INDIGENOUS LEGAL SYSTEMS IN BOLIVIA

BY

PIERRE ROUSSEAU*, LL.L., M.A.

* Sooke, BC, Canada, Email: jnpr2010@gmail.com

© Pierre Rousseau, March 2011.

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Abstract.
Bolivia is one of few countries where Indigenous peoples are the majority of the
population and has embraced Indigenous legal traditions and legal pluralism. With its
new constitution (2009), there is a formal recognition of Indigenous legal systems and a
new law delimiting jurisdictions between Indigenous legal systems and the mainstream
system was recently sanctioned. This paper explores this new legislation that recognizes
fundamental principles like self-government, the relationship with Mother Earth, cultural
diversity, legal pluralism and, most importantly, the equality of Indigenous legal systems
with the mainstream system. We will explore what is included in that legislation after an
overview of the status of Indigenous legal traditions in the Andes region of South
America.

Introduction.
I was involved in Aboriginal justice in Canada for many years and while I was in Bolivia
during the winter 2009 – 2010 as an international volunteer on a governance project with
the Aymara people near La Paz, I realized that Indigenous legal traditions were
omnipresent in those communities. Further, it was during a referendum campaign (the
referendum took place at the same time as the presidential election, on 6 December 2009)
where a number of Indigenous communities had the opportunity to vote for their
“autonomy” or self-government, which included the formal recognition of their legal
systems as equal to the mainstream system. I thought it would be an interesting story for
people who are interested in Indigenous legal traditions in Canada and, perhaps, an
inspiration for where this could go if those traditions were to be officially and formally
recognized here.

Indigenous Legal Traditions in the Andes and Canada.

Bolivia is a country situated in the centre of South America that became independent
from Spain in 1825 and has now a population of roughly ten million people. 1 The
majority of its population is of Indigenous ancestry (roughly 60% according to the 2001

1
The World Factbook, online: Central Intelligence Agency
<https://www.cia.gov/library/publications/the-world-factbook/geos/bl.html#top>.
 3

census2) and its president, Evo Morales, is himself Aymara. Most Indigenous Bolivians
live in the high lands (including the Altiplano) and are either Quechuas or Aymaras or
both. The low lands (the eastern part of the country situated in the Amazon basin) are
inhabited by more recent immigrants, mainly of European ancestry but also include a
significant proportion of Indigenous peoples of various nations. The new constitution
(2009) recognizes thirty-seven Indigenous languages as official languages of Bolivia in
their respective territories, with Spanish as common language.3

Since the Europeans’ arrival in the Americas, the colonial authorities have imposed their
legal systems across the continent but, nonetheless, Indigenous legal traditions continued
to exist in Andean countries and have been used extensively in Indigenous communities
that had little contact with the mainstream, colonial community. However, in recent
years there had been an increased reliance on the mainstream legal system (with police
and courts) but the new Bolivian constitution recognizes the rights of Indigenous nations
to their own Indigenous legal systems, as equals to the mainstream (called “ordinario”,
ordinary) legal system.4

In order to relate to the situation in Canada, we also need to look at what has been
happening in northern North America. Like the Spaniards, both French and British
colonial powers imposed their legal traditions to Aboriginal Canadians, rejecting or
ignoring the fact that these peoples had their own legal traditions. This happened earlier
in the first settlements and it eventually extended, at the beginning of the twentieth
century, to the Canadian Arctic. To illustrate this typically colonial approach, a quote
from Crown counsel opening statement to the jury in a matter involving two Inuit men,
Sinnisiak and Uluksuk, charged with the murder of Fathers Rouvière and Le Roux
(Edmonton, 14 August 1917) is particularly revealing:
These remote savages, really cannibals, the Eskimo of the Arctic regions have got to
be taught to recognize the authority of the British Crown… It is necessary that they

