Fractured Proceedings: Rural Conflict and Agrarian Courts in Mexico, 1992 – 2008

Helga Baitenmann1 Institute for the Study of the Americas University of London

And before we set agrarian history completely aside, the new political and social history will need to take this localized and internal conflict more fully into account William Roseberry

Between 1915 and 1992, successive governments expropriated and redistributed over

half of Mexico’s total surface area, and 3.5 million land recipients and their families

participated in forming, transforming, and sustaining around thirty thousand ejidos and

agrarian communities (the land and labor arrangements that were the principal vehicles

for land distribution). Mexico’s agrarian reform (1915-1992) has been a key subject for

academic debates on peasant insurgency, hegemony, and resistance. Moreover, now

that Mexico has formally ended its historical commitment to land distribution, several

million agrarian subjects and their families continue to interact with agrarian agencies

and courts, and scholars have again adopted the concept of resistance to understand

local responses to present-day neoliberal reforms to land and labor arrangements in

rural Mexico.

1 Many thanks to John Gledhill and Sasha Schell for inviting me to participate in this collective project and to the Manchester seminar colleagues for their inspiration. I thank Kevin Middlebrook for his comments on this and other versions of this paper. I dedicate this paper to the memory of Bill Roseberry.

2

For a number of decades, academic debates have centered on whether the

agrarian reform was a program created in response to a popular insurgency in demand

of land, or whether it served as the revolutionary elite’s tool for cooptation and

patronage. In 1991, Gilbert Joseph and Daniel Nugent invited anthropologists and

historians of nineteenth- and twentieth-century Mexico to reflect about how to

“simultaneously examine the formation of orders of domination and orders of

resistance” by considering their own research in light of Philip Corrigan and Derek

Sayers’s analysis of English state formation (1985) and James Scott’s work on

everyday forms of resistance (1976, 1985, 1990). The essays were published in

Everyday Forms of State Formation: Revolution and Negotiation of Rule in Modern

Mexico (1994). The book’s overarching goal was to understand various forms of

subaltern agency, including resistance, in relation to forms of state power, among

other forms of domination.

Daniel Nugent and Ana María Alonso’s chapter for Everyday Forms of State

Formation is an example of how the agrarian reform in early twentieth-century

Namiquipa, Chihuahua, can be understood by counterposing popular culture and

resistance to state formation. Influenced by the work of Corrigan and Sayer (1985),

Antonio Gramsci (1971), and Raymond Williams (1977), the authors explain that

the identities of subjects of the state are constructed via media of moral

regulation, quotidian administration, and ritual, as well as through manifest,

concrete oppression. Yet the meanings and symbols produced and

disseminated by the state are not simply reproduced by subordinate groups.

Popular culture is contradictory since it embodies and elaborates dominant

symbols and meanings but also contests, challenges, rejects, revalues,

reaccents, and presents alternatives to them (210-11).

3

According to Nugent and Alonso, Namiquipans rejected the land reform

project promoted by postrevolutionary governments in the 1920s and, in so doing,

challenged the rules of the national state because embracing the center’s revolution

would mean granting the government rights over land local residents considered

already rightfully theirs. The authors cited a 1926 petition to President Plutarco Elías

Calles (1924-1928), signed by almost 300 men, which explained why Namiquipans

rejected Mexico City’s reform:

These acts [of information gathering], Mr. President, come to demonstrate

clearly that now there is an attempt to confederate [make the property of the

federal government] lands that we esteem in justice to be ours, because they

have been transmitted from fathers to sons and fecundated with the constant

work of much more than a century (1994, 238).

By underlining how Namiquipans challenged the state project, Nugent and

Alonso provided a novel alternative to the meta-narrative of the Mexican agrarian

reform in which complex political and social contexts are reduced to “a story of a

simple class and moral conflict, one in which the postrevolutionary state sides with

the oppressed against the hacendado class, and victory is measured in hectares of land

granted” (Fallaw 2002, 645, 681). However, their historical material also showed that,

even while a large number of Namiquipans resisted the state’s agrarian program,

many others did appeal “to the Revolutionary state to defend their rights against the

claims of hacendados” (221). Indeed, the town was split into factions, each led by a

local boss. One faction requested a land restitution from the agrarian administration

and, ultimately, created an ejido.2 And yet, Nugent and Alonso reflect:

2 The term ejido (whose significance varies historically as well as geographically) was commonly used to denote communal land use, and the term was adopted for the land grants made by postrevolutionary governments. Ejido land could not be sold, mortgaged, or transferred in any other way than by inheritance to a family member. With the Agrarian Codes of 1934, 1940, and especially 1943, the ejido

4

Our seeming lack of attention in this essay to internal differentiation along

class lines in the community is due neither to a romantic or heroic notion of

the peasantry nor to a notion of peasant communities as homogeneous, but

instead to the knowledge that such differentiation was limited and did not play

a significant role in the opposition to the ejido by the majority of Namiquipan

men (243, fn. 70).

However, the fact that Namiquipans were not primarily divided along class lines did

not mean that they were not internally fractured, and that these fractures mattered. If,

in turn, we were to focus on these internal fractures, how does the concept of

subaltern resistance to state initiatives remain useful?

