Indigenous Law Bulletin
by Juanita Chaves
For many years, the indigenous communities of Colombia have fought for self-determination, including their right to jurisdiction over social behaviour in accordance with their own criminal laws, procedures and authorities. When the Spanish conquistadores (conquerors) settled Colombia in the fifteenth century, indigenous people were treated as subject to the Queen of Spain and to the laws of God. Their social behaviour was regulated under the imposed Spanish criminal justice system, and no recognition was given to any indigenous criminal justice systems. These were not finally recognised until an amendment of the Constitution in 1991. However, even this did not constitute a full guarantee of the right to indigenous self-determination.
In the nineteenth century, Colombian indigenous people were considered savages, to be civilized under a series of paternalistic laws such as Law 11 of 1821, which exonerated them from paying judicial costs. Law 153 of 1887 offered indigenous people convicted and sentenced in the mainstream criminal justice system, the right to ask for a reduction in their sentence if they had subsequently converted to Christianity. Law 89 of 1890 considered that indigenous people were unable to govern their own lives, and established special legislation to' civilise' them. Under this.law, indigenous people were not judged within the mainstream criminal justice system. Instead, authorised missions and religious authorities regulated their social behavior. In addition, Law 72 of 1892 conferred extraordinary powers on the missions to exercise civil, criminal and judicial authority over those indigenous people who were deemed to have become 'civilised'.
The enactment of the Criminal Code of Colombia, Law 95 of 1936, established that the mainstream criminal justice system would apply to all the inhabitants of the national territory, including indigenous people. This gave rise to a legal contradiction, because indigenous social behavior was regulated to a large extent by special legislation, such as the laws mentioned above, and by the authorised missions. In response, the Supreme Court of Justice ruled in July of 1948 that Law 89 of 1890 and Law 72 of 1892 were still valid, and that the missions remained competent authorities to regulate the social behavior of indigenous people. In May 1970, the Supreme Court changed its position, and rejected the notion that the behavior of indigenous people could be regulated by the national Criminal Code or under the social powers of the missions. However, this decision did not in itself lead to the recognition of indigenous criminal justice systems. Instead, the decision of the Supreme Court led to a new legal conundrum about which laws should be applied to indigenous peoples given that their actions were not subject to the national criminal justice system.
The new Criminal Code of 1980 applied to all the inhabitants of Colombia, including indigenous people. However, article 96 provided that where an indigenous person is 'psychologically immature', (ie cannot understand the consequences of their actions) they would not be judged under the mainstream criminal justice system. judges in non-indigenous courts would be the competent authorities to determine the existence or not of such 'psychological immaturity'. Using their 'white understanding of the world and moral values the judge must assess whether an indigenous person, given their indigenous view of the world, understood that their behavior constituted a criminal offence under the national Criminal Code.
In 1991, the Constitution of Colombia recognised the existence of indigenous criminal justice systems for the first time. Articles 246 and 330 recognised the right of indigenous authorities, for example the Indigenous Councils to exercise judicial functions within indigenous reserves (resguardos), according to their own rules and procedures, as long as these do not contravene the Constitution and ordinary laws of Colombia. In other words, the recognition of indigenous people's right to self-determination and jurisdiction over their own behavior is circumscribed by the mainstream European legal system.
In Colombia, there are as many different indigenous criminal justice systems as there are indigenous communities. Each of these have their own judicial authorities, rules, procedures and sanctions designed to govern social behavior. According to ethnographic studies, the Embera-Chami indigenous community of Risaralda for instance punishes the murder of any of its members with cepo (physical punishment) during the night, and community work during the day. This punishment may last from three to eight years according to the circumstances of the specific use. For example, if the murderer was drunk while committing the offence, the punishment lasts for five years. If the victim was a curandero (shaman) of the community, the punishment will be for three years. But if the shaman has killed another member of the community by using his magic, he will be punished for eight years. Other indigenous communities such as El Tambo in Tolima may expel some kinds of offenders from the community, for example in cases of robbery of animals or food.
