Record for a UF thesis. Title & abstract won't display until thesis is accessible after 2014-05-31.

Permanent Link: http://ufdc.ufl.edu/UFE0044325/00001

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Title: Record for a UF thesis. Title & abstract won't display until thesis is accessible after 2014-05-31.
Physical Description: Book
Language: english
Creator: Goodman, Benjamin David
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2012


Subjects / Keywords: Latin American Studies -- Dissertations, Academic -- UF
Genre: Latin American Studies thesis, M.A.
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Statement of Responsibility: by Benjamin David Goodman.
Thesis: Thesis (M.A.)--University of Florida, 2012.
Local: Adviser: Nagan, Winston.
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Classification: lcc - LD1780 2012
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Permanent Link: http://ufdc.ufl.edu/UFE0044325/00001

Material Information

Title: Record for a UF thesis. Title & abstract won't display until thesis is accessible after 2014-05-31.
Physical Description: Book
Language: english
Creator: Goodman, Benjamin David
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2012


Subjects / Keywords: Latin American Studies -- Dissertations, Academic -- UF
Genre: Latin American Studies thesis, M.A.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation


Statement of Responsibility: by Benjamin David Goodman.
Thesis: Thesis (M.A.)--University of Florida, 2012.
Local: Adviser: Nagan, Winston.
Electronic Access: INACCESSIBLE UNTIL 2014-05-31

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Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2012
System ID: UFE0044325:00001

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2 2012 Benjamin Goodman


3 To the Kuna people of Mort among whom I learned to walk and talk


4 ACKNOWLEDGMENTS I would like to thank al l of my loved ones for their love and support: my fiance Joyce Rodriguez for her patience, support and assistance during this cha llenging yet rewarding project; my mother Sharon Goodman for her assistance and constant encouragement ; my father, Joseph G oodman for paving the way to meaningful relationships with the Kuna people over the last 30 years ; and to the rest of my family for their support, especially Ben and Diane Shirey who have done so much for me and were there for me when I needed it most I would like to thank the members of my thesis commit tee: Professor Winston Nagan for chairing my committee as well as working with me and mentoring me throughout my law school experienc e; Dr. Karen Kainer and Dr. Osvaldo Jordan, who have each played an im portant role in my own personal and academic development, as well as in the development of this thesis; Dr. Jo rdan, especially, provided key insights into this study from his own work, and was of great assistance in making important contacts while in Panam a. I would like to thank all of the people in Panama who facilitated my research ; Keith and Wilma Forester for opening their home and dinner table to me for nearly two months; the USAID and Chemonics directors and personnel who were very generous with the ir time and trust, especially Ri ta Spadafora and Mauro Salazar; and all of the other s that shared their time and experiences with me in conversations and interviews. Finally, I would like to thank the leaders and members of the Mort community for their fr iendships, trust, and openness to my work; Teobaldo Martinez for his friendshi p, time and insight; Edelfonso Alvarado, for facilitating my visits to Mort and his generosity in allowing me to stay with his family while in the village of Mort


5 TABLE OF C ONTENTS page ACKNOWLEDGMENTS ................................ ................................ ................................ .. 4 LIST OF ABBREVIATIONS ................................ ................................ ............................. 7 ABSTRACT ................................ ................................ ................................ ..................... 8 CHAPTER 1 INTRODUCTION ................................ ................................ ................................ .... 10 Research Questions ................................ ................................ ............................... 10 Overview of Paper ................................ ................................ ................................ .. 12 2 INTEGRATING LAW, POLICY AND TH E SOCIAL SCIENCES: THE NEW HAVE N SCHOOL OF LAW AND POLICY ................................ .............................. 15 Law and the Social Sciences ................................ ................................ .................. 15 The New Haven School of Jurisprudence ................................ ............................... 17 Applying the New Haven approach to development Policy and practice ................ 25 The Vicos Project ................................ ................................ ............................. 25 Problem focused Policy ................................ ................................ .................... 27 The Problem of Development: To Be Sustainable or Not To Be S ustainable? ................................ ................................ ................................ 28 Indigenous Communities as Participants in Development Policy ............................ 32 3 COMMUN I TY FOREST MANAGEMENT, INDIGENOUS COMMUNI TIES AND INDIGENOUS RIGHTS ................................ ................................ ........................... 38 Community Based Forest Management ................................ ................................ 38 Indigenous Communities and Forest Management ................................ ................ 44 Indigenous Identity ................................ ................................ ........................... 45 Historical Considerations ................................ ................................ .................. 47 Balancing Livelihoods, Co nservation and Development ................................ ... 49 Indigenous Peoples and the Environment ................................ ........................ 50 Indigenous Rights and Community Forest Management ................................ ........ 51 4 THE CASE OF THE MORTI COMMUNITY FOREST MANAGEMENT PROJECT ................................ ................................ ................................ ............... 65 Methodology ................................ ................................ ................................ ........... 65 Study Site ................................ ................................ ................................ ............... 67 The National Context ................................ ................................ .............................. 69 Panama, the Comarca, and the Kuna ................................ .............................. 69 The Kuna, the Comarca, and Development ................................ ..................... 74


6 Panamanian Policies, Values, and Perspectives ................................ .............. 77 The Panamanian Timber Industry ................................ ................................ .... 84 ANAM ................................ ................................ ................................ ............... 87 The Colonos ................................ ................................ ................................ ..... 88 International Developm ent Agency Policy, Values, and Perspectives .................... 90 USAID and Chemonics in Panama ................................ ................................ .. 90 The Nature of the Development Project ................................ ........................... 91 Problems in project implementation identified by Chemonics staff ................... 97 Morti Community Policies, Values, and Perspectives ................................ ........... 105 General Characteristics of the Wargandi Comarca ................................ ........ 105 The Morti Community: A History of Concessions and Neglect ...................... 106 The Project Comes to Town ................................ ................................ ........... 107 Problems Identified by Morti Leaders and Community Members ................... 108 5 CONCLUSION ................................ ................................ ................................ ...... 125 APPENDIX A FRAUD U LENT DOCUMENTS PRESE NTED TO REFORMA AGRA R I A BY COLONO ................................ ................................ ................................ .............. 132 B MORTI COPY OF CONTRACT WIT H INT ERNATIONAL WOODWORK, INC .... 134 LIST OF REFERENCES ................................ ................................ ............................. 138 BIOGRAPHICAL SKETCH ................................ ................................ .......................... 150


7 LIST OF ABBREV IATIONS ANAM Autoridad Nacional del Ambiente CBD Convention on Biological Diversity CBE Community based Enterprise GOP Government of Panama IACHR Inter American Commission on Human Rights IACtHR Inter American Court of Human Rights IADB Inter American De velopment Bank RIL Reduced Impact Logging UN United Nations USAID United States Agency for International Development STRI Smithsonian Tropical Research Institute WB World Bank WWF World Wildlife Fund


8 Abstract of Thesis Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements fo r the Degree of Master of Arts TOWARDS RESPECTING INDIGENOUS RIGHTS IN DEVELOPMENT POLICY: THE CA S E OF A COMMUNITY BASED FOREST MANAGEMENT PROJECT IN PANAMA By Benj amin David Goodman May 2012 Chair: Winston P. Nagan Major: Latin American Studies As Latin American countries continue to modernize and r each new heights of developmen t perched on the shoulders of an increasingly globalized economy, their local indigenous comm unities continue to be the most marginalized and impoverished people in the world. Sustainable development initiatives present themselves as a way to contribute to global economic development, while improving and respecting the livelihoods of local peoples and preserving natural resources for future generations. However u nsustainable exploitation of natural resources continues to threaten the livelihoods and identities of i ndigenous communities. T he economic, legal and political marginalization of indigenous peoples persists The inevitable result of these trends can be seen in the continuing conflicts arising at the local, national, and international level over the use and control of natural resources available within indigenous controlled territories. The problem of sustainable development implicate s the rights, opportunities, and respo nsibilities of indigenous people. This thesis takes a law and policy approach to the problems and complexities of sustainable development in the context of forest management amo ng indigenous communities. The approach taken is based on the


9 legal and social theories of the New Haven School of Law and Policy, a system of inquiry into social problems and the responses to them. Th e thesi s illuminates and considers the decision making process behind a management program The process involves international development policy, t he state's developmental objectives, commercial pursuits, and the interests of a local indigenous community, the Kuna village of Mort in the Darien Province of Panama. After providing an overview of trends in sustainable development, co mmunity based fores t management and indigenous rights, this work illuminates these trends through a local study. The case study focuses on the methods, perspectives and values behind the actors and decisions guiding the forest management project. Under the normative guidance of the United Nations Declarations on the Rights of Indigenous Peoples, t he work then briefly discusses how the development policy decisions bear on the fundamental rights and values of the Kuna. The work concludes that in order to even begin to successfully address the problem of sustainability in community based forest management among the K una and other indigenous forest dwelling communities policy changes are necessary The policy changes must better accommodate the interests, rights, and social environmental realities of indigenous communi ties.


