3\

() Ov"i.-

\- (j... .

;e

s- ,;L
r

Decoding Gender
Law and Practice in Contemporary Mexico
EDITED BY HELGA BAITENMANN VICTORIA CHENAUT ANN VARLEY

FOREWORD BY MAXINE MOLYNEUX

RUTGERS UNIVERSITY PRESS

NEW BRUNSWICK, NEW JERSEY, ANO LONOON

CONTENTS

lIBRARY OF CONGRESS CATALOGING-IN-PUBLlCATfON DATA

Tables

vii

Decoding gender : law and practice in contemporary Mexico / edited by Helga Baitenrnann, Victoria Chenaut, and Ann Varley. p. cm. Includes bibliographical reerences and indexo ISBN-13: 978-0-8135-4050-4 (hardcover : alk. paper) ISBN-13: 978-0-8135-4051-1 (pbk. : alk. paper) 1. Womcn-Legal status, laws, etc.-Mexico. 2. Sex and law-Mexico. 3. Indians 01 Mexico--Legal status. laws, etc.-Mexico. I. Baitenmann, Helga. JI. Chenaut, Victoria. Il!. Varley, Ann KGF462.W62D43 2007 346.7201'34----dC22 2006031255 A British Cataloging-in-Publication record tor this book is available trom the British Library. This collection copyright 2007 by Rutgers, The State University Individual chapters copyright 2007 in the names 01 their authors AH r ghts reserved No part 01 this book may be reproduced or utilized in any lorm or by any means, elcctronic or mechanical, or by any inlormation storage and retrieval systern, without written permission Irorn the publisher. PIease contact Rutgers University Press, 100 [oyce Kilmer Avenue, Piscataway, Nj 08854-8099. The only exception to this prohibition is "fair use" as defined by U.S. copyright law. Manufactured in the United States 01 Amrica

Foreword
MAXINE MOLYNEUX

ix

Acknowledgments

xv

lntroduction. law and Gender in Mexico: Defining the Field

HELGA BAITENMANN, VICTORIA CHENAUT, AND ANN VARLEY

PART ONE

Discourses on Law and Sexuality

1
Love, Sex. and Gossip in legal Cases from Namiquipa, Chihuahua
ANA M. ALONSO

43

Sins, Abnorrnalites, and Rights: Gender and Sexuality in Mexican Penal Codes
IVONNE SZASZ

59

The Realm outside the law: Transvestite Sex Work in Xalapa, Yeracruz

75

noso CRDOVA PLAZA

PART TWO

Gender at the Intersection of Lawand Custom

4

Wornen's land Rights and Indigenous Autonomy in Chiapas: Interlegality and the Gendered Dynamics of National and Alternative Popular legal Systems
LYNN STEPHEN

93

4
Women's Land Rights and Indigenous Autonomy in Chiapas
Interlegality and the Gendered Dynamics of National and Alternative Popular Legal Systems
LYNN STEPHEN

The indigenous peoples of Mexico are currently living in a fluid legal and political periodo Increasng numbers of indigenous communities are revitalizing and redefining their local legal systems,' while living under shifting federal and state legal systems that for the most part are moving toward more strictly defining indigenous rghts and focusing on the grantng of universal, individual rights rather than collective rights, At the federallevel, the most important legal reform for indigenous peoples has been the 1992 agrarian legslation," which has encouraged, but not required, the privatization of ejidas and agrarian ccmmunites.:' In addition, in 200I the Mexican congress and the legislatures of seventeen states approved a series of constitutional amendments known as the Indigenous Law (LeyIndgena), which severely limit the recognition of collective rights to land and natural resources, and the right of indigenous communities to regional affiliation.! Nevertheless, in Chiapas, thirty Municipios Autnomos Rebeldes Zapatistas (Zapatista Autonomous Municipalities in Rebellion) have existed since the mid1990S, and elsewhere in Mexico other indigenous communities and organizations are experimenting with ways to carry out the spirit of the 1996 San Andrs Accords on Indigenous Rights and Cultures These communities are declaring control over territories, implementing their own justice systems, and atternpting to rebuild cultural, educational, and health institutions. Even communities that have not declared themselves autonomous are experimenting locally and regionally with ways to increase their autonomy over their justice systems (see Sierra, this volume). Each of these arenas of justice-federal, state, and local indigenous-is gendered in its structure and interpretation. During the 1990S, many women and sorne men were deeply involved in questioning the gender inequalities reflected in federal, state, and local Iaw in relation to indigenous peoples. Women were
93

