;9 Cridec, Movice, 2020].10 The Cabildo’s analysis is that Fernando’s assassination sent an unmistakable message from illegal armed actors: don’t mess with our interests, or there will be payback. Yet as Héctor Jaime told me time and again: “Fernando’s death only motivates us to work for our rights even harder. It will not stop us”.

34The raw economy/raw law produces nefarious outcomes and violence for the Embera Chamí. Yet in turn, it spurs efforts to join forces with other allies as the Cabildo has done for example with Afro-Descendant people in the Palenke, or with national and international allies, as a means to strengthen organizational efforts and push for self-governance, self-determination and their own law to prevail.

Nefarious and Positive Alchemies in Cañamomo

  • 11 For a discussion of the temporal aspects of legalities and “raw law”, see Weitzner [2019].

35I cannot describe in depth the diverse types of alchemies taking place over time in the Resguardo that have led to the current landscape of legal orders interacting coevally over the same space.11 I want nevertheless to outline some key ones to pave the way for a more theoretical discussion of the nature of the encounters and contestations taking place, an analysis that I ground in Embera Chamí perspectives and law.

Alchemy 1: De-territorialization and cartography of erasure

  • 12 While the exact date of the establishment of the Resguardo remains unknown, there is certainty that (...)

36Perhaps the single most important “nefarious” alchemy and clash of legal orders has to do with the first moment the Resguardo was “put on the map”, and the changes to this cartography over time. Spaniards were first attracted to the gold-rich lands of the Embera Chami in the 1500s, when they took control of the Embera Chamí’s traditional gold mining sites. The Embera were forced into slave labour to mine their own gold for the Spaniards, corralled into a land base far smaller than their original homeland. According to their Plan de Vida, their Life Plan, the very establishment of what is known today as the Resguardo Cañamomo Lomaprieta12 was in fact the beginning of the process of “de-territorialization”, namely “the dispossession by ‘legal’ or judicial means of territories that belonged to the Natives according to their law of origin (ley de orígen) and higher law (derecho mayor)” [RICL, 2009, p. 15]. Indeed, the Resguardo’s establishment countered Indigenous law and self-government, leading also to the eventual imposition of governance structures. But it was also subject to shifting boundaries over time depending on the State government or corrupt land administrator of the day, with attempts to dissolve the Resguardo altogether [Appelbaum, 2007; Lopera-Mesa, 2010; Caicedo 2018, 2020]. Today there are some 25,000 Indigenous people in the Resguardo living in a territory of 4,837 hectares comprised of 32 communities.

37Yet despite its establishment by the Spanish Crown, the Colonial Resguardo does not appear officially in State databases, and its title remains in legal limbo. The result of this invisibility is that the State issued mining concessions overlapping with the Resguardo’s territory, without prior consultation or obtaining the Embera Chamí’s free, prior and informed consent (FPIC). The situation came to a head in 2011, when interest in gold skyrocketed on account of the global financial downturn and the Cabildo discovered that almost the entire Resguardo had been requested in mining concessions.

Alchemy 2: Organizational Strengthening, Indigenous Legislation and Alliances

38This “cartography of erasure”, and these diverse external pressures and interests in the Resguardo’s gold, spurred the Cabildo into action. It began organizing the Resguardo’s ancestral miners into an association, Asomicars. It then began legislating self-governing regulations around ancestral gold mining which outlawed the use of harmful substances such as mercury and cyanide and required environmental management plans to be implemented. In addition, the Cabildo drew up a law declaring the Resguardo a no-go zone for medium and large-scale mining, and drafted its own FPIC protocol.

39These actions were key for the Cabildo not only for exercising control and jurisdiction over its territory. They were also an attempt to counter the State’s active criminalization of ancestral gold mining for failing to conform to the State’s onerous gold formalization procedures. Indeed, the Cabildo’s laws protect a type of mining that has completely different roots, objectives and benefits from the types of mining upheld in State law.

