{"id":1202,"date":"2017-11-29T10:34:26","date_gmt":"2017-11-29T10:34:26","guid":{"rendered":"https:\/\/processing.matteringpress.org\/?page_id=1202"},"modified":"2018-06-27T17:15:11","modified_gmt":"2018-06-27T16:15:11","slug":"20-ethnographic-case-legal-case-from-the-spirit-of-the-law-to-the-law-of-the-spirit","status":"publish","type":"page","link":"https:\/\/processing.matteringpress.org\/ethnographiccase\/20-ethnographic-case-legal-case-from-the-spirit-of-the-law-to-the-law-of-the-spirit\/","title":{"rendered":"20. Ethnographic Case, Legal Case: From the Spirit of the Law to the Law of the Spirit"},"content":{"rendered":"

Welcome. Plea<\/i>se read the\u00a0instructions<\/a>\u00a0for reviewing before commenting.\u00a0We ask contributors to be generous when thinking along with our pieces and to keep in mind that the final chapters are intended to be short essays.\u00a0Visit matteringpress.org<\/a> for more information on its other books. Readers might\u00a0also want to have a look at this resource<\/a> created by one of the book’s editors, Emily Yates-Doerr, which catalogues key Open Access anthropology publications.\u00a0<\/em><\/span><\/p>\n

By\u00a0Andr\u00e9 Menard\u00a0and\u00a0Constanza Tizzoni<\/em><\/p>\n

In 1956, Claude L\u00e9vi-Strauss addressed a letter to the 1st International Congress of Black Writers and Artists held in Paris. In the letter, he stated that \u201cafter the aristocratic humanism of the Renaissance and the bourgeois humanism of the 19th<\/sup>\u00a0century\u201d the Congress announced the arrival of \u201ca democratic humanism\u201d in which \u201cevery human society must be represented, not just a few.\u201d[i]<\/a><\/p>\n

A\u00a0societies\u2019 access to the rank of civilization is, however, neither evident nor immediate, but requires the presence of representatives. L\u00e9vi-Strauss explained this situation in the following manner: \u201cthese civilizations of which you are the spokespeople have hardly had any written documents and some only devoted themselves to the monument\u2019s transitory forms. For lack of these so-called noble productions, in order to comprehend them, one must focus oneself, with the same degree of passion and respect, on the \u2018popular\u2019 manifestations of culture: those shared by all members of society.\u201d[ii]<\/a><\/p>\n

In this statement from L\u00e9vi-Strauss, we can see three things: an expression of the politics of deracialization policies promoted by organizations such as the United Nations and Unesco since the end of World War II; the promotion of the concept of culture over race as the new tool for the management of the human differences; and the creation of a new subject\u2014indigenous peoples as an internationally recognized political and legal category.<\/p>\n

What is perhaps most meaningful in Levi Strauss\u2019 statement, however, is that this new global category takes the shape of a special kind of subject: the anthropological informant\u2014that anonymous person or individual whose name always functions at a secondary level after the authorship of the ethnographer, whose role is to instantiate a collective category, which was understood in the past as race, and is today known as culture. Every gesture and word of the informant becomes a sign of beliefs, mythologies or worldviews of the culture to which he or she supposedly belongs.<\/p>\n

Hence the informant assumes the obligation of not only belonging to the group but also representing it, that is to say,\u00a0not only being but also appearing<\/em>as the authentic representative of a different culture. This mandate of authenticity becomes urgent in the present context of multicultural policies, in which the exemplary form of representation of cultural identity is the dominant form of visibility that indigenous actors must draw on when dealing with the political, legal and administrative apparatus of their respective national States.<\/p>\n

In Chile this model of multicultural management has been implemented since 1993 with the enactment of Law No. 19.253, also known as the \u201cIndigenous Law\u201d, which was subsequently confirmed with the entry into force of ILO Convention 169[iii]<\/a>\u00a0in 2009. This is a national law on the protection, promotion and development of Indigenous Peoples, which recognizes as indigenous those individuals who maintain cultural traits of any of the nine indigenous ethnicities recognized by the Chilean State and who also self-identify as such (Article 2, letter c). Likewise, the Indigenous Law recognizes traditional organizations and specific forms of indigenous organization (Articles 61 and 68).<\/p>\n

