Photograph by José Porte/Trimedia Chile
Legal Pluralism
in Latin America
Challenges and Comparative Perspectives
San Diego, California May 5 and 6, 2011
An interdisciplinary conference co-sponsored by the Center for Iberian and
Latin American Studies at University of California, San Diego and the Center
for Creative Problem Solving at California Western School of Law.
Many Latin American countries are accepting the premise that traditional legal
systems have a rightful place within the modern state. The two systems, however,
are highly divergent. Significant work is still to be done to create a functional
pluralistic system that respects indigenous peoples’ right of self determination,
acknowledges international human rights obligations, clarifies property rights
(particularly over natural resources), and institutionalizes
outcomes when indigenous and national legal systems clash. This conference will
discuss those challenges for Latin America, drawing on the experiences
of Canada, New Zealand, and the United States.
Center for Creative Problem Solving
www.cwsl.edu/cps
http://cilas.ucsd.edu/
Title VI, U.S.
Department of Education
Dean of Social Sciences,
University of California, San Diego
Special thanks for the reception:
www.proyectoacceso.com
Conference Agenda
Legal Pluralism
in Latin America
Challenges and Comparative Perspectives
Day 1: Thursday, May 5, 2011 – at California Western School of Law
3 p.m. Welcoming Remarks
Steven R. Smith, Dean, California Western School of Law
James Cooper, Director, Center for Creative Problem Solving, California Western School of Law
David R. Mares, Director, Center for Iberian and Latin American Studies,
University of California, San Diego
3:30 p.m. Keynote Address
Robert Yazzie, former Chief Justice of Supreme Court
of Navajo Nation
4:15 p.m. Panel 1: The Challenges of Legal Pluralism
Thomas D. Barton, Professor, California Western School of Law
Rebecca Tsosie, Professor and Executive Director,
Indian Legal Program, Sandra Day O’Connor Law School,
Arizona State University
Nigel Bankes, Professor, Faculty of Law, University of Calgary
6 p.m. Reception (Peruvian band –Inspiración)
Day 2: Friday, May 6, 2011 – at UCSD
9 a.m. Panel 2: Property Rights & Natural Resources I
Linda Te Aho, Associate Dean and Director of International Relations,
Te Piringa Law School, University of Waikato, New Zealand,
“Maori Land and Water Law and Maori Governance”
Raquel Z. Yrigoyen Fajardo, International Institute on Law &
Society- IILS/Instituto Internacional de Derecho y Sociedad-IIDS,
Professor at the Pontifical Catholic University of Peru (PUCP)
“Legal Pluralism and Indigenous Jurisdiction in Latin America’s
Pluralist Constitutionalism”
Nancy Postero, Professor, Department of Anthropology,
UC San Diego, “Bolivia” 10:30 a.m. – Coffee Break
11:00 Panel 3: Property Rights & Natural Resources II
Isabela Figueroa, Attorney at Law, Bogotá “Colombia”
Theodore Macdonald, University Committee on Human Rights Studies,
Harvard University, “Ecuador”
David Mares, Professor, Department of Political Science,
UC San Diego, “Brazil” 12:30 p.m. – Hosted Luncheon
2:00 – 3:30 p.m. – Panel 4: Justice, Crime and Agency
Daniel Goldstein, Professor, Department of Anthropology,
Rutgers University “Bolivia”
Jaime Vintimilla, Professor, Universidad de San Francisco,
Quito, “Ecuador” Cristobal Carmona, Professor, Faculty of Law of Universidad
Católica de Temuco, “Chile”
3:30 p.m. – Coffee Break
4:00 - 4:45 p.m. - Final Thoughts: James Cooper & David Mares
Professor Nigel Bankes
Nigel Bankes is a Professor of Law at the University of Calgary where he has
taught since 1984 and where he now holds the Chair in Natural Resources Law.