2
República de Bolivia – Censo de Población, online: Instituto nacional estadística de Bolivia
<http://www.ine.gob.bo/cgi-bin/Redatam/RG4WebEngine.exe/PortalAction?
&MODE=MAIN&BASE=TallCreac&MAIN=WebServerMain.inl>.
3
Constitución política del Estado, Bolivia, 2009, s 5 I. [CPE]
4
Ibid, s 30 (14), 179, 190 – 192.
 4

should understand that they are under the Law, just in the same way as it was
necessary to teach the Indians… that they were under the Law; that they must
regulate their lives and dealings with their fellow men, of whatever race, white men
or Indians, according to, at least, the main outstanding principles of that law, which
is part of the law of civilization, and that this law must be respected on the barren
lands of North America… The code of the savage, an eye for an eye, a tooth for a
tooth, a life for a life must be replaced among them by the code of civilization. 5

Fortunately, things have changed since then and it is now widely accepted that Aboriginal
peoples had their own systems of laws and conflict resolution at the time of contact 6 and
that many of those laws and processes survived until today despite governments’ attempts
at assimilation. Yet, while those traditions are now recognized, most criminal matters are
processed through the mainstream legal system and very seldom by Aboriginal dispute
resolution mechanisms and in those few cases, they depend entirely on the goodwill of
the police or the prosecutor7. Further, Canada has never ratified Convention 169 of the
International Labour Organisation (ILO), which states at article 9 “To the extent
compatible with the national legal system and internationally recognised human rights,
the methods customarily practised by the peoples concerned for dealing with offences
committed by their members shall be respected.”8

Back to South America, most Andean countries ratified Convention 1699 and have
constitutionally recognized the rights of Indigenous peoples to their own legal traditions
and conflict resolution processes. As an illustration of the importance of such rights and
their rapport with the mainstream courts, we can look at decision T-523/97 of the
Constitutional Court of Colombia10 that specifically recognizes the Indigenous legal
5
R.G. Moyles, British Law and Arctic Men – The Celebrated 1917 Murder Trials of Sinnisiak
and Uluksuk, First Inuit Tried Under White Man’s Law (Burnaby: The Northern Justice Society,
SFU, 1989) at 38.
6
John Borrows, Indigenous Legal Traditions in Canada, (2005) 19 Washington University
Journal of Law & Policy at 167.
7
Through informal diversion programs and Criminal Code sanctioned alternative measures
(Criminal Code, RSC 1985, c C-46 s 717).
8
Indigenous and Tribal Peoples Convention, 1989 (No. 169), Office of the United Nations High
Commissioner for Human Rights, online <http://www2.ohchr.org/english/law/indigenous.htm>
9
Bolivia 1991, Chile 2008, Columbia 1991, Ecuador 1998, Peru 1994, Venezuela 2002.
Convention No. C169, International Labour Organisation online <http://www.ilo.org/ilolex/cgi-
lex/ratifce.pl?C169>
10
Sentencia T-523/97: Francisco Gembuel Pechene v. Luis Alberto Passu, Governor of the
Indigenous community of Jambaló and Luis Alberto Finscue, President of the Association of
 5

authority to deal with a homicide. In this case, the “offender” was accused of causing the
death of the victim by denouncing him to the guerilla. He was dealt with through the
community dispute resolution process and was sentenced to be lashed, banished and he
lost the right to be elected to any public charge. The Court found that the process was
valid because the traditional way to deal with disputes for the Páez people had been
followed and he was allowed to have a defender that understood the language and
traditions of the community. Further, the Court determined that the sanctions did not
exceed what was acceptable since the offender knew beforehand that those sanctions
could be imposed if he committed that type of crime and that the lashing was merely
symbolic (on the lower part of the legs, without leaving any scar or injury) and did not
amount to torture. This decision illustrates how careful are the courts in the Andean
countries to promote and support Indigenous legal traditions.

Indigenous legal traditions in Bolivia.