We are interested in addressing the problem of representation of the ethnographic case: that a particularity comes to stand in for a (cultural) generality. We address this problem, through an older and more traditional genre\u2014the legal case\u2014where we can also identify a tension between the universality of a law and the specificity of situations to which it applies. However, in the case of the \u201cIndigenous Law,\u201d culture appears as an intermediate category between the universal and the particular that points to a type of untranslatabilty between cultural and legal systems, while also, as we shall see, introducing the necessity of some special category that will allow for translation.<\/p>\n

The case of Mois\u00e9s Maliqueo<\/strong><\/p>\n

On August 17, 2013, Mapuche farmer Mois\u00e9s Maliqueo was sentenced to ten years in prison after being found guilty of killing his wife a year earlier.[iv]<\/a> The case would have been treated like other femicides in the country if it had not been for the cultural belonging of the accused.[v]<\/a>\u00a0That he was Mapuche allowed him to benefit from the services of an agency specifically focused on the defense of the Mapuche peoples of southern Chile: the Mapuche Public Defender.[vi]<\/a> The defense requested an anthropological investigation in order to assess the existence of any extenuating cultural aspects for his crime.[vii]<\/a> Along with the anthropologist, a psychiatrist also appeared in the trial acting as an expert, as well as a \u201cmachi\u201d (Mapuche shaman) who healed Maliqueo, and who acted as a witness.<\/p>\n

The primary concern of the judges and prosecutors (much like that of the ethnographer with the informant) was to confirm the authenticity of the Mapuche defendant, that is to say, his level of attachment to his culture. In the statement made by the psychiatrist, certain suspicions were raised regarding the genuine nature of his cultural belonging, supported by the vagueness that, in the professional\u2019s opinion, characterized Maliqueo\u2019s explanation of the evil (witchcraft) that had turned him into an alcoholic and driven him to kill his wife. The psychiatrist explained,<\/p>\n

\u201cWith regard to this story of evil, it struck us that he was too vague when describing what this evil consisted of and how he was treated, so we began to question whether he was really describing a belief rooted in his culture, or if it was something he\u2019d simply made up to justify his actions.\u201d[viii]<\/a><\/p>\n

From this point of view alcoholism is a sufficient and admissible cause for Maliqueo\u2019s violent act in the context of the court. On the contrary, the magical cause implied by the evil eye, works as a supplementary cause<\/a>[ix]<\/a> with respect to this psychiatric cause. It appears as a cultural supplement of causality in a certain way no less magical than the evil eye and hence also an object of suspicion.<\/p>\n

The psychiatrist continued:<\/p>\n

\u201cFinally, we conclude as a team that this is a man of a rural origin \u2026 We also delved a little into how cross-cultural he is: he considers himself both Mapuche and Chilean, takes part in activities characteristic of his culture and of his ethnicity, but in turn participates quite normally let\u2019s say in the more Chilean-Western part of society. The team has its doubts as to whether this is genuine behavior from the point of view of his culture, or is simply an argument that he uses to justify his behavior.\u201d[x]<\/a><\/p>\n

An anthropologist was then called upon. Since his role consists in proving cultural extenuating circumstance for Maliqueo\u2019s crime, it may be important to note that in March 2013 the Sernam (the State office devoted to the defense and promotion of women\u2019s rights) denounced that 17 Mapuche have been exculpated of domestic violence by appealing to Convention 169.[xi]<\/a> In those cases the defense argued that based on the Mapuche customs the simple excuse of the aggressors was enough to exculpate them.[xii]<\/a>\u00a0Thus, within this contextual and legal background he began by stating the nature of his work: organizing a field trip, interviewing people, in short, undertaking ethnography. It was in the course of this work that he realized \u201cthat a socio-cultural environment operates within the community.\u201d\u00a0But what does this mean?<\/em>, the judge wanted to know. To this question, the anthropologist offered the following reply:<\/p>\n