In his unfinished work before his untimely death, Roseberry explained that

[i]n analyzing agrarian politics, we often focus on the type of conflictual

relation—between communities and haciendas, say, or between communities

and the state—and draw conclusions based on how communities respond to

particular elite initiatives [when] they were often involved in several disputes

at once” (1999: 16-17).3

Instead, he stressed how “some of the sharpest conflicts” occurred within and between

indigenous communities in the form of factional disputes: became a collective entity with its own patrimony, its own legal standing (personalidad jurídica), and its own administrative and representative organs (general assembly and comisariado ejidal), under the control of the agrarian bureaucracy. Endowed population centers (núcleos de población) became permanent corporate owners of ejido lands. Although woodlands, pastures, and water sources would be managed communally, arable lands could either remain under communal control or be fractioned into individual parcels. Both communal land and individual parcels could be worked individually or cooperatively. In 1934 the Agrarian Code differentiated between two types of land endowments: the dotación, or granting of land by state fiat to rural dwellers with no ancestral claims to land, and the restitution (restitución) of lands to those communities that could prove that their communal lands had been usurped during the implementation of nineteenth-century Liberal laws. The 1943 Agrarian Code created the “agrarian community” (comunidad agraria) as a form of organization for restituted land that was slightly different from that of the ejido. 3 Inspired by Roseberry’s work, Francisco Gómez Carpintero’s (2003) detailed history of Puebla’s postrevolutionary sugar industry explicitly recognizes the importance of the numerous struggles occurring at different levels: pueblos against haciendas, land owners against the state, new versus old elites, resident laborers against hacendados, pueblo against pueblo, factions within pueblos, pueblos against resident workers on haciendas, and so on.

5

These dimensions of agrarian conflict received less attention in an older

agrarian history mainly interested in hacienda/peasant relations, and before we

set agrarian history completely aside, the new political and social history will

need to take this localized and internal conflict more fully into account (1998:

28).

Roseberry was not saying that scholars had not written empirically on these

local fractures. Indeed, during the nineties, historians such as Jenny Purnell wrote

about how peasants were deeply divided in their responses to the agrarian reform

program. For example, she explains that

[f]or some communities and factions within communities, the agrarian reform

program offered the possibility of reclaiming lost lands, and anticlericalism

became a vehicle for displacing despised local authorities. For others, these

two policies constituted a threat to community resources, understandings of

property rights, and institutions of politico-religious authority (1999, 7).

What Roseberry was proposing was that, if we focus more closely on these local

fractures, perhaps we could tell a different story: “I want to suggest that this internal

difference and conflict mattered and that it also shaped the politics of twentieth

century Mexico” (1998: 29)

Several authors in this volume share the concern that Scott’s concept of

resistance can mask the internal fractures of the groups they are studying. Echoing

Ortner’s 1995 concern about the internal differences that resistance disregards, Parés

points out the need to remember “the inner diversity of subaltern groups;” Zárate

notes that subalterns are socially heterogeneous and have fluid gender and ethnic

identities; Viqueira alerts us to the heterogeneous behavior of the subaltern; and De la

Peña reminds us that internal divisions are traversed by multiple alliances with

6

external actors. If one focuses on these fractures, how can the notion of resistance

continue to be useful in understanding the violent struggles over land in contemporary

Mexico?

This chapter explores the use of the agrarian courts created in 1992—

specifically, the use of agrarian judicial review (amparo agrario)—as a way of

rethinking the concept of resistance. The new agrarian courts have become a central

feature in rural Mexico, dealing with many of the often-violent struggles over land.

As stories of rural ambushes and assassinations fill the press, an increasingly large

body of court documents reveals widespread use of the court system as a weapon in

present-day struggles over land.

In essence, the amparo is a legal instrument intended to return something to

the way it was before a government action occurred—that is, a return to the status quo

ante. As Pessar notes (this volume), in both Bahían candomblé (Parés, this volume)

and in her study of Brazilian backlands millenarianism, “[t]he notion of resistance

remits to a temporal continuity from the past to the present, it evokes the conservation

of something rather than its transformation. It connotes the idea of not losing what

one has, rather than winning what one does not have.” In a similar way, the Mexican

agrarian amparo can be seen as a form of resistance, as a struggle to preserve access

to land. As this chapter shows, resistance in this sense is intimately tied to factional

struggles.

Resistance and Fractures during the 1992 Land Titling Program

When in 1992 President Carlos Salinas de Gortari (1988-1994) oversaw the amendment

of Article 27 of the Constitution—formally ending a state commitment to land

distribution dating from 1915, revamping what had become a profoundly inefficient

7

and corrupt agrarian bureaucracy, creating an agrarian court system, and initiating a

large-scale land-titling program aimed at gradually privatizing the agrarian reform

sector,4 scholars expected some level of resistance and protest mobilization from

peasant organizations. Historically, most presidents had tried to shrink or abolish the

agrarian reform sector, maintaining that ejidos were inherently inefficient and that

increases in agricultural production constituted a more pressing need than further land

distribution. Nevertheless, officially declaring an end to the redistributive phase of the

agrarian reform became more difficult in the 1960s and 1970s as regional peasant

organizations began to coalesce around demands for land (Bartra 1986, 102;

Mackinlay 1996, 189). And in fact many peasant organizations did denounce the

Salinas reforms for what they saw as an attempt to strip campesinos of their right to

land, and many early academic studies of the titling program found forms of local

resistance to the neoliberal project. Yet, according to official figures, by 2006 over 90

percent of all ejidos had completed the titling program. Of the 31,201 registered

ejidos and agrarian communities nationwide, Procede “regularized” 28,561—leaving

only 2,640 (8 percent) of them out of the titling program (SRA 2006).

What seemed to resonate in the vast majority of ejidos and agrarian

communities across the country that decided to join the land-titling program was the

promise of a new relationship between the state and the agrarian social sector based

on at least some degree of transparency and accountability. This was a compelling

prospect precisely because the history of Mexico’s postrevolutionary agrarian reform

(1915-1992) was one of corruption, inefficiency, and abuse of power at all levels of

the agrarian reform sector, a legacy that left a legal and administrative morass. For 4 The Programa de Certificación de Derechos Ejidales y Titulación de Solares Urbanos, Procede.

Several government agencies participated in the program—principally (but not exclusively) the newly-created Agrarian Attorney General’s office (Procuraduría Agraria); the National Institute of Statistics, Geography and Informatics (Instituto Nacional de Estadística, Geografía e Informática, INEGI); and the National Agrarian Registry (Registro Agrario Nacional, RAN).