Before we get into the details of the Indigenous legal systems in Bolivia, it is worth
understanding the context in which this is happening. As mentioned, Indigenous peoples
in Bolivia have been using their own dispute resolution mechanisms and governance
models in their communities, mainly because the State had little if any interest in what
was happening in those “remote” communities. The expansion of the mainstream legal
system did put a strain on its resources and, unless the police were involved in a matter or
parties resorted to lawyers to deal with an issue, the traditional system was still in use
because it was inexpensive, quick and relevant to Indigenous peoples. When the
mainstream system was involved, there were many critics that said the system was
foreign and was staffed by people who knew little about those peoples and who where
remote from them and were “transients” in the communities, ignoring local realities.
Colque writes that often, they functioned thinking more about their wallets or their
political interests than resolving issues with fairness and justice.11

Indigenous Chiefs of the Northern Area of the Cauca Department, 15 October 1997 [translated by
author].
11
Gonzalo Colque, Autonomías indígenas en tierras altas – Breve mapeo para la
implementación de la Autonomía Indígena Campesina (La Paz: Fundación Tierra, 2009) at 12.
 6

The new legislative framework.

The constitution provides for a specific legislation defining respective jurisdictions
between the Indigenous and mainstream systems: the Law to Delimit Jurisdictions (Ley
de Deslinde Jurisdiccional - LDJ)12 as sanctioned by both the Plurinational Legislative
Assembly13 and the Senate on 16 December 201014. The final legislation followed
approximately 18 months of consultation with various stakeholders, including Indigenous
nations and it is said that technocrats did not have the last word but Indigenous nations
did.15 The purpose of that legislation is to provide a framework for interaction between
legal systems in a country where legal pluralism is the norm but some Indigenous leaders
are critical of the restrictions imposed on Indigenous jurisdictions.16

The foundation of Indigenous jurisdiction.

The Indigenous jurisdiction is based on its own authority 17, which means the traditional
Indigenous authority is responsible for its own legal system since the Constitution also
recognizes traditional Indigenous governance, based on their respective cultures18. Those
authorities must apply their own values, cultures, standards and procedures, within the
parameters of the Constitution and must respect basic human rights like the right to life,
the right to legal defense and other rights as defined by the Constitution 19. The LDJ is
even more specific in terms of respect of human rights and provides for full respect of
Indigenous and human rights according to the Constitution and international human
rights instruments.20 In a previous draft of the legislation, those rights were within the

12
CPE, supra note 3 at 192 III.
13
Ibid, s 145. The Constitution provided for a new legislative assembly that is now called
“Asamblea Legislativa Plurinacional”.
14
Ley sancionada de Deslinde Jurisdiccional, Centro de Documentación e Información – Bolivia
(CEDIB) online <http://www.cedib.org/index.php?/alerta-legislativa-2010/ley-sancionada-de-
deslinde-jurisdiccional-fuente-www.erbol.com.bo.html>. [LDJ]
15
Senado abre debate sobre la Ley de Deslinde Jurisdiccional, Cambio, La Paz 10 December
2010, online <http://www.fmbolivia.tv/2010/12/senado-abre-debate-sobre-la-ley-de-deslinde-
jurisdiccional/>
16
Nuni: Ley de Deslinde que sera tratada en el Senado fue cambiada, Erbol, La Paz 13
December 2010.
17
CPE, supra note 3 at 179 I.
18
Ibid, s 290 II, 296.
19
Ibid, s 190 II.
20
LDJ, supra note 14 at 5, 6.
 7

Indigenous jurisdictions and were protected through constitutional control by a joint court
composed by authorities from the Indigenous legal system involved and the
corresponding mainstream legal system and they had to interpret the issues interculturally
as well as the legal protections of the Constitution and international human rights
according to the legal framework of Indigenous autonomy. The final text simply
removes Human rights issues from the ambit of Indigenous jurisdictions, as we will see.21

Within their respective jurisdictions, there is absolute equality 22 between Indigenous legal
systems and the mainstream courts. Obviously this will not be easy but Bolivia seems to
be willing and eager to confront this challenge. When we compare that with the situation
in Canada, where Indigenous legal systems have no specific status within or in parallel to
the mainstream courts and where Indigenous rights are interpreted by mainstream courts
that have little if any involvement with the Aboriginal communities, let alone any
knowledge of the legal traditions of the Aboriginal nation involved in the issue, we can
appreciate the chasm between the Bolivian and the Canadian approaches.

Applicable Indigenous laws and Basic Principles.