He was seconded to Canada’s Department of Foreign Affairs and International
Trade as Professor in Residence for the 1999-2000 academic year. His principal
research interests are in the areas of indigenous peoples law, water law, oil and
gas law and international environmental law. He has acted as an adviser to
various Inuit organizations on land claim issues and constitutional reform.
He served as editor of the Journal of Energy and Natural Resources Law from
2006 to 2011. Nigel blogs on developments in Alberta law Alberta at http://
ablawg.ca/ .
Professor Thomas D. Barton
Thomas D. Barton is the Louis and Hermione Brown Professor of Law at
California Western School of Law and a co-director of its Center for Creative
Problem Solving. On behalf of the Center’s Proyecto ACCESO he has lectured
in Latin American about building the Rule of Law, designing legal systems,
preventing legal problems, and alternative dispute resolution.
Professor Barton received his professional legal training at Cornell Law School,
and a Ph.D. in law at Cambridge University. His teaching and research interests
are broad, combining legal theory with sociology and cultural trends. He recently
authored Preventive Law and Problem -Solving: Lawyering for the Future.
Professor Cristobal Carmona
Lawyer, University of Chile, Master in Philosopohical Studies, UAH. Scholarship
holder to pursue doctoral studies in law at the University of Toronto.
He began working as a researcher on the Program of Legal Anthropology and
Interculturality in the University of Chile’s Faculty of Law. At present, he works
as a lawyer at the “Citizen Watcher”, a Chilean NGO dedicated to the promotion
and defense of Human Rights and indigenous rights in the south of Chile, and
as Associated Professor in the course “Indigenous Demands in Latin America;
globalization’s challenges”, in the Catholic University of Temuco. He also works
as an independent assessor for many governmental agencies in indigenous and
environmental issues.
As a member of the Latin American Network of legal anthropology (Red
Latinoamericana de Antropología Jurídica-RELAJU), he has participated in
congresses and seminaries, both in Chile and abroad, and published in several
scientific journals, both of law and social sciences, in themes related with legal
pluralism, indigenous rights and intercultural philosophy. Some of his latest
publications on the field are: “Law and violence: rewritings surrounding legal
pluralism”, Law Journal, Austral University, Vol. XXII, Nº 2, 2009; “The application
of Convention 169 in the comparative law”, in The Implications of the ratification
of Convention 169 of the ILO in Chile, 2º Ed. reviewed and increased,
Heinrich Böll Stiftung, 2011, Santiago; and “Law, Anthropology and the circular
reproduction of hegemony”, in Castro Lucic, Milka (Ed.), Justice and diversity:
challenges for legal Anthropology, to be published this year.
Professor James Cooper
James Cooper is Institute Professor of Law and Assistant Dean for Mission
Development at California Western School of Law, where he is Director of
International Legal Studies and teaches Comparative Law, International Trade
Law, the Law of the North American Free Trade Agreement, the Law of Armed
Conflict, and Introduction to Latin American Legal Culture. Since 1997, Professor
Cooper has worked in a number of countries in Latin America on judicial reform
projects, some of which involve integrating indigenous practices. He is the
director of Proyecto ACCESO, a legal skills training and rule of law public
education program which has been funded by the U.S. Government, German
Government, Organization of American States, United Nations Development
Programme, Inter-American Development Bank, private philanthropic foundations,
and national ministries of justice around Latin America. He is also a co-director of
International Post-Graduate Diploma Program with University of Heidelberg,
University of Chile, sponsored by the Chilean Ministry of Justice and German
Government and a member of academic staff of Heidelberg Center for Latin
America. He was a Visiting Professor at Earl Warren College, University of
California, San Diego in 2008 and a Visiting Scholar at UCSD’s Center for
Iberian and Latin American Studies in 2009-2010.