40Yet the effects of the State’s non-recognition of ancestral mining under Indigenous law, and its erasure of the Resguardo from State mining maps led to a perverse situation. A handful of Indigenous miners rebelled against the Cabildo and its law in an attempt to be “legal” under State law, requesting individual mining concessions from the State. By doing so, they undermined Indigenous authority and the collective nature of the Resguardo territory. And, as I recounted at the outset of this article, the Cabildo’s actions towards self-regulation also stirred up the interests of armed actors jostling to control access to the Resguardo’s gold, resulting in the assassination of Fernando Salazar Calvo and subsequent threats to Cabildo members.

  • 13 In 2015, an important workshop took place to refine further the nature of ancestral mining and it’s (...)

41In light of these various nefarious alchemies and territorial pressures, the Cabildo has worked hard not only to strengthen its own laws and organization but to forge relations with other communities such as the Black Communities of the Palenke Alto Cauca. Together, these communities are weaving strategies towards more clearly defining their own mining as different from other types of mining, and having it officially recognized in State law—with much work still to be done.13

Alchemy 3: Court Action to put the Resguardo back on the map, recognize Indigenous Law

  • 14 See for example, the following article that highlight a video that went viral, where former Preside (...)

42Yet the Cabildo, in conjunction with national and international allies and through the Constitutional Court system, has also made significant headway towards having its territory officially delimited—and its jurisdiction over its minerals resources recognized—in a precedent-setting Decision that came down in 2016. Nonetheless, the progressive orders of the Constitutional Court’s Decision T-530/16 are subject to interpretation and implementation. To date we have seen regressive interpretations of the court orders by the National Lands Agency’s Commission of Experts, hired to study and make recommendations about the delimitation process, and in the workplan that the Agency has drawn up subsequently. Social conflict is escalating on account of misinformation campaigns and private interests backed by conservative senators. They have been igniting discourses of hate against the Resguardo’s authorities and attempting to establish State laws to severely dilute Indigenous decision-making and legal security over their lands.14

43T-530/16 recognizes the Cabildo’s jurisdiction over its ancestral mines. Implementing the Court’s orders with regard to mine closures for those mines that do not comply with the Cabildo’s law nor with State law has become nonetheless extremely problematic—even violent. Despite attempts at coordination between the Cabildo, its autonomous, unarmed Indigenous Guard, and the Mayor’s office with its police force, it has proven almost impossible to close the 18 non-compliant mines. Miners have taken out machetes and even guns to prevent mine closures, and to date only one of 18 mines has been successfully closed.

44Recent months have witnessed increased sightings of alleged paramilitary groups circulating in the Resguardo, and a rise in the numbers of pamphlets from these groups threatening the lives of leaders. Indeed, in June 2019, Héctor Jaime Vinasco was forced to leave the Resguardo with his family as a result of multiple death threats related to his frontline role exercising Indigenous law over mining and ensuring implementation of Decision T-530/16.

Rethinking legal pluralities through the lens of alchemy in a backwards world, and effects on Indigenous law

45I have proposed a broad, oversimplified recounting of some of the more nefarious alchemies affecting the Resguardo, its regulations of its ancestral gold and territory, together with some of the more positive alchemies the Resguardo has forged. This now begs a deeper theoretical discussion about the nature of the encounters taking place in this mundo al revés, and relations among the legal orders affecting the Resguardo.

46Analysing contested legalities in un mundo al revés requires adopting “a broad and flexible” [Santos, 2002] approach to the law that is “analytically useful” [Benda Beckmann, 2002]. One that decenters State law while at the same time recognizing its importance, and that also recognizes the possibility of multiple legal orders operating within the same legal constellation. As Santos has stated: “We live in a ‘polycentric’ legal world, where State law, even if shaken is still a decisive factor” [Santos, 2002, p. 438]. Indeed, in the context of lethal violence—in areas that Rodríguez-Garavito [2011] characterizes as “social minefields”, or that Lemaitre [2011, 2019] calls Zonas sin Dios ni ley (areas without God or law)—normative frameworks are being asserted also by outlawed armed actors.