8

instance, there were legally recognized beneficiaries (sujetos de derecho agrario) who

did not receive land, provisional land grants that never became definitive, land grant

petitions that had been formally denied but continued to be worked as provisional

ejidos, overlaps between land tracts granted to two or more neighboring ejidos, and

land granted that did not correspond geographically with the officially registered

boundaries of the beneficiary ejido or agrarian community. And in most ejidos (even

in those without significant legal or administrative problems), there were caciques

(local bosses) who dominated ejido governing boards, manipulated internal elections,

and personally profited from the illegal sale and rental of ejido parcels.

There had been several earlier attempts to regulate the agrarian reform sector.

President Manuel Ávila Camacho (1940-1946), for example, tried to curtail the power

of abusive ejido boards and end the corruption he called the “carnival of the ejido”

(feria del ejido) (Medina 1978, 243). During his presidential campaign tour through

the country, he had received so many complaints about ejido board abuses that ten

days after becoming president on December 1, 1940 he issued a decree mandating the

parcelling of all ejidos as a measure “against exotic doctrines and improper

hegemonies within ejidos” (Luna Arroyo and Alcérreca 1982, 100; Medina 1978,

237). His legal reforms were aimed at giving beneficiaries individual rights and

protecting them from abusive ejido governing boards. However, neither the Ávila

Camacho administration nor successive governments managed to give individual

titles to land beneficiaries mainly because state agencies lacked the institutional

capacity to do so.

By the time President Gustavo Díaz Ordaz (1964-1970) came to power, the

agrarian reform process had already become an unmanageable bureaucratic morass. In

order to reduce the administrative backlog, the government tried to decentralize the

9

Agrarian Department by strengthening the role of state-level offices (Moguel 1989,

185, 203, 219). By that time, however, the entire agrarian reform process had virtually

ground to a halt. Indeed, as of 1967, only 54 percent of existing ejidos (around

11,000 of the total 20,528) were legal entities that had fulfilled all required agrarian

procedures (Zaragoza and Macías 1980, 581). The bureaucracy was understaffed and

overburdened with the regulation of already existing ejidos. And corruption had

become fully institutionalized. In most instances, it was necessary to bribe agrarian

officials before essential administrative procedures could be brought to conclusion

(Reyes Osorio 1979, 647-48).

For those individuals with land-use rights in ejidos, the main problem lay in

the inordinate number of bureaucratic steps required to obtain an agrarian

certificate—the document that would give them a quasi title to their parcel. Securing

an agrarian certificate required 34 different administrative procedures involving nine

internal branches of the Ministry of Agrarian Reform, as well as the special offices of

the Office of the Presidency and the Ministry of the Interior (Zaragoza and Macías

1980, 603). As a result, in 1970 almost half of all ejidatarios lacked agrarian-rights

certificates.

Government efforts to restructure bureaucratic procedures and reduce the

administrative backlog (rezago) mostly made matters worse. For example, from 1970

to 1976 the number of agrarian personnel tripled, and yet the increase in personnel

had a perversely negative impact on the efficiency of the agrarian reform process.

Because agrarian bureaucrats were among the worst-paid public servants (some had to

survive without pay for long periods of time), and because many had no proper

schooling or professional training, agrarian reform procedures were plagued with

errors. For instance, many documents were misplaced in what was already an archaic

10

filing system. By the early 1990s there were an estimated 150,000 incomplete

administrative procedures pending across the country as a whole (Canabal and Flores

Félix 1994).

Thus, one reason why so few ejidatarios have actively opposed Procede is that

there is an appeal to having a greater sense of certainty over one’s legal status

regarding land use and ownership rights. Procede bureaucrats—largely young,

recently trained engineers, agronomists, and social workers—approached their tasks

with more technologically sophisticated techniques of state. For instance, they

prepared their survey maps on the basis of satellite-transmitted images, and they

compiled censuses in computerised form. These new censuses permitted a thorough

housecleaning of agrarian records. All individuals who claimed legal title to ejido

parcels for cultivation or home construction were added to a master census conducted

by the Agrarian Reform Registry. Individuals could then correct any information

inaccurately included in prior documentation or update information in the registry

system (recording events such as deaths, sales, and inheritance transfers) (Baitenmann

2005).

A further incentive to join the titling program has been that many rural subsidy

and financial assistance programs condition their aid on ejidatarios having a post-

1992 agrarian certificate. The officially stated purpose of the titling program was to

give each land reform beneficiary a certificate to his or her parcel and a title to his or

her urban plot. Government officials would measure and map every ejido and conduct

a new census. In doing so, government officials created a massive and precise

registration and classification process, comparable in size and scope only to the

national electoral registry created in Mexico in the early 1990s (Baitenmann 2005).

And just as each voter’s electoral credential serves as a nationally recognized form of

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identification, Procede certificates and titles have unofficially acquired identification

functions for government programs.5

Government officials blame some ejidos’ and agrarian communities’ refusal to

join the titling program on the influence of political parties, religious groups, peasant

organizations, and community leaders (SRA 2006, 43). In terms of numbers, in June

2006 there were around 1,000 localities that had declined to participate in the titling

program. Chiapas is the state with the largest number of ejidos and agrarian

communities putting up resistance to the project, mostly located in the Zapatista Army

of National Liberation’s (EZLN) zone of influence. The state that follows in terms of

numbers is Michoacán, especially the indigenous region known as the Meseta

Purépecha (SRA 2006).

