The Role of Indigenous Groups in Constitutional Democracies: A Lesson from Chile and the United States

Abstract:     
This chapter attempts to set forth a lesson learned from the Indian law experience of two countries - the United States and Chile - a lesson that can be a valuable starting point for addressing the role of indigenous peoples in the kinds of constitutional democracies that exist in our American nations.

The lesson is this: membership in groups plays an important role for many indigenous peoples. Any legal policy that fails to take this fact into account - that fails to provide a role for the indigenous group as a positive entity in the national society - is destined to fail. The Indian policies of Chile and the United States have not been successful because policymakers have failed to consider how the law might be shaped to provide indigenous groups - not just individual members of those groups, but the groups themselves - with the legal space they need to act as a positive mediating structure between the nation and the individual.

The experiences of indigenous populations in the legal systems of Chile and the United States illustrate two different ways in which the failure to understand the role of groups in a constitutional democracy can lead to frustrating failures in the implementation of constitutional policy. The Chilean experience shows how such a failure of understanding can cause a policy based on individual equality to flounder; the United States’ experience demonstrates how a failure of understanding can lead to an ineffective policy based on separation. As much as those two policies seem to conflict with each other, both share the fatal flaw of failure to provide legal space for the proper workings of intermediate groups in democratic society.

Keywords: Indigenous people, Chile, United States, legal policies towards Native Americans, comparative constitutional law

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