Remaking Indians, Remaking Citizens: Peruvian and Mexican

Perspectives on Criminal Law and National Integration

Lior Ben David, Tel Aviv University

liorben@post.tau.ac.il

bdlior@netvision.net.il

Abstract

At the end of the 20th century, recognition of indigenous peoples’ rights

in Latin American constitutions has undergone significant evolution, while

legal reforms officially “turned” some of these countries into multicultural

nations. For many scholars, this multicultural shift was particularly prominent

against a background of many years, during which the legal systems of Latin

America ignored, excluded, assimilated and repressed indigenous peoples,

portraying “The Indian” as an anomaly in a society of free end equal citizens.

This article examines the images, representations and treatment of the

Indians and “the Indian Question” in Peruvian and Mexican Criminal Law

during the first half of the 20th century. In both countries, I will argue, the

sphere of criminal justice played a significant role in remaking Indians and

redefining citizenship, as this became an important arena in which different

assimilationist and integrationist approaches towards the Indians were

confronted. In a broader context, the historical-comparative examination of the

cases in these two countries can also further our understanding of the ways

by which racial classifications within criminal law and criminological discourse

were sometimes used not only to exclude “problematic” social groups but also

to promote, to some extent, their inclusion into “the national community”.

Introduction

On May 27th 1921, José Choqque’s body was found hanging by the side of a

road that led to one of the villages in the province of Canchis, Peru. Signs of violence

were still visible on the body; his poncho, which had been used as a hanging rope,

was wrapped around his neck. Circumstantial evidence led the local authorities to the

three Espinoza brothers, with whom Choqque had quarreled a short time before he

was killed. This tragic event was not unusual; in fact, it was one of many violent

incidents that occurred in the region at that time.1 The criminal act committed by the

Espinoza brothers was not related to customs, beliefs or cultural practices that could

be considered “Indian” or “indigenous.” Nevertheless, in its verdict of September

1925, the court in Cuzco referred not only to the essence of the crime but also to the

nature of its perpetrators, who were described as “illiterate, semi-civilized Indians,

with absolutely no sense of culture.” This statement reflected not only the court’s view

of the defendants; but also the implementation of the provisions of the new Peruvian

penal code that had come into effect about a year earlier. For the Espinoza brothers,

there was a practical and positive aspect to the way the court classified them under

these legal provisions: Their classification as semi-civilized Indians enabled the court

to reduce their prison sentences significantly and for two of them, that reduction

resulted in an immediate release from jail.2

That racial categorization of the Espinoza brothers as semi-civilized Indians

and its legal outcome – their early release from prison – raises a question: Was it an

1 On the escalation of crime and violence in Canchis during that time, one can learn from a memorandum sent on December 3rd 1925 by a judge of the local court, Dr. Geronimo Pacheco, to the President of the Supreme Court in Cuzco. Archivo General de la Nación (hereinafter AGN), Archivo Histórico (hereinafter AH), Ministerio de Justicia (hereinafter MJ), Expediente N. 77-1 1926.

2 Tribunal Correccional del Cuzco, Instrucción N. 462 contra Sebastián, Laureano y Bartolomé Espinoza. AGN, AH, MJ, Penitenciaría de Lima (hereinafter PL), Testimonios de Condena (hereinafter TC), Libro N. 3.20.3.3.1.16.45, pp. 339-342.

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act of exclusion or inclusion? Their case, I think, can serve as a good starting point to

reconsider the roles played by criminal legal systems within national projects for the

assimilation or integration of indigenous peoples and to reevaluate their functions as

mechanisms for social inclusion and exclusion. These issues, of course, are relevant to

many countries that were subject to processes of colonization; countries whose

colonial legacy, including its legal component, continued to shape their socio-ethnic

relations for countless years after gaining independence.

At the end of the 20th century, recognition of indigenous peoples’ rights in

Latin American constitutions has undergone significant evolution, while legal reforms

enacted during the last few decades officially and constitutionally “turned” some of

these countries into multicultural nations.3 For many scholars, this multicultural shift

was particularly prominent against a background of many years during which the

“legal systems of Latin America ignored, excluded, assimilated and repressed

indigenous peoples.”4 According to Grote, in this pre-multicultural era, “the insistence

on assimilation often suggests that Indians could not be treated as full citizens before

they had not adopted as their own the individualistic attitudes of their mestizo

surroundings. In this perspective Indians were either to be treated as minors or

incompetents whose existence and behavior should be monitored and controlled, or as

individuals sophisticated enough to be assimilated and detribalized, and therefore not

entitled to any special protection.” “In either alternative,” he concludes, “The status as

Indian appeared as an anomaly in a society of free end equal citizens.”5

3 See for example section 4 of the Mexican Constitution (amended in 1992) that defined Mexico as “a multicultural nation based originally upon its indigenous peoples”.

4 Gonzalo Aguilar, Sandra Lafosse, Hugo Rojas & Rebecca Steward, “South/North Exchange of 2009 - The Constitutional Recognition of Indigenous Peoples in Latin America”, Pace Int’l L. Rev. Online Companion, Sept. 2010, p. 44.

5 Rainer Grote, “The Status and Rights of Indigenous Peoples in Latin America”, 59 HEIDELBERG J. INT’L L. 497 (1999), p. 506.

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This paper examines the images, representation and treatment of the Indians

and “the Indian Question” in both Peruvian and Mexican criminal law during the first

half of the 20th century. At that time, Peru and Mexico, two major former centers of

pre-Columbian civilizations and Spanish colonial domination in Latin America, were

also countries in which the indigenous past and present have played an important role

in constructing “the national community.” In the second decade of the 20th century

the “Indian question” rose to unprecedented saliency in the public and political

agendas of both countries. In Peru, the Southern provinces of the Andes experienced

increasing social unrest, which took the form of violent clashes between Indian

peasants and local landowners that were often described as Indian revolts. Mexico

during that period was even more tumultuous: 1910 saw the eruption of the Mexican

Revolution with many Indians demanding “land and liberty” (tierra y libertad). The

“Indigenismo,” in its promise to protect the Indians and to effect their integration

within the modern Nation State, was quickly incorporated into the official ideology of

various political regimes that took power in both countries.

The Indigenismo, it is to be stressed, was neither a consolidated ideological

movement nor a unified political party. Its flag-bearers, the Indigenistas, were Creole

or mestizo intellectuals aspiring to resolve the “Indian question,” drawing upon a

belief that the key to a national future, to progress and modernization, lay in

assimilation or integration of the Indians. While assimilation of the Indians on a

national scale was hardly a novel idea, Indigenist discourse during the period in

question sharpened the distinction between “integration”, as an idea of mutual

convergence, and “assimilation”, as a unidirectional process wherein to become a

modern Peruvian or Mexican one must cease to be “Indian”. The novelty, moreover,

introduced by the Indigenismo was manifest not only in discourse but also in a range

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of practices and projects in which, contrary to prior undertakings, efforts were made

to realize theoretical approaches towards integration and assimilation. In both states

the influence of the Indigenismo was far-reaching, as evident in a wide scope of areas

such as politics, education, agrarian policy, art, literature, archeology, and more. In

the fields of criminology and anthropology, for example, new positivist conceptions –

frequently paired with well-established racial and cultural observations – served the

Indigenistas to investigate and analyze the problem of “Indian criminality” within the

more comprehensive discourse on the position of the Indians within the nation, and

the nation’s identity in general. In addition to the Indigenist discourse, Peru and

Mexico also had a lot in common in the legal sphere. Peruvian and Mexican jurists,

influenced by the positivist school of thought, adopted the view of criminal law as a

means of social defense – an idea given expression in their penal codes of the 1920s

and 1930s. Furthermore, in accordance with the zeitgeist which Duncan Kennedy

characterized as the “social era” of law,6 Peru and Mexico (as well as other countries)

saw the law as a tool for social engineering, a way to correct society’s deficiencies,

improve the conditions of certain social groups and above all, as one of the means to

obtain national integration.

This said, despite all the similarities between these two states, within the legal

arena Peru and Mexico endorsed radically differing approaches to the question of

whether or not to grant explicit legislative recognition to what was often perceived

and described as social, cultural or racial differences between the Indians and other

constituents of the population. Peruvian legislators of the time – employing an

Indigenist stance and manifesting a sense of continuity and identification with their

colonial past (or at least parts of that past) – were willing to adopt special tutelary

6 Duncan Kennedy, “Two Globalizations of Law and Legal Thought: 1850-1968,” Suffolk University Law Review, Vol. XXXVI, Num. 3, 2003, 631-679, p. 633.

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legislation for the Indians. Their Mexican counterparts, on the other hand – imbued

with the liberal-republican tenets bequeathed by the mid-nineteenth century alongside

the sense of resurrection instilled by the Mexican Revolution – stood by the

unyielding principle of equality before the law. The discrepancy marking the attitudes

of these states was also clearly apparent in their criminal legislation. While the

Peruvian criminal code of 1924 accorded special penal treatment to Indian criminals,

who were classified in this code into different ethno-legal categories, the Mexican

criminal codes of that époque tended to avoid any specific or explicit reference to the

Indian populations and reflected thus a different perception of their social realty, in

which all Mexicans were considered as equal citizens under the law.

In a way, these different legislative attitudes of the Peruvian and Mexican

criminal codes towards the Indians represent the two alternatives or polarities of the

“assimilationist approach” in Grote’s argument: The treatment of Indians as quasi-

legal minors (Peru) and the avoidance of any special protective treatment (Mexico).

However, as I will argue in this paper, during the heyday of the Peruvian and Mexican

indigenismo, the sphere of criminal justice played even a more significant role in

remaking Indians and redefining citizenship, as it became an important arena in which

different assimilationist and integrationist approaches towards the Indian populations

were confronted. The field of criminal law was used by Peruvian and Mexican jurists,

prosecutors, criminologists and anthropologists not only to question the anomaly of

the Indians and their legal status but sometimes also to reexamine the anomaly of the

social order in these countries and to redefine the identity of their nations. Moreover,

in a broader context which goes well beyond the Peruvian and Mexican perspectives,

the examination of these two cases can also further our understanding of the ways that

racial classifications within criminal law and criminological discourse were

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sometimes used not only to exclude “problematic” social groups but also to promote,

at least to some extent, their inclusion into “the national community”.

Peru: Inclusion through Racial Classification?

