Indigenous Customary Law in a Civil Law Context: Latin America and the Chilean Case

Abstract

Based on anthropological and historical considerations, this paper analyses the evolution of the relationship between Western law and aboriginal custom in Latin America by focusing on the most tangible and problematic issue in customary law: land tenure. My aim is to provide a critical review of the impact of the rule of law in the arrangement of the alternative cosmologies that flows from the material and spiritual relationship of indigenous groups with their lands. Historical and political issues will be emphasised to illustrate the current problems concerning the interaction between custom and formal law in the case of the Mapuche people from Chile. By looking at some recent developments in the arena of public law, indigenous legislation and legal doctrine, the paper finally suggests how private law discourse, which traditionally has paid almost no attention to the discussion of indigenous law, might be integrated into the legal systems that widely recognise indigenous customs.