A previous version of the LDJ (May 2010) included a definition of Indigenous laws (in
Spanish: “Derecho Propio”) as “the set of rules based on ancient values, cultural
principles, procedures and practices that regulate social life of indigenous nations
and peoples … to maintain harmony and balance among its members and with
nature”.23 Those laws are protected by the constitution 24 but the final LDJ does not
anymore mention or define them specifically but at section 7 it indicates that an
Indigenous nation has the power over justice “in accordance with its own justice
system” that can be exercised by its authorities. 25 The LDJ’s basic principles refer to
the “spiritual relation between Indigenous peoples and Mother Earth” and their

21
Ibid, s 10 II (a).
22
Ibid, s 3 “Hierarchical Equality” [translated by author].
23
Proyecto de Ley de Deslinde Jurisdiccional, section 6, online, Ilustre Colegio de Abogados de
La Paz <http://www.icalp.org.bo/web/2010-07-26/proyecto-de-ley-de-deslinde-
jurisdiccional.htm>. [translated by author]
24
CPE, supra note 3 at 192 III.
25
LDJ, supra note 14 at 7. [translated by author]
 8

right to “maintain and strengthen their own spiritual relation with their lands and
territories that they traditionally owned, occupied or used and for which they are
assuming its responsibility for future generations”. 26 Further, in terms of legal
pluralism, it states that the “coexistence and independence of all legal systems must
be respected and guaranteed within the Plurinational State, as equals”. 27 The other
fundamental principles are:
 The unity and integrity of the Plurinational State must be respected.
 Cultural diversity.
 Intercultural interpretation.
 Complementarity and concurrence of each jurisdiction’s efforts.
 Independence (no interference between jurisdictions).
 Gender equality and fairness.28
 Equal opportunities for children, youth, elders and persons with
disabilities.29

Gender equality includes not only equality before any Indigenous legal system but
also equality in having access to any position and function within the legal system as
well as in the decision-making process, the judgment and the imposition of
sanctions.30 This is particularly crucial as I observed during a project with an
Aymara community in the Altiplano (Oruro district) that traditional indigenous local
governance was almost restricted to men. Indeed, during the years 2005 to 2009,
out of 79 people who were part of the traditional leadership, only 4 were women.
That is not to say that women did not play a significant role in the community as
most of those positions included the incumbent’s spouse but men constituted the
overwhelming majority of formal positions. On the other hand, women occupied the
majority of municipal positions in the mainstream system during those years. 31

26
Ibid, s 4 (b). [translated by author]
27
Ibid, s 4 (e). [translated by author]
28
Gender equality is also protected under s 8 and 11 of the CPE, supra note 3.
29
LDJ, supra note 14 at 4.
30
Ibid, s 4 (h).
31
When I was there, the four councillors were women and the mayor was a man.
 9

Human Rights.
Basic human and constitutional rights are recognized by all jurisdictions,
particularly the right to life.32 Gender equality is a fundamental right and any form
of violence against children, youth and women is prohibited. 33 The death penalty
and lynching are formally prohibited 34 as being “a violation of human rights”. This is
particularly interesting because during the debate on the development of formal
Indigenous jurisdictions, many opponents argued that lynching would be part of
Indigenous legal systems, referring to a number of lynching that had happened in
the country during the past few years. For example, two men accused of child
sexual assaults were taken by members of their own communities and were
eventually set on fire and died of the consequences of that “sentence” and the
opponents were falsely saying that this was an example Indigenous legal traditions.
In fact, lynching in Bolivia is quite frequent because the police and the courts are
unable to enforce the laws and because Indigenous jurisdictions were not yet
formally recognized. Thus, a mob mentality developed and took over dealing with
alleged criminals for want of other means. Yet, indigenous authorities were
adamant that lynching and the death penalty were not part of their legal traditions
but the opponents would hear nothing of that. Hence, those dispositions are a
compromise to convince the opposition to support the LDJ and, by extension, the
whole concept of legal pluralism.

