In “Access to What? Legal Agency and Access to Justice for Indigenous Peoples in Latin America,” Daniel Brinks discusses the inadequacies of access to justice and legal empowerment efforts in Latin America and the need to strengthen the legal agency of indigenous persons and communities. Brinks advocates for alternative approaches that 1) allow both indigenous individuals and communities to participate in the legal landscape to help shape and enforce their legal rights, and 2) grant political and territorial autonomy for indigenous communities to govern their traditional, community-based legal systems.
Brinks describes “classic” access to justice methods as limited attempts to ensure individuals can defend their rights in formal, state-based justice systems (“state systems”). He argues these efforts have largely failed due to the pervasive inequality within state systems that systematically disadvantages indigenous persons and groups. Further, these efforts fail to address indigenous groups’ desires to expand access to alternative forms of justice that more closely align with their cultural practices and notions of justice. Brinks argues that legal empowerment has gotten a step closer by giving individuals new rights, and the legal resources to enforce them. Its successes are illustrated by the growth of new formal rights in various Latin American constitutions in the 1980s and the strengthening of those rights in the early 2000s. Legal empowerment fails to address the vulnerabilities to physical violence that indigenous persons and groups face when fighting to gain and enforce their new rights.
Brinks argues that developing “legal agency” overcomes those issues by increasing indigenous communities’ access to state systems and allowing community-controlled justice systems to operate without the inequalities present between dominant and indigenous groups. Additionally, legal agency enables indigenous communities to substantively participate in the shaping of justice systems, so they reflect alternative ideas of justice, which can increase the perception of fairness and reduce inequalities. Finally, Brinks argues that full legal agency requires some measure of territorial and political autonomy for community-based systems to operate in.
Brinks concludes by analyzing three strategies to increase legal agency. The first approach, increasing access to state law, involves increasing the number of interpreters available or providing cultural sensitivity training to judges. This approach often reinforces inequalities by explicitly treating indigenous groups differently and separately. The second approach focuses on empowering customary legal systems by elevating their status to an equal footing with state systems. This increases indigenous legal agency by allowing them to directly participate in the production of accepted justice norms. This approach can lead to the reinforcement of negative community norms, like gender inequalities, so Brinks suggests using an inclusive collaborative process between the state and local indigenous community that helps bring negative norms in line with international standards. Finally, the third approach focuses on creating internal and external pressure on the state to protect the values and rights of indigenous communities. It involves increasing legal training within indigenous communities to better equip them to operate within the state system, and it stresses the importance of involving domestic NGOs and transnational actors in constitutional and international litigation to protect and expand the rights of indigenous peoples.