Apart from those ejidos that rejected the titling program on political grounds,

the Ministry of Agrarian Reform cites a number of other reasons why the titling

program has come to a halt or been delayed, all of which have to do less with some

form of resistance than with local struggles. In order to identify, classify, and

systematize information on the problems encountered at individual ejidos, the

agencies involved in the titling program created a “Catalogue of Problems” (Catálogo

de Problemática) (SRA 2006). According to this document, most conflicts arise from

often violent land invasions and dispossession struggles between neighboring ejidos

or between ejidos and non-agrarian communities, private property owners, or

municipal, state or federal property. Chiapas and Oaxaca top the list. Other conflicts 5 Some scholars interpret the ejido’s failure to privatize fully as a form of resistance against the post-1992 neoliberal project. In the first phase of the land-titling program, ejidatarios receive certificates of individual ownership and are entitled to sell land-use rights to other ejido members. The second phase of land privatization requires that a majority of ejido members vote to authorize unrestricted ownership, which would allow free market sales of ejido land (Hamilton 2002, 122). In many cases, agrarian subjects have collectively chosen to preserve the ejido’s organizational structures and land use patterns. However, outside highly politicized regions of Mexico, the fact that privately owned land is subject to taxation and an unwillingness to undertake additional complicated and time-consuming bureaucratic procedures (dealing with both the agrarian and the private-property registry systems) constitute major pragmatic reasons for not formalizing the privatization process.

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involve unresolved and often violent disputes over land boundaries, which occur most

often between members of inadequately measured and demarcated ejidos and agrarian

communities.6

In most histories of the agrarian reform, no matter whether we are looking at

rural Mexico in the 1920s, the 1970s, or the second millennium, we find local factions

oftentimes violently pitted against each other. Despite the now well-documented

regional variations in revolutions and counterrevolutions and different state-level

experiences with the implementation of agrarian reform, all postrevolutionary land

reform efforts appear to have shared one characteristic: Most villages participating in

agrarian reform procedures (forming agrarian committees, issuing a land petition, and

so forth) were violently divided.7 Sometimes members of a community split into those

individuals (whether armed or not) who supported or participated in agrarian reform

procedures and those who, for a variety of reasons, did not; at other times, village

residents formed two agrarian committees competing and fighting against each other

for land. When the president signed what was to be known as the “presidential

resolution” and the agrarian bureaucracy proceeded to distribute land, groups and

communities fractured once again. How land would be distributed among individuals,

who would manage the distribution, and how decisions would be taken, were always

contentious issues. Moreover, land distributions always affected other impoverished

neighboring groups or communities. For example, many neighboring communities

often solicited land from the same large landholding, and beneficiaries were forced

either to accept smaller parcels or engage in endless struggles over property.

6 These conflicts differ from land invasions in that members of ejidos do not know for certain what their boundaries are. 7 Over the last twenty years most detailed historical work on Mexico has focused on regional diversity. See, for example, Benjamin and Wasserman (1990). On the diverse nature of counterrevolutions, see Purnell (1999).

13

The laws that governed the agrarian reform had divisive effects. One of the

reform’s central characteristics was that it recognized the collective rights of

communities to demand and receive from the government enough land to satisfy the

needs of their residents. And yet, if the communities were too large (and ostensibly

urban enough to provide other forms of employment), or too small to be a legally

recognized town, they would not be considered legitimate collective-land solicitors—

even if they had landless farmers among their population.8 Moreover, the architects of

Mexico’s postrevolutionary agrarian reform used census-taking to divide the rural

population into two categories: those who were legally recognized as agrarian-rights

subjects (sujetos de derecho agrario), and those who were excluded from the land

reform scheme for a variety of legal reasons. For example, the census category “place

of origin” was used to include or exclude individuals from the land reform project.

When a rural population received collective land rights, state officials wanted to stop

the landless living in other towns from migrating to the endowed population centers in

order to claim land. Therefore, over most of the 1915-1992 period, a year’s residence

in the endowed community was a prerequisite for attaining individual land rights.

Similarly, censuses included the category “profession” in order to limit the

distribution of land to those who already made a living from farming.9

Postrevolutionary categorizations continue to determine rights in twenty-first

century Mexico. For example, in March 2001 a group of land solicitors from the

municipality of Bahía de Banderas, Nayarit, received a favorable resolution for a land

endowment solicited years before the 1992 reforms. In 2006, 25 women and 38 men

8 Laws excluded towns that were too small to receive formal recognition as a town (congregación, poblado, and so forth) as a way of preventing renters living on hacienda lands from claiming land—a concession made to landowners up until the 1930s. 9 Individuals who worked the land had to be poor and landless in order to qualify for agrarian rights. According to the 1920 Law of Ejidos, potential beneficiaries were household heads who lacked enough land to earn twice the average daily wage (jornal) prevailing in the region.

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from the municipality filed a suit claiming that they had not been included as

beneficiaries in the agrarian census and resolution. The agrarian court considering the

amparo petition subsequently ruled in 2007 that, of the 63 people claiming to have

had their individual rights violated by the state, three had in fact been unjustly

stripped of their constitutional rights. The Agrarian Supreme Court explained that,

although the census conducted in 2003 had listed Jaime Cortes as a pensioner,

Rodrigo Macedo as a worker (obrero), and Pedro Olmera as unemployed, these three

individuals had been considered agriculturalists in an earlier census, and “it seems

reasonable that, given the time elapsed since 1957, when a land grant was solicited, to

5 July 2003, when the new census was conducted, the persons mentioned would have

engaged in an activity other than farming in order to subsist, while the land grant was

being decided.”10

There are many other early twentieth-century categorizations that are still used

to deprive individuals of their rights. For instance, in 1984 members of an ejido in

Ecatepec, State of México, asked the state’s agrarian commission to conduct a new

census of existing agrarian rights-holders. In the 1985 ruling (juicio privativo de

derechos agrarios) a number of individuals lost their agrarian rights. According to the

ejido assembly, several individuals had left their ejido parcels fallow for more than

two years—one of several legal justifications for losing use-rights to an ejido parcel

because, from 1934 to 1992, not only did agriculturalists have the right to receive land

from the state, but they also had the obligation to cultivate the land they were granted.11

10 source 11 Agrarian property had two essential characteristics: First, land was removed from market relations (that is to say, it could not be alienated, transmitted, or mortgaged, and it was not prescriptible); second, only legal beneficiaries had use-rights, and then only when certain conditions were fulfilled (Rincón, 1980). Thus, land beneficiaries had conditional land-use rights (derecho condicionado de usufructo vitalicio) (Ibarra, 1989: 285).