10 CHAPTER 1 INTRODUCTION Research Questions This thesis provides an analysis of international development policy through an on the ground look at a local community based forest management project. The international development project was funded by the United States Development Agency for International Development (USAID) and implemented by Chemonics, Inc. The project targeted five indigenous communities in the rainforests of the Darien Province of Panama. This work focuses on the project s wo rk in o ne of these communities and considers the question of whether or not a greater commitment to respecti ng the indigenous rights in development policy will lead to more success in achieving specific development goals such as sustainable forest management. Th is broad question is brought into focus through the interdisciplinary lens of the New Haven School of Jurisprudence, which emphasizes contextua l analysis of social problems. The empirical context is provided by my field research among the ind igenous Kuna c ommunity of Mort, on the villages targeted by the USAID project. The village of Mort is one of three villages that make up the Wargandi Comarca, a semi autonomous indigenous reserve located in the Darien Province. The field research focused on investiga ting t he implementat ion and ongoing development of the USAID sustainable community based forest management project within the Mort community. Using a qualitative methodology, the research was guided by three main sub questions. F irst, what are the nationa l and regional trends that provide context to the forest management among indigenous people in Panama? Second, what are the policies, practices and perspectives of both the USAID


11 development practitioners and the local indigenous community ? Third, from a l ocal perspective, what are the main institutional and legal challenges to the successful, long term implementation of the project? Notice that each of these questions builds on the former, and a reliable answer to the final questions is only possible after careful consideration of the first two. In addition all of these questions required the building of relationships and establishment of trust, especially in regard to working within the isolated indigenous community. Much time and effort was put into foste ring and maintaining these relationships, which were valued not just as a means to information, but as inherently meaningful. Naturally, most of this interpersonal work does not lend itself to charts and tables, nor to quantitative nor qualitative methodol ogies. Due to the dynamic nature of the project coupled with the limits of time and resources, none of the three questions could be answered exhaustively. However, key insights e merged in each of these areas. In addition to whatever academic value t hese in sight s may provide, I hope that they might aid in the continued efforts toward the sustainable, locally driven dev elopment of the Mort community Influenced by postmodernist philosophy, the New Haven school of inquiry emphasizes the subjectivity of the re searcher. 1 In spite of valiant e fforts to be objective, every researcher comes to the table with certain value commitments and intellectual and cultural orientations. Thus, I do not pretend that this work emerges from a purely neutral perspective, nor do I assume that my presence in the field had no impact upon the subjects of inquiry. In fact, in many ways it was my intent to influence outcomes. As a lawyer in training, studying indigenous rights and development, my ultimate goal is to advocate for the Mor t community. Not only was this my personal goal, but I was also


12 invited and requested to do so on behalf of the community. As one of my thesis I t is often not a question of whe ther you are an advocate, but for whom you are an 2 Underlying all of my work was a desire to assist the community in achieving its own goals. I would go as far as to say that I sought to connect emotionally with the community, as a means of faci litating communication between us. Not only did I seek to embody the role of a scholarly observer, but I also came as one seeking to advance the field of sustainable development and to be an advocate for indigenous peoples. My own background also connected me to a certain extent with the community, which brought certain advantages and disadvantages. 3 I was also viewed by the community as an external elite with uncommon access to wealth, power and influence. This provided certain advantages as well, yet als o defined the limits of my local perspective. Ultimately, the question may be whether the information that I present gives a thorough, honest, and accurate portrayal of the social conditions and policies discussed. Overview of Paper Chapter 2 provides th e theoretical framework for this thesis. First it discusses the intersection of the disciplines of law and the social sciences. This discussion will illuminates some of the difficulties and opportunities presented by this thoroughly interdisciplinary thesi s project, which comes from a law student dabbling in the social sciences. Secondly, it introduces the interdisciplinary New Haven approach to law and policy as an appropriate theoretical framework for the ensuing discussion. Chapter 3 offers an overview of the literature addressing com munity based forest management, and introduce s the indigenous rights framework as an area of overlapping concern. Chapter 4 presents the case study, beginning with a review of the methodology used in


13 the field research. It t hen presents the main findings as they relate to the three research sub questions. In keeping with the New Have framework of inquiry, key decision makers will be identified along with key decisions that they have made. Special consideration is given is giv en to the perspectives and values that motivated the key actors. The values represent the normative frameworks within which the stakeholders act. This case study briefly considers the history of indigenous rights, development and forest management in Panam a. The subjects of development and indigenous rights are first approached from a broad perspective. Key trends in law and policy are ident ified at both the regional and national level. These global trends throughout the decision making process help set the foundation for understanding the local social and legal context. This discussion will frame the "on the ground" observation and analysis presented later in the same chapter The case study continues with a review of the USAID funded community based forest management development project in the Mort community, focusing on the problems faced in the project development and implementation from the perspective of the USAID and Chemonics personnel, as well from perspective of leaders and members of the Mort com munity. Chapter 5 concludes by considering the implications of the results of the case s tudy in the broader context of sustainable development among indigenous communities. While scientific prediction is not the aim of this study, the research will be used to consider the future consequences of present policy and to make recommendations for ways to improve international development policy in the area of community based forest management among indigenous communities. These recommendations represent alternat ives to the status quo, and can be thought of as a form of creative thinking, rather than scientific prediction This section also summarizes


14 the work by arguing that a greater commitment to respecting the indigenous rights norms of the United Nations Decl aration on the Rights of Indigenous Peoples in development policy will indeed advance the goals of sustainable development. The chapter concludes with suggestions of avenues for further research. 1 Nagan, Winston P. Configurative Jurisprudence: the Law, Science, and Policies of Human Dignity (Forthcoming 2012) (Hereinafter Nagan, Configurative) 2 Dr. Osvaldo Jordan, personal communication. Osvaldo noted being influenced in this regard by one of his own advisors, Ido Oren, as well as by the Italian political scientist Antonio Gramsci. See Gramsci, Antonio and Joseph Buttigieg, From the Prison Notebooks 83 of existence of the new intellectual can no longer consist in eloquence, and exterior and momentary generator of sentiments and passions, but in active involvement in practical life, as constructor, organizer, 3 The author, Benjamin Goodman, moved to Panama with his family at the age of 11 months and lived there until the age of 17. His parents were nondenominational Evangelical mis sionaries who began living and working in the isolated community of Mort when Benjamin was 2 years old.


15 CHAPTER 2 INTEGRATING LAW, POL ICY AND TH E SOCIAL SCIENCES: T HE NEW HAVEN SCHOOL OF LAW AND POLICY Law and the Social Sciences Law and the social sciences make for uneasy bedfellows. This is certainly true in the practice of these fields, and perhaps only slightly less so in the theoretical approaches to these disc iplines Lawyers tend to focus on individual, excepti onal cases, whereas social scientist s tend to to generalize and focus on routine conditions. Law attempts to shape social reality, whereas the social sciences seek to understand it. 1 Thus any interdiscipl inary socio legal work is going to face certain tensions, if not outright contradictions between the epistemologies and methodologies of its two parent disciplines. This provides challenges as well as opportunities to the scholar seeking to work with a foo t in both of these fields. Legal theorizing often involves nothing more than a formal review of the history and rules relating to a particular legal outcome or social concern. The legal scholar then applies rational deduction to either criticize the way th e law has progressed or to argue the merits of a particular future direction. The result is that law, which has so much impact on human life, often develops in a way that is insulated from the gritty realities which it seeks to govern. On the other hand, t he social sciences specialize in identifying and understanding condition. Unfortunately, they can also specialize in finding very rigid methodologies which seek unsuccessfully to mimic scientific certainty. They have also cr eated abstract theoretical frameworks which tend to isolate the relevance of their findings to the halls of a particular wing of a particular institute of higher learning. Of course none of the strengths or weaknesses of these schools of thought would be o f any concern outside of the rol l cal ls of their own rosters were it not for some external standard of evaluation.


16 The standard for this study, drawn from the principles of the New Haven School, is the resolution of social problems through the successful impleme ntation of development policy. In pursuit of this broad task, t his study seeks to minimize the weaknesses and draw on the strengths of each discipline. The goal is to identify, integrate, and produce knowledge that effectively addresses the social p roblems that present themselves at the intersection of indigenous rights and development practice: problems identified in the development of a community based forest management system in an indigenous community. Law students are not generally trained, nor do they typically eng age in empirical, ethnographic field studies, though I am by no means the first to have done so. Given my concurrent pursuit of a Master of Arts in Latin American Studies, I was exposed to the basics of empirical research. This exposur e itself came in a very multi disciplinary package, an interesting mixture of classes entitling me to a Master of Arts in Latin American Studies, with a specialization in Development Studies. All of this ambiguity and flexibility actually left me free to c raft my own unique study, which was shaped by my own interests and unique background. These interests do not fall under one academic umbrella, and include socio legal studies, international law, indigenous rights, and development studies. I was guided and encouraged in my interdisciplinary studies by my mentor and thesis advisor, Professor Winston Nagan. Through his classes and our own personal interactions, he introduced me not only to the fields of international law and indigenous rights, but also to the New Haven S chool of Law and Policy as a compelling method for organizing and analyzing complex socio legal issues.