In 1924, the Peruvian Congress introduced a new Penal Code, which replaced

the previous one from 1862. Its enactment, together with the Constitution and the

Code of Criminal Procedure legislated four years earlier, reflected the desire of the

regime to reform and modernize the Peruvian legal system, as part of its vision and

effort to modernize and develop the Peruvian state. This spirit of progress and

modernization was manifested in new concepts and scientific innovations in the fields

of penology and positivist criminology that were included in the provisions of the new

Penal Code.7 One of its clear and important innovations was the treatment it accorded

to a special “category” of criminals: Indians who were classified as “semi-civilized”

or “degraded by servitude and alcoholism”. According to article 45 of this code, when

a criminal act (any criminal act!) was committed by an Indian in this category, the

Peruvian judges were required to consider his “mental development”, his “cultural

level” and customs, and then to punish him “prudently”, as an offender with limited

responsibility. The meaning of this was a legal option to reduce his punishment

significantly. In addition, when dealing with this category of Indian-criminals, article

45 also authorized the courts to substitute punishments of penitentiary and prison for

“security measures” (medidas de seguridad) such as sentencing the accused to an

agricultural penal colony or a school for arts and crafts.

7 The innovations of this penal code included, inter alia, the abolition of capital punishment; the introduction of indeterminate and suspended sentences; the foundation of a criminological institute within the Penitentiary of Lima and the introduction of other new methods concerning the tutelary regime for minors.

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Hence, in 1924 the Indian population of Peru was formally and explicitly

introduced into the national penal code of the republic, bringing an end to 100 years

of supposed equality before the law. Obviously, the idea that the law should

distinguish between Indian criminals and other people who committed the same

criminal acts was not completely new in this part of the world. In fact, a similar

perception characterized the Spanish-colonial legislation. The colonial law, which

was part of the Recopilación de Leyes de los Reinos de las Indias, clearly stated that

“being part of the Indian race” should be considered as a mitigating circumstance if

the Indian was the perpetrator of the crime, and as an aggravating circumstance if the

Indian was its victim.8

The Peruvian liberal legislators of the 19th century rejected this colonial legacy

and emphasized the idea that all citizens were equal before the law. It is not

surprising, therefore, that in the first Peruvian penal code of 1862 we find no

reference to the Indian population of the country. However, the exclusion of the

Indians from that penal code was not just an expression of the liberal notion of

equality before the law. It was also the result of the blindness of Peruvians elites, who

turned the Indians into invisible human beings. The code of 1862 was merely based

on an adaptation of the Spanish penal code from 1848.9 For José Simeón Tejada, one

of the formulators of that code, it was only natural that the Spanish code would serve

as a guide and a model for the Peruvians, whose customs, according to Tejada, were

formed by “the eternal molds of the laws and the language of Castile”.10 Thus, in the

eyes of those who drafted that code, all Peruvians were equal before the law, but the

term Peruvians referred mainly to the descendants of the Spanish conquerors, or at

8 Julio Altmann Smythe, Reseña histórica de la evolución del derecho penal. Lima: Sanmartí y companía, 1944, p. 203.

9 José Hurtado Pozo. La ley ‘importada’: Recepción del derecho penal en el Perú. Lima: CEDYS, 1979, p. 43.

10 Ibid., pp. 42-43.

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least to those who adopted the Spanish customs, laws and language. The lack of any

reference to the Indian populations in the first penal code of independent Peru was the

result of ignoring their very existence.

In 1924, when the new penal code was enacted, the Indians could no longer be

ignored by Peruvian legislators. Since the second decade of the 20 th century, the

violent conflicts between Indian peasants and land-owners in the southern districts of

the Andean range, which were often described as “Indian insurgencies”, contributed

to raising the “Indian Question” to the top of the public agenda and also to

strengthening and reaffirming its association with the issue of criminality. The echoes

of the Mexican Revolution (and few years later also those of the Bolshevik

Revolution) further contributed to the tense atmosphere in the region.11 Moreover, the

tension and violent conflicts in the south-eastern provinces also strengthened the

demand that the Indians would be protected by the state. In many aspects, the new

status of Indian criminals in the Peruvian criminal code of 1924 was indeed part of a

wider legal project which was meant to protect the Indians throughout “tutelary

legislation”.

Tutelary Legislation and Criminological Discourse

Protection of the Indian was among the oft-reiterated objectives of the “New

Fatherland” regime, which adopted the Indigenismo as part of its official ideology and

integrationist project. One of the ways President Leguía sought to establish his image

as “protector of the Indian race” was through legislation, and during his presidency an

11 According to Leibner, for Peruvian anarchists the Mexican revolution served as a model and a non-European source of inspiration that was first in its kind. See: Gerardo Leibner, “La Protesta y la andinización del anarquismo en el Perú, 1912-1915”, Estudios Interdisciplinarios de América Latina y el Caribe (E.I.A.L) 5:1, enero-junio 1994, 83-102, p. 99. Voices calling for “a social revolution like the one in Mexico” were also heard in Cuzco of the mid-1920s. See: Yazmín López Lenci. El Cusco, paqarina moderna. Cartografía de una modernidad e identidades en los Andes peruanos (1900-1935), Lima: Fondo Editorial de la UNMSM, 2004, p. 278.

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abundance of “tutelary laws” for the Indians was proposed. This idea was also

expressed in the Peruvian constitution of 1920, which declared that “the state will

protect the Indian race and will dictate special laws for its development and culture in

harmony with its necessities.”12

The campaign of the indigenistas for the protection of the Indians by means of

special tutelary legislation was largely based on two interrelated types of arguments:

The first type of argument presented the Indian as a victim of a long chain of abuses,

exploitations and acts of violence and repression, in the past and mainly in the

present. The second type of argumentation focused on constructing the image of the

Indian as a powerless, incapable person, unable to defend his citizenship rights by

himself due to his miserable social situation and moral condition. The Indians’

condition was often presented as equivalent to that of minors, persons without legal

capacity and even missing persons. The members of the Asociación Pro-Indígena

wrote already in 1915 that “the personality of the Indian almost does not exist”.

Therefore they recommended that the State would treat him as a person in a condition

of a minor and protect him efficiently until his civil rights are restored.13 In his essay

“A Contribution to an Indian Tutelary Legislation”, published in 1918, José Antonio

Encinas, one of the more prominent and influential indigenistas in the early 1920s,

explained that in order to integrate the Indians into national life there was a need to

provide them with special laws that would protect them, which would take into

account the situation of inequality in which they were living and that would enable

them to fully exercise their rights. Encinas rejected the claims against dualistic

legislation. “Today”, he argued in 1918, “the law tends to diversity. The new codes

12 Section 58 of the Peruvian Constitution of 1920.13 Joaquín Capelo, “Espinas y Abrojos”. In El Deber Pro-Indígena, Año III. № 36, Lima, septiembre

de 1915, p. 161; cited by Wilfredo Kapsoli, El Pensamiento de la Asociación Pro Indígena. Cusco: Centro Las Casas, 1980, p. 25.

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are more interested in the social factor than in the individual one, precisely because

the civilization created a deep social inequality that the state must eradicate.”14

The idea of “tutelary legislation” for the Indians was clearly manifested in the

Peruvian criminal code of 1924. Article 225 of this code set a special punishment for

those who put Indians in a situation equivalent or similar to servitude, abusing their

ignorance and their moral weakness. Leguía y Martínez, the president’s cousin and

prime minister in the early years of his government, explained the rationale behind

that provision: On the one hand, he pointed to the landlords of the Andean mountain

range and the other “exploiters of the Indian race”, who treated the Indians as slaves

by acts of abuse that became so scandalous and intolerable to justify a special

legislative protection for the Indians. On the other hand, another justification for this

special legislation was to be found, according to his explanation, in the alleged

ignorance and moral weakness of the Indian that made him vulnerable and incapable

of defending his own rights.15 As we have already seen, article 45 of the penal code,

which referred to Indian criminals, also expressed the idea that the Indians should be

protected (as long as they were classified as semi-civilized or degraded by alcoholism

and servitude) – both in its unusual demand to judge and punish them “prudently” and

even more practically, in enabling a considerable diminution of their punishment.

However, the idea of “tutelary legislation” was not the only underpinning of

the special treatment accorded to Indian criminals in the penal code of Peru. Another

important factor was the emergence of what Deborah Poole called “the indigenista

criminology” – a discourse that focused on the characteristics of the Indian offender

and the causes for his criminality.16 This discourse was, to a large extent, a

14 José Antonio Encinas, Contribución a una Legislación Tutelar Indígena, Lima: 1918, p. 12.15 Germán Leguía y Martínez, Diccionario de la legislación criminal del Perú, Lima: Librería e

Imprenta Gil, 1931, p. 473. 16 Deborah A. Poole, “Ciencia, peligrosidad y represión en la criminología indigenista peruana”. In

Carlos Aguirre y Charles Walker, eds., Bandoleros, abigeos, y montoneros. Criminalidad y violencia

10

consequence of the encounter between European positivism (and better yet, positivist

criminology) and the Peruvian Indigenismo. A good example of this encounter is also

provided by Encinas, in his research from 1919, “Causes of the Indian Criminality in

Peru: An Essay of Experimental Psychology”. As an Indigenista, Encinas severely

criticized the ills of the Peruvian social order and singled out many of them as the

main causes for Indian criminality. According to his view, social inequality, economic

exploitation, the system of latifundios, the lack of salary, poverty, expulsion from

lands and the consumption of alcohol and coca were among the most evident factors

that drove the Indian to break the law. Nevertheless, for him, these factors were not

the entire explanation. As a “criminologist”, Encinas also sought the “causes for the

Indian criminality” in the mental structure of the Indian, in his psychology. He found

these causes by conducting experiments and interviews with Indian prisoners in

various Peruvian prisons.17

At that époque and throughout the following years, the issue of “Indian

criminality” continued to capture the attention of jurists, criminologists and other

intellectuals in Peru such as José Frisancho, Anfiloquio Valdelomar, Susana Solano

and Víctor Pilares Polo. Whether their explanations for this “phenomenon” were

based on environmental, social, economic, cultural, psychological or even biological

factors, they usually portrayed and constructed the image of “the Indian criminal” as a

distinctive “type” that deserved separate and special forms of treatment. This

criminological discourse was also manifested in the aforementioned demand of the

penal code to consider the question of whether the perpetrator of a certain crime was a

“semi-civilized” Indian or an Indian “degraded by servitude and alcoholism” and to

en el Perú, siglos XVIII-XX; pp. 335-376. Lima: Instituto de Apoyo Agrario, 1990.17 José Antonio Encinas, Causas de la criminalidad indígena en el Perú. Ensayo de psicología

experimental. Lima: Universidad de San Marcos, 1919.

11

pay attention to his mental development, cultural level and customs. Furthermore, also

characteristic of this discourse was the fact that major emphasis was often put on

restricting the responsibility and diminishing the culpability of the Andean-Indian

criminal, who was frequently presented as blameless for his “criminal condition” and

as a person whose criminal actions were a result of circumstances beyond his control.

