Lior Ben David, Tel Aviv University liorben@post.tau.ac.il
bdlior@netvision.net.il
Abstract
At the end of the 20 th century, recognition of indigenous peoples’ rights in Latin American constitutions has undergone a significant evolution, while legal reforms officially “turned” some of these countries into multicultural nations. For many scholars, this multicultural shift was particularly prominent on the background of many years, in 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 the Peruvian and Mexican Criminal Law during the first half of the 20 th century. In both countries, I will argue, the sphere of criminal justice played a significant role in remaking Indians and citizens, as it 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 these two cases can also further our understanding of the ways by which racial classifications within the criminal law and the 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”.

On May 27 th
1921, José Choqque’s body was found hanging by the side of a road leading to one of the villages in the province of Canchis, Peru. Signs of violence were still visible on the body and his poncho, which had served his murderers 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, semicivilized Indians, with absolutely no sense of culture.” This statement did not reflect only the court’s view of the defendants; but rather 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 semicivilized 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 – was it an act of exclusion or inclusion? Their case, I think, can serve as a good starting point to reconsider the roles
1 On the escalation of crime and violence in Canchis during that time one can learn from a memorandum sent on December 3 rd 1925 by a judge of the local court, Dr. Geronimo Pacheco, to the President of the Supreme Court in Cuzco. See: AGN, AH, MJ, Expediente N. 77-1 1926.
2 Tribunal Correccional del Cuzco, Instrucción N. 462 contra Sebastián, Laureano y Bartolomé
Espinoza. AGN, AH, MJ, PL, TC, Libro N. 3.20.3.3.1.16.45, pp. 339-342.
1

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 in Latin America and elsewhere; countries that were subject to processes of colonization, 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 20 th century, recognition of indigenous peoples’ rights in
Latin American constitutions has undergone a 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 on the background of many years, in 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
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
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 & Rébecca 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 H EIDELBERG J.
I NT
‘
L L . 497 (1999), p. 506.
2

half of the 20 th
century. At that time, Peru and Mexico, two major former centers of pre-Columbian civilizations and Spanish colonial domination in Latin America, were also two 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 were experiencing increasing social unrest, which took the form of violent clashes between
Indian peasants and local landowners that were often described as Indian revolts.
Mexico at that period was even more tumultuous: 1910 saw the eruption of the
Mexican Revolution in which many Indians took part 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 the 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 of practices and projects in which, contrary to prior undertakings, efforts were made to realize theoretical approaches towards integration and assimilation. In both states
3

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 legislation for the Indians. Their Mexican counterparts, on the other hand - imbued with the liberal-republican tenets bequeathed by the mid-nineteenth century alongside
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.
4

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 a 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 quasilegal 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 citizens, 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 by which racial classifications within the criminal law and the criminological discourse were sometimes used not only to exclude “problematic” social groups but also to promote, at least to some extent, their inclusion into “the national community”.
5

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 that 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.
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
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.
6

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 19 th 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 absence 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, which 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 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.
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.
7

In 1924, when the new penal code was enacted, the Indians could no longer be ignored by the 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 raise the "Indian Question" to the top of the public agenda and also to strengthen and reaffirm 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 by which president Leguía sought to establish his image as “Protector of the Indian race” was through legislation, and during his period an 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
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.
8

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: first, presenting 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 citizen 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 the 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 are more interested in the social factor
12 Section 58 of the Peruvian Constitution of 1920.
13 Joaquín Capelo, “Espinas y Abrojos”. En 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.
9

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
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.
10

and the causes for his criminality.
16
This discourse was, to a large extent, a 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 main causes for the 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, and he did it by experiments and interviews that he conducted 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 "phenomena" were based on environmental, social, economic, cultural, psychological or even biological reasons, 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 fact whether the perpetrator of a certain
16 Deborah A. Poole, “Ciencia, peligrosidad y represión en la criminología indigenista peruana”. En
Carlos Aguirre y Charles Walker, eds., Bandoleros, abigeos, y montoneros. Criminalidad y violencia 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

crime was a "semi-civilized" Indian or an Indian "degraded by servitude and alcoholism" and to 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 sociopolitical 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 19 th 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 19 th century Bolivia see: Marta Irurizqui, "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.
12