Jurisdiction.
Indigenous jurisdiction is based on the bond between members of the respective
Indigenous nation or people35 and is personal, material and territorial, and must
apply simultaneously36:

32
LDJ, supra note 14 at 5 I.
33
Ibid, s 5 II and IV.
34
Ibid, s 5 V and s 6.
35
CPE, supra note3 at 191 I.
36
LDJ, supra note 14 at 8.
 10

Personal: according to the constitution, they apply to any and all members of the
relevant Indigenous nation acting as plaintiffs, defendants, informants or accused,
including any party to any other recourse. 37 Thus, if one of the parties is indigenous,
it seems that the Indigenous legal system would apply, even to the non-indigenous
party. However, the LDJ appears to have narrowed this, stating “the members of the
respective indigenous nations or peoples are under Indigenous jurisdiction”. 38
According to Xavier Albó , the LDJ violates the constitution because it applies only to
indigenous peoples on their territories. He gives the example of, on the one hand, a
non-indigenous person steals grain from an indigenous person on indigenous land:
he will be under the ordinary jurisdiction as he is not indigenous. On the other
hand, an Indigenous who steals a car in the city would also be under the ordinary
jurisdiction as he would not be on his nation’s territory. Thus, there is an inequality
because the Indigenous offender in the city should be under the Indigenous
jurisdiction if they were equal.39

Material: it will hear all matters related to Indigenous peoples and as determined
by the LDJ.40 Previous versions of the act were very broad and granted jurisdiction
over any matter, conflict and offense, including homicides, violent assaults, serious
crimes etc.41 The final version is much more restrictive and while it recognizes a
broad jurisdiction over matters, or conflicts that were traditionally and historically
dealt with under their own standards, proceedings and knowledge in accordance
with their self determination, there is a list of matters that are excluded from
Indigenous jurisdictions. That list is significant and includes:
 Criminal matters involving international laws;
 Crimes against humanity;

37
CPE, supra note 3 at 191 II (1).
38
LDJ, supra note 14 at 9. [translated by author]
39
Xavier Albó, ¿Ley de deslinde o de subordinación jurídica? Página Siete (17 December 2010)
online < http://www.ftierra.org/ft/index.php?option=com_content&view=article&id=4319:iley-
de-deslinde-o-de-subordinacion-juridica&catid=98:noticias&Itemid=175> Mr. Albó is a well-
known and respected anthropologist in Bolivia, expert in Indigenous matters.
40
CPE, supra note 3 at 191 II (2).
41
Proyecto de ley, supra note 21 at 7 and 8.
 11

 Crimes against the safety of the State;

 Terrorism;
 Corruption when the State is the victim;
 Human trafficking;
 Drug trafficking;
 Any crime against the body integrity of children and youth;
 Rape and murder;
 Civil matters where the State is a party;
 Labour law;
 Mining, oil and gas laws;42

It is interesting to consider that in the previous version the Indigenous system was
dealing with matters involving corruption, illegal substances and drugs, assaults
against children and teenagers, in possible coordination with the mainstream
system while for offences against the state’s safety, tax and customs fraud and
international crimes (genocide, war crimes and crimes against humanity), that
coordination with mainstream courts was mandatory. 43 In those latter cases, the
Indigenous authority was to co-preside with the mainstream courts and had a duty
to report those crimes.44

The government may have had second thoughts about the initial project’s broad
jurisdictions and while many indigenous leaders are very unhappy with those
restrictions45, M. Juan Carlos Pérez who is with the High Chamber Intercultural

42
LDJ, supra note 14 at 10 II.
43
Proyecto de ley, supra note 21 at 14 I.
44
Ibid, s 14 II and III.
45
Supra, note 16: Pedro Nuni, Member of the Plurinational Legislative Assembly for the Beni
District says: “There has been changes to the draft legislation that we saw… and it appears it is
intentional”. He says that the changes will subordinate the Indigenous legal systems to the
ordinary system: “We consider this is a framework that tend to subordinate one legal system
under another.” He says section 10 that exclude major criminal offences from the Indigenous
jurisdiction is a “padlock” that keeps those cases in the ordinary system. [translated by author]
See as well: Sanción de Ley de Deslinde Jurisdiccional deja descontentos a indígenas y
campesinos, Erbol, La Paz, 17 December 2010, online:
 12