\u201cIn other words, there exists a Mapuche religiosity called nguillan maw\u00fcn, according to which, and specifically within this community, they celebrate \u2018nguillatun\u2019 [a collective propitiatory ceremony], the cultural practices characteristic of the Mapuche people, like what is called machit\u00fan [a shamanic healing rite].\u201d[xiii]<\/a><\/p>\n

Here something is described that will be a constant not only in this case, but in most trials of this type, that is, when it comes to proving the cultural belonging of the accused, judicial protagonists refer exclusively to two aspects: use of the Mapuche language and participation in Mapuche religious ceremonies. Both the psychiatrist and the prosecutor were emphatic about establishing that Maliqueo speaks Spanish.<\/p>\n

However, and in spite of the fact that Maliqueo does speak Spanish, the defense (in order to perform his cultural identity) managed to get the court to assign him an \u201cintercultural facilitator,\u201d a Mapuche court official responsible for translating the process both linguistically and culturally to the accused. As for the argument about religion, both the defense and the anthropologist confirmed Maliqueo\u2019s participation in traditional ceremonies, as well as his trust in the machi (shaman) from whom he sought assistance. In fact, in the first intervention of the defense of the accused, the following was stated:<\/p>\n

\u201cMy client [Maliqueo] is a Mapuche man. I think it is very significant in this context and in this particular case to identify who this person is. Witness statements will be given by an anthropologist who will reveal who this person is, along with a social worker and a machi. My client speaks Mapudungun (translator\u2019s note: the Mapuche language), he follows the Mapuche religion and ceremonies; he prays in his own language, this is called \u2018guillatucar\u2019 in Mapuche, and is also a \u2018pifilquero,\u2019 that is to say he plays the pifilca [a Mapuche flute], and he takes part in various ceremonies, in nguillatunes, as well as machi ceremonies, as he is also the assistant of a machi.\u201d[xiv]<\/a><\/p>\n

Thus the trial turned to focus on the actual impact that this cultural condition had in the lead up to his actions. The machi Victor Caniull\u00e1n, who attended to the defendant after he had been arrested, was called as a witness, where, in addition to providing details about the killing, he was asked to give a quasi class to the jury on Mapuche ethnology. The judge began by asking him about the conditions required to practice as a machi, to which he replied:<\/p>\n

\u201cUsually there are two types of spirits: a spirit needed for being a person and one needed for being a machi. When there\u2019s a machi within the family, that spirit normally returns a long time after the death of the old machi.\u201d[xv]<\/a><\/p>\n

He then recounted how, in Maliqueo\u2019s case, it was the spirit of a grandmother that was transmitted to him. The machi was then questioned by the defense and asked to explain the Mapuche concept of health:<\/p>\n

Machi: Within the Mapuche classification of health we observe four areas: the physical, spiritual, psychological, and the social.<\/p>\n

Defense: Can you explain a little more about each one of these?<\/p>\n

Machi: Essentially there is a concept called kutxan, which basically means pain. Sickness is not only physical pain, you know? Rather the physical has to do with the whole issue of a person\u2019s body, the physical pain, the ailments, in short. For example, a cough may be a physical illness. When we treat social problems, we include the area where the person develops, grows, lives and coexists. And when we deal with the issue of the psychological, this relates to the issue of consciousness. And in spiritual terms, this is basically how our spirit relates to the surrounding environment, and to all the beings that exist.[xvi]<\/a><\/p>\n

Next the machi gave a statement regarding the classification of illnesses according to the mapuche system. He explained that there are five illnesses, of which Maliqueo suffers from two. The first one was \u201cre kutxan\u201d, a physical ailment of one of the body\u2019s organs, and which literally means \u201cpure illness\u201d or better still \u201cillness and nothing more\u201d.[xvii]<\/a>\u00a0And the second one was described as \u201cmapu kutxan\u201d, meaning \u201cland illness\u201d or \u201cearth illness\u201d, but which also, and this is important, means \u201cMapuche illness\u201d, which is to say an illness imbued with a cultural quality. In other words it is untranslatable in terms of biomedical terminology and its anatomical universality.<\/p>\n

