Indigenous Culture

Insight into indigenous law

After four years of practicing corporate law at a large firm in New York City, two weeks ago I moved to Oaxaca to volunteer with Fundación En Via. I have found myself learning about a very unique system of law utilized by the indigenous communities in which we work, and one that differs very much from what I have previously known.

“Usos y costumbres” is the name given to a system of indigenous law that governs many communities with large indigenous populations in Mexico and throughout Latin America.  The phrase literally means “uses and customs,” but is more accurately translated as “customs as a source of law.”  The usos y costumbres system, which governs nearly three quarters of the 570 municipalities of Oaxaca State, plays a large role in preserving indigenous traditions and cultural and linguistic identities.

The village of Díaz Ordaz, located just 25 miles from the capital city, is one of those municipalities that practices usos y costumbes.  Díaz Ordaz is an agricultural community whose approximately 1,700 citizens grow corn, beans, squash and other crops and raise livestock. I recently had the opportunity to join a group of students from an American university to visit with the local authorities, including the Municipal President, the Alderman of Public Works and the Alderman of Health, to discuss their unique system of governance.

Our group was warmly welcomed at the town hall and we were offered cold water and sodas. While the town hall contains numerous offices for different functionaries and committees, most of the business takes place in the open-air courtyard, enabling the authorities to greet and interact with the townspeople every day, and that is where we had our discussion.

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One municipal official described the system of usos y costumbres as a large tree trunk that connects them to their ancestors, because the laws and rules that were left by their grandparents and forefathers, although unwritten, are still observed and followed today.  I really loved the image of the traditional laws, customs and practices providing a strong and steady guiding presence for the community.  Additionally, I could see the ancestors as the roots and the current generations as the upper branches.  While far apart, they are still connected, and the current villages still depend on their predecessors every day.

In Díaz Ordaz, many decisions, such as the naming of the top officials and the members of committees, are made by the popular assembly.  All citizens over 18 years old, both male and female, participate as equals in the assembly.  Everyone votes by raising their hands and what the assembly decides is law; the will of the majority is respected.

TreeoflifeAdditionally, service to the community is an integral part of usos y costumbres. When a citizen of the village finishes his or her schooling, he or she becomes involved in some community service, such as acting as an auxiliary police officer or working on one the committees, such as the Potable Water Committee or the Bus Committee.
Many of these positions are unpaid and the duties are carried out in addition to other jobs. This service combined with the respect and observance of traditional laws and the assembly voting process contribute to a strong sense of unity and community in Díaz Ordaz.

The Mexican federal and Oaxaca state governments respect the system of usos y costumbres in the municipalities that observe it.  By the same token, the members of the village respect those state and federal laws, such as criminal laws, that apply to them.

However, there are external challenges to maintaining usos y costumbres and the traditional way of life.  The main threat mentioned by the officials was the introduction of political parties.  The assembly voting system is based on the individuals in the community, not allegiances to national parties.  The officials we spoke with worried that political parties could come to Díaz Ordaz and erode the customary practices.  They had seen it happen in other nearby villages, where the arrival of political parties injected money, political ambition and fraud into the community, causing problems.

The informal and personal nature of law and governance in Díaz Ordaz really struck me, especially coming from the buttoned up, BlackBerry-clutching world of law practice in New York. However, the usos y costumbres system, which has persevered for generations, is uniquely well-suited to a village like Díaz Ordaz.  The system provides protection to the indigenous cultures and allows the people to govern themselves in the way they have for generations.  Although there are challenges to the traditional way of life, the individuals I had a chance to speak with in Díaz Ordaz were poised to continue observing ancient usos y costumbres and to pass them on to future generations of citizens and municipal leaders.

By Jonathan Goren

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1 thought on “Insight into indigenous law”

  1. Enjoyed this article. Although my understanding is that many communities actually practice consensus based decision making rather than simple majority rule. If this is true, it’s kind of amazing to think that a quarter of a million people are using consensus as a form of government. Since taxi drivers are my main source of info, and my spanish is basic at best, this could be wrong. See if you can find out more. Also, I believe that this is a relatively high functioning system (and not utopic) but it does depend on the will of the individual being subverted to the will of the community which I guess is the downside of consensus.

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