Commission for Indigenous, Native, Peasant Nations and Peoples states that it was
done to protect Indigenous nations from the influence of Western laws and lawyers
and to focus on conflict instead of offences, which is more consistent with
Indigenous cultures.46 Yet, despite this reduction in jurisdiction, this is still in stark
contrast with Canadian criminal practice allowing communities to be involved only
with minor matters as part of diversion programs or alternative measures. 47

Territorial: it applies to legal relationships and events that occur or has any effect
within an Indigenous jurisdiction. 48 The previous version of the LDJ was broader,
extending the Indigenous jurisdiction to any legal matter that occurs outside of the
Indigenous territory when the rights of that nation are violated. 49 Likewise, conflicts
between two members of the Indigenous nation, whether they occur within their
territory or outside, were within their jurisdiction. 50 Finally, Indigenous
jurisdictions could deal with any issue, conflict between people who are not
members of the group when the offense occurs on their territory or they violate one
of their laws and that cause damage to the community. 51 These last minute changes
may suggest that the equality between Bolivia’s legal systems is not quite achieved.

Process.

http://www.indigena.erbol.com.bo/noticia.php?identificador=2147483938412
More recently, the Confederación de Pueblos Indígenas de Bolivia (CIDOB) decided not to
participate in the elaboration of regulations to be passed under the LDJ: Erbol 17 March 2011:
http://www.indigena.erbol.com.bo/noticia.php?identificador=2147483942044
46
In an interview with the press agency Erbol in La Paz on 9 December 2010. Fundación Tierra,
online, <http://www.ftierra.org/ft/index.php?
option=com_content&view=article&id=4239:rair&catid=98:noticias&Itemid=175>
47
For example, the Public Prosecution Service of Canada’s policy on alternative measures is
clear: “Generally, [alternative measures] will be most suitable for younger adult offenders and
those with no criminal record, who have committed minor offences.” Public Prosecution Service
Canada, the Federal Prosecution Service Deskbook, chapter 14, Alternative and Extrajudicial
Measures, online < http://www.ppsc-sppc.gc.ca/eng/fps-sfp/fpd/ch14.html>.
48
CPE, supra note 3 at 191 II (3) and LDJ, supra note 14 at 11.
49
Proyecto de ley, supra note 21 at 8 II.
50
Ibid, s 8 III.
51
Ibid, s 8 IV.
 13

While the previous version of the LDJ dealt with the appointment of judicial
officers52, the final version does not address it directly but recognizes their right to
administer justice according to their own legal systems and governance models
under the constitution53. In other words, Indigenous legal systems may rely on
individuals to make rulings or panels of individuals, as a group on any matter,
dispute or conflict over which they have jurisdiction in the nation’s territory. They
must apply the nation’s world-view, social, cultural and legal traditions as a self-
governing entity.

In Bolivia I witnessed how a civil dispute between an individual and his community
was dealt with. The individual owned a large piece of land and had a herd of lamas
that were using all that land for pasture (through rotation) while some neighbours
were lacking sufficient space for their own lamas. The Ayllu (community) council
decided that this individual had to share his pastures with his neighbours under the
principle that Indigenous territories should be for the benefit of all and even though
private land is possible in Bolivia if they are not within specific lands set aside for
Indigenous nations54, there is still a strong sense of community ownership on those
private lands. The individual appealed to the two Mallku (leaders of that particular
cluster of Ayllus) and I attended the hearing that took place in the Mallku’s office.
The individual explained his situation and the two Mallku asked him questions
about how much land he really needed and why he could not share with his
neighbours. No one represented the Ayllu but the Mallku were acting as
interrogators and decision makers. It was very informal and after all the arguments
had been discussed, they recessed and met together, without the applicant, and
finally agreed to disagree… Thus, since the two Mallku could not agree, the decision
of the Ayllu stood.55
52
Ibid, s 7. The authority to determine the process and deliver justice can be found in each
Indigenous nation’s governance model and they are responsible for appointing individuals that
will exercise this power either individually or collectively.
53
LDJ, supra, note 14 at 7.
54
Tierra Comunitaria de Origen (TCO) or Original Communal Land.
55
Please note that this is only an example of the process and may not be entirely accurate in terms
of Aymara laws as this hearing was held mostly in Aymar aru, their indigenous language and I
 14

Decisions are final.