Three other illnesses exist: \u201cwingka kutxan\u201d, a Chilean or Western disease, which the machi shamans have no ability to treat; \u201ckisu kutran\u201d, which only affects persons of authority such as the longkos [chiefs] and machis, and is attributed to the relationship with the spirit associated with their position; and, finally, \u201cwesa kutxan\u201d, or the evil disease or \u201cevil\u201d, caused by supernatural attacks, or directly through poisoning, carried out by a specific person. This last can be translated as \u201cwitchcraft\u201d, an issue that is indeed highly present in Mapuche ethnography, and that Maliqueo argued was the final cause of his crime, but that wasn\u2019t confirmed by the machi.<\/p>\n

Now, if we examine the second of these, \u201cmapu kutxan\u201d, we can see that the double meaning of Mapuche illness and earth illness contains the ambivalence of the same Mapuche ethnonym. This is because the word Mapuche has acquired at least three forms, corresponding to three possible positions of enunciation of the Mapuche used in Chilean legal and political discourses throughout its history.<\/p>\n

First: Mapuche as people of the land (in former days known as reche, pure people, or \u201cpeople and nothing more\u201d), which may have meant \u201cpeople of this place\u201d or \u201cwe the locals\u201d, where the word \u2018mapu\u2019 refers to a limited territorial specificity.<\/p>\n

Second: \u200b\u200bMapuche as a people of a nation like Chile or the Basque Country, passing from a limited territorial reference to the idea of \u200b\u200ba political territory at national level.<\/p>\n

And third: the \u200b\u200bMapuche as a synonym of an indigenous people, a globally recognized category, defined by their prior relationship before a national State who can, having been transformed in the second half of the twentieth century into subjects of law at the international level, claim to be inhabitants of the Earth, but this time in capital letters, that is to say as a planet, and with all the romantic connotation of the pre-modern subject, imbued with community, ecological and, of course, spiritual values.<\/p>\n

This is why when explaining what \u201cmapu kutxan\u201d consists of, the machi did not only refer to the cultural nature of the illness, but also, and especially, its \u201cenergetic\u201d and \u201cenvironmental\u201d nature. In his words:<\/p>\n

\u201cMapu kutxan ultimately has to do with the whole concept of the strength and the energy that exists in nature. (\u2026) The other element of mapu kutxan has to do with energy or forces that are within the earth and which can cause some form of alteration in a person, and in the specific case of the person I went to examine, it was \u2026 He had a lot of difficulty getting to sleep, he didn\u2019t sleep well; he had certain feelings of persecution, nightmares, and basically that was a situation that, at that time on the 15 November, led to his instability within his dwelling.\u201d[xviii]<\/a><\/p>\n

One interesting point here is that the forces and energies of nature seem to be more determinant than the Mapuche (cultural) character of the illness. As the Machi explained:<\/p>\n

\u201cOnly the Mapuche health system is ultimately able to understand what mapu kutxan means, due to the religious view we have of our surroundings, of the environment; this does not mean that only the Mapuche are affected by such illnesses.\u201d[xix]<\/a><\/p>\n

The force of nature, then, is a cause of illness, but are its quirks enough to explain its appearance? Apparently the ultimate cause finally lies in the behavior of the sick person, as the forces of nature or the earth upon the sick person depend on certain cultural transgressions. Again quoting the machi:<\/p>\n

\u201cFor us, and from the point of view of our religious beliefs, all visible or invisible beings that exist in nature have life, have a spirit, have a master, and provide in some way energy. And their illnesses are caused by \u2026 these things happen when we somehow transgress certain cultural norms, and by transgressing certain cultural norms, these are forces, energies or spirits that in the end approach the body of the person who then begins in one way or another to feel discomfort, in this case referring to spiritual and psychological discomfort.\u201d[xx]<\/a><\/p>\n