94

LYNN STEPHEN

WMEN'S LAND RIGHTS IN CHIAPAS

9S

involved in thc process of formulating the San Andrs Accords, in attemptng to operationalize autonomous municipalities in Chiapas, and in the revitalization and interpretation of local ndgenous rghts, The women's questoning of the reforms to the federal and statc constitutions, as welI as debates about what local indigenous rights should be alIowed to continue, has covered a wide range of issues including domestic violence, forced marriage, equal particpaton in political arenas, housing, education, jobs, medical care, and land rights. Although these areas are important and have been documented by an everincreasing crop of feminist anthropologists and others, here 1 shall focus on women's land rights, 1have chosen women's land rights to highlight the complex and often contradictory legal landscape that has emerged for indigenous women as they become increasingly active in defining the legal systems under which they live. Their participation has become so important that sorne Mexican researchers (Hernndcz Castillo 2001; Sierra 2003) are now writing about what they call "indigenous feminism"-a form of feminism that attempts to pratect ethnic rights and women's rights all at once, often by building alternative popular legal systerns. Even though many peoplc have counterposed ethnic or indigenous rights as collective and women's rights as individual, indigenous women activists do not see this dichotomy and emphasize that both ethnic and gender rghts potentially bunch together collective and individual rights. Sorne indgenous women have used the discourse of collective indigenous women's rights as a way to begin to counter losses, stated in terms of individual rights, that they have either already experienced or are likely to expericnce through the 1992 agrarian legislation. They feel that they are best able to defend their "individual" rghts as women through being part of an ethnically or locally based collective; through this membership they seek equal rghts to men in areas such as political lcadcrship and decision making and access to land. They have had more influence on local indigenous rights than on nationallaw, which can often undermine their collective rights in a way that leaves them with no material or political base. Sorne indigenous women have pursued strategies that revolve around staking claims to local indigenous rights that are not harmful to women, or strategies that involve alternative popular legal systems in the practice of indigenous rghts. Through a case study from two indigenous communities in Chiapas that are atternpting to consolidate local forms of justice and law that vary significantly from national law, 1show how, in their struggles to be included in land rights, indigenous women are an important part of making Mexico's justice systcm more inclusive with regard to ethnicity and gender.

Is Mexico a Multcultural Nation? The San Andrs Accords and the 2001 National Legislation on Indigenous Rights
The Zapatista rebellion of 1994 initiated a nationwide process of reassessing the relationship between the Mexican state and indigenous peoples. There were

two rounds of peace talks that ended optimistically in February 1996 with the sgning of the San Andrs Accords by the Mexican government and the zapatsta Natonal Liberation Army (Ejrcito Zapatista de Liberacin Nacional, EZLN). The San Andrs Accords recognze the rights of indigenous peoples: "to develop their specific forms of social, cultural, political and economic organizaton": "to obtain the recognton of their internal normative systems for regulation and sanction, insofar as they are not contrary to constitutional guarantees and human rights, especially those of women"; "to freely desgnate their representatives, within the community as well as in their municipal government bodies, as well as the leaders of their pueblos indgenas, in accordance with the institutions and traditions of each pueblo"; and "to promote and develop their languages and cultures, as well as their political, social, economic, religious, and cultural customs and traditions" (San Andrs Accords on Indigenous Rights and Culture 1999, 35) The Accords further specify that the Mexican Constitution should "guarantee the organization of their own elections or leadership selection processes within communities or pueblos indgenas," "recognize the procedures of cargo systems and other forms of organization, methods of designation of representatives, and decision making by assembly and through popular consultation," and "establsh that municipal agents or other [local municipal] leaders be elected, or, when appropriate, named by the respective pueblos and communities" (ibid.). The euphoria following the signing of the San Andrs Accords was shortlived, whcn it became evident that President Ernesto Zedillo's administration had no intention of implementing them. Not until 2001 did the Mexican Congress approve the so-calIed ndigenous Law, a greatly watered-down verson of the original San Andrs Accords, which left most of the specifics as to how indigenous autonomy might be realized to individual state legislatures. With regard to worneri's land rights, the ndigenous Law mirrors the 1992 agraran legtslation, which greatly limits women's rights. Where, under the 1971 Agrarian Law, ejido land rights were considered a family patrimony and wives and consensual partners were first in line to receive land use rights if male ejidatarios died, in the 1992 Agrarian Lawdecisions regarding individual parcelization and privatization of plots are made by the ejido assembly, not by families. Spouses and unmarried partners have no voice or vote in that process, as male ejidatarios may petition ejido assemblies to permit them to privatize and sell their plots or engage in joint ventures with their land. If a male ejidatario should decide to sell his parcel, his wife, unmarried partner, or children, have the right of first refusal-but only within thirty days of when the land is put up for sale. And most rural women do not have sufficient income to purchase Iand, should it be put up for sale by their husbands or partners (Stephen 1993). Another change in agrarian legslation affecting women is that ejido rghts need no longer stay within the family. Ejidatarios can bequeath the land to anyone they wish, and the heir has no obligation to support the ejidatario's dependents

96

LYNN STEPHEN

WOMEN'S LAND RIGHTS IN CHIAPAS

97

(Deere and Len 2001, 152; Baitenmann, this volume). As summarized by Carmen Diana Deere and Magdalena Len (zoot, 155): "With the end of land distribution by the state, and disntegration of family patrimony on the Mexican ejidos, women's access to land willlargely depend on inheritance practices and on their ability to participate in the land market as buyers." In sorne communities in Chiapas, where most nonprivate landholdings are in the form of ejidos, women's best chance of obtaining access to land is through emerging popular legal systems. Here, indigenous autonomy is being implemented outside state law, in the forro 01local ndgenous and revolutionary law (such as the 1995 and 1996 Deelarations of Autonomous Municipalities in Rebellion and the 2003 creation of Juntas of Good Government providing a regional structure of government and justice for the autonomous rnunicpalties). The creation 01 rghts at the margin is also gendered. By combining individual and collective rights and reconfigurng local governance structures, communities in Chiapas are providing new gendered models for how to create flexibility in local indigenous rights and governance structures that can give indigenous women more broadly defined land rights than those afforded them in current nationallegislation.