The recognition of indigenous criminal systems has created parallel indigenous and national jurisdictions within Colombia, so that there is a need for coordination between the two systems. Article 246 of the Constitution stipulated in 1991 that mechanisms should be set up under national law to co-ordinate the national criminal system and the different indigenous criminal justice systems. The Constitutional Court has also established the following rules of interpretation in order to solve any conflict between the national and indigenous criminal systems:
In addition, the Constitutional Court has identified two elements which must be considered in order to determine whether the national or indigenous judicial system should apply. The first issue is the identity of the person who has committed the offence; if the person is indigenous, they have the right to be judged according to the rules of their own indigenous community. The second issue deals with the location where the offence occurred; if it was committed inside indigenous territory, the indigenous criminal system must be applied.
However, the indigenous criminal system will not necessarily be applied every time an indigenous person commits an offence. When an indigenous person has committed a criminal offence against a non-indigenous person and outside indigenous territory, the Court has ruled that the location of the offence cannot be the determining factor in deciding which jurisdiction should apply. There can be a number of different situations:
To summarise, even though the Colombian Constitution of 1991 has recognised the existence of indigenous criminal systems, indigenous people's right to legal jurisdiction over their own social behavior still falls short of the right of self-determination for which they have been fighting. On the contrary, the right of an indigenous person to be judged by the indigenous criminal system remains subject to the national legal system, and there is still only limited recognition of the indigenous criminal system in the Constitution of Colombia, and in the national legal system. It is a judge from the national legal system who in many cases determines whether the national or indigenous criminal justice system will be applied in a particular case.
Juanita Chaves is a Colombian law student who is completing a Masters degree in Natural Resources Law at the University of Wollnngong. She previously worked for two years on indigenous legal research projects at the University of the Andes in Bogota, Colombia.
 There are 83 indigenous communities in Colombia, of which some of the most well known are the Aruhacos and Kowis of the Sierra Nevada de Santa Marta, the Pieces of Cauca and the Huimtos of the Colombian Amazon region.
 Decision of the Constitutional Court of Colombia No T-496, Magistrate: Carlos Gaviria Diaz, Bogota-Colombia, September 26, 1996, 10.
 Decision of the Constitutional Court of Colombia No T-496, Magistrate:
Carlos Gaviria Diaz, Bogota- Colombia, September 26, 1996, 10.
 Ibid 11.
 Ibid 13.
 These Co sejos lndigeros are made up of indigenous people elected by the indigenous community.
 Above, n 3, 13; Decision of the Constitutional Court of Colombia No T254, Magistrate: Eduardo Cifuentes Munoz, Bogota, Colombia, May 30, 1994, 1, 15, 18; Decision of the Constitutional Court of Colombia No C-139, Magistrate: Carlos Gaviria Diaz, Bogota-Colombia, April 9, 1996, 1, 9.
 The following information is based on an ethnographic study of the Embers-Chami Indigenous criminal justice system by the Anthropologists Carlos Cesar Perafan and Luis Jose Azcarate which was considered in the Decision of the Constitutional Court of Colombia, No T-349, Magistrate: Carlos Gaviria Diaz, Bogota, Colombia, August 8, 1996, 16.
 Decision of the Constitutional Court of Colombia, No T-254, Magistrate: Eduardo Cifuentes Munoz, Bogota, Colombia, May 30, 1994, 11.
 Decision of the Constitutional Court of Colombia, No T-254, Magistrate: Eduardo Cifuenres Munoz, Bogota, Colombia, May 30, 1994, 19.
 Ibid 19, 20.
 Ibid 26.
 Ibid 19.
 Ibid 1. 2, 19.
 Above, n 2, 9.
 Ibid 10.
. Decision of the Constitutional Court of Colombia No. T-496, Magistmre: Carlos Gaviria Diaz, Bogota- Colombia, September 26, 1996, 10.