This idea was in line with the broader Indigenista argument, according to which the

Indians in general could no longer be blamed for the problems and illnesses of the

Peruvian nation.

Criminals and Citizens

The linkage between the discourse of tutelary legislation for the Indians and

the rise of the “indigenista criminology” should turn our attention to another

important theme, which is the relation between perceptions of “citizenship” and

“criminality”. In a different context, Robert Buffington referred to “the opposition of

criminal and citizen” as “the fundamental dichotomy within modern Mexican

society”.18 Of course, not only in Mexico but also in many other places, the

criminalization of certain socio-political conflicts, the turning of certain groups or

individuals from citizens struggling for their rights into “criminals”, and specifically

in the case of indigenous people – the negation of their capability of being political

subjects – all of these methods served as mechanisms for the construction of that

dichotomy between criminals and citizens.19

18 Robert M. Buffington, Criminal and Citizen in Modern Mexico, Lincoln and London: 2000, p. 4.19 In 19th-century Mexico, for example, during the Porfiriato, Indians who reacted against their

dispossession of their lands were often described in the Mexican press as criminals. See: T. Rojas Rabiela (Coordinadora), El indio en la prensa nacional mexicana del siglo XIX: catálogo de noticias. México D. F.: SEP, 1987, p. III. For the “transformation” of Indians from political subjects to irrational and uncivilized criminals in 19th-century Bolivia, see: Marta Irurozqui, “Ciudadanos armados o traidores a la patria? Participación indígena en las revoluciones bolivianas de 1870 y 1899”, Iconos, Revista de Ciencias Sociales, no. 26, Septiembre 2006, pp. 35-46.

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However, the Peruvian case is especially interesting for its construction of the

image of “the Indian” as neither a “fully capable citizen” nor just an “ordinary

criminal”. In this respect, we should first pay attention to the historical context in

which indigenista discourse on the need to defend the Indians emerged. While the

idea of “tutelary legislation” was based on the construction of the image of the Indian

as “defenseless”, at the same time the violent conflicts between Indians, landowners

and some local authorities in the Andes presented a different picture – a picture of

Indians who actually did defend themselves and protected their own rights. That was

the problem for the regime in Lima, as well as for large sectors of the Peruvian elites:

the fear that the Indians might use violence and even weapons in order to do that was

intolerable. The detention of Pedro Zulen in 1919, after encouraging the Indians in

Marco to join the army in order to learn how to use weapons not only to defend the

fatherland but also to defend their rights is a good illustration of this dilemma.20

Hence, the Indians were usually not portrayed as political subjects who were

legitimately defending their rights as citizens; on the contrary, their use of violence

was quite often described not only in terms of “insurgencies” but also in terms of

“criminality”.

The above-mentioned text of Encinas, “Causes of the Indian Criminality in

Peru” is a good illustration of this phenomenon, since it clearly related the violent

social and political conflicts in the Andes to the “problem” of “Indian criminality”. In

this respect, he wrote: “The spirit of the [Indian] race has suffered profound

imbalances so that the passions, the most violent ones, would have a determining

influence. We simply have to look for the evolution of the spirit of the Indian – from

the time of the despotic regime of the Incas until his total abandonment in the hands

20 Gerardo Leibner, The “New Indians”: The Emergence of Mass Politics in Peru, 1895-1932 . Tel Aviv: Ramot Publishing, Tel Aviv University, 2003 (in Hebrew), p. 172.

13

of his exploiters – in order to think of his passionate process that keeps showing up,

marking that alarming percentage of criminality.”21

In some criminal cases from this period, which emerged from certain socio-

political conflicts between Indian communities and local landowners, we can also find

this “transformation” of Indians from political subjects to “criminals”. However, as

“criminals” those Indians were also considered to be deserving of special tutelary

treatment and mitigating punishment. In other words, the negation of their capability

of being “fully citizens”, of acting as political subjects – for being “semi-civilized” –

was also essential to the justification of a more benign penal treatment that would take

into account their “peculiar circumstances”. Such, for example, was the case of Lewis

Yabar from Marcapata, in the province of Quispicanchi, who was murdered by a

group of Indians. According to the penal code, the perpetrators of this crime could

expect at least a six-year prison sentence, but in 1925 the criminal court in Cuzco

condemned the Indians to only 4 years in prison, implementing article 45 of that code.

In rationalizing this sentence the court considered the social conditions of these

Indians who had been abused and exploited by Yabar and their other neighbors.

However, the court also took into account the “moral conditions” of the defendants

who were described as “Indians with absolutely no education or culture, semi-

civilized, lacking mental development and with semi-savage habits”. Furthermore, the

Indians who were convicted in the murder of Yabar were also described by the court

as people who acted spontaneously and impulsively, out of furious rage and an almost

uncontrolled urge for revenge.22 However, a reading between the lines of this sentence

reveals quite a different picture: Yabar and his companions, who acted under the

authority of the local governor, tried violently to prevent the Indians of that

21 José Antonio Encinas, Causas de la Criminalidad Indígena en el Perú, p. 2822 Tribunal Correccional del Cuzco, Instrucción N. 988 Año 1922 seguida contra Mariano Mamaní

Rodriguez y otros. AGN, AH, MJ, PL, TC, Libro N. 3.20.3.3.1.16.44, pp. 376-380(v).

14

community from sending their representatives to Lima in order to complain against

their exploiters. In response, a group of Indians that was quite organized kidnapped

Yabar and his companions and held them as prisoners for two days, transferring them

from one place to another, before they finally decided to kill Yabar and to release the

two other prisoners. The presentations of these Indians as irrational and impulsive

criminals, acting out of furious revenge, was in line with the construction of their

image as uncivilized human beings with semi-savage customs who lacked proper

education and mental development. This representation of their image enabled the

court to reduce their punishment significantly, but it also had a price: The

criminalization of these Indians and the blurring of the socio-political dimensions of

that event by negating the rationality of its perpetrators.23

However, it is important to stress that the provisions of article 45 in the

Peruvian criminal code did not refer only to situations of that kind or specifically to

crimes perpetrated by “Indians” against “non-Indians”. The question whether an

“Indian criminal” deserved a mitigating punishment was dependent not so much on

the sort of crime and the situation in which it was committed, but to a much greater

extent on his classification as “semi-civilized Indian”. This notion was obviously

related to what is known as the Aristotelian concept of citizenship, a principle that

referred to citizenship in terms of fitness and capability. This principle, as Deborah

Yashar indicated, has been widely applied in the twentieth century to exclude groups

deemed unfit to assume the rights and responsibilities of citizenship; and in Latin

America, it has been used at different times to deny citizenship (or at least certain

23 Another case with quite similar characteristics occurred at that time in the neighboring province of Chumbivilcas, in which Carlos Vidal Berveño, a local landowner, was murdered by a politically organized group of Indians. Marisol de la Cadena describes how in the course of their trial the Indian defendants were presented as furious and irrational and in this way the political dimension of the events was blurred. See: Marisol de la Cadena, Indigenous Mestizos: The Politics of Race and Culture in Cuzco, Peru, 1919-1991, Durham and London: 2000, pp. 111-118.

15

citizenship rights) to women, Indians and Blacks.24 In the Peruvian sphere of criminal

justice, we can see a close connection between this concept of citizenship and the

treatment accorded to “Indian criminals”. One of the basic ideas that stood behind the

provisions of article 45 of the penal code was that if Indians were situated in

conditions of unfitness – the legal system could not continue treating them as fully

responsible citizens when they broke the law and therefore it might not impose on

them the same punishments that it imposed on “ordinary criminals”.

The idea that classification as a “semi-civilized Indian” could serve as a kind

of guarantee for reduced penalty was also well internalized by some of the Indians

who faced criminal charges. Polonia Amao, for example, who was detained at the

prison of Urubamba for injuring her brother, provides us with a good illustration.

When she addressed the magistrate pleading her release from detention she claimed

that the punishment that might be imposed upon her could never be more than one

year (in prison), “since I, as an Indian, lacking education (carente de cultura) have

limited responsibility, in accordance with article 45 of the Penal Code”.25 Thus,

Polonia Amao addressed the court not as a citizen who asked to be treated equally, but

as a “semi-civilized” Indian who reminded the court of the special “privileges” that

arose from her condition as an “unfit citizen”.

Yet, the combination of indigenismo with criminal law produced an additional

argument that referred to the concept of citizenship from another point of view – from

a perspective that took into account not (only) the responsibilities of the individual

citizen but rather the duties and obligations of the society and the state towards him.

In his report from 1923 about “the Indian criminality” in Puno, Anfiloquio

24 Deborah J. Yashar, Contesting Citizenship in Latin America: The Rise of Indigenous Movements and the Postliberal Challenge. New York: Cambridge University Press, 2005. pp. 35-36.

25 Causa Criminal N. 252/1935, Corte Superior de Justicia Penal - Prov. Año: 1933-34, Archivo Regional de Cuzco. A similar argument was also raised in: Causa Criminal N. 82/1925, Archivo Central de la Corte Superior de Justicia del Cuzco.

16

Valdelomar from the Supreme Court of Puno and Madre de Dios expressed very

clearly his opinion about the responsibility of the Peruvian society at large for the

problem of “Indian criminality”: “[...] in societies like ours”, he wrote, “ in which the

individual, since his birth, is left to his own devices, and moreover, is pushed into

crime, encouraged by alcoholism and deprived of work and education […] in societies

like ours, of a total disorganization, in which the society goes against the individual,

the punishment should be lessened, by reducing part of the penalty in accordance with

the responsibility of society itself.”26 This demand was in line with a much broader

indigenista discourse that accused the state of abandoning the Indian in the hands of

his exploiters; of depriving him of education and justice; and in general, of being

responsible for his miserable condition. This situation, according to Valdelomar, also

should have had some clear legal consequences in the field of criminal justice. Thus,

the Andean-Indian criminal, who was classified as “semi-civilized or degraded by

alcoholism and servitude”, was considered as “semi-responsible” for his actions not

just because of his alleged incapability “to assume the rights and responsibilities of

citizenship” but also because of the responsibility of the state itself and the society at

large for his “miserable condition” and consequently for his criminal acts.

The legal status of “semi-civilized” Indian criminals in the Peruvian penal

code differed not only from that of “ordinary” or “civilized” offenders but also from

the status of another ethno-legal category of criminals – those who were classified

under section 44 of that code as “savages”. If “semi-civilized” Indians were

considered as not fully capable citizens; the “savages” – the indigenous inhabitants of

the jungle area – were perceived as the complete opposite of “civilized citizens”, as

human beings who lived totally outside the political and legal community of the state,

26 Anfiloquio Valdelomar, La criminalidad indígena en el departamento de Puno. Estadística judicial criminal. Puno: Tip. Fournier, 1923, p. 4.

