Land, Law, and (Eventually) a Research Question

In several of the recent Republican debates of the 2016 presidential campaign, Donald Trump, Jeb Bush and other candidates bickered mercilessly over a politically charged but often overlooked issue: eminent domain. Basically, the idea of eminent domain is the right of a government to expropriate private property (usually land) for public use.1 Really gets your heart rate going, doesn’t it?

… Hardly. This issue is really important since it carries implications for human rights, development, and environmentalism, but it doesn’t often incite interesting debates or passionate discussions in our domestic political arena. However, for indigenous groups and embittered peasants shut out of historical homelands in the name of resource extraction for the public good, this is a major issue.2 3 It’s an everyday reality, not just an abstract political concept, which inspires protest and sometimes violence. For me, it’s a fascinating topic that entails questions about land and loss, power and marginalization, privilege and ‘otherness’. It’s a topic that thousands are forced to question every day, and the reason I started a research project last year.

I study the evolution of land titling in Peru, and specifically its effect on indigenous peoples and its relationship to social conflict. I started this project a year ago without a specific goal in mind; I just knew I was interested in indigenous peoples and human rights, related political and legal institutions, and related social tension and conflict. I started my project playing with ArcGIS online, comparing map layers with data on poverty, health, and social ascension to the geographic boundaries of Native American territory, and found shocking correlations between these layers. These geographic boundaries made me start to think about land as a way of defining and studying groups of people.

So I had the first major component of my research: land. Specifically, indigenous people’s land. I continued my work by reading Carl Schmitt’s The Nomos of the Earth, which describes the ways in which land creates or can express law and order. I realized that land is not static or neutral as upon first consideration; land is dynamic. It does not only have to capacity for law-making and enforcing, but it is the most basic form of sovereignty and way of identifying a nation.4

My new perspective on land created an interest in studying indigenous land titling. How do indigenous groups defend historical homelands? How do they secure legal recognition for inhabited but informally held places? Systems of granting indigenous land titles vary widely across the world, but one particularly interesting and unique case I soon found was Peru.

Unlike many of its South American neighbors, indigenous land holdings in Peru are small and scattered sparsely across millions of acres of jungle and mountain terrain. The map below shows the contrast between Peru’s sparse land reserves and the larger swaths of land reserved for indigenous peoples in Brazil, Colombia and elsewhere. This is not because all of that untitled terrain is uninhabited; it’s because the evolution of land titling in Peru has created a system that does not give priority to indigenous ownership.

Map of Brasil

Today, land titling in Peru places an emphasis on individual rather than collective ownership as a result of neoliberal development practices, and in situations where communities do seek titles, the approval of a high percentage of community general assemblies is needed to make claims.5 6 Lands that may be traditionally or historically significant to indigenous communities but are not directly inhabited are not up for indigenous titling; they are instead under the agency of the state and may be auctioned off and zoned for resource extraction.7

The federal land titling system is harmful to indigenous communities in that it impedes access to not only a place to live and vital resources, but also a source of identity. Historian Ward Stavig wrote: “communal lands were vital to indigenous peoples’ social and biological reproduction, and little, if anything, was more important to them.” 8 After a violent historical legacy of taking land away from indigenous peoples in the name of various types of paternalistic, capitalist economics and land systems, the continuity of disrespect for indigenous land traditions today is a radical abuse.

The repercussions of this disastrous treatment of indigenous lands and ignorance of indigenous opinion are very present in Peru today, where protest, violence, and environmental degradation are increasingly prevalent.9 This social conflict, which almost always precipitates from opposition to resource extraction, led me to my research question today: How does a government decide how to distribute sovereign territory people? How do people respond to those decisions, and under what conditions do decisions about land lead to conflict?

My goal for this project is to study abroad to conduct research and to then produce a publishable research paper as a senior honors thesis. Designing my research method has proved difficult; how can I generate data as a representation of indigenous sentiment? How do I know that sentiment, and the protests and violence possibly accompanying it, is a response to land titling and not other specific injustices? Additionally, would it be more effective to conduct a small-N analysis with interviews and in-depth case studies to more deeply understand indigenous sentiment, or a large-N analysis with a survey or archival work that gathers basic information from a wider range of time and space?

In the coming weeks I’ll be working on study abroad plans and a concrete research design. Stay tuned for my next blog post, where I’ll address all these questions and share my thoughts and plans regarding methodology!


1U.S. Constitution. Ann. 14, amend. V.

2Rosette, Diego. 8 November 2014. “Tensions rise in Peru as indigenous groups protest new land concessions.” La Opinión.

3Hill, David. 2 February 2015. “Peru’s indigenous people protest against relicensing of oil concession.” The Guardian.

4Schmitt, Carl. 1950. The Nomos of the Earth in the International Law of the Jus Publicum Europaeum.Candor, NY: Telos Press Publishing.

5Plant, Roger, and Soren Hvalkof. Land titling and indigenous peoples. Inter-American Development Bank, 2001.

6Plant, Roger, and Soren Hvalkof. Land titling and indigenous peoples. Inter-American Development Bank, 2001.

7Plant, Roger, and Soren Hvalkof. Land titling and indigenous peoples. Inter-American Development Bank, 2001.

8Stavig, Ward. “Ambiguous visions: Nature, law, and culture in indigenous-Spanish land relations in colonial Peru.” Hispanic American Historical Review 80.1 (2000): 77-111.

9Hughes, Neil. “Indigenous Protest in Peru: The ‘Orchard Dog’ Bites Back.” Social Movement Studies 9(1) (2010): 85-90.

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