Indigenous Rights, Revolutionary Laws, and Gender Iustce

From 1994 to the present, indigenous women have appealed to have their demands ineluded in legal processes relating to indigenous rights. Women began by participating in sessions focused on indigenous wornen's rights as part of the riegotiation of the San Andrs Accords. They were involved in a range of workshops and congresses, and by the mid-rqqos had begun to create their own spaces within the two most important national indigenous rights organizations, the National Assembly for Autonomy (ANIPA) and the National Indigenous Congress (CNI). By 1997, women had created their own national network, the National Indigenous Women's Coordinating Council (CNMI) (Blackwell zoo). The creation of a national indigenous womeri's network, the ongoing participation 01women in the two major national networks for indigenous rights, and the women's participation in international congresses have signficantly elevated the voices and concerns 01indigenous women in regional, national, and international political spaces. In these varied political spaces, indigenous women have demanded citizenship rights in a variety of arenas-family, community, organization, and nation. They have attempted to intgrate concerns 01ethnicity and gender with natonalism and have pressed or a broader understanding of self-deterrnination and autonomy. Although not without sorne degree of conflict (see Stephen zoor), indigenous women have by and large been successful in maintaining unity in their national and regional struggles (Blackwell 2006; Sierra 2002). These

struggles inelude economic autonomy (access to and control over the means of production, ineluding land), political autonomy (basic political rights), physical autonomy (the rght to malee decisions concerning their own bodies and the right to a lile without violence), and sociocultural autonomy (the right to assert their identities as indigenous women) (Hernndez Castillo 1997, 112). Por exarnple, at the founding congress 01 the CNMI in Oaxaca, over seven hundred women representatives participated alongside a grassroots committee of women from the EZLN. They demanded the fulfillment of the San Andrs Accords, the demilitarization 01 indigenous zones 01 Mexico, multilingual and multicultural education prograrns, education for women, women's right to manage projects and resources aimed at them, reforrn of Artiele 4 01the Constitution to inelude equality between men and women and the recognition of a multiethnic society, parity for women in all representational bodies, and "a need to change [A)rtiele 27 of the Constitution so that it enables women to have the right to inherit land through direct relationship and through the respect we have for Mother Earth and natural resources" (Gutirrez and Palomo 2000,70). In documents produced by women in the CNI and ANIPA, as well as in the CNMI, the physical and psycnologcal integrity 01women's bodies and reproductive decision rnaking were linked to the right to land, property, and participation in political decision making. Women in these organizational spaces demanded rights to land, but it became evident that indigenous land rights in general and those of indigenous women in particularwould not be incorporated into nationallevel discussions of revolutionary laws. Indeed, the San Andrs Accords, the initial proposal for legislating the accords, and the 2001 Indigenous Law completely failed to address land rights in general, and women's land rights in particular, accepting instead the terms of the 1992 agrarian legislation. The following example illustrates this point. In October 1996, the EZLN and the Comisin de Concordia y Pacificacin, or COCOPA (the National Comrnission of Concord and Pacification), composed 01 representatives from Mexico's three leading political parties, announced that a joint commission had been forrned to monitor the implementation 01the San Andrs Accords. The COCOPA developed a legislatve proposal endorsed by the EZLN, in which women's rights were stated as ollows: "[Indigenous peoples] have the right ... to apply their own normative systems in the regulation and solution 01 internal conflict, respecting individual rights, human rights, and the dignity and integrity 01 wornen." The proposal recognzes the right of indigenous peoples "to elect their authorities and exercise their own forms 01internal government in accordance with their norms ... guaranteeing the equal participation ofwomen" (La jamada. [anuary 13, 1997). The draft thus subtly addresses the political participation of women where "traditionally" it has been overlooked, and also discourages nternal forms of conflict resolution that do not respect women's rights. Land rigbts, however, are not addressed.

98

LYNN STEPHEN

WOMEN'S LAND RIGIITS IN CHIAPAS

99

Analyzing the question of land nghts in national-level discussions of indigenous women from 1994to the present, one must conclude that the most promising political arena for this struggle is within the women's indigenous autonomy movernent, and especially at the locallevel, where alternative popular legal systems and governance structures are challengng state law. One such place is in eastern Chiapas.