47In considering what is taking place in Héctor Jaime’s mundo al revés, Santos’ declaration that “there is nothing inherently good, progressive or emancipatory about ‘legal pluralism’” [2002, p. 89] in and of itself, takes on particular relevance. Santos clarifies his statement noting that:

“…there are instances of legal pluralism that are quite reactionary. Suffice it to mention here the highly repressive and violent legal orders established by armed groups—eg, paramilitary forces in connivance with repressive States—in the territories under their control. For this reason, I prefer to speak of a plurality of legal orders, instead of legal pluralism” [Santos, 2002, p. 89, emphasis added].

48Santos recognizes that armed groups do assert legal orders—however repressive or violent—often in “connivance” with the State. This is also the conclusion of several authors undertaking ethnographic work in Colombia. For example, Civico’s [2016] work unearths the legal orders of the paramilitary in connivance with the Colombian State. Molano’s [2001] ethnography with guerrilla forces details the ideology and functioning of their legal order and justice system, and how this varies over time. And Taussig [2003], whose ethnographic work, Law in a Lawless Land, describes the effects of paramilitary social “cleansing” in rural Colombia. As well as my own ethnography of the effects of raw law on Indigenous and Afro-Descendant peoples and their territories in Caldas and Cauca [Weitzner, 2018, 2019].

49Yet as Santos [2002, p. 98] argues, such despotic non-state legal orders are “denied the quality of law by the hegemonic liberal theory of the State and the law” as a means to prevent them from “overshadowing” and “relativizing” State law. A key role for the field of legal plurality, he suggests, is to make these non-state legal orders visible and denounce them, in an effort not only to “reveal some hidden faces of oppression”, but also to “open new fields of emancipatory practice” [Santos, 2002, p. 98].

50In developing my concept of “raw law”, I take up Santos’ invitation to reveal some hidden faces of oppression in the constellation of legal orders affecting the Resguardo. Yet at the same time, I am very conscious of placing at the center of my analysis efforts towards self-government and Indigenous law, making visible emancipatory practice even in this context. For this reason, I am reluctant to reduce what is taking place in the Resguardo’s mundo al revés as “violent pluralism”—a term that Arias and Goldstein [2010] use to characterize the extreme violence taking place in several countries in Latin America. Taking up Sieder’s [2011] critique of this term, I do not want to detract analytical attention away from the Cabildo’s efforts for upholding their own laws and governance despite the raw law that intervenes in their territory; nor their efforts towards emancipatory outcomes. Indeed, returning to Fernando Salazar’s assassination, although there is no doubt that this had a chilling effect on some members of Asomicars who expressed fear at overseeing the Cabildo’s law and monitoring the mines, it also led to a renewed motivation and conviction not to back down.

51The entanglement of actors and laws affecting the Resguardo reveals a landscape of legalities so complex and ever shifting that special attention is needed to avoid homogenizing categories. The same attention should be applied to disentangle, disaggregate and reveal the diversity even with categories such as “State law”. For example, interactions I witnessed between the Cabildo and the ­National Mining Agency representatives, intent on formalizing the Resguardo’s ancestral gold as per State law requirements, revealed a markedly different stance and tone than the far more convivial stance and tone of Colombia’s Ombudsperson’s Office representatives, who are mandated to ensure Colombia’s human rights norms and commitments are upheld. Indeed, interactions with National Mining Agency representatives made clear their complete disconnect with, and almost complete ignorance about, Colombia’s national and international Indigenous and human rights commitments, especially with regard to prior consultation leading to consent. In short, in considering “State law” as a category, it is important to underscore that there is heterogeneity and fragmentation within the State, with different agencies seemingly working incoherently and often at odds with each other. This heterogeneity also pervades other legal orders and even “raw law”, as Molano [2001] shows in his detailed account of guerrilla justice, and the differing defining characteristics this legal order has undergone over time.