Ultimately what reappears as the great marker of Mapuche identity is \u201creligious belief\u201d which can be immediately translated as \u201ccultural norms.\u201d Not only is nature spiritualized, but also the culture itself which cannot be understood except from a spiritual perspective as synonymous with religion. Hence, over the course of the trial the use of this spiritual supplement was a way of expressing cultural untranslatability. And, as we can see, once the discourse becomes spiritualized, the translation appears transparent. When the judge sought to contrast the first version of the accused, which justified his actions due to the intervention of a third party that had exposed him to \u201cthe evil eye\u201d, and asked the machi whether Maliqueo suffered from the fifth kind of illness (\u201cwesa kutxan\u201d), the machi replied:<\/p>\n

\u201cNo, in this case, no evil has been caused by a third party. Rather it mainly depends on the behavior of people, basically with regard to their surroundings, with the earth, the waters, etc. Often the spirit begins to weaken the spirit of the person himself, and in this case that\u2019s what was happening according to the diagnosis made at the time.\u201d<\/p>\n

Judge: It\u2019s like saying the energies were not aligned within him and it was because of that that he became unbalanced.<\/p>\n

Machi: Exactly.[xxi]<\/a><\/p>\n

Exactly. The Judge understood perfectly the meaning of \u201cmapu kutxan\u201d: that in the absence of matter, spiritual energies take over.[xxii]<\/a>\u00a0The same can be said of indigenous peoples, who once they are deracialised lose the material reference of the body as a mark of their untranslatability. Thus culture rises up as an heir of this function, which not having the material reference of a race, has no other choice but to resort to the spiritual reference as the only way to translate their untranslatability. In fact this is even outlined by the same machi, when asked by the defense about the translatability of their categories:<\/p>\n

Defense: Is it easy or difficult, and this is specifically for you to answer, to translate Mapuche concepts into Spanish?<\/p>\n

Machi: There are concepts that have no translation, as they would lose their essence, their idea, (but) there are concepts that are easy to translate, such as \u2018p\u00fclli\u2019 \u2013 to assimilate to the spirit, for example.[xxiii]<\/a><\/p>\n

Thus we can see how the cultural supplement sought by the defense, the same supplement marked by the \u201cmapu\u201d of \u201cmapu kutxan,\u201d can only be \u201cmaterialized,\u201d that is to say translated, by the spiritual. Here there is no great difference with what happens in terms of international instruments used for the protection of indigenous peoples. Many articles in both ILO Convention 169 (1989) and the UN Declaration on the Rights of Indigenous Peoples (2007) refer to this spiritual dimension as part of the heritage of such peoples that must be protected.[xxiv]<\/a>\u00a0However, every time they do so, the spiritual appears supplemented by other rights, and not only those that are economic and political, but also cultural, symbolic or religious rights. Or rather, the spiritual always appears as an effort to highlight those untranslatable features that all other categories fail to contain.<\/p>\n

Between the universality of Chilean law and the specificity of the judicial case, we come across the ethnographic case, that is, the figure of the accused as an informant of a particular culture, which in turn acts as universal, i.e. as a collective category represented within an indigenous individual. However, unlike the universal of Chilean law, the universality of Mapuche culture lacks the formal recognition of its own autonomous judicial apparatus which would mediate, through the legal decision, the step that is always contingent between that cultural universal and the particular case.<\/p>\n

Devoid of this political body that would allow for the realization of cultural (but also, and above all, social and historical) content in an effective practice of Mapuche judicial decisions, culture remains floating as a pure spirit, a spiritual supplement that the accused must prove (ethnographically, that is to say in a representative fashion) before the Chilean courts.<\/p>\n

Thus the multicultural spiritualization of differences can immunize decision-making structures established by the laws of Chilean sovereignty, relegating the political dimension of the indigenous condition, that is the problem of formal and territorial-or even national -autonomy, to a problem between individuals, i.e. a condition which, although invoking a collective dimension, does not cease to be individual.<\/p>\n