17

completely unaware of the world around them. Where offenses were committed by

those “savages”, section 44 of the penal code required the judge to consider their

“special condition” and then enabled him to replace sentences for imprisonment by

assignment to a penal agricultural colony for an unspecified period of up to 20 years,

irrespective of the maximum duration of the sentence that the offense would entail if

it had been committed by a “civilized man”. Indeed, upon the completion of two-

thirds of that sentence the “savage” Indian offender could gain his conditional release,

but that depended on his assimilation into “civilized life” and his adaptation into “the

legal framework of the country”.27

Thus, by these legal provisions the Peruvian criminal code accorded different

treatments to different “kinds” and “categories” of citizens, according to their “grade

of civilization”. As Hurtado Pozo argued, the Peruvian legislator had adopted an

assimilationist vision according to which the criminal law was meant to serve as a tool

for the assimilation into “civilization” of those savage groups who were living outside

of it.28 The image of Peru, as reflected by its criminal code, was an image of a well-

divided society, composed of civilized, uncivilized and semi-civilized human beings.

This was of course an ethnocentric view that placed the “civilized man”, or in other

words the western human being, at the top of the evolutionary ladder and the

“primitive” or “savage” man at its bottom.29 In the middle was located the semi-

civilized Indian who represented in fact the majority of the Peruvian population. In

27 Article 44 in the Peruvian penal code of 1924 stated:“Tratándose de delitos perpetrados por salvajes, los jueces tendrán en cuenta su condición especial, y podrán sustituir las penas de penitenciaría y de prisión por la colocación en una colonia penal agrícola, por tiempo indeterminado que no excederá de veinte años. Cumplidos dos tercios del tiempo que según la ley correspondería al delito si hubiere sido cometido por un hombre civilizado, podrá el delincuente obtener libertad condicional si su asimilación a la vida civilizada y su moralidad lo hacen apto para conducirse. En caso contrario, continuará en la colonia hasta que se halle en esta situación o hasta el vencimiento de los veinte años. Un reglamento del poder ejecutivo determinará las condiciones de vida de los salvajes colocados en colonia penal, que serán organizados en el propósito de adaptarlos en el menor tiempo posible al medio jurídico del país.”

28 Hurtado Pozo, La ley ‘importada’: Recepción del derecho penal en el Perú, p. 70.29 Ballón Aguirre, Etnia y Represión Penal, pp. 72-73.

18

accordance with this hierarchical and racial-cultural perception, different categories of

Indians required different penal treatments, considering their location on the

evolutionary scale. However, it was not just about evolution and assimilation. From

the comparison of sections 44 and 45 of the criminal code, it is clear that the Peruvian

legislator refrained from according the “savage” the same benign and protective

treatment that it gave to the Indian classified as “semi-civilized or degraded by

servitude and alcoholism”. The judges were not required to treat the “savages”

prudently or to consider their customs (only their “special condition”). More

important, they did not have the simple option just to mitigate their punishment

without any use of alternative “security measures” such as penal agricultural colonies

(which in reality were not even established30) as in the case of the semi-civilized.

In my view, the main explanation for this gap between the treatments of these

two categories of “Indian criminals” is to be found in the socio-political arena. The

“savages” were considered to be not only a social group living on the outskirts of the

Peruvian society and the modern world, but rather as a social group who were located

at the margins of “the Indian problem” and indigenista discourse. Demographically,

the “savages” or the Indians of the Amazon basin were a relatively small “group”

compared to the other indigenous populations in Peru; they were considered as people

totally living outside the economic system of the country; from a cultural point of

view they were not related to the glorious ancient civilizations that became part of the

national pantheon; and politically, they were not part of “the Indian revolts” that drew

the attention of the Peruvian elites to the social order in the Andes and to the need for

a solution to “the Indian problem”. Therefore, it is not surprising that for the leaders

of the Asociación Pro Indígena, the main governmental efforts to protect the Indians were to

30 On the gap between the prison establishments in the Penal Code of 1924 and those who were actually constructed in Peru in the following years, see for example Marino Lahura Olivo, Derecho Penitenciario y Ejecución Penal en el Perú, Lima: Imprenta “La Cotera”, 1942, p. 20.

19

be devoted to the support of the Andean-Indians “who were not savages”, but were living “at

the heart of Peru”, allegedly protected by the laws but in reality subjected to expulsion and

exploitation.31 Article 45 of the Criminal Code was meant not only to assimilate and “civilize”

those Indians when they violated the social order, but also, at least to some extent, to protect

them, as victims of the same order.

The internal ethno-social boundaries of the national community were drawn in

the sphere of criminal justice not only by those who drafted and approved the

Peruvian Penal Code but also by the courts that had to implement it and to determine,

inter alia, who was a “semi-civilized Indian”. In many cases the Peruvian courts did

not take this question very seriously. Usually they took almost for granted that the

accused would be classified into this category, as a fact which did not require any

further explanation, except to indicate that the accused was “an analphabet Indian”, of

a “low cultural level” or even “without any notion of culture”, as in the case of the

Espinoza brothers. Nevertheless, in some cases the mere classification of the accused

as a “semi-civilized” Indian was in dispute. For example, in the late 1930s, a man who

had been charged with raping a teenager and stealing her money was sentenced by the

Criminal Court in Cuzco to only one year in prison. The prosecutor had demanded for

the defendant three years of imprisonment but the Court rejected his demand,

considering the fact that the accused was an Indian who should be judged according to

article 45 of the Penal Code. The Supreme Court in Lima overruled that decision,

indicating that the defendant, although being an Indian, was a shoemaker who knew

how to read and write, and therefore could not be considered a “semi-civilized

Indian”.32

31 Frederica Barclay Rey de Castro, “La Asociación Pro Indígena y las atrocidades del Putumayo. Una misión auto restringida”, Boletín Americanista, Año LX.1, n. 60, Barcelona, 2010, 143-163, pp. 160-161.

32 Cuaderno No. 524 - Año 1938, Anales Judiciales, 1938, pp. 55-58.

20

In another case from that period, the Criminal Court of Arequipa sentenced

three individuals who had been convicted for robbery to 18 months imprisonment,

taking into account their condition as “semi-civilized Indians”. However, the

prosecutor of the Supreme Court in Lima convinced the judges that this classification

was wrong. According to him, “the inhabitants of the Province of Arequipa cannot be

considered as ‘semi-civilized’ merely for not knowing Spanish and being illiterate.

The legal concept of the ‘semi-civilized’ is that of a man who lives a primitive life,

outside of any center of culture, who is ruled by the moral principles whose retarded

and ignorant intelligence imposes on him”. “Uneducated as the Indians of Arequipa

may be”, he concluded, “They do not ignore the significance of acts like the one on

trial”.33 These and other cases demonstrate, inter alia, how the ethno-judicial

classifications could vary between the capital and the provinces, depending on the

perspectives taken by different judges and prosecutors who contributed to the

delineation, blurring, and refashioning of ethnic, social and cultural demarcations

within the national community. As will now be illustrated, although living under a

different criminal legislation, Mexican jurists and other indigenistas have made a

quite similar contribution to reshaping the image of their own national identity.

33 Cuaderno N. 2022 - Año 1942, Revista de los Tribunales, 1943, p. 28.

21

Mexico: Criminal law in the Service of a National Melting Pot?

In Mexico at that time the “Indian question” was at the heart of the “problem”

of social heterogeneity, a problem that was perceived as perhaps the most serious

obstacle on the way to progress and modernization, to the formation of a unified

nation and to the construction of a “true Mexican nationality”.34 According to the

national census of 1921, the Mexican population was 14 million; of which

approximately 1.5 million were classified as “whites” or “creoles”; 4 million as

“Indians”; and 8.5 million as “mestizos”.35 However, it is crucial to understand that in

Mexico, as elsewhere in Latin America, this ethnic division has been frequently based

mainly on socio-cultural criteria such as language, literacy, codes of dress, customs

and so on, so that the border-lines between the above-mentioned definitions –

especially those between “Indians” and mestizos – were usually flexible and quite

blurred. Hence, in the eyes of large parts of the elites, the percentage of Indians in

Mexico was higher and sometimes they were even described as the most prominent

ethnic group in the national population.36

However, far beyond that numeral-demographic data, “the Indian problem”

was perceived by Mexican intellectuals as a major national problem because it

34 On the indigenistas and their perception of the racial, cultural and social heterogeneity as the main problem of Mexico, see for example: Aguirre Beltrán y Pozas Arciniega, La política indigenista en México. Métodos y resultados. Tomo II, p. 12. See as well the claim of the jurist and sociologist indigenista Lucio Mendieta y Núñez, according to which “all our social ills derive from the ethno-cultural heterogeneity of the Mexican population.” Lucio Mendieta y Núñez, “El Problema Indígena de México y la Exposición Etnográfica de la Universidad”, Revista Mexicana de Sociología, Año VIII, Vol. VIII, Núm. 3, septiembre-diciembre 1946, p. 313.

35 Laura Giraudo, Anular las distancias. Los gobiernos posrevolucionarios en México y la transformación cultural de indios y campesinos. Madrid: Centro de Estudios Políticos y Constitucionales, 2008, pp. 15-16.

36 According to Moisés Sáenz, for example, who in 1924 became the vice-minister of education, most of the Mexicans were in fact mestizos “with strong proportion of Indian blood”. See: Moisés Sáenz, “Integrating Mexico through Education”, in Moisés Sáenz and Herbert I. Priestly. Some Mexican problems [Lectures on the Harris Foundation 1926], Chicago, Illinois: The University of Chicago Press, 1926, p. 55. Others, like the economist and historian Daniel Cosío Villegas, simply argued at that time that most of the Mexicans were Indians. See: Daniel Cosió Villegas. Sociología Mexicana III. Población y Educación. México, D. F.: Editorial “Jurista”, 1925, pp. 7-8.

