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Legally, in Costa Rica, indigenous peoples seem to inhabit in a “zone of indistinction”¹, whereby rights validated through various pieces of legislation – including an Indigenous Law and ILO Convention 169 – are often times set aside and its execution suspended by state authorities through political fiat. This is manifested in the form of a legal, political and bureaucratic framework that deliberately misrecognizes and omits cultural and racial differences and rights of the indigenous communities with regards to the needs of dominant mestizo population, while rhetorically embracing these identities and the multicultural nature of the nation-state. Furthermore, this zone of indistinction seems to function as a political mechanism whereby the state is given the authority to define what is to be considered as legally and politically viable for indigenous populations often times through the effective negation of the right of indigenous peoples to self-determination with regards to the legal and political principles through which their lands, and their access and use of natural resources should be governed.

Historically, politico-legal relations between the Costa Rican state and indigenous peoples were defined by omission. While there were a couple of legal dispositions recognizing the existence of indigenous peoples and their position as citizens of the country prior to 1939, these were never enforced effectively. During the 19th and most of the 20th Centuries, political institutions continuously disregarded their land rights, property systems, cultural practices or even their very existence as members of the nation-state. On the contrary, as I have been shown in chapter 3, their lands were automatically transformed into “baldíos”

(which is a term in Spanish for “empty lands”), and indigenous populations were swiftly dispossessed of them for productive goals or as a means to reinforce claims towards national sovereignty. This situation changed with the promulgation of the 1977 Indigenous Law, as well as several other legal dispositions, which carved out the 24 Indigenous Reservations that currently exist in the country – including the ones in which this thesis focuses. Moreover, the creation of the Constitutional Court in 1989 and the ratification of ILO Convention 169 led to the formation of a more robust legal system that recognizes, at least discursively, their cultural and political rights.

Nevertheless, this indigenous legal framework is rife with contradictions and opportunities for unilateral bureaucratic interpretation by government authorities when it comes to being implemented. Take for example the aforementioned Indigenous Law. Far from being a

well-structured piece of legislation, this legal document is imbued with dispositions that offer considerable leeway to interpretation favorable for state authorities. Article 5 of the Law states that “indigenous reserves should be ruled by the indigenous peoples following their communal traditional structures”, a political right also reaffirmed by Convention 169. Yet, in practice, and through interpretation by executive decree, the Costa Rican state has unilaterally defined the local integral development associations (ADI) as the sole means of territorial representation of these populations and the actual legal owners of the land that indigenous populations inhabit. Clearly, ADIs are not traditional structures in any way, nor do they share any resemblance with other political structures developed by the Bribri and the Cabécar over time, a reality that is recognized often by local political leaders in the Reserves (Candela et al., 2007). On the contrary, ADIs were public non-state entities, created under the venue of the central state, in order to coordinate government policy in frontier regions during the 1960s and 1970s (DINADECO, 1983). At their original inception, ADIs were supposed to function as “transmission belts” that could mobilize national policies of agricultural modernization and development (as conceived in the context of the U.S.-backed Alliance for Progress Program²), into isolated rural areas (Rivera Araya, 1998). In other words, these were originally conceived as proxies that localized state power, and as such, were (and continue to be) subject to national laws and dependent of financial resources provided by the central state, while allowing the latter to oversee their operation, even to the point of holding the legal power to intervene, reorganize or disband them if deemed necessary.

Of course, this is not to say that local ADIs are just simple “pawns”

subservient to state power in the Indigenous Reserves. On the contrary, there have been many occasions in which these local organizations have been the center of political resistance to government agendas, such as in a later stage of the struggles against RECOPE’s oil explorations of the early 1980s and Harken and Mallon Oil exploration in the coastlines in the early 2000s.³ Indeed, many indigenous leaders do recognize the potential of these organizations to be mechanisms for guiding political struggles of the Bribri and the Cabécar vis-à-vis the state (Méndez Benavides, 2014). But with all of this said, one cannot deny that ADIs do work in a wider political reality determined by power asymmetries, whereby the central state does reserves itself the power to allocate key financial resources for them to organize and act accordingly to policy (Candela et al., 2007).

Indeed, due to the fact that ADIs are in no legal position to levy taxes upon the local dwellers of the Reserves, nor have any other form of gathering the financial resources needed to mobilize their own development strategies, they are made structurally dependent of resources provided by other sources, namely the central state through the National Directorate for Communal Development (DINADECO) or other state agency with the legal power to provide resources to these organizations; or alternatively,

NGO- or IFO-financed projects in the region. And given that both types of resources available generally come through projects whereby ADIs have rarely had any say on initial planning and formulation (see Candela et al., 2007), this means that these organizations are set to have a limited degree of actual political autonomy in practice.

Local governance is but one of the ways in which the Costa Rican state systematically disregards the implementation of the indigenous law, and more will be said about this in the following chapters as I engage with the specific projects studied for this dissertation. Yet, it is relevant to say that there are plenty of other forms in which this zone of indistinction becomes manifested. Costa Rican civil law fails to recognize communal property, thereby impeding indigenous authorities and grassroots organizations to ask for credits for their own locally-organized and autonomous development projects (Guevara Berger, 2000). Judicial entities often fail to recognize the presence of indigenous legal orderings, in spite of the implied rhetorical adoption of the pre-constitutional thesis (Guevara Víquez and Rodríguez Aguilar, 2006). Educational policies implemented in the territories rarely account for multicultural education, even though articles of the 1977 Indigenous Law and various constitutional sentences have deemed otherwise (Borge, 2012). Political consultation processes are rife with legal vacuums that are often circumvented by political fiat at the expense of indigenous participation (Chacón Castro, 2002). And perhaps, the most critical issue in many indigenous reserves – the Talamancan Bribri and Cabécar excluded, is that the state has not even initiated the process of reclaiming lands from non-indigenous land owners, despite these territories existing for over 40 years (Chacón Castro et al., 1999). Perhaps all of this is best summed up in the following extract from a 1992 constitutional ruling about the legal situation of indigenous peoples (which could still be used to describe current reality):