17 The New Haven School of Jurisprudence The New Haven approach to law and policy is a self consciously interdisciplinary theoretical framewor k first conceived by Yale Law School Professor Harold D. Lasswell in the early 1940's. He worked closely with his friend and fellow Yale Law Sch ool Professor Myres S. McDougal to develop the theory, which they referred to as "Policy Oriented Ju risprudence. Since then, another Yale Law School p rofessor Professor Michal Reisman has taken up the torch of the theoretical framework, which has been referred to by a variety of names, including "communications theory," the "policy sciences," "law, science, and po licy," and "configurative jurisprudence." 2 My own advisor, Professor Winston P. Nagan, who studied under both Lasswell and McDougal, has continued to develop the jurisprudential framework through his own writings and work, the culmination of which can be f ound in his soon to be published book. From the beginning, Lasswell conceived of a framework that could effectively address social problems through the analysis and facilitation of authoritative decisi on making, whether it be in the form of law, policy, o r some other form of public decision making. The New Haven School of Law and Policy as it is most often referred to now, was founded on the realization tha t law is not a static process. Instead, in the view of New Haven theorists, it is a "continuing proc ess through which the common interest of the process is] the establishment of a world community of human dignity." 3 Though based at Yale Law School, Lasswell was himself a political scientist by training, and did not hold a JD. He was widely known for his interdisciplinary scholarship, and was described by McDougal as a man whose "deepest personal commitment was to the creation of a comprehensive theory for inquiry about th e


18 individual human being in social process." 4 As a political scientist deeply immersed in legal practice and theory, Lasswell saw law as only one component of a broader social process of authoritative decision making, one by which members of a community se ek to define and implement their common interests. 5 Although other sociologically minded jurists had to some extent considered the causes and consequences of legal decision making, they had fallen short in articulating a precise, systematic way of incorpor ating these considerations into authoritative decision making. 6 Lasswell insisted on the explicit recognition and analysis of a given decision as being simultaneously a reaction to a particular social process, a process being affected by other social proce sses, and a process which would affect future social processes. 7 In this way every authoritative decision, indeed every human decision period, should be intentionally and systematically approached as a non linear, multi dimensional process. Thus, Lasswell in partnership with McDougal worked to develop a system of inquiry that would provide legal scholars and practitioners with an effective, efficient policy making strategy 8 Lasswell and McDougal were respondin g in part to weakness they perceived in the predominant jurisp rudential framework of the day, legal realism 9 At its heart, legal realism was in turn a skeptical response to from analytical positivism. 10 Legal positivism had been developed and championed in the second half of the 19 th century by the famous Harvard scholar Christopher Langdell. His brand of positivism viewed law as locked in a strong box of legal rules, waiting to be discovered by the legal scientist. 11 in the late 19 th century by the writings of Holmes, who contended that the life of the law was not in rules, but in experience. 12 Holmes understood the limitations of positivist law towards


19 achieving justice, claiming that as a judge, he had the ability to give any conclusion no matter how unjust, a logical form. 13 He also brought to the table an understanding of the approaching jurisprudence from the perspective of the Sovereig n or its officials. 14 Reisman has articulated a number of flaws inherent to the formalistic orientation of realism. A review of these flaws illuminates the groundwork on which the New Haven School developed. Reisman first contends that realist jurisprudenc e failed to engage the goals and backgrounds of the decision makers. 15 Second, in focusing exclusively on the end result, the rule of the court, realism ignored the process of legal application. 16 Third, realism failed to consider social and political valu es which provide context to legal rules. 17 Fourth, realism failed to consider the power dynamics at play in the decision making process. 18 Fifth, realism fails to recognize that legal institutions are fluid, the result of an "ongoing constitutive process. 19 The final failure of reali sm to be pointed out by Reisman was its focus on the local impact of decision making, thus failing to consider the interaction between the local and the global. 20 Lasswell and McDougal drew inspiration from current thought in th e schools of philosophical pragmatism and a subset of realism known as American Legal Realism. 21 Rather than focusing strictly on rules and facts, this school viewed law as being found in what State officials actually do, exploring indicators such as cult ure, class, personality and crisis 22 The development of this school provided a context for legal scholars to self consciously position themselves outside of the legal and policy making system in order to systematically observe and analyze the system, an "a bout law" point of view. 23 In


20 spite of the progress made away from strict positivism, this brand of realism still failed to provide a framework to understand law from this contextual, configurative perspective. 24 I n the years leading up to World War II, real ism provided a predominantly skeptical view of the emerging international legal order. 25 Moving into World War II, political realism, which was very dismissive of the role of international law began to dominate United States policy. 26 The New Haven School' s response to these rule based shortcomings was the development of a policy oriented approach. "Policy" seems to be the stand in term for the multiplicity of factors that go into the making of an authoritative decision, that is, all of the factor s previous ly ignored by realism and legal positivism before it. As one New Haven scholar has observed, "[D]ivorced from policy and context, rules are skeletons without body and soul." 27 Commenting on the normative ambiguity of rules, this same scholar note s that [R] ul es are commonly phrased in general and without consideration of context and function." 28 Rather than a singular top down approach based solely on state power, the New Haven appr oach advo cated an approach that balanced top heavy notions of "authority and control" with localized understandings of "perspectives" and "operations." 29 Power was not the only value to be maximized, but instead other values needed to be considered, such a s enlightenment, wealth, well being, skill, affection, respect, and rectitude. 30 In Reisman's words "The Copernican Revolution in McDougal's jurisprudence was in unseating rules as the mechanism of decision and installing the human being all human beings, committed himself to developing a theory about law that could establish and sustain a


21 31 This emphasis on the freedom of the individual through democratic governance is evident in the title to Lassw ell and McDougal's seminal work "Jurisprudence for a Free Society: Studies in Law, Science and Policy." 32 Key to any discipline which puts human beings at its center is the idea of perspective, and the inherent subjectivity of analysis. Rather than ignore the element of human subjectivity, the New Haven approach embraces this reality. It does so through the systematic consideration of key human variables. The first task for the scholar, jurist, or decision maker wishing to engage in the New Haven approach i s to develop an appropriate "observational standpoint." 33 Only when the observer's own subjective viewpoint is acknowledged, can the observer move forward to analyze other key human variables central to the New Haven approach. These variables are identifie d by: 1. Clarifying community goals; 2. Identifying intellectual tasks that will assist decision makers to clarify their goals and to implement them in ways compatible with the common interests of the most inclusive community; 3. Considering alternatives b efore making decisions 4; Identifying values; and 5. Taking into account the social context surrounding rules. 34 The identification of values, in particular is central to the New Haven approach, which essentially sees social behavior as the process of accum ulating value and law as a tool for regulating this process. The process of accumulating value can be understood in terms of who gets what, from whom, how, and under what prevailing social conditions. 35 Participants in this process are understood to be seek ing to enrich their "value positions" through the utilization of whatever assets they have available to them in an effort to shape the outcome of a particular decision. 36 The utilization of valuable


22 assets to achieve other valuable ends signifies that valu es can serve as both means and ends in the process. 37 The New Haven jurisprudence of Lasswell, McDougal, Reisman, and others has had the most impact on international law theory. It is not a surprise that consensus driven international law should be more rec eptive to the process oriented theories of the New Haven School than the traditionally positivist leanings of d omestic law. Given its lack of strong centralized institutions and enforcement mechanisms, international law, in its many forms, often relies on broad consensus among parties and the moral weight of its prescriptions. As such it is a much more horizontal, rather than a vertical, hierarchical decision making structure. The horizontal nature of international law belies the multiplicity of actors and social contexts within which international legal norms emerge. Under the New Haven School of thinking, international law or authoritative decision making is understood as a process of communication. 38 The communication process involves four components: 1. c ommunicator and a target audience, 2. a prescription or "policy content," 3. t he "authority signal," and 4. t he "control intention." 39 The process involves an authoritative institution (communicator) verbally directing a message (rule or policy content) to the community (target audience). The community serves as the basis for authority in international law. Therefore, any legitimate prescription must be accompanied by the community's acceptance of some institutionalized control mechanism (the control intent ion). 40 While the New Haven approach encompasses traditional positivist authoritative structures such as the domestic legislature, judiciary, and executive, it is also flexible enough to comfortably incorporate the plurality of actors within the internatio nal legal


23 arena. These actors include "those formally endowed with decision competence" as well as those who may not have been formally endowed with decision competence, but "nonetheless play an important role in influencing decisions." 41 Focusing primarily on local events and decision making, this paper focuses on these less formal authority structures, which nonetheless play key roles in development decision making. These include not only the State and society, but also local State agencies, development pr actitioners commercial timber interests, and the indigenous community All of these entities are also made up autonomous individuals whose own values and perspectives come into play. In spite of its attempts to provide an interdisciplinary, comprehensive theory of law and authoritative decision making, the New Haven School is not without its critics. Some claim that its emphasis on authoritative decision making and the need for enforcement bring it too close to the Sovereign/sanction model of positivist ju risprudence. 42 However, drawing this parallel alone is not a legitimate criticism of the theory in the absence of an alternative model that does not rely on the concepts of authority and compliance in a disc ussion of law and policy. Others have criticized t he New Haven approach because of its emphasis on human dignity as the central value to be pursued in law and policy. This approach has been described as an attempt to reduce international law to an instrument for spreading post war American liberalism upon the world. This criticism would argue that New Haven jurisprudence not only forces American morality on the world, but also ignores law's "internal morality." 43 Again, these arguments bear little weight in the absence of a viable alternative. If human dign ity is not to be the central concern of law and policy that reaches across