Although a majority of those with formal ejido rights in these two cornmunities were men from the time the ejidos were formed until the mid-1990 S , women historically developed a sense of the land as belonging to their families and seem to have identified elosely with the struggle to obtain land, keep it, and improve it. Por women like Comandanta Trinidad from the Zapatista ejido of Guadalupe Tepeyac, one's parents' transformation from peons who worked as sharecroppers to independent ejidatarios was of rnajor significance. She remarked of the orgns of her ejido: "We don't have a patrn now. We looked for a better life without a patrn and we found our land, We continued to be poor, but we had our products. When we would brng out products to Las Margaritas, they bought them at a very bad price. They told us, 'Your coffee is no good.' And because we were really poor, we sold it to them cheaply.... I decided to become a Zapatista so that our communities can improve" (Ziga and Bellinghausen 1997, 340-341; Stephen 2002, 103), The statement by Comandanta Trinidad, and those of other EZLN women I have interviewed, suggest that these women see land as an integral part of their struggle for community improvement. Many women from these two communities were, in the early 1990S,EZLN insurgentes (trained soldiers living away from their communities in training camps), milicianos (mobile reservists who live in their communities, receive training, and participate in armed actions), or bases deapoyo (civilians who support Zapatismo, carry out Zapatista social programs in medicine, health, and agriculture, and provide material support for the EZLN). The Zapatista struggle for land ineludes keeping control of ejidos, expanding available land, and maintaining political control of ejido governance. In Guadalupe Tepeyac and La Realidad, the traditional structure of governance has been the ejido, in conjunction with ten to fifteen years of participation in regional peasant organizations such as the Independent Federation of Agricultural Workers and Peasants (CIOAC), Ejido Union of the jungle (Unin Ejidal de la Selva), and the collective association ARIC-UU (Asociacin Rural de Inters Colectivo-Unin de Uniones)." By the time agrarian legislatio n was reformed in 1992, the EZLN was firrnly entrenched in Guadalupe Tepeyac and La Realidad, and many of its supporters were women. Through the cover of a regional organization called the Independent National Peasant Alliance "Emiliano Zapata" (ANClEZ), the EZLN held a rally in Ocosingo aganst the 1992 reforms to Artiele 27 and agrarian legislation. Four months later, the EZLN held another rally (see Stephen 2002, 237-238). During this time and afterward, ejidatarios in both communities discussed how to counter the 1992 agrarian reforms, as they discussed the formulation of new revolutionary laws for Zapatista communities. Men, women, and children attended the rallies and were also involved in community-wide discussions about the formulation of the new laws that carne to form an alternative grassroots legal system. This alternative popular legal system

Women's Land Rights in La Realidad and Guadalupe Tepeyac: Zapatista Popular Law and Indigenous Autonomy
[ust how much indigenous women understand about the 1992agrarian legislation or the 2001 Indigenous Law and how these affect their rights to land varies greatly from one place to another. A related question is how much nationallaws actually matter at the locallevel, because local practices allow other avenues for women's access to land and/or because the local governance system has declared itself autonomous and set up its own rules for access to land, as in the Zapatista autonomous regons. There, women's engagement with land and resource rights is deeply informed by local and regional context. Women's relationship to land rights is mediated through local ethnic relationships and through belonging to a collectivity that serves as a basis for granting them rights that increasingly are declared equal to those of men. Local understandings of land rights are given meaning in daily life through the struggles to claim and maintain control of ejido land in the face of military occupation by the Mexican army and through alternative local legal systems, which in many cases have now coexisted for a decade with state law-a case of sustained interlegality. The majority of land held in nonprivate status in Chiapas is in ejidos. In 1990, 1,405,025 people, or 43.7 percent of the state's total population, lived on approximately two thousand ejidos (Stephen 2002, 63; INEGI 1995, 3). Ejido formation has been an important and contentious process in the agrarian history of Chiapas, and it continues to be so today, as Zapatista ejidos challenge national law by asserting their own local indigenous laws and systerns of governance. The Tojolab'al communities of Guadalupe Tepeyac and La Realidad were formally constituted as ejidos in 1956 and 1966. Ejido members had migrated to the arca a decade or more earlier. Most of the ejido founders had worked as sharecroppers for ranchers who lived at the outer edges of the Lacandon iungle. In hopes of a new beginning, they moved to nationallands with the expectation of being able to make an independent living rasng cattle, corn, beans, and cofee. Although women were arnong the pioneers who eleared the land, built houscs, and worked harvesting coffee, very few were formally given ejidataria status (Stephen 2002, no-m; Rovira 1997, SS). Women were seldom present at ejido ussemblies, even though they worked the land alongsde men during the coffee harvests and were in charge of small-scale commercialization.

100

LYNN STEPHEN

WOMEN'S LAND RIGHTS IN CHIAPAS

101

had a much wider level of local participation in its formulation than had the 1992 agrarian reforms or the 2001 Indigenous Law. As the governance structure of these communities changed to accommodate the secret presence of the EZL'\!, the local political culture began to change as well. In sorne communities, women were encouraged to speak up at secret meetngs, to meet on their own, and to undertake important leadership roles. By the time the EZLN went public in 1994, the local political structure in La Realidad and Guadalupe Tepeyac had already been transformed with regard to gender and age roles. AII men, women, and children were strongly encouraged to attend community meetings, and these were not over until everyone who wanted to had spoken. Women organized around specific tasks, ncludng health, education, community defense, and food procurement. After communities in Chiapas carne under attack from the Mexican Army (and, in the case of Guadalupe Tepeyac, relocated for almost eight years, from 1995 to 2001), local gender roles for women carne to inelude front-line confrontatons with soldiers, communicating with reporters and oregners about the urgent needs of the community, and traveling to San Andrs Larranzar, San Cristbal de las Casas, and elsewhere to support and protect EZLN delegatons during peace talks, forums, and other events. They considered all these activities part and parcel of the efforts to protect ejdo lands from military incursions. This context is key to understanding the perspective of women in Guadalupe Tepeyac and La Realidad on land rights and changes in local governance. From the late 1980s until 1994, two parallel governng structures existed in .thesc ejidos. The traditional ejido governance system coexisted with the clandestine structure of the EZLN. In one, women had little presence at assembly meetings. In the other, women were actively encouraged to take on leadership (see Stephen 2002, 135,179-210). At a broader level, those committed to the Zapatista struggle were engaging in a process o creating their own laws and their own system of land use, which in sorne cases challenged the established ejido structure. In late December 1993, the EZLN published a number of "revolutionary laws" in its underground newspaper El Despertador Mexicano, including the Revolutionary Agrarian Law and the Women's Revolutionary Law. Although the Women's Revolutionary Law has been widely analyzed with regard to its gendered implications, the Revolutionary Agrarian Law has received much less attention.