Decisions of Indigenous legal systems are mandatory and final, having the character
of res judicata and everyone, including public authorities must comply with those
decisions.56 There is no appeal or judicial review to the mainstream system of
decisions made within the Indigenous legal system.57

Coordination and cooperation in the context of legal pluralism.

Indigenous authorities have the duty to coordinate their actions with the
mainstream legal system in order to achieve an effective legal environment based on
legal pluralism, particularly to reinforce social harmony, individual and collective
rights and a guaranteed access to justice individually, collectively or at the
community level.58 Coordination mechanisms defined by the LDJ include:
 A transparent access system to information;59
 A framework or other way of facilitating the dialogue about human rights
and exchanging experiences in matters of conflict resolution; 60

In terms of cooperation, all different legal systems and courts must work together
within this legal framework.61 The mainstream judicial and administrative
authorities as well as the Public Prosecutor62, the Police, the prison authorities and
any other relevant institution must cooperate forthwith with Indigenous authorities
and share information with them when requested. 63 Conversely, Indigenous
authorities must assist mainstream courts if and when required. 64

benefited from some explanation and translation in Spanish from the Mallku.
56
LDJ, supra, note 14 at 12 I and CPE, supra note 3 at 192 I.
57
LDJ, supra note 14 at 12 II.
58
Ibid, s 13 I.
59
Ibid, s 14 (a).
60
Ibid, s 14 (b) (c).
61
Ibid, s 15.
62
Ministerio Público.
63
LDJ supra note 14 at 16 II (a).
64
Ibid, s 15 II and III.
 15

Sanctions.
In Canada, it is often said that restoring harmony between the parties and in the
group as well as rehabilitation are the main focus of Aboriginal processes and that
punishment, per se, is not part of Aboriginal cultures. In Bolivia, the LDJ is not
specific on that issue but it does mention a number of sanctions that are not
acceptable. As mentioned earlier, lynching and the death penalty are prohibited 65
but a few other sanctions are also prohibited: the loss of land or the banishment of
elders or people with disabilities are also prohibited for matters of non compliance
with communal duties, charges, contributions and community work. 66 No other
limitation or restriction can be found in the legislation. From what I have been able
to learn in Bolivia, sanctions are generally in the nature of community work,
donation to community projects or charities and/or payment of fines. Given the
LDJ’s dispositions on cooperation,67 it is also likely that prison terms will be part of
the sanctions that can be imposed. Prison terms might be considered as a type of
banishment and it is also likely that banishment is part of traditional sanctions when
an individual becomes too disruptive to the community.

Final Disposition.
The act will be translated, published and communicated in the language of all
Indigenous nations of Bolivia.68

Conclusion.
Bolivia has undertaken a series of very challenging changes in terms of legal
pluralism and it will be very important to monitor the situation as it might provide
lots of answers to our own challenges. Yet, there are much more to do and the issue
of urban Indigenous people does not appear to have been addressed. The
recognition of separate legal systems will only take place on Indigenous territories

65
Ibid, s 5 V and 6.
66
Ibid, s 5 III.
67
Ibid, s 16 II (a) that includes correctional authorities.
68
Ibid, Disposición Final, Única. Perhaps limited to the 37 indigenous languages recognized in
the constitution. Supra, note 3 at 5 I.
 16

that will become autonomous or self-governing. For instance what will be the
situation in El Alto, near La Paz, a city with a population of roughly 900,000 with
approximately 85% of Indigenous ancestry? Like Canada, many Indigenous people
in Bolivia have moved to the main cities of La Paz, El Alto and Santa Cruz so that
they can find employment or even simply to take advantage of city life, particularly
post-secondary education. Since they are not indigenous territories, the new
legislation does not apply; how will their legal traditions be recognized? This is not
to say there are no alternatives in those large urban centres, quite the contrary, as
Bolivia does have a network of community justice centres but they are mainstream,
akin to what we have in Canada in our restorative or community justice programs.
 17