52In thinking about “raw law” and Santos’ reference to the connivance between armed actors and repressive States, my research concurs that the law of armed actors works only in interaction with State representatives, in what might be characterized as nefarious alchemy. For example, as part of the interethnic workshop on mining between the Resguardo and Black Communities of the Palenke Alto Cauca that I mentioned at the outset of this article, we visited a huge open pit mining area that only months before had seen some 120 bulldozers at work operated by criminal armed actors—and this, only 500 meters away from a military post. In other words, legal armed actors were looking the other way while cri­minal actors were engaging in their work, which was being undertaken without respecting any of Colombia’s State law and left a toxic legacy of environmental catastrophe and contamination right in the heart of ancestral lands. It left behind what to me looked like an apocalyptic landscape of open pit mines several kilometers long. These made national and international headlines on April 30, 2014, when up to 40 miners were buried alive in these pits. Indeed, I argue that apparent zonas sin Dios ni ley that seem abandoned by the State, are still linked to the State even if through the presence of its absence; or through the presence of enabling and corrupt representatives. These are spaces that are regulated, even if seemingly beyond the purview of the State [Lemaitre, 2019]. In the case of the San Antonio criminal mine, there was a presence of State representatives close by, but it was one where State representatives were likely forced to look the other way—perhaps even paid off to do so—as other sovereignties and normativities took control.

Alchemy 4: Enabling Pro-Indigenous outcomes through political representation

53Going back to the mundo al revés in the Resguardo and other types of interrelations that comprise its day-to-day reality, there are also linkages between Indigenous and State governance and law. Very active and constant efforts are made on behalf of representatives of the Resguardo Cañamomo Lomaprieta and neighbouring resguardos to campaign for members of their communities to be elected into the positions of mayor in their municipalities, and to positions in Congress. For example, Cañamomo Lomaprieta has placed its own representatives as mayors in the two municipalities its lands straddle, namely Riosucio and Supía. This facilitates, among other things, coordination between Cabildo law and State law around mine closures and selling of gold. Indeed, the mayor’s office retains the ultimate decision-making power to implement State law around mining. And in previous years, with an Indigenous mayor in place, the mayor’s office has worked alongside the Cabildo to come up with creative solutions that respect Cabildo law. Interestingly, during the 2018 congressional elections, Indigenous representatives from Caldas and Cauca joined forces to place their candidates in the Congress and Senate respectively, making greater influence possible over national level law-making. This is another type of alchemy, a strategic move to enable pro-Indigenous outcomes locally and nationally through political repre­sentation. Nonetheless, these political campaigns at the local and national level are rife with danger, bloodshed and threats. To date, for example, three mayoral candidates from Cañamomo and neighbouring Resguardos have been assassi­nated, with those that do make it to power subject to ongoing death threats. And when Indigenous mayors are not elected, the landscape of violence for Resguardo leaders increases, with pushback against implementation of Indigenous law.

Alchemy 5: Raw Law constraining Indigenous Law, shape-shifting from within

54Finally, as we have already seen, there are also significant effects of “raw law” on Indigenous law and governance in the Resguardo. Besides allegations of attempts by armed actors to infiltrate and extort those working in the Resguardo’s mines—with some alleging that pushing back against this infiltration might have led to Fernando’s assassination—more generally, the effects of “raw law” and warring armed factions involved in Colombia’s internal armed conflict are felt by Cabildo leaders and community members daily. For years now, community assemblies are cut short as community members scramble to get home before dark when armed actors’ “curfews” come into effect, making people more at risk of being killed. Some leaders have chosen to become less active on account not only of threats, but also of the constant unease and pressure placed on them by family members who do not want to see them killed. The result of this restricted ability to move and carry out Indigenous governance freely is a sense of psychological and physical confinement that takes a huge toll on family and community wellbeing, not to mention possibilities towards emancipatory outcomes. One constant and significant pressure for leaders is being very aware of who in their communities may have “shape-shifted”, who might be under pressure from armed actors to “shape-shift”, or who in their midst and at assemblies may be infiltrating, negotiating these situations with great care to continue asserting Indigenous governance and law, while at the same time avoid being killed.