A Cambridge University-trained Barrister and Solicitor, his scholarship has
appeared in the American University International Law Review, Behavioural
Sciences and the Law, The National Law Journal, American Bar Association
Journal, Revista CREA, Rutgers Journal of Law & Public Policy, The Journal
of Legal Education, and Michigan Journal of International Law. He is a regular
contributor to newspapers, television and radio news programs around the
Western Hemisphere, including El Alteño, El Mercurio, Globe and Mail, Miami
Herald, Sacremento Bee, San Diego Union Tribune, Marie Claire, National Public
Radio’s Marketplace, Canadian Broadcast Corporation’s As It Happens and
Newsworld, Univision News and Fox News. Professor Cooper has directed and
produced documentary films, professional training modules, and public service
announcements for the BBC, Channel Four (UK), and City TV (Canada) and the
Bolivian, Chilean, German, and U.S. Governments.
Isabela Figueroa
Isabela Figueroa is a Brazilian/Ecuadorian lawyer specializing in indigenous
peoples’ rights and extractive industries. She has completed legal studies in
Brazil, Ecuador, the United States, Canada, and is currently completing a
Doctorate in Latin-American Cultural Studies, in Ecuador. Ms. Figueroa has
worked with a number of indigenous organizations from Amazon Basin countries
to raise awareness and advocate for indigenous rights. She was
the lead lawyer in Ecuador’s first successful indigenous case against an oil
company, and co-represented the Indigenous Council of Roraima in part of its
long and ultimately successful battle to obtain title to Raposa Serra do Sol
indigenous land in Brazil. Ms. Figueroa lives now in Colombia, where she
continues her work as a public interest lawyer and teaching at the University of
Cauca’s Master Program in Ethics and Political Philosophy. Professor Daniel Goldstein
Daniel M. Goldstein is Associate Professor in the Department of Anthropology
and Director of the Center for Latin American Studies at Rutgers University. Prof.
Goldstein received his Ph.D. from the University of Arizona in 1997; he joined the
Anthropology Department at Rutgers in 2005. Prof. Goldstein received a Grant for
Research and Writing from the John D. and Catherine T. MacArthur Foundation,
and a Richard Carley Hunt postdoctoral fellowship from the Wenner-Gren
Foundation, which he used to complete his work on the book The Spectacular
City: Violence and Performance in Urban Bolivia, published by Duke University
Press in 2004. Most recently, he has received a Fellowship from the American
Council of Learned Societies to support the write-up of his Bolivian research.
A political and legal anthropologist, Prof. Goldstein studies the effects of
political democratization, economic globalization, and the law on poor, indigenous
residents of a Bolivian city, exploring the consequences of global processes for
the daily lives of these people. He is concerned with questions of security, human
rights, and social justice for marginalized urban people in Latin America.
Prof. Goldstein is the co-editor (with Desmond Arias) of a collection titled Violent
Democracies in Latin America, from Duke University Press.
Currently, Goldstein is working on two research projects based on this ongoing
research in Cochabamba. One of these focuses on problems of insecurity for
urban residents, and the conflicts that arise when the quest to make “security”
clashes with transnational discourses of “human rights.” The results of this
research will soon appear as a book entitled Outlawed: Between Security and
Rights in a Bolivian City.
The second project involves legal and illegal market vendors in the Cancha,
Cochabamba’s huge outdoor market; it compares the security concerns of these
two groups of vendors, to explore the consequences for people deemed
“illegal” as they try to make a living in the city’s enormous informal economy.
This research has been supported by grants from the National Science
Foundation, programs in Cultural Anthropology and Law and Social Science.
In addition to his scholarly work, Goldstein has been exploring the possibilities
of an engaged anthropology, joining his pedagogy and research by creating an
anthropological field school/service-learning program in the communities in which
he works in Cochabamba (http://studyabroad.rutgers.edu/program_bolivia.html).
Each summer, he leads a group of undergraduates as they practice ethnographic
research methods and engage in service work with local communities in Bolivia.
(For an example of student work, visit www.losambulantes.com).