22

represented the supposedly “enormous gap” between the different populations of

Mexico – the one that was described as rural and backward and the other that was

considered to be urban, modern and civilized.37 Already in the mid-1920s, one of the

first projects of the Ministry of Education (Secretaría de Educación Pública [SEP])

was the establishment of a special school for Indians in the Mexican capital, La Casa

del Estudiante Indígena, whose objective was to abolish “the evolutionary distance

that separates the Indians from the present epoch, transforming their mentality,

tendencies and customs, in order to adapt them to modern civilized life and to

integrate them into the Mexican social community”.38 As Giraudo indicates, within

the construction of a new nationality in post-revolutionary Mexico, alongside this

conception of evolutionist anthropology, there existed another anthropological

perception that emphasized historical particularism rather than evolutionary

distances.39 Nevertheless, for the post-revolutionary regime as well as for many

intellectuals of that époque, the “distances” between modern Mexico and its Indians

were a major national problem to be confronted by diverse projects of social

engineering. The indigenistas, in their multiple anthropological, ethnological and

sociological investigations, used all kinds of scientific methods not only to measure

and characterize those distances but more important, to put forward what they

perceived as the adequate solutions for the incorporation of the Indians within the

nation and the new post-revolutionary state.

37 Giraudo, Anular las distancias, p. 19.38 La Casa del Estudiante Indígena. 16 meses de labor en un experimento psicológico colectivo

con indios. Febrero de 1926-Junio de 1927. México: Talleres Gráficos de la Nación, 1927, p. 35. On this educational project see for example: Alexander Dawson, “Wild Indian, Mexican Gentlemen and the Lesson Learned in the Casa del Estudiante Indígena, 1926-1932”, The Americas, 57(3), January 2001, pp. 329-361; Stephen E. Lewis, “The Nation, Education and the ‘Indian Problem’ in Mexico, 1920-1940”, in Mary Kay Vaughan and Stephen E. Lewis (eds.): The Eagle and the Virgin: Nation and Cultural Revolution in Mexico, 1920-1940, Durham: Duke University Press, 2006, pp. 176-195.

39 Giraudo, Anular las distancias, p. 18.

23

The desire to create a more unified and homogenous nation was manifested

also in the realm of Mexican law. For some, the law was not just another aspect of the

problem but rather part of its solution. In this respect, the Mexican jurist Ricardo

Rivera argued in 1931 that “the law is a factor of significant importance for fostering

our racial homogenization.”40 For many Mexicans, legislative unity and the concept of

“one law before which all are equal” was seen as an essential condition for the

fulfillment of this purpose. In this spirit, the influential Mexican indigenista, Gonzalo

Aguirre Beltrán explained in the 1950s that for the revolutionary governments in

Mexico, the idea of enacting “private legislation” for the Indians that would recognize

their cultural difference was unacceptable, precisely because it was not in line with

the project of national integration. Such legislation, he argued, would have finally led

to segregation of the Indian communities, to the creation of Indian reservations, to

stressing the differences between the Indian communities and the national community

and as a result of all these – to the prevention of integration. 41

Thus, quite paradoxically, the idea of special tutelary legislation for the

Indians (in the case of Peru) and the complete rejection of this same idea (in the case

of Mexico) were both justified in the name of “national integration”. However, as we

shall see now, in the field of criminal justice, with the rise of indigenismo, the idea of

equality under the law in relation to “Indian offenders” was questioned not only in

Peru but also in Mexico. In this field, jurists and other intellectuals began to look for

various solutions that were meant “to bridge the gap” between “our Indians” and “our

law” and hence to facilitate their incorporation or integration. The problem was of

course to find the proper means and methods to achieve this goal. Should they be

40 Ricardo Rivera, La Heterogeneidad Étnica y Espiritual de México. 2da ED. México, 1931, p. 111.41 Gonzalo Aguirre Beltrán, Teoría y Práctica de la Educación Indígena. Ponencia informativa que

presenta el Instituto Nacional Indigenista ante el Cuarto Congreso Nacional de Sociología, Sociología de la Educación, del 7 al 11 de diciembre de 1953. México, Instituto Nacional Indigenista: Edición Mimeográfica No. 3 (Segunda reimpresión), 1954, pp. 70-71.

24

legislative, institutional or judicial? Should they confront “the Indian problem”

directly or indirectly? Different answers were given to those questions. Since the

1930s and especially under the rule of Lázaro Cárdenas (1934-1940), the perception

of the “Indian question” as a problem in itself, which differed from the “campesino

problem”, was manifested in various ways, such as in the foundation in 1936 of the

Department of Indian Affairs (Departamento de Asuntos Indígenas).42 During these

years, as Alexander Dawson has shown in the field of education, one can perceive a

change in some of the indigenista practices, which began (at least to some extent) to

move away from simple notions of assimilation and to give more consideration to the

particular social and cultural circumstances of the diverse Indian groups and

communities.43 This tendency, I will argue, was also manifested in the legal discourse

and especially in the sphere of criminal justice, where the “Indian problem” emerged

as a unique juridical-penal question.

“The Unjust Equality”

A good illustration is provided in an article written probably during the

1930’s, under the title “Those who live in another world: Legal problems of social

heterogeneity”. In this article Manuel Gamio tells the story of three Mexican Indians

who murdered their neighbor, an 80-year-old woman, being convinced that she had

42 Many scholars have stressed the importance of Cárdenas’ administration to the development of Mexican indigenismo, which during those years, in many aspects, had descended from the spheres of revolutionary rhetoric to the ground of social policy. According to Alan Knight, for example, “As a practical policy to help, educate, protect and ‘revalorize’ Indian communities, indigenismo was […] a product of the Cárdenas era”. See: Alan Knight, “The ideology of the Mexican Revolution, 1910-40”, E.I.A.L 8(1), January-June 1997, 77-109, p. 100. See also: Tzvi Medin, Ideología y praxis política de Lázaro Cárdenas, México D. F.: siglo veintiuno editores, s.a., novena edición 1982 (primera edición: 1972), pp. 5, 174-177. On the Department of Indian Affairs see, for example: Cecilia Greaves L., “Entre el discurso y la acción. Una polémica en torno al Departamento de Asuntos Indígenas”, en Yael Bitrán (coordinadora), México: Historia y Alteridad. Perspectivas Multidisciplinarias sobre la Cuestión Indígena. México, D. F.: Universidad Iberoamericana, A.C., 2001, pp. 243-263.

43 Alexander S. Dawson, Indian and Nation in Revolutionary Mexico, Tucson: The University of Arizona Press, 2004, p. xxiii.

25

cast a spell over one of them and risked his life. Gamio, who knew the accused

personally, described them as people “whose way of thinking was so different and

sometimes antagonistic to ours – those of the modern, civilized environment – that

they seemed to re-embody creatures from another world and a different era.”

Moreover, according to Gamio, these three Indians represented “an extensive social

sector that adds up to millions of inhabitants.” In his view, the tragedy of the event

was not the killing of that “witch”; the tragedy was the huge gap between the Indians,

on the one hand, which according to their view committed nothing but a completely

legitimate act of self-defense, and the Mexican legal system, on the other hand, which

reflecting the values of “our civilized world” treated their act as criminal. This

situation led Gamio to wonder, from which point of view should we consider and

judge this case? Is it justified, he asked, that the large sector of the population

belonging to that “antiquated social environment” will indefinitely remain at the

margin of modern penal legislation, which does not adapt itself to its particular

characteristics? Wouldn’t it be appropriate, he continued, to reform the law by taking

into account those characteristics?44

Gamio, as is well known, was not just another Mexican intellectual. He was

considered the founding father of Mexican anthropology and one of the most

prominent figures among the Latin American Indigenistas. His numerous works and

publications in the fields of anthropology, ethnology, archeology and demography

were quite intensively studied and discussed in Mexican historiography, but it seems

that his writing in the area of law and justice has gained less attention from scholars.

Gamio’s observations regarding the legal status of the Indians are important, in my

view, for two reasons. First, due to his central position in the Mexican indigenismo,

44 Manuel Gamio, Los que viven en otro mundo. Problemas legales de heterogeneidad social. Archivo Histórico de la BNAH, Archivo Manuel Gamio (AMG) Sección: Producción Intelectual, Serie: Artículos, Caja 2. Exp. 230.

26

his widespread writing on this topic indicates that also in Mexico the legal aspects of

“the Indian problem” occupied an important place in the indigenista discourse.

Furthermore, in Mexican historiography, Gamio has been quite often identified with

the idea of mestizaje, cultural fusion as a solution to the “problem” of social and racial

heterogeneity and as a means to the creation of a new Mexican nation, based on

increasing ethno-cultural homogeneity.45 For many Mexican jurists and intellectuals,

as we shall see below, the ideas of cultural mestizaje and a national melting pot were

easily connected to legal attitudes that emphasized the need to preserve a unified,

general and equal legislation that would avoid any formal recognition to this problem

of socio-racial heterogeneity. Nevertheless, Gamio who was so identified with the

idea of mestizaje, did not only stress the gap between the Indians and the Mexican

Law but also demanded a different legal treatment for the Indians, sometimes even in

the sphere of legislation. Arguably, then, Gamio and other indigenistas, while striving

to create a national identity based on unity and homogeneity, did not only rediscover

“the Indian” but also remade “the Indian” as a distinctive legal subject.

In fact, an early criticism of the gap between Mexican law and the

heterogeneous reality of Mexican society is to be found in Gamio’s early and highly

influential book from 1916 Forjando Patria (“Forging a Nation”). In this book he

claimed that the law must take into consideration the enormous differences between

the various Mexican populations and especially consider the economic, social and

ethno-cultural characteristics of different indigenous groups; some of them described

by Gamio as savages (like the Mayas of Quintana Roo or the Lancandones of

Chiapas) and others as semi-civilized (like the Yaquis, the Tepehuanes, the 45 On Gamio’s role in the promotion of ethno-cultural mestizaje, see for example: Giraudo,

Anular las distancias, pp. 44-45; David A. Brading, “Manuel Gamio and Official Indigenismo in Mexico”, Bulletin of Latin American Research, Vol. 7, No. 1, 1988, 75-89, p. 84; Agustín Basave Benítez, México Mestizo. Análisis del nacionalismo mexicano en torno a la mestizofilia de Andrés Molina Enríquez. México D. F.: Fondo de Cultura Económica, Primera reimpresión: 1993 (Primera Edición: 1992), p. 126.

27

Tarahumaras and the Huicholes).46 During the following years, Gamio repeated the

claim that the law could no longer ignore the indigenous populations of Mexico and

that in order to adapt the national legislation to their “needs and aspirations” an

exhaustive scientific research of these populations was required.47 Another influential

indigenista, the jurist and sociologist Lucio Mendieta y Núñez, argued in this respect

that the Hispano-American countries must change their legislations and take into

account the economic weakness and cultural inferiority of their indigenous

populations. The new legislation of these states, he wrote, should be based on the

principle that culturally different populations could not be equal under the law. Such

legislation, Mendieta y Núñez added, should include special laws for the Indians that

would adapt to their evolutionary condition and protect them in order to incorporate

them into the modern culture, even if it involved legal recognition of “degenerated

customs” that contradicted existing legal perceptions.48

Perhaps in light of his brief experience as a member of the Supreme Council

for Social Defense and Prevention (El Consejo Supremo de Defensa y Prevención

Social),49 at the beginning of the 1930s Gamio directed more attention to issues of

criminal law and penology. In one of his articles from that period he argued that

among peoples like the Mexican, composed of so many different races and social

46 Manuel Gamio, Forjando Patria. México, D. F.: Editorial Porrúa, S. A., 1960, 2nd edition (1st edition: 1916), pp. 30-31, 171-174.