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 the 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. The problem was that for the regime in Lima, as well as for large sectors of the Peruvian elites, the idea 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 weapon not only to defend the fatherland but also to defend their rights is a good illustration of this rejection.
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 since the despotic regime of the Incas until his total abandonment in the hands of his
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

exploiters in order to think of his passionate process that keeps growing up, marking that alarming percentage of criminality.” 21
In some criminal cases from this period, which referred to certain sociopolitical 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 deserved a special tutelary treatment and a mitigating punishment. In other words, the negation of their capability of being "fully citizens", of acting as political subject - 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 reasoning 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 a mental development and with semi-savages 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 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
21 José Antonio Encinas, Causas de la Criminalidad Indígena en el Perú , p. 28
22 Tribunal Correccional del Cuzco, Instrucción N. 988 Año 1922 seguida contra Mariano Mamaní
Rodriguez y otros . Archivo General de la Nación (AGN), Archivo Histórico, Ministerio de Justicia,
Penitenciaría de Lima, Testimonios de Condena, Libro N. 3.20.3.3.1.16.44, pp. 376-380(v).
14

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

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

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
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 allegedly 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
26 Anfiloquio Valdelomar, La criminalidad indígena en el departamento de Puno. Estadística judicial criminal . Puno: Tip. Fournier, 1923, p. 4.
17

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, completely unaware of the world around them. Where offences 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 offence would entail if it had been committed by a "civilized man". Indeed, upon the completion of twothirds 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 treatment 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 welldivided 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
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
28 propósito de adaptarlos en el menor tiempo posible al medio jurídico del país.”
Hurtado Pozo. La ley ‘importada’: Recepción del derecho penal en el Perú , p. 70.
18

“primitive” or “savage” man at its bottom.
29
In-between was located the semicivilized Indian who represented in fact the majority of the Peruvian population. In 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 established
30
) 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 not only as a social group living on the outskirts of the
Peruvian society and the modern world, but rather also as those who were at the margins of “the Indian problem” and the indigenista discourse. Demographically, the
“savages” or the Indians of the Amazon basin were a small “group” relatively 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
29 Ballón Aguirre, Etnia y Represión Penal , pp. 72-73.
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

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 be devoted to the support of the Andean-Indians “who were not savages”, those who 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 act of drawing the internal ethno-social boundaries of the national community was done 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 classified the accused into this category as something that was almost taken for granted, as a fact which did not require any further explanations, except for indicating 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 steeling her money was sentenced by the Criminal Court in Cuzco to only one year in prison. The prosecutor had demanded for the defendant 3 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
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.
20

shoemaker that knew how to read and write, and therefore could not be considered as a "semi-civilized Indian".
32
In another case from that period, the Criminal Court of Arequipa sentenced three individuals that 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.
In Mexico of that time the "Indian question" was at the heart of the "problem" of social heterogeneity; a problem which was perceived as perhaps the most serious obstacle on the way to progress and modernization, to the formation of a unified
32 Cuaderno No. 524 - Año 1938, Anales Judiciales , 1938, pp. 55-58.
33 Cuaderno N. 2022 - Año 1942, Revista de los Tribunales , 1943, p. 28.
21

nation and to the construction of a “true Mexican nationality”.
34
According to the national census of 1921, the Mexican population of that time amounted to 14 million inhabitants; out 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 criterions 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 share of Indians in Mexico was higher and sometimes they were even described as the most prominent factor 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 represented the supposedly "enormous gap" between the different parts 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
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.
37 Giraudo. Anular las distancias , p. 19.
22

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 time, transforming their mentality, tendencies and customs, in order to add them to the modern civilized life and to incorporate them integrally into the Mexican social community”.
38 As Giraudo indicates, within the construction of a new nationality in postrevolutionary 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.
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” were seen as an essential condition for the
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.
40 Ricardo Rivera. La Heterogeneidad Étnica y Espiritual de México. (Con Prologo de Manuel
Gamio). 2da ED. México, 1931, p. 111.
23

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 a legislation, he argued, would have finally lead to a 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 foiling 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 (as 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 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
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

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 provides us 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 told the story of three Mexican Indians who murdered their neighbor, an 80 years old woman, being convinced that she had 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
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”. 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

sector that adds up to millions of inhabitants." In his view, the tragedy of the event was not concluded in the killing of that "witch"; it was primarily manifested in 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 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 the 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 , 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 the Mexican historiography, Gamio has been quite often identified with the idea of mestizaje , the cultural fusion as a solution to the “problem” of social and racial heterogeneity and as a means to the creation of a new Mexican
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