Mr. Theodore Macdonald
Theodore Macdonald is a Lecturer in Social Studies at Harvard University, and
was an Affiliate of the University Committee on Human Rights Studies. From
1979-1994 he was Projects Director for the international human rights NGO
Cultural Survival and then Associate Director of the Program on Nonviolent
Sanctions and Cultural Survival at Harvard’s Weatherhead Center for International
Affairs until 2005. His research and teaching focus on human rights, ethnicity and
conflict, Latin America, indigenous peoples and the State, common property, and
individual/collective property and citizenship rights. He recently co-edited, with
David Maybury-Lewis, Manifest Destinies and Indigenous Peoples (DRCLAS/
Harvard U. Press, 2009) and is currently preparing a reader titled The Anthropology of Human Security: Thinking and Practicing Human Rights (Blackwell).
He has worked directly on several, high-profile, indigenous/oil disputes in the
Upper Amazon and, from 1996-2002, he directed the tripartite (indigenous
organizations-environmental NGOs-oil corporations) Harvard Dialogues on Oil
in Fragile Environments. In 1997 he undertook the ethnographic research and
subsequently served as witness for the community in the precedent-setting 2001
indigenous land and natural resource rights case, Awas Tingni vs. Nicaragua,
before the Inter-American Court of Human Rights.
Professor David Mares
David R. Mares, (Ph.D. Harvard University 1982), holds the Institute of the
Americas Chair for Inter-American Affairs, and is Director of the Center for Iberian
and Latin American Studies, Professor of Political Science and Adjunct
Professor at the School of International Relations/Pacific Studies at the University
of California, San Diego. He is also the Baker Institute Scholar for Latin American
Energy Studies at the James A. Baker III Institute for Public Policy, Rice
University. Mares was previously profesor-investigador at El Colegio de México
(1980-82), Fulbright Professor at the Universidad de Chile (1990), and visiting
professor at the Diplomatic Academy in Ecuador (1995). He has been a visiting
scholar at the Weatherhead Center for International Affairs, Harvard University;
a fellow at the Japan External Trade Research Organization (JETRO); a fellow
at the Center for Advanced Study in the Behavioral Sciences (CASBS), Stanford
University; and held a Pew Faculty Fellowship in International Affairs. He is
President of the Research Committee on Armed Forces and Society of the
International Political Science Association, was editor of the series Latin America:
Social Sciences and the Law (Routledge Press) and a member of the editorial
board of Latin American Research Review.
Professor Mares’ research and teaching interests include Latin American energy
politics, the political economy of drug policy, defense policy, civil-military
relations, and the use of photographic imagery in politics. He is the author/editor
of seven books and numerous articles, and has prepared reports for a number of
international research institutions. He is a member of the International Institute for
Strategic Studies (London), an Associate Fellow of the Inter-American Dialogue
(Washington, D.C.), a fellow of the Academic Forum of the Summit of the
Americas (Montreal, Canada), and a member of the Tri-national Academic Group
on Governance in North America (Monterrey, Mexico).
Professor Nancy Postero
Nancy Postero is an Associate Professor of Anthropology at the University of
California, San Diego. Formerly a human rights lawyer and a radio journalist,
she received her PhD from UC Berkeley in 2001. She studies the intersection of
neoliberalism and indigenous politics in Bolivia. She has carried out fieldwork with
the Guaraní people of lowland Bolivia since1994. Along with numerous articles on
indigenous politics in Bolivia, She is the author of Now We Are Citizens,
Indigenous Politics in Post-Multicultural Bolivia (Stanford University Press 2007)
and, with Leon Zamosc, The Struggle for Indigenous Rights in Latin America
(Sussex Press 2003). She recently co-edited a special issue of Latin American
Research Review entitled Actually Existing Democracies (2010). Recent work
focuses on the cultural and political conflicts in “pluri-national” Bolivia, including
an analysis of the extractivist development model of the MAS government, on the
one hand, and of Right-Wing hunger strikes as political protest, on the other.
With Mark Goodale, she is currently co-editing a volume on the “post-neoliberal”
moment in Latin America.