First, the law specifically rnentions the rights of women, while the state's agrarian laws are only implicitly gender neutral-and, in practice, profounelly discrirninatory: First. This law is valid over the entire territory of Mexico, and is for the benefit of all poor peasants and farm workers in Mexico, regardless of their political affiliation, relgous creed, sex, race, or color. ... Sixth. PRIMARY RIGHT of application [for expropriated land] belongs to the coIlectives of poor landless peasants anel farm workers, men, women, anel chilelren, who eluly verify not having land or [havingj land of bad quality.... (Womack 1999,253) Second, women have the same obligations as men in terms of working the land. Land must be worked collectively and used to produce necessary foods, and may not be individually monopolized. Fifth. The lands affected by this agrarian law will be redistributed to landless peasants and farmworkers who apply for it as COLLECTIVE PROPERTY Ior the formation of cooperatives, peasant societies, or farms and rancning production collectives. The land affected must be worked collectively .... Eighth. Groups benefited by this Agrarian Law must dedcate themselves preferentially to the collective production of foods necessary for the Mexican people: corn, beans, rice, vegetables, and ruit, as well C1S animal husbandry for cattle, pigs, and horses and bec-kceping, and [to the production] of derivative products (milk, meat, eggs, etc.) .... Twelfth. Individual monopolization of lane! and means of proe!uction will not be permitted. (ibid., 253-254) In practice, land expropriated by the EZLN has been available to women. Following the Zapatista rebellion, land invasions between ]anuary 1994 and the summer of 1996 resulted in the seizure of up to fifty thousand hectares (Stephen 1998, 19). In addition, a lanel trust run by the Ministry of Agrarian Reform in Chiapas negotated two hundred and forty thousand hectares of land for fiftyeight thousand beneficiaries in a prograrn allowing them to purchase the land (ibid.). My dscussions with men and women about land use rights, forms of production, and gender roles in Guadalupe Tepeyac (in 1994) and La Realidad (in 1995, 1996, and 1997), suggest a hybrid legal system melding the older ejido structure and the new rcvolutionary agrarian law that argues for colIective production and women's access to land rights. This legal system can be viewed as both a revision to customary law and an ernerging popular legal system that relates to nationallaw (through ejidos). The Zapatista legal system reinterprets national and locallaw through a process that we rnight cal! an everye!ay form of state-buildlng "from the fringes of the territorial state, by subaltern grnuJls who

Revolutionary Agraran Law

In order to establish a generallaw for land redistribution, the EZLN issued the Revolutionary Agrarian Law. Several characteristics make this law different trom the 1992 agrarian reforms with regard to gender.

102

LYNN STEPHEN

WOMEN'S LAND RIGHTS IN CHIAPAS

103

had formerly been excluded from participation in the national community" (Nugent 1997,308). Unlike the situation in the Chachapoyas region of Peru in the 1920S and 1930S described by David Nugent (1997)-where modern nationhood equated with individual rights and prvate property, and economic development was considered a form of liberation-in La Realidad and Guadalupe Tepeyac, Zapa tista laws insist on collective production and possession as a way of liberating the community from the model of individual property rights and production imposed by the 1992 reform to Article 27 (see Stephen 2002,62-80). Ejidatarios in these two communities see rnodern nationhood, as delivered through the neoliberal economic model of the 1980s and 1990s, as having further margnalized thern, Their strategy for being taken seriously and rentegrated comes through alternative legal systems and state-building at the margina IncorporatIng women into alternative legal and political structures that militate against a neoliberal model has been an important and contentious part of the Zapatista experience, In 1994, Major Eliseo discussed with me the difficulties of getting both men and wornen to convert to collective production. He also emphasized security concerns.
LYNN STEPHEN:

LYN N STEPHEN:

And is this as difficult to implernent as it is to get the men to work col!ectively? Yes, because the women have what we said-individualism. What they have they don't want to give to everyone else. But lttle by little this idea is changng. And finally people are convinced, the whole town is convinced, That's how it is. Little by little, but this takes time. It isn't going to happen overnight.... You have to keep tryng varous times in order to succeed. That's how it is. That is the way that we are fighting for the land.

MAJOR ELlSEO:

How is it, trying to convince people to change from an individual way of farming to a collective model?