15

Indeed, the 1934 Agrarian Code stipulated that land reform beneficiaries could lose their

use-rights to ejido parcels if they left the land idle for two consecutive years.

Melquíades Navarro, one of the individuals stripped of his land rights by the

ejido assembly, filed an amparo suit against the agrarian district court that had

validated the ejido assembly decision to take away his ejido parcel. He lost the

amparo suit in 1998, but he filed again (recurso de revisión) before the

Administrative Law Appellate Tribunal of the Second Circuit (Tribunal Colegiado en

Materia Administrativa del Segundo Circuito), which in 1999 granted him the

amparo. Therefore, Navarro recovered his land rights fourteen years after first losing

them.12

Like Navarro, since 1992, hundreds of thousands of individuals have turned to

the agrarian courts to settle violent disputes, demand redress when excluded from

agrarian censuses, bequeath and inherit agrarian rights, or legalize land rentals and

sales.

The New Agrarian Courts and the Amparo

Comprised of 49 individual agrarian district courts each headed by a judge

(Tribunales Unitarios Agrarios) and an Agrarian Supreme Court in Mexico City

composed of five justices (Tribunal Superior Agrario), this new court system replaced

the executive-controlled agrarian bureaucracy that had served as a parallel court

system for the better part of the twentieth century (Chávez Padrón 2003). It has

become a key mechanism for resolving disputes and legally validating rights to land

in rural (and parts of urban) Mexico. According to official figures, from 1992 to mid-

12 Sentencia exp. 163/99; San Cristóbal, Mpio Ecatepec de Morelos, Edo. Mex Gaceta del Gobierno (Estado de México), 2 July 2002, pp. 1-4.

16

2006 these courts issued 370,000 agrarian resolutions.13 Resolutions deal with issues

ranging from land-use and ownership rights, to such daily matters as inheritance

disputes among family members, to violent land disputes ending in murder.

To begin with, the agrarian judiciary assumed responsibility for the unresolved

land petitions filed with the Agrarian Reform Ministry (Secretaría de Reforma

Agraria) before 1992. The district courts and the Agrarian Supreme Court share

responsibility for what is, in the words of a court official interviewed by Fix Zamudio,

“the backlog of the backlog” (el rezago del rezago). This official went on to explain

that

[m]atters pending are found in dozens of tomes stored in numerous archival

boxes. Many of the documents on which these land petitions are based were

issued during the Colony; there are land titles issued by Maximilian of

Habsburg. More ‘recent’ conflicts involve land invasions and transfers that

date from between December 1876 and the drafting of the 1917 Constitution.

There are controversies regarding the implementation of revolutionary

agrarian law, the Agrarian Codes, and the Federal Agrarian Reform Law

(1999, 37-38).14

The district courts also began settling everyday disputes, such as bequeathing

and inheriting agrarian rights and legalizing (previously illegal) land rentals and sales.

The fact that so many commonplace disputes end up before the courts points to a

process of “judicialization” of everyday life (Sieder, Schjolden, and Angell, 2006)—

that is, an increased tendency to resort to the judicial system for the resolution of daily

problems and disputes. In great measure this has occurred because, as ejidos join the

land-titling programme and agrarian certificates gain currency, individuals have 13 Sexto Informe de Gobierno del C. Presidente Vicente Fox Quesada, http://sexto.informe.fox.presidencia.gob.mx 14 Author’s translation.

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resorted to the courts in order to sort out complex agrarian laws, as exemplified in the

following case from a Veracruz district court.

In the Tuzamapan ejido in the state of Veracruz, two brothers fought over their

late father’s ejido parcel because he had registered two different succession

(inheritance) lists. At the district court hearing, the judge explained that the ejido’s

general assembly had been privy to the father’s second will.15 As in civil law, the

most recent agrarian succession list voids the former one(s). Unlike private property

laws, however, only one of the two brothers could inherit the father’s land because

agrarian testamentary regulations prohibit the partitioning of ejido parcels. Therefore,

even though the post-1992 agrarian testamentary rules give individuals with

registered testaments or succession lists testamentary freedom (the right to bequeath

the ejido parcel to whomever he or she chooses), there is one important constraint that

makes ejido land different from unrestricted private property. Although private

property under the civil code can be distributed among several heirs, ejido parcels

cannot be divided and must be bestowed as a single unit. Thus, bequeathed land

parcels remain indivisible.

Perhaps the most interesting trend in the new agrarian court system is the

widespread use of the amparo suit as a new form of resistance and search for redress

in rural Mexico. From 1992 to mid-2006, groups and individuals filed over 62,000

amparo suits against court resolutions.16 Court records show that groups and

individuals actively challenge laws, state agency procedures, and state resolutions by

resorting to the amparo suit as an instrument for redress.

15 Tribunal Unitario Agrario del Trigésimo Primer Distrito del Estado de Veracruz 316/2000 and 014/2001, Tuzamapan (Coatepec) Veracruz. 16 Sexto Informe de Gobierno del C. Presidente Vicente Fox Quesada, http://sexto.informe.fox.presidencia.gob.mx

18

The amparo is the Mexican equivalent of US and French legal arrangements

for defending what were called the “rights of man” through judicial review and the

protections provided by habeas corpus.17 The term amparo encompasses a set of

federal judicial procedures by which any private person (individual or enterprise) may

contest a law or the action of a government agency or official. Also known as a juicio

de garantías (a constitutional-guarantees action), the amparo suit is more than a

procedural appeal because is encompasses a number of measures that protect citizens

from the laws and actions of any state actor, ranging from municipal government

agencies to provisions of the federal constitution.