55Ultimately, in this complex “contact zone” [Santos, 2002], in this lethal landscape of shifting legalities—or perhaps, more accurately, inter-i-legalities to expand on Santos’ [2002] term interlegality—, grounding and articulating a clear analytical perspective is critical. Particularly when considering what is legal, what is illegal, who names it, and based on which source of legitimacy. From the perspective of the Embera Chamí, imagining a world the right way around means putting Indigenous law, governance, cosmology at the center—and, also importantly, perspectives on history and time. From this perspective, Embera Chamí ancestral mining existed centuries before the formation of the Colombian State; in fact, State attempts to criminalize and “formalize” this mining, if they ignore Indigenous criteria and laws, is considered illegal. Moreover, the Embera Chamí argue that the State is operating outside the State’s own constitutional and international human rights law commitments, and therefore illegally, by issuing mining concessions overlapping with ancestral territories without due process and FPIC. Yet, where both Embera Chamí and State Law appear to concur (at least de jure), is that the “raw law” of armed actors, and their criminal mines, are illegal both to Indigenous and State normative frameworks.

56While this discussion is far from exhaustive, in part because it presents only a partial picture of the actors and legalities affecting the Resguardo, and in part because it does not consider how these legalities are in turn structured by other actors at different time-space levels—particularly those at the national and global levels—it does illuminate the realities of an extremely complex world of inter-i-legalities and alchemies. Some are more nefarious and lethal, conditioning and severely constraining the ability of Indigenous governance and laws to be exercised. Other alchemies are more positive, enabling the weaving of strategies among ethnic peoples, and with national and international allies, towards outcomes aligned with Indigenous aspirations.

Summing up, and Looking forwards: Colombia’s Peace Process as Alchemy?

57Through “writing out” from ethnography the practical and theoretical implications of exercising Indigenous law over ancestral gold mining in the context of Colombia’s armed conflict, in this article I made evident the very specific and lethal context of the diverse legal orders affecting the Embera Chamí who call the Resguardo Cañamomo Lomaprieta their homeland. I proposed the concept of “alchemy” as particularly appropriate in considering peoples whose lives, homelands, identity and very survival are inextricably related to ancestral gold mining; and I used this term to describe the coming together of a series of elements in specific mediums—whether policies, laws, practices, discourses, strategies, normative orderings or others—that led to transformations that either threatened or maintained and strengthened, cultural and territorial integrity. I highlighted how alchemy can lead either to negative or positive outcomes; or to a combination of both. In the context of un mundo al revés—a world backwards where the raw economy and the actors who fuel this underground economy violently intervene through what I call raw law—I showed the struggle to develop and uphold Indigenous law and self-government, and the determination of leaders to continue asserting their authority despite threats from potential shape-shifters even among their own ranks.

58A key conclusion emerging from this discussion is that the nature of the relations affecting this landscape has a different edge to the “entangled territorialities” [Dussart & Poirier, 2017] that make up the homelands of Indigenous peoples living in other places of the world, where armed conflict and its lethal actors are not present. Indeed, everywhere in the world Indigenous peoples experience a range of different types of violence and are subject to nefarious alchemies. In the context of Colombia’s armed conflict there is a sharper and more lethal edge to existence, where leaders and social activists live in fear that they could be killed at any time. In the territories I work with in Colombia, part of anthropological praxis includes being comfortable travelling with leaders and their bodyguards in cars issued by the National Protection Unit (if they are lucky enough to have been granted these protection schemes), and observing when they do or do not wear their bullet proof vests. And it includes being on the ready to act on requests from community partners dealing with emergency situations and threats to their lives. This in turn demands a theoretical lens that can be adjusted to take in and consider specifically this violent reality, including crossing conceptual boundaries in considering what is “law” as I do here with “raw law”, in an attempt to bring out analysis that is useful, and that shines a light on the hidden faces of oppression, while also focusing on emancipatory potentials.