In this context, the only way to affirm the indigenous status of the individual is to fall back on the legal argument of diminished responsibility by invoking forces outside of their will, in other words, removing individual agency. Perhaps that explains why the defense has symptomatically resorted to Article 10 No. 1 of the criminal procedural code,[xxv]<\/a>\u00a0that is to say, one that exempts (a person) from criminal responsibility due to insanity. But what insanity could this be, if the purpose was to prove cultural rather than psychiatric motivations for what took place? Perhaps it was the colonial, multicultural or anthropological insanity of assigning to each gesture and each thought of the subject the obligation to represent a collective, to be authentic, in other words, the insanity of the informant.<\/p>\n

\n

Andr\u00e9 Menard holds a PhD in Sociology from the \u00c9cole des Hautes \u00c9tudes en Sciences Sociales (EHESS), and is professor and researcher at the Department of Anthropology of the Universidad de Chile.\u00a0<\/em>His work has centred on Mapuche political history, focusing on the political uses of the notion of race in Chilean and Mapuche context.\u00a0In this frame he has edited, with Jorge Pavez the photographic album Mapuche y Anglicanos, vestigios fotogr\u00e1ficos de la Misi\u00f3n Araucana de Kepe (1896-1908)\u00a0(Santiago de Chile: Ocho Libros, 2008), and more recently the manuscripts of the mystical Mapuche leader Manuel Aburto Panguilef\u00a0\u00a0Libro Diario del Presidente de la Federaci\u00f3n Araucana, Manuel Aburto Panguilef (1940-1951)\u00a0(Santiago de Chile: CoLibris, 2013). His current research focuses on the theories of fetish and their applications to the analysis of the legal and political status of indigenous peoples.<\/em><\/p>\n

\u00a0<\/em>Constanza Tizzoni is student of the Department of Anthropology of the Universidad de Chile. At present she is preparing a thesis on the legal uses of culture and anthropological reports in the Araucania Region courts (the Mapuche territory).<\/em><\/p>\n

\n

Notes<\/strong><\/p>\n

[i]<\/a> This article is based on the results of the Project Fondecyt 1140921. We would like to thank Fabien Lebonniec for his generosity in sharing with us the documents of Mois\u00e9s Maliqueo\u2019s trial.<\/p>\n

[ii]<\/a> L\u00e9vi-Strauss C., \u201cLettre au I Congr\u00e8s d\u2019artistes et \u00e9crivains noirs\u201d,\u00a0Pr\u00e9sence Africaine,\u00a0<\/em>n\u00ba 8-9-10, (1956) 384 -385.<\/p>\n

[iii]<\/a> International legal instrument promulgated by the International Labour Organisation (ILO) in 1989 which outlines the rights of Indigenous Peoples and the ensuing obligations of States.<\/p>\n

[4]<\/a>\u00a0Oral Criminal Court of Temuco. Case of Mois\u00e9s Maliqueo Quidel. Femicide trial. R.I.T.:107\/2013. 17 August 2013.<\/p>\n

[iv]<\/a> Oral Criminal Court of Temuco. Case of Mois\u00e9s Maliqueo Quidel. Femicide trial. R.I.T.:107\/2013. 17 August 2013.<\/p>\n

[v]<\/a> The Chilean State signed in 1994 the \u201cInter-american convention on the\u00a0prevention, punishment and eradication of violence against women convention of belem do Para\u201d, and since 2008 the SERNAM (the State office devoted to the defense and promotion of Women rights) developed a campaign for preventing and denouncing violence against women, informing about the number of femicides committed in the country which are about fourty every year. In this context, and along with public campaigns for denouncing the acts of violence against women, the cases of femicides are normally denounced in the media.<\/p>\n

[vi]<\/a> Forming part of the Criminal Justice Reform, the Mapuche Public Defender\u2019s Office was created in 2001. It represents the first specialized mechanism for the criminal defense of indigenous defendants, and has been implemented only in the Araucan\u00eda region of Chile. The body is staffed by lawyers who have specialized in the defense of native peoples, along with intercultural facilitators that provide translation and cultural services and who, like the accused they defend, share the same Mapuche ethnicity.<\/p>\n