24 communities, what is? Though first articulated by post war American liberalism, the principles of self determination, equality, and human rights which are based upon the idea of hu man dignity, are by no means uniquely American ideals. The problem arises when these universal humanitarian ideals are equated with American law and policy through shortsighted analysis and the elevat ion of the American voice above those of the rest of the global community. This holds true not only in international law, but in international policy, including development policy. The New Haven dedication to context and balancing of values across multiple actors could go a long way towards finding and building consensus in these arenas. Broad consensus, in turn, is the driver behind policies which effectively implement the goals of sustainable development. A final criticism worth noting that has been leveled at the New Haven approach is that its faith in the a bility of scientific knowledge and systematic inquiry to produce accurate normative conclusions does not gel with our modern conce ptions of chaos and uncertainty. 44 Some charge the New Haven School with being prone to the belief that l render decisions value 45 This criticism reflects a concern with muddying the waters between objective scientific knowledge and the political and contextual application of that knowledge in policy decision making, the difference between science and science policy. 46 Again, the answer to this criticism would be to consider the alternative. If incorporating scientific knowledge and systematic inquiry into policy making runs the risk of confusing policy with science ; then would ignoring science in policy making and instead basing policy on rigid norms or arbitrary whims be preferable? The New Haven approach to inquiry focuses less on the logical empiricism of the hard sciences, and more on the configurative, yet empirical approach to


25 knowledge sought in t he social sciences 47 Contrary to the contention that the New Haven approach seeks to render decision making value free through illusions of objectivity, the review has shown that framework actually seeks to produce policy that incorporates broad value posi tions and integrate s multiple sources of knowledge. Applying the New Have n approach to development p olicy and practice The Vicos Project Development policy is not often the subject of conventional jurisprudence: community development policy even less so. However, from its earliest days, the ideas of the New Haven school ha ve been applied to the problem of development. Lasswell saw development as one of the "great and continuing problems of our present age." 48 The Vicos Project was one of the first developm ent initiatives to put the policy sciences framework to test by facilitating community empowerment through the transfer of a comprehensive set of decision making skills to a rural indigenous Peruvian agricultural community 49 Developed by Cornell University anthropologist Allan R. Holmberg in Peru in 1952, the Vicos Project targeted an indigenous peasant community living at subsistence levels as serfs. At the time, this community and others like it had long been thought to be immune from meaningful developme nt. 50 The project sought to engage the basic motivations and drives of the community by giving them an economic stake in agricultural production and a role in decision making. At the forefront of the process was the importance of contextual decision makin g, a functionalist approach that echoed the work of such early anthropologists as Radcliffe Brown and Malinowski 51 The contextualized goals of the project included not only the directors' goals of advancing knowledge and productivity in the community, but also included the community's own


26 articulated goals. These goals included being treated with dignity and the ability to make decisions that enhanced the common interest of each community member. According to Lasswell, the idea was to facilitate the commu modernization by "sett[ing] in motion a process of community wide decision that would survive the withdrawal of control by [the external] personnel." 52 Lasswell and Holmburg were committed to the formation of institutions that woul d allow for the greatest level of community participation in the shaping and sharing of values. 53 The focus on maximizing value accumulation within the community was central to the project's methodology. These values included not only wealth, but also well being, status, and enlightenment. 54 It was hoped that treating these values as akin to independent variables, would result in positive movement in more sensitive value areas of affection (family and kinship) and rectitude (religion and ethics). 55 According to Lasswell, progress in the project was measured as "movement toward a stable decision process in which participation was widely shared and in which the institutional practices involved characteristically led to realized results." 56 Generally speaking, th e results sought after in Vicos, as well as in most development projects, can be thought of in the New Haven terminology as "a process in which participants seek to maximize net value outcomes (social commodities) by employing practices (institutions) affe 57 The key contribution of the Vicos experiment was its facilitation of the value accumulation process through its focus on transferring decision making skills that supported critical community values. 58 The ultimate goal of the project, an d of the New Haven approach in general was the advancement of human dignity. 59 The Vicos Project was ahead of its time in its normative framework. Devolution of power and


27 decision making to the community level is gaining traction as the most effective and arguably most normatively justifiable methodology in contemporary development policy. It is also central to the indigenous rights framework. As such, de centralization in development policy represents a current trend in decision making. Identifying trends in decision making, as has been noted, is one of the key entry points of inquiry in the New Haven framework. Community forest management is a point of intersection between the legal and political trend of indigenous empowerment through indigenous rights an d the devolution of power within development policy. Chapter 3 provides a review of the intersection of these two fields in the literature. Problem focused Policy As the Vicos Project illustrated, the New Haven approach is explicitly oriented around not o nly understanding, but also addressing complex social problems. Social problems, as well as their resolution, are understood as resulting from human decisions on every level. The New Haven approach provides a five tier analytical framework for dissecting p olicy. First, is the clarification of goal values; second, is the description of trends; third is the analysis of conditions; fourth is prediction of problems, and finally the invention and evaluation of policy programs 60 The New Haven approach has identi fied certain intellectual tasks to aid in the process of identifying and defining policy problems. These include, among others, identifying trends in decision making, clarifying the social and legal context, identifying key decision makers, clarifying valu es and value conf licts, prediction of problems. This concern for the sequential impact of policy decisions also requires an emphasis on the informed prediction of problems, in order to m inimize negative intervention. Problems generally are the result of co nflicts of values, which reflect competing claims and expectations, with one side making the claim, and the


28 other denying or opposing the claim. 61 Thus effective problem solving policy can be seen as thoroughly rooted in empirical methods. Because of the co mplex nature of human problems, the empirical methods advocated are by necessity multi disciplinary. Lawmaking is essentially a form of decision making, whether it be in the form of rules, principles or policies. Authoritative decision making is usually a n attempt to remedy a perceived problem. Consequently, when a decision is made, there is a general expectation that it be effective in addressing the perceived problem. 62 Conventionally speaking, i n order to be ef fective, a decision must be accompanied by b oth power and authority. In the language of the New Haven School, power is what gives a decision its "con trolling intention and effect." 63 In order for the power to be effectively engaged, it must be backed by authority. Authoritative decision, in turn is de rived through a process legitimized by reflecting the shared expectations of the members of a community about how decisions should be made. 64 The New Haven approach emphasizes that a given problem emerges from a particular social context. Any response to t he problem should therefore emerge from an understanding of the context. Not only must the response emerge from the context, but the sought after solution must also be understood in context. The solution must be understood in terms of its impact on the par ticular community from which the problem emerged, as well any collateral impacts the policy decision may have had. However, communities should not be viewed in isolation, but rather as belonging to a hierarchical network of "interpenetrating communities" that span from the local to the global. 65 The Problem of Development: To Be Sustainable or Not To Be Sustainable? If development policy is understood as a response to the problem of development, what then is the nature of the problem? The problem of devel opment is


29 essentially whether it can be accomplished sustainably or not. Sustainable development is understood broadly as "the satisfaction of human needs in a fashion that does not impede the ability of future generations to also satisfy their needs." 66 E merging from the industrial revolution, the western world had a newfound sense of control of the natural world. The environment was viewed as a closed mechanistic system that could be manipulated and exploited for the benefit of human material development with minimal negative consequences. However, by the middle of the 20th century, awareness began to grow among the public, scientists and policy makers that the environment was a dynamic, multi scale, open system, over which humans did not have precise, mec hanistic control. 67 It became evident that rather than absolute control over the environment, humans were an integral part of the natural system and depended upon it. As early as 1969, the United Nations recognized a "rising [environmental] crisis of worldw ide proportions." 68 Since then, a series of international agreements have worked to create a sort of global consensus regarding the core values of sustainable development. 69 Thus, over the last 40 years, an international discourse has been developing, driv en largely at the State level, but also involving a diverse set of non State actors. The sustainable development discourse centers around two broad international interests or values. The first is the desire to fight global poverty and maximize human potent ial. The second is the desire to conserve the environment for human survival and fulfillment. 70 These values have also been conceptualized as the three "interdependent and mutually reinforcing pillars," of economic development, social development, and envir onmental protection 71 Of course, widespread agreement in principle does not