59I want to close by reflecting briefly on the current moment in Colombia’s history, and what the 2016 Santos Government-Farc Peace Accords and their aftermath have brought for social leaders. Indeed, the international community remembers well that, in 2016, President Santos received the Nobel peace prize for his contribution to negotiating the peace process in Colombia, despite all its difficulties. Yet the rhetoric of postconflict is perhaps one of the greatest alchemies on a variety of levels. Suffice it to say that violence is on the upsurge in Colombia particularly for social leaders as armed actors reconfigure to fill the void left behind by demobilized Farc, and as companies look to Colombia as the new frontier, open for exploration and exploitation, as “peace” and “postconflict” are now seen as a given. What the leaders I work with are experiencing is far from peace or postconflict: it is a world that continues to be upside down. A world where leaders fear evermore for their lives, as massacres and selective assassinations are on the upswing, with Colombia earning in 2019 the reputation of being the most dangerous country in which to be a social leader [Frontline Defenders, 2020]. This is a world where continuing to weave alliances and working towards positive alchemies has become even more urgent for peoples inhabiting resource-rich territories, as well as collaborative anthropology and ethnography. Documenting and lending testimony to these efforts, while opening space for new theory-making, demands a sharper theoretical lens that adjusts to this violent reality.

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Notes

1 This paper draws on and contributes to a growing body of research underscoring the important role of critical anthropology in studying violence. Lemaitre and Sandvik [2015], for example, emphasize the importance of making visible and theorizing violence in analyses of how law is mobilized in southern contexts permeated by lethal landscapes. Vera Lugo [2015] synthesizes the important role of critical anthropology in studies of violence in Colombia from 1979 to 2010.

2 These include the Revolutionary Armed Forces of Colombia (Farc), the National Liberation Army (ELN), and criminal gangs (Bacrim) who are mostly break-off groups from demobilized paramilitary organizations, all who challenge the State’s monopoly of use of force [OECD, 2017, p. 11].

3 Personal Communication, 2020.

4 “Alchemy”, Oxford Reference, Oxford University Press [2020] https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095400497; Lexico, https://www.lexico.com/definition/alchemy.

5 Von Werlhof [2013] adopts the concept of alchemy in her critique of modernism and neoliberalism which, she argues, are patriarchal forms of policy-making and engagement that have created a world-system leading to planetary destruction. But she also points out that nefarious outcomes are not a given. At its roots, alchemy is associated also with more matriarchal, creative or healing forces, involving magic arts such as traditional medicines and shamanism. Synthesizing von Werholf’s conceptualization, Escobar [2018, p. 10-11] notes that “while in its original connotation alchemy referred to a mode of knowledge based on observation of the natural rhythm of life, for the patriarchs it became a practice of destruction, the fragmenting of elements of matter to eventually produce, out of the isolated elements, what was considered most valuable, such as gold or the philosopher’s stone. Destruction progressively became the program to be advanced, contradictorily in the name of creating life… Capitalism is the last phase of this patriarchal civilization”.

6 I use these words carefully: “rupture” was the word used by one of the Resguardo’s most respected traditional healers, when he described for me the transformation that has taken place between gold as it was thought about and used in ancient times, and gold as it is thought about and used today; while “dismantle” was used by Elder Alejandrino Campeón, to describe the effects of the arrival of the Spaniards on the cosmology and way of being of the people of the Resguardo, and their relation with gold [Herrera & Garcia, 2012, p. 33-34].

7 Cajar [2020], for example, unearths nine patterns of complicity characterizing links between the private sector and armed conflict in Colombia, including the extractive sector. Cf. Lazala, Romero [2017].