MAJOR ELlSEO:

lt is really hard. Think about what happens. They al! ha ve a lot of individualismo They say, what is mine, is mine, 1 can't give it to someone eIse. It is really hard to challenge this idea. We have to challenge our people this way, even people in our own army, giving them the idea, showing them what can happen with time. Part of the communities we have organized this way because of the war. Because when it is time to go to war we can't have ene person here, and another persan there and another person there. Because that way they [the enemy] can enter very easily. We have people all working in one place together so that there is better security. Any woman can arrive to work and know that there will be people around. So we are carrying this idea out little by little.... In one ejido sometimes therc would be twenty people who would work collectively and the majority would be working individually. When they [the individual farrners] saw that it worked [the collective] then another ten would join. And that is how the town was won.

LYNN STEPHEN:

In the collective work that you are doing, are the women participating in agriculture? In planting?

MAJOR ELlSEO:

Wornen also participate. They have their own collective work, Of course they are not working in the corn fields, but do other work. They do vegetable farrning collectively, bakerics, collectively. There are doing small thngs, but they are learning. , ..

My conversation with Major Eliseo suggested that the EZLN was atternpting to irnplement certain parts of their Revolutionary Agrarian Law, particularly with respect to encouraging collective forms of production. What the conversation also reveals, however, is that collectivzation was not just an economic strategy; it would keep people together in one place and provide safety in numbers. In addition, structuring ejido agriculture collectively served as an organizing strategy for the EZLN. One other aspect of the conversation is worth noting. Although both wornen and men are organized collectively to the extent possible, according to Majar Eliseo, there are differences in the type of eolleetive work men and wornen do. According to him, women did not work in the cornfields, but did vegetable farming and worked in bakeries and other small scale projects. I do not know if Eliseo was referring to al! areas or only one specific place; he did not tell me specifieally where he was from. Later conversatons with men and women from La Realidad suggest that women did go out to the fields and that sorne were also working planting corn and harvesting coffee. Gender roles can vary quite signifieantly from one Zapatista base community to another, or even within one community, particularly in relation to age, Perhaps because Guadalupe Tepeyac and La Realidad were early strongholds where men and women were socialized over a long period of time to Zapatista laws and thinking, they show more flexibility than elscwhere.? Aceording to interviews I conducted in 1995-1997, wornen in La Realidad were involved in collective production projects focused on corn, vegetables, and animal production. Women worked together on a plot of land to produce food (this process of organizaton had in faet started before the 1994 rebellion). At the same time, ejidatarios and their families attempted to continue working their ejido lands as family units, but found it increasingly difficult, gven the low-intensity war. Thus, changes in local understandings of land rights that might have allowed women to extend their use of land and perhaps be allocated more land were in part lirnited because o security eoneerns. In the summer al 1996, women in La Realidad deseribed to me their experiences al working together in collective agrcultural projects. They described walkng together to and lrom their field as a source of pleasure, but also o tension: they stayed together out of fear. After describing the collective projeets,

104

LYNN STEPHEN WMEN'S LAND RIGHTS IN CHIAPAS

105

women also explained their attempts to continue growng coffee on their family's ejido plots. After the army's invasion in February 1995, the ejido land that had served as a refuge was difficult to access. Mara (a pseudonym) said the following: When the army carne to take this community it was the ninth of February 1995, and we fied, we ran away.... We fied, we ran to our ejido land. We went to one side and settled there. Then the arrny carne afterus and screamed at us that we should return to our community, that they wouldn't do anything. They said they carne lar peace. They said they hadn't come to bother people .... ... We didn't come back. But the next day we carne back and we started to yell at them. We ran them out with all 01 the women. A group of women stood and we screamed at the army to leave, that they get out 01 here. The army doesn't belong here in our community. We are the owners here. We are in charge of the community. The army belongs in the city, in their barracks.... ... We can't do our work. For example, we have coffee fields that are off this road. But we can't even walk there, because the Mexican army is going back and forth, watching us to see what we are doing to make sure we dori't do anything. They say they won't do anything to us, but then they will come and they will betray uso Mara's narrative gives us sorne insight into how she thinks about ejido land. She describes it as "our land," asserts "We are the owners here" and describes the major role that women played in removing the army trom the community's lands. Her sense of collective ownership and use o the land is apparent. At the time, her everyday experience involved both working collectively with other women to produce corn and vegetables as well as attempts to check on the coffee fields her family holds through her husband's rghts in the ejido. Although the land is formally regstered in her husband's name as an ejidatario in the eyes of the Mexican government, in Mara's eyes the coffee fields belong to her as much as to him. Conversations with rnen during this same trip revealed that most formally designated ejidatarios were men, and that land was still officially titled to meno Sorne men interviewed continued to state that, in the ejido o La Realidad, women ganed rights to ejido land as widows if their husbands had be en ejidatarios or as single mothers. While all men over the age 01 eighteen, whether single or married, could have access to ejido land, married women and single women without children over the age of eighteen could not, according to these ejidatarios. Women and sorne younger men, however, debated this interpretation. They emphasized wornen and men workng together in collective agrculture, not individual ejido rghts for meno