47 See for example: Manuel Gamio, “Comentarios sobre el Carácter de Nuestras Leyes”, in La Justicia. Revista de Legislación y Jurisprudencia, Derecho Civil, Mercantil, Industrial, Penal y Administrativo. Núm. 139, 15 de noviembre de 1939, pp. 4183-4184.

48 Lucio Mendieta y Núñez, Las Poblaciones Indígenas de América Ante el Derecho Actual, México: Editorial “Cultura”, 2da Edición 1935 (primera edición: 1924), pp. 80-84. On his contribution to the development of sociological research in Mexico, see: Margarita Olvera Serrano, Lucio Mendieta y Núñez y la Institucionalización de la Sociología en México, 1939-1965. México D. F.: Universidad Autónoma Metropolitana y Edición Miguel Ángel Porrúa, 2004. On Mendieta y Núñez as a representative of the right wing of Mexican indigenismo, see: Luis Vázquez León, Multitud y distopía. Ensayos sobre la nueva condición étnica en Michoacán, México D. F.: UNAM, 2010, pp. 236-244.

49 This institute was established by the Criminal Code of 1929 in order “to eradicate the causes for the incubation of criminality”. See: Salvador Mendoza, “El Nuevo Código Penal de México”, The Hispanic American Historical Review, Vol. 10, No. 3 (August 1930), p. 307.

28

groups, it is difficult and sometimes even impossible to predetermine abnormal-

criminal behavior. Therefore, he wrote, the legislators should take into account the

biological, mental, cultural and economic differences among the various Mexican

social groups.50 In another article from 1935 Gamio added that the causes of

criminality and the criminal offenses themselves had different forms among “our

different social groups” and therefore they also deserved different punishments. In

addition, he wrote, the conditions in the Mexican penal facilities should also be

adapted to the different cultural levels of the Mexican offenders, to their biological

and mental personality and to the influences of their social environment.51

In the field of criminal justice, the treatment of Indian offenders was criticized

not only by anthropologists like Gamio, but also by prominent Mexican jurists. One

of them was Raúl Carrancá y Trujillo. In his short article from 1935 “The Unjust

Equality” (“La injusta igualdad”), Carrancá y Trujillo argued that in a country like

Mexico, characterized by enormous gaps between social classes and racial groups, the

concept of equality under the law was not only “a democratic lie” that “organizes us

as a nation” but also a cruel lie for those Mexicans of “inferior culture”. He used the

criminal offense of rapto – the abduction of a woman or a young girl for purposes of

sex relations or marriage – in order to demonstrate the abyss between the penal law

and the real social practices of those men who, according to him, still maintained an

“authentic pre-Cortesian mentality”. For Carrancá y Trujillo this was a proof of the

“tremendous injustice” that was caused by the equal legal treatment given to “those

who are unequal”. However, in his view, there was also a legal solution for this

problem, at least for the time being: “Until Mexico succeeds to look ahead and better

gaze at its own truth”, he claimed, “and until the Mexican laws manage to translate

50 Gamio, “Comentarios sobre la investigación sociológica de los delincuentes”, in Revista Mexicana de Derecho Penal”, México, tomo 1, núm. 1, 1930, pp. 49-60.

51 Gamio, Hacia un México Nuevo. Problemas Sociales. México D. F.: [s.n], 1935, pp. 185-199.

29

this truth honestly”, only a broad, “a very broad judicial discretion” could temper this

tremendous injustice.52

Thus, texts like those of Gamio, Carrancá y Trujillo and others manifested a

Mexican critique – quite similar to that of Peruvian indigenistas – towards the concept

of equality under the law and the treatment of Indians by the national criminal law

system. In these critiques we clearly find some similar notions of “the indigenous

otherness”, of the “backward Indian” who still “lives in another world” and in remote

times, whose special circumstances should be taken into account. For Carrancá y

Trujillo as well as for other leading Mexican jurists of that époque, the solution for

this problem was not a different legislation for Indians, but rather a legislation which

would be elastic enough to enable the judges to implement extended judicial

discretion in their sentencing, and to take into account all the relevant circumstances

of the accused.53 As we shall see, this solution was in line with the provisions of the

Mexican Penal Code of that time.54

In fact, the issue of how to adapt the criminal law to the Mexican reality,

especially to its Indian component, was raised in Mexico in earlier stages of the

republican criminal legislation. With the enactment in 1871 of the first Mexican

criminal code and continuing in the years that followed, the question arose, whether it

would be appropriate to accord a mitigating penal treatment to offenders from lower-

class backgrounds, characterized by “ignorance and rudeness”.55 At least to some

extent, the answer given to this question in that penal code was positive: The code of

1871 included a mitigating circumstance that enabled the courts to reduce the

52 Raúl Carranca y Trujillo, “La injusta igualdad”, Criminalia, Año II, Marzo 1935, p. 100.53 Ibid.54 Unless otherwise indicated, the term “Mexican Criminal Code” is used here to refer to the

Criminal Code for the Federal District in Ordinary Matters and for the Entire Republic in Federal Matters.

55 Elisa Speckman Guerra, Crimen y Castigo. Legislación penal, interpretaciones de la criminalidad y administración de justicia (Ciudad de México, 1872-1910). México D. F.: El Colegio de México y la Universidad Nacional Autónoma de México, 2002, pp. 303-304.

30

penalties imposed on criminals who were so “rude and ignorant” that while

committing the crime, they did not have the necessary discernment to fully recognize

its wrongfulness. At the beginning of the 20th century, for some critics of that code

like the judge Emilio Rovirosa Andrade, this provision of law represented “an

exaggerated sentimentality” towards the uncultured and uneducated Indians and

therefore an obstacle on the way to social progress.56 Despite such critics, a quite

similar provision was also introduced into the Penal Code of 1929,57 but less than two

years later, in the new Penal Code of 1931 a different attitude was taken.

In this code, the old system of elaborating a totally fixed, closed and

calculated list of aggravating and attenuating circumstances was substituted by the

innovative principle of increased judicial discretion. In accordance with this principle,

in order to set the adequate punishment in each case, the Mexican judges were

advised to consider both “the external circumstances” related to the offense and “the

peculiar circumstances” of each delinquent.58 Those included, inter alia, the age,

education, customs, past behavior and socio-economic conditions of the offender, as

well as other circumstances that could demonstrate his degree of dangerousness.59

As one can learn from their explanations to these new provisions of law, the

authors of the 1931 Penal Code saw the principle of “broad judicial discretion” as an

adequate response to the need to adapt the criminal legislation to the Mexican social

reality. In May 1931, one of these drafters, Alfonso Teja Zabre, justified this principle

by using, among others, the following argument: In Mexico, he said, “the division of

classes and castes by economic and racial differences […] causes severe difficulties in

56 Ibid.57 Article 59 VI of the Penal Code of 1929 enabled the reduction of penalties imposed on

criminals who were “so ignorant or superstitious that while committing the offense did not have the necessary discernment to recognize its seriousness.”

58 Secretaría de Gobernación, Código Penal para el Distrito y Territorios Federales en materia de fuero común, y para toda la república en materia de fuero federal. México, D. F.: Talleres Gráficos de la Nación, 1931, article 51.

59 Ibid., article 52.

31

the application of penal laws, especially in the presence of unassimilated indigenous

groups. This inequality cannot be cured by special laws because those would only

double the deficiencies of legal casuistry. The only remedy is to simplify norms,

prescribing broad and general regulations that effectively permit the individualization

of punishment”.60 Thus, judicial discretion was meant to lead to the goal of

individualization of punishment, a principle which was a cornerstone of the positivist

school of criminal law and also a fundamental objective of the 1924 Peruvian

Criminal Code.61 Nevertheless, in the eyes of other jurists, for a country like Mexico,

divided by profound economic, social, cultural and racial differences, as they argued,

this solution was definitely insufficient.

Tutelary Courts for Indian Criminals

The Mexican debate regarding adequate solutions for the penal aspects of “the

Indian question” culminated at the end of the Cardenismo, in the first National

Congress of State’s Attorneys held in Mexico City in May 1939. One of the many

issues discussed there was “the criminality of Indian tribes not properly incorporated

into the civilization” and their tutelary treatment.62 Claudio Medina Osalde, the

Secretary-general of Mexico City’s Syndicate of lawyers, proposed in this congress to

establish “a tutelary legal regime for adult criminals of rude mentality, mainly

members of our indigenous tribes”. His proposal was inspired by a decree issued in

Chiapas three years earlier, creating a special court in that federal entity for minors,

60 Alfonso Teja Zabre, “Exposición de Motivos presentada al Congreso Jurídico Nacional reunido en la ciudad de México en mayo de 1931 a nombre de la Comisión Revisora de las Leyes Penales”, as cited by two other drafters of the 1931 Criminal Code: José Ángel Ceniceros y Luis Garrido, La ley penal mexicana. México, D. F.: Ediciones Botas, 1934, pp. 27-28.

61 Altmann Smythe, Reseña Histórica de la Evolución del Derecho Penal, p. 249.62 Primer Congreso Nacional de Procuradores de Justicia de la República, México, D. F., 1940,

p. 648.

32

persons without legal capacity and “rude Indians”.63 According to his view, the social,

economic and cultural abyss between the Indians and the rest of the Mexican

population was so deep and so evident that the idea of treating the Indians as equal

before the law was absurd. “The rude, fearful, distrustful and superstitious Indians”,

he said, “with their pitiful malnutrition” cannot be made equal in any way with the

other inhabitants of America. These Indians, he continued, “have absolutely no idea

of political and social rights; of the Nation, the Fatherland, the Republic, the Society

and the meaning of citizenship; they know nothing about property that doesn’t exist in

their rudimentary communities, nor about constitutional guarantees, contractual

obligations and penal infractions… These Indians,” he finally claimed, “cannot be put

on the same level with an educated man who is aware of all this”.64

Thus, for Medina Oslade and some of the other participants in that congress, it

was very clear that the idea of equality under the law had absolutely nothing to do

with the “ethno-demographic reality” not only of Mexico but rather of the entire

American continent. According to his arguments, which remind us of some similar

Peruvian perceptions, the Indians were in such a poor situation that they were

prevented from assuming not only the rights but also the responsibilities of

citizenship. Medina Osalde’s proposal was not meant to exclude those Indians but

rather to facilitate their inclusion and integration by means of a tutelary legal regime,

a regime that would protect them by taking into account their incapability to fully

assume criminal responsibilities. And yet, Medina Osalde, as the Peruvian jurist

Anfiloquio Valdelomar, also stressed that the real problem was not the capabilities or

63 On this legislation in Chiapas, see: María Dolores París Pombo, “Alianzas políticas y violencia étnica en Chiapas: los embates del indigenismo popular: 1925-1940”, paper presented at LASA Congress, October 2004, Las Vegas; Rosalva Aída Hernández Castillo. Histories and Stories from Chiapas: Border Identities in Southern Mexico, Austin: University of Texas Press, 2001, pp. 31-32.