The restrictions on Indigenous jurisdictions and the lack of consultation of the final
version of the LDJ are also likely to become an issue. At this point, we know that
eleven communities have embraced autonomy during the last referendum 69 and
they can now establish their own legal system but we can speculate there will be
many more communities to join autonomy in the future. I suggest it will be an
exciting experience to join them and observe how they develop their own legal
systems, as it might be a lesson in self-governance for many of us.
BILBIOGRAPHY

LEGISLATION
Constitución política del Estado, Bolivia, 2009
Criminal Code of Canada, RSC 1985, c C-46
Ley de Deslinde Jurisdiccional, Bolivia, online, Centro de Documentación e Información
– Bolivia (CEDIB) <http://www.cedib.org/index.php?/alerta-legislativa-2010/ley-
sancionada-de-deslinde-jurisdiccional-fuente-www.erbol.com.bo.html>.
Proyecto de Ley de Deslinde Jurisdiccional, online, Ilustre Colegio de Abogados de La
Paz <http://www.icalp.org.bo/web/2010-07-26/proyecto-de-ley-de-deslinde-
jurisdiccional.htm>.

JURISPRUDENCE
Pechene, Francisco Gembuel v. Luis Alberto Passu, Gobernador del Cabildo Indígena de
Jambaló and Luis Alberto Finscue, Presidente de la Asociación de Cabildos de la
Zona Norte del Departamento del Cauca, Sentencia T-523/97, Corte constitucional
de Colombia, 15 October 1997.

SECONDARY MATERIAL: MONOGRAPHS

Colque, Gonzalo, Autonomías indígenas en tierras altas – Breve mapeo para la
implementación de la Autonomía Indígena Campesina (La Paz: Fundación Tierra,
2009).
69
Huacaya, Tarabuco, Mojocoya (Chuquisaca dept.), Charazani, Jesús de Machaca (La Paz
dept.), Pampa Aullagas, San Pedro de Totora, Chipaya, Salinas de Garci Mendoza (Oruro dept.),
Chayanta (Potosi dept.) and Charangua (Santa Cruz dept.).
 18

Moyles, R.G., British Law and Arctic Men – The Celebrated 1917 Murder Trials of
Sinnisiak and Uluksuk, First Inuit Tried Under White Man’s Law (Burnaby: The
Northern Justice Society, SFU, 1989).

SECONDARY MATERIAL: ARTICLES

Albó, Xavier. “¿Ley de deslinde o de subordinación jurídica?” (2010) Página Siete (17
December) online <http://www.ftierra.org/ft/index.php?
option=com_content&view=article&id=4319:iley-de-deslinde-o-de-subordinacion-
juridica&catid=98:noticias&Itemid=175>
Borrows, John. “Indigenous Legal Traditions in Canada” (2005) 19 Washington
University Journal of Law & Policy 167.

SECONDARY MATERIAL: OTHERS

Bolivia, República de – Censo de Población, online: Instituto nacional estadística de
Bolivia <http://www.ine.gob.bo/cgi-
bin/Redatam/RG4WebEngine.exe/PortalAction?
&MODE=MAIN&BASE=TallCreac&MAIN=WebServerMain.inl>.
Nuni: Ley de Deslinde que sera tratada en el Senado fue cambiada, Erbol, La Paz 13
December 2010.
Office of the United Nations High Commissioner for Human Rights, Indigenous and
Tribal Peoples Convention, 1989 (No. 169) online
<http://www2.ohchr.org/english/law/indigenous.htm>
Public Prosecution Service Canada, the Federal Prosecution Service Deskbook, chapter
14, Alternative and Extrajudicial Measures, online < http://www.ppsc-
sppc.gc.ca/eng/fps-sfp/fpd/ch14.html>.
Senado abre debate sobre la Ley de Deslinde Jurisdiccional, Cambio, La Paz 10
December 2010, online <http://www.fmbolivia.tv/2010/12/senado-abre-
debate-sobre-la-ley-de-deslinde-jurisdiccional/>
The World Factbook, online: Central Intelligence Agency
<https://www.cia.gov/library/publications/the-world-factbook/geos/bl.html#top>.
19