In independent Mexico, the earliest example of the amparo dates back to the

Political Constitution of the State of Yucatán, adopted on 16 May 1841. At the

national level, it was Mariano Otero who successfully promoted an amparo suit in

1847, ruling that federal courts shall afford protection (ampararán) to any citizen in

the exercise and preservation of his (or her) constitutional rights. The drafters of the

federal Constitution of 1857 incorporated the amparo suit into its provisions, and the

amparo has had constitutional standing ever since.

There are essentially five different kinds of amparo suit: the right of habeas

corpus (amparo de libertad); the right to defend oneself against unjust legislative laws

(amparo contra leyes); the right to shield oneself against unfair judicial resolutions

(amparo contra resoluciones judiciales); the right to challenge unfair administrative

procedures (amparo administrativo); and the right to challenge agrarian laws and

procedures (amparo social agrario) (Vargas 2008).

In Mexico’s postrevolutionary agrarian history, landowners were the first rural

class to have the right to file an amparo suit. Venustiano Carranza’s Agrarian Law of

17 Latin for “you (should) have the body;” individual freedoms should be safeguarded against arbitrary state action.

19

1915 granted landowners the right to resort to the amparo when agrarian procedures

violated their individual guarantees and property rights.18 In 1934, in a government

shift toward accelerating land distribution, an amendment to Article 27 of the

Constitution abolished landowners’ amparo rights. In 1947, however, the

administration of Miguel Alemán (1946-1952) reversed course and again modified

Article 27, restoring landowners’ right to file an amparo suit.

When landowners won, lost, and then regained the right to file an amparo

suit—and, with it, the capacity to block or limit the expropriation of their rural

property—they did so by resorting to the amparo laws that protected all Mexican

citizens (what is known as the Libro Primero, or Book One, of the amparo law). In

1963, however, Congress amended the amparo law and created a new amparo

modality specifically for agrarian matters.19 In a country with a long history of

collective rights embedded in a liberal constitutional system, a quintessentially

individual and private right was expanded to include the right of ejidatarios

(individually and collectively) and land solicitors to judicial protection against

violations of agrarian reform law and government procedures (what is known as the

Libro Segundo, or Book Two, of the amparo law).

Land and Violence in Contemporary Mexico

Struggles over land continue to shape rural Mexico and the content of agrarian court

deliberations today. Court records show that land remains, as the title of Andrew

Roth’s (2004) book suggests, a contentious resource. Even though most ejidos have

been measured and titled, and even though the state is no longer responsible for 18 Legal scholars often suggest that Article 27 of the 1917 Constitution is a collective amparo in embryonic form because it recognized the collective rights of communities to demand and receive from the government enough land to satisfy the needs of their residents, and because it restored corporate land ownership. 19 Reforma Constitucional, 2 November 1962; and Decreto de Reforma, 3 January 1963.

20

distributing land to the landless, twenty-first century rural Mexico remains profoundly

fractured and violently divided over land—regardless of whether what land represents is

a home and livelihood, commercial real estate, the autonomy of a community, a form of

justice, or something else. Even the Ministry of Agrarian Reform responsible for the

titling program admitted that, although land distribution ended with the 1992 reforms

to Article 27 and the new Agrarian Law, “campesino groups’ demand to have a

portion of land remains latent” (“la exigencia de grupos campesinos por contar con

una porción de tierra continúa latente”).

Violence in rural Mexico remains so endemic that, during the administration

of President Vicente Fox (2000-2006), a Ministry of Agrarian Reform survey of all its

state-level branches identified approximately 400 violent agrarian conflicts (84

involving the use of firearms) in 11 states, which had left a combined total of 518

dead and 208 injured. Of these 400 conflicts, some were considered high risk and thus

classified as “red” alerts (focos rojos), whereas less explosive conflicts were

categorized as “yellow” alerts (focos amarillos). Most “red alert” conflicts are located

in Oaxaca, Chiapas and Guerrero, but some are also found in Durango, Jalisco,

Michoacán, Nayarit, San Luis Potosí, Sonora, Veracruz and Zacatecas. These high-

profile conflicts share a number of characteristics: They are principally about land;

they involve ejidos and agrarian communities, mostly with indigenous populations;

they have been deadly; and they are long-standing (the average length of a conflict is

some 40 years).20 In order to deal with these “red-” and “yellow-alert” conflicts, the

Ministry of Agrarian Reform created a special multinstitutional program (Programa

de Atención a Focos Rojos), with multidisciplinary teams of agrarian officials

(including a lawyer, a sociologist and an engineer) stationed in or near the areas of 20 Source. In addition, the “red alert” conflicts have a high profile in the press—another important reason why the government wanted to find a resolution to these land issues. “Programa de atención a focos rojos,” SRA

21

conflict. The work of these teams is no doubt important, but in the end many of these

highly contentious issues are handled by the agrarian courts.

The following two examples show both how local factions use the amparo as a

means to settle violent factional disputes.

La Mutua

In January 1981, a group of campesinos from La Mutua (municipality of El Naranjo),

San Luis Potosí, submitted a petition for a land grant from a neighboring federal

property named El Plan del Guajolote. A few months later, the San Luis Potosí Agrarian

Commission began the administrative and technical procedures required to make the

grant. After conducting the census, agrarian officials identified 198 potential agrarian

subjects. However, agronomers assigned to the case failed to find land available for

expropriation within a seven-kilometer radius of the population center—an agrarian

legal requirement whose antecedents date from the colonial period.21 On these grounds,

the agrarian commission denied the land petition. Nevertheless, land solicitors continued

to press their case, and the state delegate of the Ministry of Agrarian Reform ordered

two additional technical investigations, one in 1983 and in one 1984. Yet the agrarian

bureaucracy once again denied the land grant on the same grounds and, instead,

proposed that the population center relocate to a region where there was land that could