30 necessarily translate to agreement in practice, and in the aggregate, human development continues to surge forward along unsustainable trajectories. 72 International development pol icy has been shaped by many different institutional processes over the last five decades. One of the first articulations of international development policy was in the 1972 Stockholm Declaration, in which it was recognized that humans could "do massive and irreversible harm to the earthly environment on which our life and well being depend." 73 In 1982, the UN released the Declaration on the Right to Development 74 In 1992, the United Nations Conference on the Environment and Development (The Rio Conference ) brought global attention to specific problems of unsustainable human activity through its release of the Rio Declaration. 75 The first principle of the Rio Declaration clearly reflects the New Haven commitment to anthropocentric policy, declaring unwaverin gly that "[h]uman beings are at the center of concerns for sustainable development." 76 Principles 8, 10 and 22 convey principles that are particularly relevant to sustainable development practices among indigenous people. They speak to the values of educat ion, informed decision making, and local participation that are all central to the respecting of indigenous rights in development. Discussions regarding the need for authoritative mechanisms at the Rio Conference ultimately led to the establishment of the U.N. Commission on Sustainable Development. 77 A true commitment to sustainable development, as with human rights law and international law, generally requires a conscious rejection of what Lasswell called the "syndrome of parochialism." 78 Rather than a mec hanistic, reductionist, parochial approach to the complex social environmental problems of sustainable development,


31 the New Haven approach provides a dynamic, system based, cross cultural framework from which to address the problems. The authoritative deci sion making process of sustainable development is often conceptualized at an international level with State actors and agencies; however the actual decisions that make a difference are often made at the local level, among local communities and traditional institutions. It is not only legislators, judges, executives, or large State and private institutions that exercise decision making authority. Even these powerful institutions ultimately derive their authority from some level of community recognition. 79 Re cognition of the complex socio environmental dynamics of sustainable development calls for an understanding not only of the interpenetration of communities from the global to the local, but also of the deep interdependence of people and the environment. Th is is not just the relationship between people and the environment in the grand scheme, but an understanding of the way people think about and interact with the physical places they inhabit. The New Haven School's deep concern for the promotion of human d ignity demands "both an ecological perspective and a futurist concern with assuring the life chances of subsequent generations." 80 I n order to make progress in addressing the problems of development, international sustainable development norms must be based on a global concept of community "premised on the interdependence of the entire earth space arena in which people interact." 81 From this perspective, sustainable development is an integral component in the overriding question of the survival of the human s pecies known as the "anthropocine challenge," which has received significant attention from New Haven scholars. 82 Indigenous societies have managed to survive


32 and adapt in relative harmony with nature and in the face of the most challenging of social condit ions. As the global community considers the broad challenges to its very survival, indigenous communities beckon to be understood, respected, and emulated. Indigenous Communities as Participants in Development Policy Indigenous communities are key actors in the creation and implementation of development policy, especially efforts that incorporate conservation initiatives under the umbrella of sustainable development. Many development initiatives are not backed by rigid legal norms. This is especially true of international development norms and programs which evolve from broad trends across multiple disciplines and nationalities. However, these policies and practices come backed by enormous financial, insti tutional and political weight. Development implies change, as a response to both internal and external forces. From a local perspective, development often involves an inducement towards change by external parties. 83 Whether this inducement is in the form of binding legal norms, or is induced through financi al incentive, may not make much difference. In fact in regions that lack consistent implementation and enforcement of national legal policy, the inducement that comes from promises of material gain may be the most powerful. As Lasswell explained, "No matte r how ambitious the goals of development may be, changes are usually a step by step process. The overall problem of a strategy of induced innovation is to persuade specific persons at particular places and times that they will be better off by adopting new rather than repeating old social practices. Thus the aim is to change perspectives and operations, and eventually to consolidate the perspectives and operations conforming to the innovation sought." 84 As communities interact with development practitioners they essentially become participants, intentionally or unintentionally in the creation of international development


33 policy norms. For example, forest dwelling indigenous communities certainly participate in authoritative decisions making when it comes to the policy question of whether tropical rainforests a re managed sustainably or not. Thus it is important that policymakers enter this world, and respect the indigenous voice, the local voice, in the creation and implemen tation of policy norms. 1 Banakar, R. and Travers, M. (2005) "Law, Sociology and Method" in Theory and Method in Socio Legal Research pp. 1 25. Edited by Banakar, R. and Tra vers, M. (Oxford: Hart Publishing, 2005). 2 IN 3 Lung Chu Chen, An Introduction to Contemporary International Law: A Policy Oriented Per spective 4 (1989). 4 M. McDougal, Harold Dwight Lasswell 1902 1978 88 YALE L. J. 675 (1979) 5 Id. Lasswell served as both president of the American Political Science Association and the American Society of International Law. See Lasswell & Myres McDouga l, Jurisprudence for a Free Society: Studies in Law, S cience and Policy 803 33 (1992) (Lasswell VIII) to problem solving is grounded in the wisdom that every discipline can provide methods and insights whi ch may be of use to those who can use and/or understand them. Hence his injunction to become multi 6 Supra note 5. 7 Id. 8 Id.; See also Lasswell VIII, supra note 7 at 206 gal education in the contemporary world is adequately to serve the needs of a free and productive commonwealth, it must be conscious, efficient, and systematic training for policy making 9 Nagan, Configurative For examples of realist a rguments, see generally, A. T. Mahan, The Deficiencies of Law as an Instrument of International Adjustments, 194 N. AM. REV. 674 (1911), and Hans J. Morgenthau, In Defense of the National Interest: A Critical Examination of American Foreign Policy (1951). 10 Nagan, Configurative 11 See Kimball, Bruce A., Young Christopher Langdell, 1826 1854: The Formation of an Educational Reformer, Journal of Legal Education 52: 189 237 (March June 2002); See also Speziale, Marcia, Langdell's Concept of Law as Science: The Beginning of Anti Formalism in American Legal Theory, VERM. L. REV. 5 (1980). 12 Nagan, Configurative. ; See also Judge Mark P. Painter, Justice Oliver Wendell Holmes, Jr. (1841 1935) ,From Revolution to Reconstruction (2010). 13 Oliver Wendell Holmes, The P ath of the Law 10 HARV. L. REV. 457 (1897).


34 14 Supra note 15. For a fuller discussion, see Winston P. Nagan, Conflicts Theory in Conflict: A Systematic Appraisal of Traditional and Contemporary Theories New York Journal of International and Comparative Law, Vol. 3 No. 3, pp. 474 478 (1982). 15 See Reisman, supra note 17 at 936 ; Chen, supra note 5 16 Id 17 Id. 18 Id. 19 Id at 937 20 Id. 21 Nagan, Configurative. 22 Id. 23 Id. 24 Id. 25 See, e.g., 1939: An Introduction to t he Study of International Relations 28 (Palgrave 2001) (1939); Hans J. Morgenthau, Positivism, Functionalism, and International 26 See 27 Chen, supra note 5, at 12. 28 Id. at 13. 29 McDouga l, Myres S. Studies in World Public Order 169 (1960). 30 Lasswell VIII, supra note 7 at 803 33. 31 Reisman, supra note 17, at 937. 32 Lasswell VIII, supra note 7. 33 See Lasswell VIII, supra note 7, at Preface. 34 Nagan, Configurative. 35 Lasswell, Harold D., P olitics: Who gets What, When, How (1958); Batt & Shorta, 8 J. Nat. Resources & Envtl. L. 229 (Lasswell IV). 36 Harold D. Lasswell, A Prev iew Of Policy Science 18 (1971) (Lasswell VII) 37 Batt & Shorta supra note 37. The New Haven School traditionally follow s eight general value categories: 1. Affection 2. Wellbeing 3. Wealth, 4. Enlightenment, 5. Respect, 6. Skill, 7. Power, and 8. Rectitude. Id. 38 See generally Harold Lasswell, World Politics Faces Economics (1945) (Lasswell II) ; Harold Lasswell & Abraha m Kaplan, Power And Society: A Framework Of Political Inquiry (1950) (Lasswell III) ; Lasswell VIII, supra note 7.


35 39 Lasswell VIII, supra note 7. 40 See Myres S. McDougal et al., The World Constitutive Process of Authoritative Decision, 19 J. LEGAL EDUC. 253 (1966 67). See also supra note 17 at 108 10. 41 Reisman supra note 17 at 12 42 Marong, 43 J. Brunne & S.J. Toope, International Law and Constructivism: Elements of an Interactional Th eory of 100, 209 210 understood as a fully realized system sprung full born from the head of a sovereign, or bequeathed intact from the implicit terms of a social cont ract. Law can exist by degrees, so it is possible to talk about law 44 45 Id. 46 Id. (noting the ongoing debate over these two perspectives); See, e.g., Rescuing Science from Politics: Re gulation and the Distortion of Scientific Research (Wendy Wag ner & Rena Steinzor eds., 2006); Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 Colu m. L. Rev. 1613, 1639 40 (1995). 47 Nagan, Configurative. 48 Harold D. Lasswell, The Emerging Policy Sciences of Development: The Vicos Cas e 111 THE AMERICAN BEHAVIORAL SCIENTIST 28 (1965) (Lasswell VI) 49 Nagan, Winston P., and Hammer, Craig. COMMUNICATIONS THEORY AND WORLD PUBLIC ORDER: THE ANTHROPOMORPHIC, JURISPRUDENTIAL FOUNDATIONS OF INTERNA TIONAL HUMAN RIGHTS. 47 Va. J. Int'l L. 725. 2007. (Hereinafter Nagan, Communications Theory). 50 See Allan R. Holmberg, The Changing Values and Institutions of Vicos in the Context of National Development, VIII AMERICAN BEHAVIORAL SCIENTIST 3 (March, 1965 ). 51 Nagan, Communications Theory. 52 Lasswell VI. 53 Holmberg. 54 Id. 55 Holmberg. 56 Lasswell VI. 57 See Harold D. Lasswell & Allan R. Holmberg, Toward a General Theory of Directed Value Accumulation and Institutional Development in Comparative Theories Of So cial Change 12, 51 52 (Ho llis W. Peter ed., 1966) (Lasswell & Holmberg); Nagan, Configurative 58 Nagan, Communications Theory 59 Id. 60 Nagan, Configurative ; Lasswell VI.