Dean Steven R. Smith
Steven R. Smith is President, Dean and Professor of Law at California Western
School of Law in San Diego. He received his J.D. and M.A. (economics) degrees
from the University of Iowa. He has taught at the law schools at Cleveland State
University and the University of Louisville. He has written widely in the areas of
law and ethics in medicine and mental health services. Special research interests
include confidentiality and privilege, withholding treatment, malpractice, mental
health care delivery and expert witnesses. He has received awards for creative
teaching, outstanding scholarship and distinguished service.
Dean Smith has been involved in a large number of national, state, local and
university commissions, committees and working groups. He is particularly active
in the American Bar Association and Association of American Law Schools. He
has served as chair of the Council of the ABA Section of Legal Education and A
dmission to the Bar. He has served on a number of national and state boards, as
Chair of the California Law School Council and secretary of the Association for the
Accreditation of Human Research Protection Programs. He served as President
of The Cleveland City Club. He has been involved in the American Bar
Association’s Central and Eastern European Law Initiative.
Professor Linda Te Aho
Linda Te Aho is of Ngāti Korokī Kahukura and Waikato-Tainui descent and is
the Associate Dean Māori and Director of International Relations for Te Piringa
Faculty of Law, University of Waikato in Hamilton, Aotearoa New Zealand. Linda
teaches and writes on Māori and Indigenous legal issues. Linda has contributed
to transforming the face of Government-Iwi relations. She was appointed by her
people to be one of the Guardians mandated under a 2010 Treaty Settlement for
the co-management of the Waikato River ecosystem to develop the long term
vision for its environmental restoration along with the national and local
government appointees. Linda has been involved in numerous consultancies,
research projects, community based initiatives and Māori Trusts. Linda is to be
the founding Director of our Māori and Indigenous Governance Centre (MIGC).
The MIGC will be formally launched in a few months with a mandate to foster
interaction among Indigenous communities and scholars both within Aotearoa
and overseas to share experiences and insights on how best to support the
enhancement of governance systems. Professor Rebecca Tsosie
Rebecca Tsosie, Professor of Law, Willard H. Pedrick Distinguished Research
Scholar, Executive Director Indian Legal Program, Affiliate Professor, American
Indian Studies Program, Faculty Fellow, Center for Law and Global Affairs
Professor Rebecca Tsosie, J.D., has served as Executive Director of the Indian
Legal Program in the Sandra Day O’Connor College of Law at Arizona State
University since 1996. Professor Tsosie has written and published widely on
doctrinal and theoretical issues related to tribal sovereignty, environmental policy,
and cultural rights. Professor Tsosie is the author of many prominent articles
dealing with cultural resources and cultural pluralism. She has used this work as
a foundation for her newest research, which deals with Native rights to genetic
resources. Professor Tsosie, who is of Yaqui descent, has also worked
extensively with tribal governments and organizations. She serves as a Supreme
Court Justice for the Fort McDowell Yavapai Nation and as a Court of Appeals
Judge for the San Carlos Tribal Court of Appeals. Professor Tsosie speaks at
several national conferences each year on topics related to tribal sovereignty,
self-determination, and tribal rights to environmental and cultural resources. Professor Tsosie was appointed as a Willard H. Pedrick Distinguished Research
Scholar in 2005. Prior to this, she held the title of Lincoln Professor of Native
American Law and Ethics. She is an Affiliate Professor for the American Indian
Studies Program. She joined the faculty of the College of Law in 1993 and teaches
in the areas of Indian law, Property, Bioethics, and Critical Race Theory. She is
the co-author with Robert Clinton and Carole Goldberg of a federal Indian law
casebook entitled American Indian Law: Native Nations and the Federal System. Tsosie was awarded a Woodrow Wilson Fellowship and received the American
Bar Association’s “2002 Spirit of Excellence Award.” She is the 2006 recipient of
the “Judge Learned Hand Award” for Public Service.