21 A National Agrarian Commission circular from 1916 gave local agrarian commissions instructions on how to measure endowment perimeters: They were to follow state-level rulings issued before the Constitution of 1857, or, if there happened to be none (which was typically the case), they were to resort to colonial laws stipulating that endowed lands had to lie within a distance of 2,095 meters from the centers of the town in each direction. This stipulation was taken from several colonial laws, particularly the Cédula Real of July 12, 1695, in which Fernando IV ruled that the urban center of all towns in the New World had to be measured "from the atrium of the church in the direction of the four winds" (Rincón, 1980: 26-7). From then until 1992, land reform beneficiaries could conceivably receive a fraction of the land located within seven kilometers of the town center. The last major law decreed prior to the 1992 reforms, the Federal Agrarian Reform Law of 1971, stipulated that "all rural properties within a seven-kilometer radius from the most densely populated part of a community could potentially be expropriated" (Article 203 of the Ley Federal de Reforma Agraria).

22

be legally expropriated—an offer that was immediately refused by the group of land

solicitors.

In 1997, the land solicitors resorted to the new agrarian courts and filed an

amparo suit seeking redress from the agrarian commission’s ruling. In 1999, they won

the amparo suit, in the sense that their petition for land remained open to another

investigation and a final resolution. And in 2001, the Agrarian Supreme Court canceled

the 1982 state governor’s resolution and endowed the population center with 300

hectares land.

If one considers this case an example of how a local community resisted and

challenged a state agency (a case in which one state agency sides with the oppressed

against another state office), one may lose sight of the violent local power struggles

that turned this region into one of the government’s “red alert” cases. Indeed, La

Mutua members were involved in several disputes at once.

In 1980, an area called “Rancho El Estribo” (comprising 4,500 hectares) had

been expropriated and converted into federal property to benefit a state-run agricultural

research center. The ranch was comprised of four land fractions. Three of them were

used as ecological and research reserves. The fourth area, El Plan del Guajolote

(measuring approximately 1,000 hectares), had been “invaded” by four groups,

including La Mutua. The four squatter groups not only ended up in violent internal

struggles, but they also engaged in armed conflicts with still other groups. The situation

turned so violent and involved so many regional and national players that its “resolution”

involved formal agreements between the Secretary of the Agrarian Ministry, the

Secretary of the Ministry of Agriculture (SARH), the president of the peasant

organization National Movement of the 400 Peopples (Movimiento Nacional de los 400

23

Pueblos),22 representatives of the state governor of San Luis Potosí, and the Ministry of

Interior (SG).23

La Parota

Like La Mutua, La Parota is another instance in which the use of the amparo—

primarily an instrument for seeking redress from the state—is used to resolve local

conflicts.

La Parota is the name of the Federal Electric Commission’s (CFE) hydroelectric dam

project in the State of Guerrero. The dam may potentially affect the ecological

balance in 21 settlements (including 17 ejidos, 3 agrarian communities, and one

private property) and displace (in part through forceful evictions) several thousand

people. The case has attracted the attention of national and international human rights

organizations, and Amnesty International has documented three deaths that have

occurred since 2003 in association with the conflict, as well as many injuries,

politically motivated arrests, and frequent threats against those who have campaigned

against building the dam.24

In 2005, the Federal Electric Commission and Guerrero state government

officials helped organize and attended general assemblies at four agrarian

communities, where assembly members agreed to receive compensation for the

expropriation of their lands. However, those who are opposed to the contstruction of

the dam formed the Council of Ejidos and Communities Opposed to the La Parota

Dam (Consejo de Ejidos y Comunidades Opositoras a la Presa la Parota, CECOP),

and they successfully used the amparo suit to challenge the legal basis of the

22 This peasant organization was founded in 1974 as a response to rural repression in Tlaxcala. It is led by César del Ángel and has influence primarily in Veracruz, Tlaxcala and Oaxaca. 23 Diario Oficial de la Federación, 23 May 2003; Diario Oficial de la Federación 16 December 2005; 24 “Mexico: Human Rights at Risk in La Parota Dam Project,” Amnesty International AMR 41/029/2007; J. Schwartz, “Mexican farmers protest river dam,” The Atlanta Journal-Constitution, 04/06/08.

24

agreement. The agrarian district court handling the amparo petition invalidated three

of the general assembly meetings on the grounds that they did not meet the legal

quorum and therefore nullified any agreement between the agrarian communities and

the Federal Electric Commission. Furthermore, the court forbade state and federal

governments to continue hydroelectric works in the region.

However, when the agrarian district court turned down the forth amparo

(thereby legitimating one of the assemblies and thus the agreement signed between

the Federal Electric Commission and the comuneros), the Council of Ejidos and

Communities filed an amparo petition seeking relief against the district court’s

resolution. In 2007, the Agrarian Supreme Court reversed the agrarian district court’s

decision on the grounds that the assembly meeting failed to meet the legal quorum.

During the preceding investigation of the case, the agrarian attorney general’s office

confirmed that the list of those supposedly attending the assembly in question

included names of comuneros who were dead or then resident in the United States.

Moreover, the location of the assembly meeting had been secretly changed at last

minute to a venue outside the agrarian community, and the police made ensured that

none of the opposition members entered the meeting hall.25

The La Parota case is an example of local activists resisting the actions of a

rapacious federal agency and state government.26 What is not highlighted in most

accounts of the conflict is that there are also hundreds of comuneros who, although

not numerous enough to constitute an assembly quorum, nevertheless voted in favor

of receiving compensation for the expropriation of their lands. For example, in one

assembly that failed to reach the legal quorum, there were nonetheless more than 800

comuneros present and ready to sign the expropriation agreement. It is the depth and 25 Tribunal Unitario Agrario del 41Distrito del Estado de Guerrero 447/2005 Cacahuatepec; 72/2006 Los Cuajes; 73/2006 Dos Arroyos; and 74/2006 La Palma. 26 The case remains unresolved.