36 61 Id. 62 Id. 63 Id. 64 See Lasswell, supra note 7 at Preface; N agan, Configurative 65 Nagan, Configurative 66 This widely accepted definition was first put forth in the "Bruntland Commission." See World Commission on Environment and Development, Our Common Future 42 (1987); Bratspie supra ("A situation becomes unsustainable when natural c apital is depleted more rapidly than it can be replenished. Thus, at a minimum, sustainability requires that human activity not exceed the regenerative rate for natural resources and capacities.") 67 Clarke, 46 Nat. Resources J. 571 68 U.N. Econ. & Soc. Cou ncil, Report of the Secretary General on the Problems of the Human Environment, P 1, U.N. Doc. E/4667 (May 26, 1969) 69 Sustainable development is a central commitment of the U.N. Millennium Development Goals, United Nations Dept. of Econ. & Soc. Aff., The Millennium Development Goals Report 2006 (2006), available at http://mdgs.un.org/unsd/mdg/Resources/Static/Products/Progress2006/MDGReport2006.pdf, and was the focus of the 2002 World Summit on Sustainable Development. See U.N. Report of the World Summit o n Sustainable Development, Johannesburg, S. Afr., Aug. 26 Sept. 4, 2002, U.N. Doc A/CONF.199.20. The United Nations has established the U.N. Division for Sustainable Development and the affiliated Commission on Sustainable Development. See United Nations C ommission on Sustainable Development, http://www.un.o rg/esa/sustdev/ csd/policy.htm. In December 2002, the U.N. General Assembly declared 2005 2014 as a decade of education for sustainable development. See G.A. Res. 57/254, P 1, U.N. Doc. A/RES/S7/254 (Dec 20, 2002); U.N. Environment Programme, Stockholm Convention on Persistent Organic Pollutants, May 22, 2001, 40 I.L.M. 532 (2001) ; Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters June 25, 1998, 38 I.L.M. 517 (1999); Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, 37 I.L.M. 22 (1998); U.N. Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc. No. 102 38, 1771 U.N.T.S. 107. 70 Marong 71 2005 World Summit Outcome, G.A. Res. 60/1, P 48, U.N. Doc. A/RES/60/1 (Oct. 24, 2005) 72 Bratspie See, e.g., Food and Agric. Org. of the U.N., The State of World Fisheries and Aquaculture: 2006 (2007), available at ftp://ftp.fao.org/docrep/fao /009/a0699e/a0699e.pdf; U.N. Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, June 17, 1994, 33 I.L.M. 1328 (1994); Intergovernmental Panel on Climate Change, Climate Chang e 2007: The Physical Science Basis -Summary for Policymakers (2007), available at http://www.ipcc.ch/SPM2feb07.pdf. 73 Stockholm Declaration, P. 6; Bratspies 74 See, e.g., Declaration on the Right to Development, G.A. Res. 41/128, Annex, at 186, U.N. GAOR, 41st Sess., 97th plen. mtg., U.N. Doc. A/RES/41/128 (Dec. 4, 1986) 75 United Nations Conference on Environment and Development: Rio Declaration on Environment and Development, U.N. GAOR, 47th Sess., Agenda Item 9, at 1, UNCED Doc. A/CONF.151/5/Rev. 1 (1992 ), reprinted in 31 I.L.M. 876 (1992) ( Rio Declaration )


37 76 Nagan, Configurative. 77 Batt & Shorta supra note 37. 78 Lasswell WPO. 79 Lasswell TAO 80 Richard A. Falk, The Sherrill Lectures delivered at the Yale Law School (1974), quoted in Eisuke Suzuki, The New Haven School of International Law: An Invitation to a Policy Oriented Jurisprudence, 1 81 W. Michael Reisman, Myres S. McDougal: Architect of a Jurisprudence for a Free Society, 66 Miss. L.J. 15 19 20 (1996); Bratspies. 82 Nagan, Configurative. 83 Id. 84 Lasswell VII at 32.


38 CHAPTER 3 COMMUNITY FOREST MAN AGEMENT INDIGENOUS COMMUNI TIES AND INDIGENOUS RIGHTS Due to the extent of forests inhabited by indigenous people in Latin America, an understanding of the dynamics of forest management among forest dwelling indigenous communities is es sential to the success of conservation and sustainable development efforts. Approximately 540 million indigenous people live in Latin America, representing 11% of the total population. 1 According to FAO estimates, Latin America and the Caribbean retain a of forest in developing countries is 22%, that is, without accounting for areas under de facto control by indigenous communities. 2 In Latin America, 80 85% of protected areas alone are inhabited by indigenous people. 3 Researchers point to a significant positive correlation between the geographical distribution of the remaining forests in Latin America and the distribution of indigenous communities, 4 including the areas of highest biodiversity. 5 communities. 6 This statistical overlap underscores the reality that indigenous communities are am ong the poorest in Latin America, ranking at or near the bottom of all development indicators. 7 These correlations are likely to persist as the proportion of forested land under the control of local communities steadily increases. 8 Community Based Forest M anagement Among scientists, conservationists, international development practitioners, and national policy makers, there is a growing recognition of the importance of involving local communities in the management and conservation of the forests in and arou nd which they live. 9 Community management of forests is thought to hold promise both for


39 the conservation of forests and biodiversity, as well as for improving the livelihoods of low income rural communities. Given these trends in deforestation, conservat ion, and development a better understanding of the dynamics of community based forest management among forest dwelling indigenous communities is crucial to the success of conservation and sustainable development in the coming years. Given the lack of focu s on timber management throughout indigenous communities, the question becomes how to begin to approach and understand the issues. The New Haven framework provides a compelling entry point into the complex legal, social and political dynamics of conservati on and development among indigenous people. As a subset of human rights, the indigenous rights framework has emerged as a method of formalizing and applying human rights values within a subset of experiences common to many indigenous people, including fore st dwelling indigenous communities. In the wake of heavy global deforestation and rapid development, community management of forests is evolving as a means of support for the development of rural communities through sustainable use of forest resources. Fo rests now cover around 30% of the earth's land area (FAO 2006), but millions of hectares are lost every year, mainly as a result of conversion to agriculture, although there are many other complex factors at play. 10 Despite these continuing losses, over 50 0 million people globally continue to depend heavily on forests for their livelihoods. 11 Increasingly, policy makers, development agencies, and local communities themselves are realizing the importance of actively managing forest resources on a local level rather than through strictly centralized mechanisms.


40 Though definitions of community forestry abound, 12 it is important to provide a well informed, useful set of characteristics for understanding the practice in the context of modern development initiati ves. These characteristics include: (1) a degree of responsibility and authority formally vested in the community by the government; (2) a central objective being to provide local communities with social and economic benefits from the forests; (3) ecologi cally sustainable forest use as a central management goal and commitment of the community 13 Communities vary in their capacity to successfully manage forests without outside support and intervention, but as the above characteristics suggest, nearly all man agement projects involve some degree of ex ternal management and support. based management of forests which relies to some extent on externally driven or supported development projects, rather than forest management by communi ties without external support. Although isolated forest dwelling indigenous communities have to some extent managed the forests around them without external suppor t for generations, contemporary conservation and development theory and practice is instead concerned with modern, complex, m ulti stakeholder management. Community based forest management has implications for the conservation of natural resources, 14 cultura l identity, 15 local livelihoods, 16 and the economic development 17 of local communities. When framed in economic terms, three main productive categories have emerged: timber, non timber forest products (NTFP) and most recent ly ecological forest services. These categories reflect differences not only in the primary source of income generation, but also in the scale and complexity of


41 management activities. 18 Forest dwelling indigenous communities vary in their relative participation in these separate production ca tegories. Most management projects include some level of NTFP development, but whether timber is actively harvested varies significantly with economic and legal factors. Both of these systems profess the goal of ecological sustainability, promoting the pe rpetuation of ecosystem integrity while continually providing income from timber and non timber forest products. 19 While the sustainable management of all of the resources of a tropical forest is important to its long term health, the sustainability of timb er harvesting is at the core of the very existence of many remaining tropical forests. Next to the land itself, whose value is often realized only through deforestation, timber has historically been the most valuable economic asset associated with forests. Sustainable timber management implies the long term, if not perpetual, availability of timber as a source of income for its owners. 20 As such, the successful planning, implementation and management of sustainable timber harvest models could be key, not o nly to the continued conservation of tropical forests, with their many known and unknown resources, but also to the continued economic development of forest dwelling indigenous people. These are the reasons this paper focuses on sustainable timber managem ent, albeit at the risk of overlooking the forest for the trees. The ecological variables of tropical timber management in Latin America are relatively unknown. Sustainable timber management of any kind in Latin America, rather than unrestricted extracti on of select tropical species, is a recent phenomenon. The long term effects of harvesting in tropical forests are still unknown 21 raising doubts as to whether commercial timber production can ever be ecologically or economically