Professor Jaime Vintimilla
Jaime Vintimilla is a lawyer (JD Catholic University of Quito) with specialization
studies in Alternative Dispute Resolution. He is mediator and arbitrator at the
Chamber Of Commerce from Quito and trainer for mediators in different programs
in Ecuador and abroad. Mr. Vintimilla is also Executive Director of CIDES (Center
on Law and Society) with twenty years of experience in projects to strengthen the
access to justice. Jaime has worked extensively on rural justice, access to justice,
community mediation and indigenous nationalities and afro Ecuadorean rights.
He teaches at the San Francisco University of Quito-Ecuador and Alcala de
Henares of Spain the courses of conflicts resolution, Private International Law,
Constitutional Law and Law History. He has written extensively on these topics
and his recent books and articles are ADR and Rural justice (2003), Indigenous
Justice and Conflict Management (2004), Indigenous Law, Conflict and Community
justice within the indigenous Kichwa nationality (2007), and Principles and rules in
Ecuadorean Ius Novus (2010).
Hon. Robert Yazzie
THE HONORABLE ROBERT YAZZIE
Chief Justice Emeritus of the Navajo Nation
The Honorable Robert Yazzie is a retired chief Justice of the Navajo Nation. He
was the Chief Justice of the Navajo Nation from 1992 through 2003. He practiced
law in the Navajo Nation for 16 years, and he was a district judge for eight years.
He has a bachelor of arts degree from Oberlin College of Ohio and a juris doctor
degree from the University of New Mexico School of Law. He is currently the
Director of Diné Policy Institute of Diné College (Navajo Nation), developing
policy using authentic Navajo thinking.
He is a member of the Navajo Nation Bar Association. He is the author of
articles and book chapters on many subjects, including Navajo peacemaking,
traditional Indian law, and international human rights law. He is a visiting
professor at the University of New Mexico School of Law, an adjunct professor
of the Department of Criminal Justice of Northern Arizona University and a
visiting member of the faculty of the National Judicial College. He recently taught
Navajo law at the Crownpoint Institute of Technology. Chief Justice Yazzie
continues a career devoted to education in formal participation in faculties,
lectures and discussions of traditional indigenous law at various venues
throughout the world. He has a global audience and he has frequently visited
foreign lands to share his wisdom about traditional indigenous justice and
governance.
Dra. Raquel Z. Yrigoyen Fajardo
Raquel Z. YRIGOYEN FAJARDO is a Peruvian lawyer, Doctor in Law by the
University of Barcelona, with a Master’s degree in sociology of law (U.B), and
post-graduate studies in Anthropology (PUCP) and Indigenous Customary Law
(UNAM-USAC). She was a doctoral fellow at the International Institute of Sociology
of Law at Oñate (Spain) and was a fellow at the Comparative Federal Indian Law
Program of the University of Oklahoma. Since 1983, R. Yrigoyen has worked in
human rights, indigenous rights, access to justice, legal pluralism, women’s rights,
and constitutional and judicial reforms in several developing countries of Latin
America and Asia, for United Nations and other human rights organisations. She
is a founding director of the International Institute on Law and Society-IILS/
Instituto Internacional de Derecho y Sociedad-IIDS (www.derechoysociedad.org),
and coordinator of the International Exchange Programme on Multiculturalism,
Legal Pluralism and Indigenous Rights.
R. Yrigoyen is author of several publications, including: “Pueblos indígenas,
Constituciones y reformas políticas en América Latina” (IIDS, ILSA & INESC
2010), “Pathways to justice: Access to justice with a focus on the poor, women
and indigenous peoples” (Cambodia: UNDP, 2005), “Pautas de coordinación entre
el derecho indígena y el derecho estatal” (Guatemala: Fundación Myrna Mack,
1999). She has been a lecturer in several universities of the Americas and Europe,
and currently she teaches at the Pontifical Catholic University of Peru (PUCP).