64 Claudio Medina Osalde, “La acción tutelar del estado y el ministerio público, en relación con las tribus indígenas”, Primer Congreso Nacional de Procuradores de Justicia de la República, pp. 649-654.

33

responsibilities of the Indians, but rather the failure of the state and the society to

fulfill their duties and obligations towards their Indian citizens. Society and the state,

Medina Osalde claimed, have the obligation to direct and educate their members in

order to prevent them from committing crimes. However, in the case of Mexico, he

continued, the Indian tribes were both materially and morally abandoned by the state

and society, which therefore should be responsible for their omission.65 In addition, in

convincing his fellow attorneys to support the foundation of tutelary courts for Indian

criminals, Medina Osalde made it clear that his proposal was meant only for those

Indians who were not yet “incorporated into our civilization”, Indians who were “rude

and ignorant, whose mentality in relation to our legal institutions was equal to that of

minors, due to their lack of education and their separation from our centers of

population”.66 Once again, in harmony with the above-mentioned Peruvian

perceptions, we can find here quite similar divisions and distinctions between Indians

in different “grades of civilization”.

Not all the participants in that Congress supported the establishment of special

tribunals for Indian criminals. Carlos Franco Sodi, who in his long legal career served,

inter alia, as Attorney-General of the Federal District and a judge of the Supreme

Court of Justice, vehemently rejected what he called “a segregation of the Indian from

the criminal law”. He argued that treating the Indians as three-year-old children who

are not responsible for their actions would only further increase their inferiority

complex. Moreover, the idea of special courts for Indian criminals completely

contradicted his vision of mestizaje – his belief in the ethos of a Mexican melting pot

as a cultural mixture or better yet a compound of the different races that live in

Mexico. According to his notion, which reminds us of José Vasconcelos’ idea of “The

65 Ibid., pp. 651-653.66 Ibid., p. 719.

34

Cosmic Race”, all the Mexicans were mestizos, not only those who were usually

classified in this category but also those who were supposedly “Indians” or “creoles”,

because all of them, he said, were the result of the clash that had occurred in America

between the indigenous and the Christian civilizations. Therefore, in his view, all

Mexicans should have been subjected to the same legal system and the same

legislation. However, he added, this legislation should be flexible enough to enable

proper legal solutions for the particular circumstances of each individual, be he an

Indian, a Creole or a Mestizo.67

Josafat Hernández Islas, the Attorney-General of Hidalgo, totally rejected

Franco Sodi’s proposal, as well as his whole vision of mestizaje. He argued that the

Indian would never change his ideas, his customs and traditions. In order to prove this

and to demonstrate the huge gap between the Indians and “our criminal law”, he

turned to certain patterns of criminal acts that, in his view, were related to specific

social and cultural practices of the Indians. He indicated that acts of raping young

girls under the age of eight years were a common offense in Hidalgo and added that

such criminal acts were almost always committed by Indian peasants against young

Indian shepherd girls, “in a totally primitive, instinctive and bestial way, almost

similar to the way they see the animals fulfill their sexual needs.”68 In this respect he

also presented a concrete criminal case from his state, in which a brujo (a sorcerer)

was sentenced to death by the local Indian authorities and immediately afterwards was

executed by the Indians of that community. He explained that the Indians, according

to their own view, did not commit any crime but rather defended their community

from the harms and evils caused by that brujo. However, he added, unfortunately the

court in Hidalgo had no other choice but to convict them of murder and to sentence

67 Ibid., pp. 706-708.68 Ibid., p. 657.

35

them to death. For him, the adequate solution for cases like these was not just a simple

reduction of the penalty. His suggestion was to establish, in addition to those tutelary

tribunals for Indian criminals, also a special consulting body, which would be in

charge of investigating the relevant customs of the Indians that committed a crime and

what is more important, of informing the court about “the feelings of their

community” regarding the crime, its motivations and circumstances.69 Here we can

find a familiar notion of cultural defenses and also a criticism of the liberal concept of

equality under the law from a communitarian perspective, which in this case

questioned the assumption that the Indians could be judged independently of the

values, meanings and preferences of their social and cultural communities.

We should also mention that in these years, similar cases that occurred in

Peru, in which criminal acts were perceived as related to indigenous customs and

cultural practices, were judged under the above-mentioned ethno-legal categories of

the Peruvian penal code. For example, in July 1939, Vidal Ramón Solano from the

province of Junín killed a man from his village who had attacked him with a knife.

After killing him, Vidal also cut off the hand fingers and the tongue of the cadaver

and buried them in the ground. When Vidal was brought to trial, the prosecutor

explained to the judges that the local Indians in this area believed that if the dead had

neither fingers nor tongue he would not be able to accuse or denounce anyone. The

prosecutor continued to argue that the mutilation of the cadaver was not caused by

evil, but rather by the ignorance, prejudice and superstition which dominated the

Indians of that place. Therefore, the prosecutor added, due to his ignorance and the

environment in which he was living, Vidal should have been sentenced as a “semi-

civilized” Indian and received a reduced penalty, according to article 45 of the penal

69 Ibid., pp. 656-657.

36

code.70 In another Peruvian case from that époque, two Indians who were classified as

“savages” were convicted for homicide and sentenced by the Criminal Court of

Loreto to 18 months in prison. The Supreme Court in Lima approved this reduced

penalty, considering the fact that the accused “were dominated” by the prejudice that

their victim was a brujo malo (a bad sorcerer). Here again, the prosecutor in Lima

explained that the crime was a product of “the traditional belief of those savages and

their deeply rooted customs”, according to which the accused were forced to kill that

man whom they considered a dangerous enemy, in order to liberate themselves and

their families from his curses and witchcrafts. “These men”, the prosecutor added,

“are at the margin of civilization, which has not even arrived yet at the place where

they live”.71 It is worth paying attention to the way the prosecutor in this case,

reaffirming the abyss between “savages” and “civilized people”, presented the killing

of enemies as a savage practice which supposedly totally contradicted the practices of

“the civilized world”. It is also worth remembering that precisely at that time (1939),

at the end of the Spanish Civil War and the beginning of the Second World War,

“killing of enemies” was a quite common practice in “the civilized world”, but this

did not annul the well-established dichotomy between savage-Indians and European-

civilization. Yet, the cultural practices and beliefs of those Indians, as presented by

the prosecutor, were considered by the Supreme Court in Lima as special mitigating

circumstances that justified reduced penalties.

70 Cuaderno No. 850 - Año 1941, Revista de los Tribunales [Perú], 1941, pp. 385-388.71 Cuaderno No. 2211 - Año 1938, Procede de Loreto, La Revista del Foro [Perú], 1939, pp. 587-588.

37

We Are All Mestizos!?

In that Mexican Congress of State Attorneys, the position of Medina Osalde

and Hernandez Islas prevailed, and the assembly recommended the establishment of

tutelary courts for “Indian criminals”.72 Nevertheless, this innovative initiative did not

receive the support of the Mexican legal elite, which tended to embrace Franco Sodi’s

notions. Less than a year after that assembly of State Attorneys another important

congress was held in Mexico – The First Inter-American Indigenista Congress (El

Primer Congreso Indigenista Interamericano), which took place in Pátzcuaro

(Michoacán) in April 1940. Also in this forum, one of the issues in the debate was the

legal status of the indigenous populations in the American continent, and even more

particularly, the legal treatment accorded to Indian criminals. Darío Cruz Ramírez, for

example, criticized the gap between the Indians and the State’s Law that failed to

protect them and their interests.73 In a more comprehensive text from this year, he

called to adopt a tutelary legislation for the Indians of Mexico, which would include,

inter alia, the involvement of translators and Defensores de Indios in judicial

proceedings against Indian offenders, considering the special causes of Indian

criminality. According to his view, among these causes were the social inequality, the

mental structure of the Indians, their use of alcohol and marijuana and their stress

caused by the extreme poverty and the continuous acts of exploitation against them.74

The famous judge and publicist Andrés Molina Enríquez also criticized the

Mexican criminal legislation, but from a different perspective.75 In that congress in

72 Primer Congreso Nacional de Procuradores de Justicia de la República, pp. 762-763.73 Darío Cruz Ramírez, “La necesidad de que los países hispano-americanos que tengan en su

población grupos de aborígenes, establezcan un cuerpo de ‘Defensores de Indígenas’”, Primer Congreso Indigenista Interamericano, Pátzcuaro, Michoacán, abril de 1940, Tomo II. pp. 185-189.

74 Darío Cruz Ramírez, Hacia una legislación tutelar para las clases indígenas de México, México: Departamento de Asuntos Indígenas, 1940, pp. 70-71.

75 In 1909 Molina Enríquez published his famous book, “The Big National Problems” (Los grandes problemas nacionales) and few years later he took part in formulating article 27 of the 1917 Mexican Constitution that was the basis for the later on agrarian reform.

38

Pátzcuaro, he argued that in Mexico, more than in any other country in America, the

criminal laws were formulated for the benefit of “the upper castes” or the creoles,

while disregarding the Indians and the mestizos. The appropriate solution, in his view,

was to minimize the legal privileges of the creoles, inter alia, in the field of criminal

justice. For example, he suggested canceling the legal option according to which

imprisonments might be substituted by pecuniary penalties (a practice that could serve

only those who had the financial means to use it).76 In this respect he also called for

legislation to be formulated in words that were understandable to everyone, not only

lawyers, whom he saw as the “agents of money”, acting in the service of “racial

elements” who were “the enemies of the Indians”.77 Finally, he also suggested

implementing criminal sanctions against public officials who treated the Indians

insultingly, for example by addressing them informally with the pronoun “tu” while

using the more formal and respectful pronoun “Usted” to address white people.78

Thus, Molina Enriquez’s proposals for penal legislation reforms, whose main objects

were the white upper classes, indicate that for him, at that time, “the Indian problem”

was much more a creole problem than an Indian one.79

However, a short time before the congress in Pátzcuaro, the issue of enacting

“special penal legislation for criminals of the Indian race” was explicitly raised by the

demographer Gilberto Loyo, who referred this question to the editors of the Mexican

journal Criminalia. In April 1940, four of the most prominent figures of Mexican

criminal law at that époque – José Angel Ceniceros, Raúl Carrancá y Trujillo, Carlos

Franco Sodi and Javier Piña y Palacios – presented in Pátzcuaro an answer to this

76 Andrés Molina Enríquez, “Sobre reformas a la legislación penal, para igualar la condición de los indios a la de los demás.” Primer Congreso Indigenista Interamericano, Tomo II, pp. 179-182.