“The current legislation does not recognize their own (indigenous) forms of organization, forcing them to organize legally around the Integral Development Associations, or as simple private non-profit associations, thereby imposing them with organization models that are foreign to them. They cannot obtain financial credits because lands are not legally theirs, and because the law considers them inalienable and imprescriptible. And there are no juridical procedures designed to grant guarantees over communal property. Moreover, they claim that the institutions that were created by law in order to defend them, are not theirs, but of the state.” (Constitutional Court, ruling 3003-1992, October, 1992).

For the purposes of this dissertation, it is important to take a look at how this “zone of indistinction” manifests itself with regards to the politico-legal framework governing the access to and use of natural resources in the Indigenous Reserves. Indeed, the legal framework has a fair share of ambiguities and contradicting pieces of legislation regulating

indigenous and non-indigenous access, use and exploitation of natural resources. For starters, while article 15 of Convention 169 demands the protection of “the right of these (indigenous) peoples to participate in the use, administration and conservation of these resources”, article 7 of the Indigenous Law removes any type of indigenous participation from key decision-making with regards to forests as it: 1) forces indigenous territories to leave forest cover unaltered in order to guard the hydrological equilibria of river basins, 2) demands forest uses to be organized exclusively by state institutions and 3) determines that only the state can name park rangers for the protection of these forests. The article does require the state to look for prior authorization of CONAI, but as seen in the previous chapter, this is an institution that has a long history of supplanting indigenous political will in favor of state territorialities (also see Chacón Castro and Guevara Berger, 1992; Chacón Castro, 2002; Villalobos and Borge, 1998). Perhaps the only environmental decision-making process whereby the Indigenous Law states that there should be obligatory consultation with the locals has to do with mineral resources found in the subsoil of the Reserves, which are considered “patrimony of the state and indigenous communities”

(article 6). But, even so, this article is rarely followed up by the state in practice as it is considered to be lacking in applicability, because of incompatibilities with the Mining Code (PGR, 2006).

Between 1977 and 1996, when the Forestry Law entered in effect, indigenous reserves were subjected to much more stringent environmental measures than any other forested land tenure in the country (except, perhaps the strictest protected areas), given that this legal standing had allowed for complete bans on land use changes involving forest cover. Yet, afterwards, these dispositions have continued to be very strict. Formally, the 1996 Forestry Law does not contemplate the existence of communal land tenure such as present in the indigenous reserves, as it only considers the existence of public and private property. Whereas the ADIs are the legal owners of the Reserves, land is internally distributed in the form of either individual, familiar or communal plots, and therefore, property is much more difficult to track on the field, as there appears to be no formal land registries or cadastral plans. This situation forced the central state to regulate forest uses through an executive decree on the Guidelines for Forest Use at Indigenous Reserves since 1995. The Guidelines defined a stringent limit to tree felling in the Reserves of three trees per hectare, per person, with an annual limit of 9 trees in total.

Moreover, if trees are felled, the Guidelines demanded that they should be exclusively used locally and not to be traded with people outside of the territory. It was a legal measure clearly defined to establish a strong control over indigenous natural resource uses, surpassing any type of state limitations made over private forests and also, created without any type of indigenous mediation or participation (PGR, 2016). Indeed, the Guidelines have produced considerable conflicts for the Talamancans and have been contested continuously (more about this in the following

section), to the point that it has been subjected to several constitutional rulings as organized indigenous groups in Talamanca and elsewhere have made efforts to suspend its execution.

Another way in which the legal ambiguities that form this state of exception are manifested has to do with traditional uses of resources, given that in Costa Rica, as the very Management Plan of PILA states:

“(t)here is no legal definition of ‘traditional use’” (MINAET et al., 2012: 116).

Article 14 of Convention 169 does contemplate that: “measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities”, meaning that such behavior should be permitted, which in the case of the Bribri and the Cabécar it may entail practices of extraction of flora from forests for medicinal and religious purposes, willful intervention of forested areas for controlling plagues and cultivation of orchards and agroforestry systems, as well as hunting and fishing (see Borge and Castillo, 1997). Yet, in practice, the extent of these activities is closely regulated by state authorities, governing from their own self-benefitting rules of interpretation, whereby laws meant for the general population can be implemented here, such as the Conservation of Wildlife Act or the Biodiversity Act, which entail considerable fines for these practices, and on occasions, even jail sentences.

In synthesis, while the Costa Rican legal system has managed to evolve by introducing new legislation that allows for the political recognition of its indigenous communities, it still has not been able to abolish the zone of indistinction by which indigenous peoples are governed by omission or contradiction. Indeed, this approach to indigenous affairs and policies seems to be directed at erasing the longstanding political traditions that tied them to the land that it is now considered as the indigenous reserve. While each of the ethnic groups still have some remnants of their own governance structures, and political visions of their territories that are central for land management, stewardship and consultation, such traditions and perspectives are not even considered by state authorities as the manner in which indigenous communities should govern and manage themselves. In turn, the emphasis has been given to imposing particular forms of political authority, which historically have operated as unquestionable channels of state influence and aid dependence. In the following section, the intention is to show how this wider politico-legal context also impinges on indigenous livelihoods by looking at the role of conservation policy within this zone of indistinction.

5.2. Historical origins of La Amistad International Park