Because the EZLN has not dealt directly with governrnent officials at the ejido level since 1994, there has been no process that would have allowed the community to officially change the designation o who has ejido rights. And it seems that there are still differences of interpretation within the community by generation and gender. For people who carne of age in the Zapatista organizational and rebellion process between 1988 and the present, legal reality is more likely to be nforrned by Zapatista revolutionary law and legal practices then by Mexican nationallaw. The communities o Guadalupe Tepeyac and La Realidad have be en governed by Zapatista principies since the late 1980s, and probably longer. At thirty-five years of age in 1996, Mara had spent almost a dccade of her life being socialized in the revolutionary ideology, laws, and political structu res of the EZLN. For her, legal and political reality has most likely been defined by that experience. Her community deelared itseif part o the autonomous municipality of San Pedro Michoacn in 1996. The consolidation of EZLN autonomous municipaliti es from 1996 to the present has involved: the demarcation of territory; the establishment and acceptance o a new normative framework; a series o rebellious actions that refuse to recognize governmental bodies; elections for and installation of parallel authorities and governments; and the creation o locallevel governing structures in charge o polcng, tax collection, and the civil registry (Burguete Cal y Mayor 2000). The consolidation of Zapatista autonomous municipalities and other units comes directly from the government's refusal to implement the 1996 San Andrs Accords that it signed. In communities like Guadalupe Tepeyac and La Realidad, this situation has triggered an cngoing process of establishing autonomous and parallel government institutions and processes that seek to implement the San Andrs Accords locally. In August 2003, the Zapatistas announced the creation of five caracoles (lite rally "shells" but meaning "houses") as seats for five Juntas o Good Governmento La Realidad is the site o one such junta. Each o the five juntas includes one or two delegates from each of the already existing autonomous councils in each zone. Currently there are thirty Zapatista Autonomous Municipalities in Rebellion feeding into the five juntas. The functions of the juntas inelude, among other things: monitoring projects and community works in Zapatista Autonomous Municipalities in Rebellion; monitoring the implementation of laws that, having be en accepted by the communities, function within the jurisdiction of the Zapatista Autonomous Municipalities in Rebellion; caring for the Zapatista territory that they manage (Servicio Internacional para la Paz 2003). At the celebration far the new juntas in 2003, Tojolab'al Comandanta Estherwho addressed the Mexican Congress in 2001 urging it to implement the San Andrs Accords--eaptured the sentiment of other women and men who had decided to implement their own systems o government and justice, including

106

LYNN STEPHEN

WOMEN'S LAND RIGHTS IN CHIAPAS

107

the Revolutionary Agrarian Law. Addressing Mexico's indigenous peoples, Esther argued that now, we have to exercise our rights ourselves, We don't need to ask permission from anyonc, especially politicians.. '. We cal! on you all to apply the San Andrs Accords. It's time to act and to apply indgenous peoples' autonomy al! over the country. We don't need to ask for perrnssion to form our autonomous municipalities. just like we are doing and practicing-we don't ask for approval. (Comandanta Esther 2003) In communities, such as La Realidad and Guadalupe Tepeyac, that have a tradition of ejido forms of government as well as a newer tradition as part of an Autonomous Municipality in Rebellion, gender roles and women's perceptions of their land rghts are in flux. I found little evidence to suggest that women's experience and strategies are focused on obtaining individual use rights to ejido parcels, Because many, like Mara, have committed to creating an alternative system of agricultural production and use rights based on collective ownership and access, their emphasis is likely to continue to be on supporting a broader struggle for community land rights, and for their rights of access as wornen within that struggle. The primary vehicle they have identified for achieving their goals is the implernentation of the San Andrs Accords at the nationai Ievel by the Mexican governrnent, In the meantime, their strategy is to live out the accords in their local communities. By adopting this strategy, wornen are fusing the colJective struggle for ethnic rights (i.e., indigenous rights) to land and political control, wth efforts to create individual rights for wornen that grant them equality with meno

Indigenous Women's Land Rights: Where To?

Indgenous women in Mexico are increasingly rnakng themselves heard at local, regional, and nationallevels. In the 19905, the combination of the new agrarian

legislation and nonimplementation of the San Andrs Accords legal!y undermined wornen's rights to land and natural resources. At the same time, growing national movernents for indigenous rights, the ernergence of a national indigenous womeri's network, and local experimentation in ntegrating women into local Iorrns of governance, communalland access, and systerns of justice such as those highlighted aboye have created an optimistic juncture for expanding indigenous worneri's access to land. Indigenous rights organizing is likely to provide the most fruitful avenue for indigenous women to increase their access lo land, rather than relying on changes in nationallegislation that might allow thern to become private land owners. The fact that Mexico recognized multiculturalisrn at the sarne time that it implemented a neoliberal economic regime limited the material base for the reproduction of indigenous culture and surely