42 sustainable. 22 Relatively li ttle is known about tropical timber species, such as the nature of regeneration and recovery processes, or the effects of tree removal on forest structure, biodiversity, genetic diversity, and ecosystem processes. 23 Although over the long run, tropical for ests subject to logging inevitably lose substantial biodiversity, 24 tropical forests have also shown the resilience and capability to significantly regenerate even after logging has taken place. 25 The question of whether tropical timber management is sustain able is likely to hinge on social and economic factors that influence the nature and extent of timber extraction, rather than on technical or ecological questions. 26 Even crucial technical and ecological questions become irrelevant in the face of widesprea d deforestation or the lack of any management structure. In spite of the unknown ecological variables and concerns surrounding tropical timber management, there are some human variables that are abundantly clear. In the absence of successful sustainable fo rest management systems, or designation as protected areas, tropical forests are usually cleared and converted for agricultural uses. Protected areas themselves can be problematic as they do not adequately account for the presence of local people who have deep historic, cultural and economic ties to the forests. These strict conservationist tactics often exacerbate poverty and lead to conflict. They have also been shown to often not even effectively achieve their conservation goals. Even so, some scientist s uncomfortable with the uncertainties of sustainable timber management models, continue to call for the expansion of strictly protected forest regions. 27 tem may be sustainable in its theory and design, yet never be successfully implemented or managed.


43 Increasing the likelihood of a successful sustainable timber management plan requires a thorough commitment to working with and understanding the local mana gers. Forest dwelling indigenous communities in particular as local managers, bring many unique variables to the table. One of the principle logging techniques to have evolved in the context of sustainable tropical timber management is the practice of red uced impact logging (RIL), which consists of a series of guidelines designed to minimize damage to the overall forest ecosystem, promote regeneration, and protect workers. 28 Along with the many other uncertainties surrounding logging in tropical forests, t he long term effects and successes of this practice are largely unknown and increasingly questioned. 29 Nonetheless, RIL represents the primary technical approach behind sustainable timber harvesting policy throughout Latin America for government actors, NG development agencies. 30 From a technical standpoint, RIL is a step in the right direction towards sustainability, but its primary benefits come from the knowledge and training invested in local managers. RIL programs generally train local community members in a variety of silvicultural and management techniques, such as conducting pre harvest forest inventories, road and skid trail planning, pre harvest vine cutting, and directional felling. 31 Independent of the long term viability of these practice s, the technical knowledge gained, and the experience and investment in protection and management of the forest may prove, for local community members, to be the most valuable contribution of RIL to the future of sustainable community timber management. Th is


44 exhibited by many local people in relation to their home territory. 32 However, the benefits of RIL to local communities are debatable. 33 In order to maximize the benefits accrued to the local communities, RIL planners and managers must approach local community members not just as savvy cheap labor, but as partners. Recent research has shown that there are distinctive elements to successful forest related partnerships with local communities. 34 These elements include 1. fairly negoti ated partnership objectives, 2. active in volvement of the public sector with impartial brokers, 3. equitable and cost e ffective institutional arrangements, 4. sufficient and equitably shared benefits f or all the parties involved, 5. consideration of socioec onomic drawbacks, and 6. incorporation of measures to maintain su stainable exploitation levels. These six elements emp hasize a multifaceted, landscape approach to community partnerships which incorporate a basket of forest related goods, as well a strong awareness of the historical, socio economic, political and spatial contexts in which local communities are embedded. 35 A s if on cue, we now move to a more focused consideration of the unique contexts in which forest dwelling indigenous people in Latin America are situated. Indigenous Communities and Forest Management Within the field of tropical conservation and developmen t, there is a lack of research and understanding of the unique dynamics of community forest management among forest dwelling indigenous people. The unique historical, cultural and political context of indigenous communities in Latin America poses challenge s and opportunities to the growing field of community based forest management, both in theory and in practice. However, these challenges and opportunities are not well understood.


45 Research and theory focused on community forest management is a relatively n ew and growing field. 36 Even though most forest dwelling indigenous communities operate within unique legal, social, and territorial frameworks, with a few notable exceptions, 37 most scholars writing on community based forest management lump these communiti es with all the other rural communities involved in forest management. Thus, there is a particular lack in scholarly attention to the unique challenges of indigenous community managed timber projects in Latin America. Scholars and policy makers are also r ecognizing that it is difficult to generalize findings regarding community based natural resource management and conservation initiatives across the spectrum of social and natural environments. Each case is context specific, and does not necessarily fit we ll within established typologies. 38 These realizations emphasize the crucial need for a more nuanced understanding of the conservation and management dynamics within forest dwelling indigenous communities in the tropical forests of Latin America. Indigenou s Identity Historical indigenous management practices may contribute to a sense of identity and empowerment in indigenous communities through their capacity to manage their own forests, yet its real value is questionable in the complex, multi stakeholder, modern world in which indigenous communities inevitably find themselves. It is the present social and economic capacity of any given community that will likely determine its success in managing its forests, rather than the success of generations long past in a world that no longer exists. Even so, the extensive ethnoecological and ethnobotanical knowledge maintained by indigenous people is undisputed. 39 The complex knowledge of forests that forest dwelling indigenous people possess continues to be documented 40 and often misappropriated. 41 This body of knowledge, contrasted with "western


46 scientific knowledge, is often referred to as traditional knowledge (TK). The implications of this knowledge for community forest management are just beginning to be exp lored. 42 There is a growing sentiment among western intellectuals and scientists that conventional scientific approaches to resource management are inadequate to deal with the environmental and social complexities of these regions. 43 In contrast, the benefi ts of more traditional ways of approaching knowledge are gaining favor alongside a growing recognition of the depth of useful, context specific knowledge possessed by indigenous people. As we move towards an understanding of community based timber managem ent within the framework of indigenous rights, it might be best to take a step back and ask: Regarding the first question, respected indigenous rights advocate and legal schol ar, James Anaya 44 cites the following definition as the most often used in the international legal and political forums: Indigenous communities, peoples and nations are those which, having a historical continuity with pre invasion and pre colonial societie s that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems. 45


47 While this definition in p articular, and the very idea of definition in general, is not without issues, it provides a widely accepted base upon which to build legal principles. Imbedded in this definition itself are key points which inform and frame the discussion that is to follow regarding indigenous rights and development. Within this definition are the seeds of the issues and challenges which indigenous peoples often face, and the stages on which their interactions with external forces are often set. The term that indigenous people possess or should possess special rights not possessed by other social groups. An alternative, and arguably more accurate understanding of the terms, would be t hat indigenous rights represent the contextualization of human rights norms to the unique circumstances of indigenous people. 46 This development of the indigenous rights framework is discussed in more detail below. Indeed, historically and culturally indige nous people and societies have very distinctive features. Historical Considerations The concept of a cohesive community with shared values and preferences, inherent in any discussion of community forest management, is not without its problems. 47 However, by nature of their shared history, ethnicity, family relationships, customary norms, culture, geographical concentration and isolation, the members of any given forest dwelling indigenous community are as likely as any community to share similar values and preferences relevant to forest management. Even so, within these communities there are bound to be significant differences in values and use of natural resources, whether by age, group, gender, family or other classification. Even a given individual is likely to have conflicting values related to his or her use of forest resources. The point is not that indigenous people or communities are all the same, but


48 that forest dwelling indigenous communities usually self identify and are identified by others as a collective unit distinct in many ways from other types of communities. Social scientists recognize that shared community identities such as these can be important in achieving concrete social and resource objectives. 48 This is not to say that a perfect u nderstanding of these sociological patterns is necessary to arrive at any meaningful conclusion regarding conservation and development. Even if these patterns were static and fully understandable by external stakeholders, the values and motives of these ex ternal stakeholders are certainly not unified, consistent or uncompromised. It is in this ever shifting and unknowable web of relationships and values that the indigenous rights framework emerges as a guiding principle for interaction with forest dwelling indigenous communities. The pre Columbian history of the nature and extent of indigenous people's relationships with forests was for a long time largely a matter of speculation and misi nformed idealization of pre Colo mbian indigenous societies. 49 However scientists have made some basic discoveries which can inform our understanding of historical indigenous management of forests 50 These pre Columbian forest management practices include swidden agriculture, succession management of agricultural plots, harves ting for construction and medicinal uses, burning to improve plant and animal distribution, and planting and enriching soil for the purpose of creating forest patches. 51 To the extent that a particular indigenous community continues in these forms of tradi tional forest management, it is unclear whether it is as a result of cultural knowledge passed down over the generations, or whether it is a practice that has developed in more modern times in respo nse to changing circumstances. Lest we