8 This decision by Colombia’s highest court outlines measures to protect the fundamental rights of individuals and Indigenous peoples displaced by the armed conflict or at risk of forced displacement, within the framework set out by Decision T-025 of 2004 to overcome the “unconstitutional” state of affairs. It was published on January 26, 2009. Available at: https://www.corteconstitucional.gov.co/relatoria/autos/2009/a004-09.htm, last accessed: October 29, 2020.

9 Colombia’s Ombudsperson’s Office (Defensoría) has issued several early warning system reports outlining threats to the security of leaders in Cañamomo, including in 2014 (“Informe de Riesgo No. 032-14A.I.”, noviembre 19 de 2014); and in 2018 (“Alerta Temprana No. 084-18, diciembre 11 de 2018). Available at: http://www.indepaz.org.co/wp-content/uploads/2020/02/AT-N%C2%B0-084-18-CAL-Riosucio-y-Sup%C3%ADa.pdf, last accessed October 29, 2020.

10 In 2002, 40 Embera Chamí leaders received Precautionary Measures from the Inter-American Commission of Human Rights, yet implementation has been glacial and inadequate.

11 For a discussion of the temporal aspects of legalities and “raw law”, see Weitzner [2019].

12 While the exact date of the establishment of the Resguardo remains unknown, there is certainty that its boundaries were re-established in 1627, when the Oidor Lesmes Espinoza was dispatched to the area to help negotiate a territorial dispute between neighbouring Resguardos [Weitzner, 2018].

13 In 2015, an important workshop took place to refine further the nature of ancestral mining and it’s difference from other types of mining. Discussions are summarized in Palenque Alto Cauca-PCN, Resguardo Indígena Cañamomo Lomaprieta, Forest Peoples Programme [2015], available at: https://www.forestpeoples.org/sites/fpp/files/publication/2016/03/dialogosinterculturalespaginascompressed-2.pdf, last accessed: October 29, 2020.

14 See for example, the following article that highlight a video that went viral, where former President Alvaro Uribe, and a senator at the time of the incident in question, calls the Director of the National Lands Agency to demand a meeting of Riosucio’s businesses and other elite as a means to protect their private property rights in response to gains made by the Resguardo Cañamomo towards recognition of their collective territorial rights: https://www.semana.com/nacion/articulo/las-polemicas-ordenes-de-uribe-a-la-directora-de-la-ant/606904. In addition, attempts have been made to put in place a law that contravenes the Constitutional Court’s orders completely, by establishing a committee that would in effect guide the delimitation process with diluted participation by the Embera Chamí, as the following article attests: https://lasillavacia.com/silla-llena/red-rural/diablo-no-esta-carnaval-de-riosucio-71745

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Viviane Weitzner, « Alchemy in un mundo al revés: Gold, “Raw Law” and Indigenous Law in Colombia’s armed conflict »Cahiers des Amériques latines, 94 | 2020, 135-156.

Référence électronique

Viviane Weitzner, « Alchemy in un mundo al revés: Gold, “Raw Law” and Indigenous Law in Colombia’s armed conflict »Cahiers des Amériques latines [En ligne], 94 | 2020, mis en ligne le 30 avril 2021, consulté le 07 octobre 2022. URL : http://journals.openedition.org/cal/11445 ; DOI : https://doi.org/10.4000/cal.11445

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Auteur

Viviane Weitzner

Postdoctoral Researcher at McGill University, Canada.

Viviane Weitzner est docteure en anthropologie (Ciesas-Mexique), professeure à l’université McGill, Canada, et conseillère principale des programmes du Centre for Indigenous Conservation and Development Alternatives (Cicada), au Canada. Sa thèse de doctorat a obtenu le prix « Dissertation Award Honorable Mention » de l’Association droit & société, en 2019. Elle collabore activement avec les communautés amérindiennes et afrodescendantes dans les Amériques.

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