[vii]<\/a> The aforementioned \u201cIndigenous Law\u201d for criminal matters requires the accreditation during trial of indigenous customs that is carried out to prove that the unlawful conduct of an individual, recognized as indigenous, would have been influenced by the socio-judicial impact on that person of rules of conduct within the community to which he or she belongs. Said indigenous custom must be accredited by an anthropological investigation, carried out by an expert in that field, and then submitted to the court as judicial evidence (Article 54 of the aforementioned law). Furthermore, as a result of the Criminal Procedural Reform, the investigation of such anthropological experts \u201c\u2026cannot be presented solely in a written report. Rather its main form of presentation should take place in an oral hearing during the trial.\u201d (Le Bonniec, 2014)<\/p>\n

[viii]<\/a> Transcript of the statement made by psychiatric expert Sergio Duran during the second day of the oral hearing. Criminal Court of Temuco: Case of Mois\u00e9s Maliqueo Quidel, Femicide Trial. R.I.T.: 107\/2013.<\/p>\n

[ix]<\/a> Here I\u2019m working with the Derridean notion of the supplement in the sense of a paradoxical (and eventually empty) feature that can both function as the supplement for a lack, and as an extra element added to the whole.<\/p>\n

[x]<\/a> Idem.<\/p>\n

[xi]<\/a> I don\u2019t have room here, but it would be important to develop all the legal and anthropological implications of the conflict of rights that such a case involves, as far as the cultural rights claimed by Maliqueo\u2019s defense based on the international conventions signed by the Chilean State, collide with the human rights of her victim. The victim\u2019s rights are also based in a specific international convention, the \u201cInter-american convention on the\u00a0prevention, punishment and eradication of violence against women convention of belem do Para,\u201d as the prosecutor argued in his accusation.<\/p>\n

[xii]<\/a> Here it is also important to note that citizen organizations, including Mapuche political organizations, denounced this legal strategy as a misuse of the Convention 169. As I\u2019ll try to show in\u00a0this text, the possibility of this type of legal \u201cmisuse\u201d is based on a rather esoteric use of the category of culture, instead of providing institutionalized spaces (that is autonomously produced and officially recognized spaces) for the Mapuche people to elaborate, discuss and perform their legal solutions.<\/p>\n

[xiii]<\/a> Transcript of the statement made by the anthropological investigator, Paulo Castro, in the court hearing on the second day of the trial. Criminal Court of Temuco. Case of Mois\u00e9s Maliqueo Quidel. Femicide Trial. R.I.T.: 107\/2013.<\/p>\n

[xiv]<\/a> Transcript of the opening statement by Maria Salamanca for the defense on the first day of the trial. Criminal Court of Temuco. Case of Mois\u00e9s Maliqueo Quidel. Femicide Trial. R.I.T.: 107\/2013.<\/p>\n

[xv]<\/a> Transcript of the statement by the witness Victor Caniull\u00e1n on the second day of the trial. Criminal Court of Temuco. Case of Mois\u00e9s Maliqueo Quidel. Femicide Trial. R.I.T.: 107\/2013.<\/p>\n

[xvi]<\/a> Idem.<\/p>\n

[xvii]<\/a> Which is symptomatic of a system that distinguishes between a pure illness and one that includes a cultural supplement that differentiates\u00a0it from some universal organic illness.<\/p>\n

[xviii]<\/a> Idem.<\/p>\n

[xix]<\/a> Idem.<\/p>\n

[xx]<\/a> Idem.<\/p>\n

[xxi]<\/a> Idem.<\/p>\n

[xxii]<\/a> Aug\u00e9, Marc 1988,\u00a0Le Dieu Objet<\/em>, Paris: Flammarion.<\/p>\n

[xxiii]<\/a> Idem.<\/p>\n

[xxiv]<\/a> Within\u00a0ILO Convention 169<\/em>: Articles 5, 7, 13 and 32. Within the\u00a0UN Declaration on the Rights of Indigenous Peoples<\/em>: Articles11, 12, 25 and 34.<\/p>\n

[xxv]<\/a> \u201cArt. 10: Those exempt from criminal responsibility are: 1. the mad or insane, unless they have acted with lucidity during an intervening period, and who, for whatever cause independent of their will, have been completely deprived of all reason.\u201d C\u00f3digo Penal de la Rep\u00fablica de Chile [Criminal Code of the Republic of Chile].<\/p>\n