77 Molina Enríquez, “La necesidad de facilitar la acción de la justicia en beneficio de los indios”, ibid., pp. 173-177.

78 Molina Enríquez, “La abolición del tratamiento diferencial que usa el reverencial ‘Usted’ para hablar a los señores, y el deprimente ‘tu’ para hablar a los indios”, ibid., pp. 183-184.

79 On Molina Enríquez’s anti-creole perceptions in the 1930s and on his vision of the Indio-mestizos as the core of Mexican nationality see Basave Benítez. México Mestizo, pp. 50-51, 74-79.

39

question. It was totally negative. These jurists strongly rejected the idea of special

legislation for “criminals of the Indian race”, declaring that the racial differences in

Mexico must be treated with “legislative unity” especially in the field of criminal

justice, since “crime is not an act of races, but an act of men”.80 Ideas of that kind,

they added, might lead to a slippery slope, at the end of which each social group and

sub-group would have a law of its own – a situation that would finally culminate in

the coming apart of the Mexican Nation-State. Furthermore, they argued, expressing

their vision of Mexican society as an ethno-cultural melting pot: “We are all mestizos,

and from being mestizos, entirely mestizos, with one tradition, with one common and

mixed thought and culture, derives the future greatness of our country and the solution

for those ethnic problems that we must resolve […].”81 According to their view,

“racial differences” did exist in Mexico, but they were to be confronted by an

extensive judicial discretion, not through special legislation. In other words, they were

to be treated by courts and judges, while the legislators maintain the vision of a one

unified mestizo society.

Did Mexican courts of that époque actually use the space of judicial discretion

in order to bridge the gap between the Criminal Code and Indian defendants who were

not yet “fully assimilated” in the Mexican melting pot? Some criminal files from the

State of Oaxaca indicate that sometimes they did. Such for example was the case of

Pedro Damián, a young man from the village of San Pedro Ocotepec, who in 1945

was accused of murdering and burying his five-month-old baby, suspecting that he

was not the father of that child. The court decided to sentence him to 30 years in

prison instead of the death penalty, inter alia, for the reason that the accused was “a

80 José Ángel Ceniceros; Raúl Carrancá y Trujillo; Carlos Franco Sodi; y Javier Piña y Palacios, “Las Razas Indígenas y la Defensa Social”, in Primer Congreso Indigenista Interamericano, tomo II, Ponencias, Pátzcuaro (Michoacán), abril 1940, p. 114.

81 Ibid., p. 112.

40

completely ignorant Indian”.82 In another case of less extreme circumstances, the

court in Zacatepec reduced the prison sentence imposed on three defendants convicted

of homicide, considering not only their good behavior, their bad economic condition

and their lack of education, but also their “belonging to the Indian race”.83

These two cases were quite unusual since typically Mexican verdicts, unlike

the Peruvian ones, did not include any explicit mention of the ethnic or racial

classification of the accused. However, while considering mitigating circumstances,

many of them did refer to circumstances that were quite similar to those considered by

Peruvian courts in the cases of “semi-civilized Indians”: illiteracy, poverty and

peasant work, lack of education, rudeness and ignorance.84 As in the Peruvian case,

taking these considerations into account could often lead to reduced penalties. It

seems, though, that sometimes different laws can not only blur some similar racial

notions, but can also be translated into similar legal practices and consequences.

82 Archivo Histórico Judicial de Oaxaca (AHJO), Sección: Zacatepec, Serie: Criminal, Año: 1945, Exp. 21/945, Contra: Pedro Damián, pp. 117-118.

83 AHJO, Sección: Zacatepec, Serie: Criminal, Año: 1945, Exp. 33/945, Contra: Gonzalo Manuel Reyes, Sótero Peralta y Daniel Reyes, pp. 142-142(v).

84 See for example: AHJO, Sección: Villa Alta, Serie: Criminal, Año: 1948, Exp. 13/948, Contra: Teodoro López; Sección: Zacatepec, Serie: Criminal, Año: 1946, Exp. 7/946, Contra: Agustín Espina y Natalia Rojas; Sección: Villa Alta, Serie: Criminal, Año: 1948, Exp. 24/948, Contra: Rufino Ignacio, Manuel Pérez y Manuel Chávez. Similar mitigating considerations were also mentioned by the Court of Coyoacán (in the Federal District) that took into account the “humble social status” of the accused, the fact of his being illiterate and his poor knowledge of Spanish (being a speaker of Otomí). See: AGN (México), TSJDF, vol. 2665, exp. 551351, p. 57(v), proceso contra Juan Cárdenas María por el delito de homicidio, 6 de noviembre de1933. I am grateful to Dr. Saydi Núñez Cetina for sharing this legal file with me.

41

Conclusion

For some Latin American scholars, the legal and mainly constitutional reforms

of the late 20th century that recognized the rights of “indigenous peoples” (pueblos

indígenas) and elaborated a spirit of multiculturalism, posed a question mark on the

classic notion of the Nation-State that referred to “the Nation” in terms of one people,

one culture, one language and one law.85 However, as shown here, that “classic

model” of a homogenous Nation-State was subverted, at least to some extent, already

in the encounter between the indigenismo and criminal law, as was manifested both in

the provisions of the Peruvian Penal Code of 1924 and in the Mexican debate of the

1930s about the proper treatment of Indians in the sphere of criminal justice.

As is well known, Law and legal texts can often be viewed as stories that

people tell themselves (and others) about their self and collective identity, about “who

they are” or “who they aspire to be”.86 In this context, the treatment of “Indian

offenders” in the criminal law of Peru reveals a clear story of profound social

divisions and ethno-cultural distinctions, not only between Indians and non-Indians

but also between different categories of Indians that supposedly differed from each

other in their position on the scale of “civilization” and in their fitness to assume the

rights and responsibilities of citizenship. The Mexican debate around the proper

treatment of “Indian criminals” reveals a picture of some more multifaceted and even

85 See, for example: Raquel Z. Yrigoyen Fajardo, “Reconocimiento constitucional del derecho indígena y la jurisdicción especial en los países andinos (Colombia, Perú, Bolivia, Ecuador)”, Revista Pena y Estado n. 4, Buenos Aires: INECIP y Editorial el Puerto, 2000, http://www.alertanet.org/PENA-ESTADO.htm.

86 On the function of law in the formation of identities, see for example: Assaf Likhovski, Law and Identity in Mandate Palestine, Chapel Hill: The University of North Carolina Press, 2006, pp. 3, 9; Kunal M. Parker, “The ‘Law’ / ‘Politics’ Distinction in the Colonial / Postcolonial Context”, American University Journal of Gender, Social Policy, and Law, Vol. 10:3 (2002), 581-586, p. 581; Carlos Aguirre and Ricardo D. Salvatore, “Introduction: Writing the History of Law, Crime and Punishment in Latin America”, in Ricardo D. Salvatore, Carlos Aguirre and Gilbert M. Joseph (eds.), Crime and Punishment in Latin America, Durham and London: Duke University Press, 2001, pp. 1-2, 11-12

42

contradictory stories concerning the image and the identity of the entire national

community. In both countries the law, in general, and criminal legislation, in

particular, were used as important elements within the projects for national

integration. However, the Peruvian and Mexican penal codes played their

integrationist roles in different ways. One possible explanation for this difference may

be found in the distinction between the integrationist projects of these two countries.

The Peruvian one, of the early 1920s, was not characterized by the same aspiration to

“annul the distances”, which was so notable in revolutionary Mexico. This Mexican

aspiration, accompanied by measures of social policy designed to achieve this goal

(mainly in the fields of education and agrarian reform), was also manifested in the

wish to maintain one law for all Mexicans. Nevertheless, the stories presented by

these criminal legislations also concealed some other social realities or perceptions of

these realities. Behind the diverse criminal codes of these two countries, with their

different legislative treatment of “Indian criminals”, we can easily expose quite

similar presentations and images of “The Indian”, portrayed by both Peruvian and

Mexican jurists (and other intellectuals). Furthermore, in the Peruvian case, a

legislation that was meant to protect “defenseless Indians” obscured and de-

legitimized the ability of the Indians to defend their own rights. In Mexico, behind the

uniform criminal legislation, we find not only contesting ideas about integration

through the law, but also some views challenging the common notion of mestizaje and

the vision of Mexico as a national melting pot.

Finally, the encounter between indigenismo and criminal law also raised some

key questions that are still at the center of attention nowadays. Some of them refer to

the connection between penal policy and the state’s obligations towards its citizens.

Others concerned the interactions between state law and cultural norms and the

43

relationship between individual and community rights. Today, current penal codes

confront some of these issues with new terminologies, recognizing the customary law

(usos y costumbres) of “indigenous peoples” and thus expressing a “new”

multicultural social reality. Despite the change in terminology, however, as in the

indigenismo of past decades, also in the multiculturalist model of more recent years

one can still observe some clear lines of continuity with old colonial perceptions

regarding “the Indian question”.87 Moreover, as other scholars have already indicated,

constitutional (or legislative) declarations on certain human rights sometimes express

a symbolic discourse that conceals an overwhelming reality of social injustice.88 Thus,

as with previous legal texts, we should pay attention to not only the reality which they

explicitly present, but also the reality that they tend to blur.

87 Laura Giraudo, “Entre rupturas y retornos: la nueva cuestión indígena en América Latina”, en Giraudo (ed.) Ciudadanía y derechos indígenas en América Latina, 7- 57; Luis Vázquez León. Multitud y distopía. Ensayos sobre la nueva condición étnica en Michoacán (in particular, see pages 165-168).

88 See, for example, José Hurtado Pozo y Joseph Du Puit, “Derecho Penal y Diferencias Culturales: Perspectiva general con respecto a la situación en el Perú” in Derecho Penal y Pluralidad Cultural. Anuario de Derecho Penal 2006, 211-243, p. 238.

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