limits possibilities for indigenous women as well (see Mattiace 2003b, 153-154); thus, although 1 do not doubt the importance of legislating the San Andrs Accords and retormng agraran legislation to extend women's land rights in relation to ejido land, 1believe that the kinds of experiences 1describe in La Realidad are crucial to expanding women's access to land and natural resources. The other lesson frorn the recent experience of the Zapatista autonomous municipalities in Chiapas is the importance of forging the exercise and practice of indigenous rghts outside state control while at the same time continulng efforts to change the Constitution, the laws, and their regulation. The exercise of rghts outside the control of the state is crucial to the everyday experience of those who seek them, such as the women discussed here. Situations of interlegality--of the coexistence of multiple systems of law-are quite common throughout history and can become important arenas of social change, In many cases, constitutions and laws at federal and state levels are changed in response to a social movement in whch persons are already defying the law and living their lives as if they already had the rghts they seek (see Speed 2006 for another Chiapas example, and Sierra, this volume). Social movements demonstrate thelrnportance of persistence and practice through time in making laws match reality, Both legal and social movement strateges involving the exercise of rights are important. Perhaps the Mexican state's resistance to legislatng indigenous autonorny has ultimately helped to legitimize the practice of alternative popular legal systems. The other reason to be optimistic in Mexico is the existence of a national indigenous women's network that is dedicated to getting wornen's rights enforced in the process of grantng indigenous au tonomy. This network provides a national sounding board for a wide range of local experiences and provides indigenous women leaders from different parts of Mexico with a chance to share and learn from one another's experiences while also working together to advance their cause at a national and internationallevel. Through this network, pushing for collective ethnic rights and working to ensure women's equal rights within ethnically or localiy based collectivities is a strategy being experimented with throughout Mexico (see Speed, Hernndez Castillo, and Stephen 2006; Hernndez Castillo 2002C). Land and natural resource use rights are fundamental for Mexico's indigenous wornen, and the stakng of claims in these areas by women in the indigenous rights movement can provide an opening for all rural women to reclaim rights they lost in the 1990s, and perhaps even to expand them.
NOTES

Local indigenous legalsystemsare sometimes terrned usos y costumbres, or "new" usos y cosDumbres as in the Zapatista Revolutionary Agrarian Law. 2. The 1992 agrarian legislationincludes: the reforrnto Article 27 01 the Mexican Constitution; the Agrarian Law and its (1993) regulations: the Forestry Law, the Law 01
I.

10B

LYNN STEPHEN

4 5 6. 7

National Waters; and laws establishing or revamping the Office 01 the Agrarian Ombudsman (Procuraduria Agraria), the agrarian courts, and the National Agraran Registry. lt also ineludes the rules and regulations pertaining to the 1992 land titling program (see Baitenmann, this volume). For a definition 01 ejidos, see Baitenmann, this volume. Other lorms 01 rural land arrangements held in nonprivate or social tenancy are the agrarian communities (comunidades agrarias). This land constitutes a significant part 01 the holdings 01 indigenous communities and is based on historical claims, usualIy dating to preColumbian or colonial times. In many cases, these lands are known as comunales (communallands). The 1992agrarian Iegislaton permits agraran communities to turn into ejidos; once this occurs, land can then be individualIy parceled and prvatized. This "law" cntails reforrns to Articles 1,2. 4, lB.and IIS 01the Constitution (DiarioOficial de la Federacin. August 14.2001). The San Andrs Accords were signed in February 1996 by the Mexican government and the EZI.."!. For an analysis 01this complex process, see Hernndez Navarro (199B). See Stephen (2002. 126-145); Mattiace (2003a. 2003b); Leyva Solano (2003, 161-164); Leyva Solano and Ascencio Franco (1996). Discussions with Mrgara Milln in December 2003 revealed similarities concerning gender roles in La Realidad and in San Miguel Chiptic, where Milln has been conducting fieldwork Ior severa! years.

5
Indigenous Women, Law, and Custom
Gender Ideologies in the Practice of [ustice
MARA TERESA SIERRA

this chapter, 1 show how gender ideologies constitute disciplinary mechanisms in the form of rules and customs guiding social practices, limiting the possibilities for the emergcnce of new dscourses about rights. The practice of justice and conflict resolution in indigenous regions offers us a space in which to analyze these processes, since it reveals how norms derived from different judicial systems-the state system and the indigenous system-shape social behavior and legitimate the subordination o wornen, What happens in the courts also enables us to reconstruct the strategies women have developed to challenge these models and ideologies and to redefine the relationship between them. 1focus on the practice of justice in local and regional spaces of the Nahua communities of the Sierra Norte de Puebla. seek to demonstrate, on the basis of legal interactions, how gender ideologies influence the alternatives available to ndigenous women for settling controversies and containing violence. 1 briefly describe the indigenous organizations that exist in the region of Cuetzalan and the discourse of rights that these organizations are promoting, in order to document the changes, however small, that can contribute to the building of a plural justice embracing the principie of gender equity.' The court is a place where a socety's gender norms, values, and ideologies are revealed, for, in airing disputes before local authorities or mediators, people appeal to gender norms and thus shed light on the conflicts perrneating the relationship between the sexes. As well as being spaces par excellence of legal discourse, courts are also spaces of performance (Turner [986) and spaces or cultural production, where cultural meanings are activated and negotated (Merry 1995). They are therefore privileged sites for the analysis of social practices and their representations. Comparative research in different regions o Mxico reveals the higl1 incidence of disputes brought to the indigcnous authorities that involvc womcn. n~;
109

In