\n

References<\/strong><\/p>\n

Aug\u00e9, Marc 1988,\u00a0Le Dieu Objet<\/em>, Paris: Flammarion.<\/p>\n

C\u00f3digo Penal de la Rep\u00fablica de Chile,\u00a0http:\/\/www.leychile.cl\/Navegar?idNorma=1984<\/a>\u00a0(last visit January 2015).<\/p>\n

Criminal Court of Temuco 2013.- Transcript of the opening statement by Maria Salamanca for the defense on the first day of the trial. Criminal Court of Temuco. Case of Mois\u00e9s Maliqueo Quidel. Femicide Trial. R.I.T.: 107\/2013.<\/p>\n

Criminal Court of Temuco 2013.- Transcript of the statement by the witness Victor Caniull\u00e1n on the second day of the trial. Criminal Court of Temuco. Case of Mois\u00e9s Maliqueo Quidel. Femicide Trial. R.I.T.: 107\/2013.<\/p>\n

Criminal Court of Temuco 2013.- Transcript of the statement made by psychiatric expert Sergio Duran during the second day of the oral hearing. Criminal Court of Temuco: Case of Mois\u00e9s Maliqueo Quidel, Femicide Trial. R.I.T.: 107\/2013.<\/p>\n

Criminal Court of Temuco 2013.- Transcript of the statement made by the anthropological investigator, Paulo Castro, in the court hearing on the second day of the trial. Criminal Court of Temuco. Case of Mois\u00e9s Maliqueo Quidel. Femicide Trial. R.I.T.: 107\/2013.<\/p>\n

Criminal Court of Temuco. Case of Mois\u00e9s Maliqueo Quidel. Femicide trial. R.I.T.:107\/2013. 17 August 2013.\u00a0http:\/\/www.ilo.org\/indigenous\/Conventions\/no169\/lang\u2013en\/index.htm<\/a>\u00a0(last visit January 2015).<\/p>\n

Defensor\u00eda Penal P\u00fablica 2012.-\u00a0Modelo de Defensa Penal para Imputados Ind\u00edgenas,\u00a0<\/em>Santiago: Defensor\u00eda Penal P\u00fablica.<\/p>\n

International Labour Organisation 1989.-\u00a0Convention 169.<\/em><\/p>\n

Le Bonniec, F. 2014 .- \u201cInterrogantes en torno a la emergencia del peritaje antropol\u00f3gico en Chile\u201d. Paper presented in the frame of the project FONDECYT Iniciaci\u00f3n N\u00b011121578:\u00a0\u201cJusticia e interculturalidad: etnograf\u00eda del campo jur\u00eddico en situaciones de relaciones inter\u00e9tnicas en la Araucan\u00eda, en el contexto de reforma procesal penal\u201d.<\/em>\u00a0Temuco: Universidad Cat\u00f3lica de Temuco.<\/p>\n

L\u00e9vi-Strauss C., \u201cLettre au I Congr\u00e8s d\u2019artistes et \u00e9crivains noirs\u201d,\u00a0Pr\u00e9sence Africaine,\u00a0<\/em>n\u00ba 8-9-10, (1956) 384 -385.<\/p>\n

Pouillon, Jean 1970.- \u201cF\u00e9tiches sans f\u00e9tichisme\u201d in\u00a0Nouvelle revue de psychanalyse<\/em>\u00a0no. 2, autumn 1970, p. 135-147.<\/p>\n

United Nations 2007.-\u00a0United Nations Declaration on the Rights of Indigenous Peoples<\/em>,\u00a0http:\/\/www.un.org\/esa\/socdev\/unpfii\/documents\/DRIPS_en.pdf<\/a> (last visit January 2015).<\/p>\n

Defensor\u00eda Penal P\u00fablica 2012.-\u00a0Modelo de Defensa Penal para Imputados Ind\u00edgenas,\u00a0<\/em>Santiago: Defensor\u00eda Penal P\u00fablica.<\/p>\n

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