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 or remade “the Indian” as a distinctive legal subject.
In fact, an early criticism of the gap between the Mexican law and the heterogeneous reality of the Mexican society is to be found already 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 to 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
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
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.
46 Manuel Gamio. Forjando Patria . México, D. F.: Editorial Porrúa, S. A., 1960, 2nd edition (1st edition: 1916), pp. 30-31, 171-174.
27

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 short 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 groups, it is hard and sometimes even impossible to predetermine the abnormalcriminal behavior. Therefore, he wrote, the legislators should take into account the biological, mental, cultural an economic differences among the various Mexican
47 See for example: Manuel Gamio, "Comentarios sobre el Carácter de Nuestras Leyes", en 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

social groups.
50
In another article from 1935 Gamio added that the causes of criminality and the criminal offences 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 offence 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 this truth honestly”, only a broad, “a very broad judicial discretion” could temper this tremendous injustice.
52
50 Gamio, "Comentarios sobre la investigación sociológica de los delincuentes", en 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.
52 Raúl Carranca y Trujillo, "La injusta igualdad", Criminalia , Año II, Marzo 1935, p. 100.
29

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 an 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 already in earlier stages of the republican criminal legislation. With the enactment in 1871 of the first Mexican criminal code and along 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 penalties imposed on criminals who were so “rude and ignorant” that while committing the crime did not have the necessary discernment to fully recognize its wrongfulness. At
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

the beginning of the 20 th
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 the application of penal laws, especially in the presence of unassimilated indigenous
56 Ibid .
57 Article 59 VI of the Penal Code of 1929 enabled to reduce the 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

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 around the 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 that was held in Mexico City in May 1939. One of the numerous 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 3 years earlier, creating a special court in that federal entity for minors, persons without legal capacity and "rude Indians".
63
According to his view,
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
61 ley penal mexicana . México, D. F.: Ediciones Botas, 1934, pp. 27-28.
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.
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
32

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

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 3 years 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 José Vasconcelos’ idea of “The Cosmic Race”, all the
Mexicans were "mestizos", not only those who were usually classified in this category
65 Ibid, pp. 651-653.
66 Ibid, p. 719.
34

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 the 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 old were a common offence 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 them to death. For him, the adequate solution for cases like these was not just a simple reduction of the penalty. He suggested to establish, in addition to
67 Ibid, pp. 706-708.
68 Ibid, p. 657.
35

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 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 "semicivilized" 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 which 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 as 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 by which the prosecutor in this case, reaffirming the abyss between "savages" and "civilized people", presented the killing of enemies as a savage practice which supposedly was totally contradicted to 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 believes of those Indians, as presented by the prosecutor, were considered by the Supreme Court in Lima as special mitigating circumstances that justified reduced penalties.
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
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

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 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
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,
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:
75
Departamento de Asuntos Indígenas, 1940, pp. 70-71.
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

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 to avoid formulating legislation understandable only to 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, like 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 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
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

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 the 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 used 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-months-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 death penalty, inter alia, for the reason that the accused was “a 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,
80 José Ángel Ceniceros; Raúl Carrancá y Trujillo; Carlos Franco Sodi; y Javier Piña y Palacios, "Las
Razas Indígenas y la Defensa Social", en Primer Congreso Indigenista Interamericano , tomo II,
Ponencias, Pátzcuaro (Michoacán), abril 1940, p. 114.
81 Ibid . p. 112.
82 Archivo Histórico Judicial de Oaxaca (AHJO), Sección: Zacatepec, Serie: Criminal, Año: 1945,
Exp. 21/945, Contra: Pedro Damián, pp. 117-118.
40

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
Peruvians, did not include any explicit mention of the ethnic or racial classification of the accused. However, while considering his 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.
For some Latin American scholars, the legal and mainly constitutional reforms of the late 20 th
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 the criminal law, as was manifested
83 AHJO, Sección: Zacatepec, Serie: Criminal, Año: 1945, Exp. 33/945, Contra: Gonzalo Manuel
84
Reyes, Sótero Peralta y Daniel Reyes, pp. 142-142(v).
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.
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
.
41

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 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 pretty 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 contradictory stories concerning the image and the identity of the entire national community.
In both countries the law, in general, and the 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
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

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 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
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).
43

a symbolic discourse that conceals an overwhelming reality of social injustice.
88
Thus, as with previous legal texts, we should pay attention not only to the reality which they explicitly present, but also to the one that they tend to blur.
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 " en Derecho Penal y Pluralidad
Cultural. Anuario de Derecho Penal 2006 , 211-243, p. 238.
44