25

breadth of local fractures—allied with diverse sectors of society (government

agencies, business groups, NGOs)—that make this rural area so violent.

Concluding Remarks

Amparo cases can be studied as concrete examples of resistance because, in the words

of Parés (this volume), they evoke the conservation of something rather than its

transformation. In the case of present-day Mexico, court resolutions show how the

amparo, which was originally conceived as a legal tool for resisting the state’s legal

and procedural abuses, has become a key instrument in what are often very violent

struggles over land. Thus, resistance, in the form of the amparo, is intimately linked

to—indeed, inseparable from—subaltern fractures and cross-alliances with state and

other “outside” actors (De la Peña, this volume). In the case of rural Mexico,

resistance in the form of redress is a weapon used in factional struggles for land.

Several contributors (Gledhill and Parés, for example) have taken up

Foucault’s contention that “where there is power there is also resistance” (1978, 95-

96), and they have noted Lila Abu-Lughod’s play on words reversing the meaning to

“where there is resistance, there is power” (1990, 42). In contemporary rural Mexico,

where land continues to be a contentious resource, perhaps one could add that where

there is resistance there are local fractures fighting against each other.

References Cited

Baitenmann, H. (2005) “Counting on State Subjects: State Formation and Citizenship in Twentieth-Century Mexico,” in Knut G. Nustad and Christian Krohn-Hansen, eds. Explorations of the state: Considerations from critical anthropology/ethnography. London: Pluto Press.

26

Benjamin, T. and Mark W. eds. (1990) Provinces of the Revolution. Essays on Regional Mexican History, 1910-1929. Albuquerque: University of New Mexico Press, 1990. Bartra, A. (1986) Los herederos de Zapata. Mexico City: Ediciones Era. Chávez Padrón, M. (2003) Derecho procesal social agrario. Mexico City: Editorial Porrúa. Corrigan, Philip and Derek Sayer (1985) The Great Arch: English State Formation as Cultural Revolution. Oxford: Basil Blackwell. Fallaw, Ben (2001) Cárdenas Compromised: The Failure of Reform in Postrevolutionary Yucatán. Durham: Duke University Press. Gómez Carpintero, F. (2003) Gente de azúcar y agua. Modernidad y posrevolución en el suroeste de Puebla. Zamora: El Colegio de Michoacán and Benemérita Universidad Autónoma de Puebla. Gramsci, A. (1971) Selections from the Prison Notebooks. Ed. and trans. Quintin Hoare and Geoffrey Nowell-Smith. New York: International Publishers. Hamilton, S. (2002) “Neoliberalism, Gender, and Property Rights in Rural Mexico,” Latin American Research Review 37:1, 119-143. Ibarra Mendivil, J. L. (1989) Propiedad agraria y sistema político en México. Mexico City: Miguel Angel Porrúa. Joseph, G. and D. Nugent, eds. (1994), Everyday Forms of State Formation: Revolution and Negotiation of Rule in Modern Mexico. Durham and London: Duke University Press. Luna Arrollo, A. and L. Alcérreca (1982) Diccionario de derecho agrario en México. Mexico City: Editorial Porrúa. Mackinlay, H. (1996) Medina Medina, L. (1978) Historia de la revolución mexicana. Periodo 1940-1952. vol. 18. Del cardenismo al avilacamachismo. Mexico City: El Colegio de México. Julio M. (1989) “La cuestión agraria en el período 1950-1970,” in Julio Moguel (ed.) Historia de la cuestión agraria mexicana: Política estatal y conflictos agrarios, 1950-1970. Mexico City: Siglo Veintiuno. Nugent, D. and A. M. Alonso (1994) “Multiple Selective Traditions in Agrarian Reform and Agrarian Struggle: Popular Culture and State Formation in the Ejido of Namiquipa, Chihuahua.” In Gilbert Joseph and Daniel Nugent (eds.), Everyday Forms of State Formation: Revolution and the Negotiation of Rule in Mexico. Durham: Duke University Press.

27

Purnell, J. (1999) Popular Movements and State Formation in Revolutionary Mexico: The Agraristas and Cristeros of Michoacán. Durham: Duke University Press. Reyes Osorio, S. et al. (1979) Estructura agraria y desarrollo agrícola en Mexico. Estudio sobre las relaciones entre la tenencia y uso de la tierra y el desarrollo agrícola en Mexico. Mexico City: Fondo de Cultura Económica. Rincón Serrano, R. (1980) El ejido mexicano. Mexico City: Centro Nacional de Investigaciones Agrarias. Roseberry, W. (1998). “‘El estricto apego a la ley’: Liberal Law and Communal Rights in Porfirian Pátzcuaro,” paper delivered at the Meeting of the Latin American Studies Association. Roseberry, William. (1999) “Para calmar los ánimos entre los vecinos de este lugar: Community and Conflict in Porfirian Pátzcuaro,” paper delivered at the Meeting of the American Historical Association. Roth Seneff , A. ed. (2004) Recursos contenciosos: Ruralidad y reformas liberales en México. Zamora: El Colegio de Michoacán. Secretaría de la Reforma Agraria. 2006. Informe de Rendición de Cuentas 2000-2006. Libro Blanco Procede. http://www.sra.gob.mx/internet/rendicion/LibroBlancoProcede.pdf Sieder, Rachel, Line Schjolden and Alan Angell (2006) The Judicialization of Politics in Latin America. Basingstoke: Palgrave Macmillan. Vargas, J. A. (2008) Mexico and its Legal System. http://www.llrx.com/mexicolegalsystem.htm Williams, R. (1977) Marxism and Literature. London: Oxford University Press. Zaragoza, J. L. and R. Macías Coss (1980) El desarrollo agrario en México y su marco jurídico. Mexico City: Centro Nacional de Investigaciones Agrarias.