49 forget, when Europe an powers began colonizing and decimating indigenous populations in the 16th century, they also physically expropriated much of the forested areas of Latin America. 52 These areas were home to an estimated 50 to 100 million indigenous people prior to coloniz ation, 90 to 95% of whom were wiped out by war, displacement and disease. 53 What the colonizers did not immediately physically expropriate they did so legally and ideologically under the power of the Church, the Crown, and continuing today, under the power of the State. Under these conditions, many ancient customary tenure and management practices were lost or seriously undermined. 54 Balancing Livelihoods, Conservation and Development Given the strong correlation between the location of impoverished communit ies and forest, conservation of forests is inextricably linked, and often at odds with development. Paradoxically the livelihoods of poor people can be both threatened by deforestation, 55 as well as dependent upon it. This tension sets the stage for confli cting interests not only between conservationists and the indigenous community, but within the communities themselves. What must be understood further are h ow t he local assumptions and values concerning development con trast f international financial and development institutions. 56 In contrast to this dominant discourse, is one that could be thought of as a "livelihood" discourse, which is held and developed by local actors in the community. 57 Inherent to the livelihood discourse is the idea of community empowerment, which Horton (2007) defines as 58 The key difference between the two discourses is that the dominant discourse sees local agency and empowerment in strictly instrumentalist, utilitarian terms whereas the livelihood discourse see s local empowerment as intrinsically


50 valuable. 59 Horton focuses on the interaction of the livelihood discourse with the dominant, since the eco c entric is predominantly an American and Western European phenomenon. The livelihood discourse tends to be that conveyed by grassroots and local actors and is critical of development models which emphasize GDP growth and aggregate national figures. The domi nant discourse, while adapting over time to include a "post Washington Consensus" incorporation of sustainable development still relies on the traditional values and assumptions of development: economic growth, free markets, efficiency, rationality, and in dividualism. 60 In the case of forest dwelling indigenous communities, not only the livelihood, but the very identity of an individual, family, and community is inextricably interwoven with the existence of a healthy forest. This essential connection does no t guarantee that these communities will not degrade their forest homelands, but it may explain why studies are identifying positive results with community based forest management among indigenous forest dwelling communities, even when these forests face hi gh external pressure for deforestation. 61 Indigenous Peoples and the Environment Climate change and environmental degradation often have an especially harmful effect on indigenous communities. This is due to the persistence of subsistence level living tha t depends heavily the existence of intact natural ecosystems. 62 The relatively undisturbed natural spaces in which indigenous communities are often found as central to their very survival, whether cultural, economic, spiritual or outright physical. Large sc ale development and globalization that is destructive to the environment has often resulted in widespread disruption of traditional indigenous livelihoods and culture. In extreme, but not infrequent circumstances involving chemical spills and nuclear testi ng,


51 whole indigenous communities due the destruction of the environment. 63 Thus, the protection of the indigenous relationship to the environment and their traditional territory is essential to both the protection of the environment and to the general advancement of respect for indigenous rights Indigenous Rights and Community Forest Management The correlation between forest dwelling communities and forest conservation is highest among communities who having gained legal recognition and control of their land through national and international struggles, are invigorated by the indigenous rights movement. Indigenous rights expert James Anaya has identified the two pressin g concerns for indigenous peoples. Each of these has important implications for development projects among indigenous peoples, including projects which promote community forest 64 management. The first is the need for external actors who are seeking to engag e with communities to engage in a process consultation with the local indigenous communities, and to achieve consent from these communities before moving forward with projects. The second issue is the need for nondiscrimination in law and policy towards in digenous peoples. Dedication to nondiscrimination can cut both ways though, as non indigenous local communities often feel that they receive the short end of the stick when special measures are taken to support indigenous groups. On the issue of nondiscrim the point that indigenous rights are not new or unique human rights, but instead are human rights applied to the unique contexts of indigenous communities. In other words, it is not that indi genous communities are being given special privileges, but are instead only being guaranteed basic human rights. Given the unique context of indigenous peoples, as reflected in the definition provided above, the assurance of their basic


52 human rights requir es a certain amount of selective treatment. While Anaya and other s make a strong argument for the special treatment of indigenous communities, the problem of perceived discrimination remains and will only grow stronger as indigenous communities continue to communities in Latin America have not made outright calls for separation and complete sovereignty, but even as the relative position of sovereignty continues to shift in their favor, the limits of Support for legal sanctioning of the rights of indigenous communities to their traditional territories in Latin America received a major boost from the International Labor Organization Conventions ( ILOC) #10 7 in 1957, and its significant revision # 169 in 1989. 65 This convention produced a document pronouncing that indigenous people had certain previously unrecognized rights. 66 These rights included, among others: the right to the communal ownership of their an cestral lands; t he right to the exercise of their customary laws; the right to represent themselves through their own institutions; the right to not be removed from their lands except under very exceptional circumstances and with compensation; the right t o be consulted and to participate in decision making processes that affect their way of life 67 and finally, the right to management of the natural resources on their territories. 68 Although powerfully symbolic, enforcement of these rights was lax and largel y left up to the individual countries. 69 The international legal framework of indigenous rights first emerged within the UN human rights structure of the Human Righ ts Committee (UNHRC), as this body worked in par t to advance and enforce human rights norms in situations involving indigenous


53 communities. 70 This is the treaty based multi lateral organization responsible for enforcing the International Covenant on Civil and Political Rights (ICCPR). 71 Articles 1 and 27 in particular, provide for special rights of indig enous groups and their members. 72 In 1982 another significant project was initiated by the United Nations Working Group on Indigenous Populations. The initial result of this effort was the development of the United Nations Draft Declaration on the R ights of Indigenous Peoples, which developed and codified many of the principles expressed in the ILOC document 73 After a long and arduous process of negotia tion, a draft of the document was completed in1994. 74 However, n ot until 13 years later, and 25 y ea rs after the process was first initiated was the Declaration finally approved through a UN resolution in 2007. 75 Article 3 of the Declaration gives indigenous people the r ight to self determination and Article 9 guarantees the right to belong to an indigen ous community and live in accordance with indigenous customs and traditions. 76 Further, Article s 19 and 20 recognize the right of indigenous people to participate in all levels of decision making in matters concerning them. 77 Article 26 in particular spea ks to the relationship of indigenous communities to their land and resources. 78 In 1992, the Convention on Biological Diversity was passed giving indigenous peoples the right to share benefits derived from biological and genetic resources belonging to th em. 79 This has led to one of the most recent developments within the indigenous rights framework, guaranteeing intellectual property rights to certain forms of traditional knowledge. This came about as a response to the growing incidents of misappropriation of indigenous knowledge regarding the therapeutic benefits of various


54 plants by parties connected to large pharmaceutical companies in a practice that has come to be known as biopiracy. 80 Enforcement of rights guaranteed under international law is never a sure thing, especially for indigenous communities with limited resources and social capital. indigenous supporters, indigenous communities around the world have made significant strides in the enforcement of their rights both in international tribunals, such as the Inter American Court of Human Rights, and in domestic courts. The international attention and support given to indigenous communities has served to pressure States to formally recogn ize are not formal, and even the formal rights many communities do have are tentative, especially when tested against the power of the State and its pe rceived conflicts of interest. As Murphree (1993) predicted, the key to actual meaningful involvement of local communities in the planning and practice of resource management has proven in many cases to mirror the extent to which the local communities become proprietors of the ir own land and resources. In the case of isolated, disenfranchised forest dwelling indigenous communities, the main impetus to the recognition of their proprietary rights is through the indigenous rights framework. A key function of the ownership of lan d and resources is the ability to restrict uncontrolled access and exploitation of resources. 81 In this way the tragedy of the commons can be minimized. Many forest dwelling indigenous communities in Latin America remain without these rights, e ither forma lly or in practice. Even those with formalized rights, having already experienced some practical benefits, will benefit even


55 more with equitable part nerships in timber management. These partnerships are encouraged and made possible by the dignity and respe ct afforded through the indigenous rights framework, both within the community and with external stakeholders. Decades of development intervention in Latin America spurred by the neoliberal agenda expressed in the "Washington Consensus" has left a mixed le gacy. Part of this legacy is the general disregard for equitable inclusion of the indigenous voice in development policy. To the extent that indigenous movements have taken the national stage, it has usually been as a counterpoint to the general trends tow ard globalism in State policy. This can be seen in the 1990 Ecuadorian "General Uprising" and the Bolivian "March to La Paz," which are part of a broader recognition of the multicultural dynamics of national citizenship. 82 Formal recognition of indigenous rights through constitutional reform has occurred in countries such as Nicaragua (1987), Brazil (1988), Colombia (1991), Ecuador (1998), and Venezuela (1999). 83 The growth in the recognition of the unique circumstances and needs of indigenous people in nat ional law and policy has been mirrored to some extent by changes in priorities in development policy. Whereas the World Bank (WB) and the Inter American Development Bank (IADB) had been criticized for their policies towar d indigenous people in the 1970s, m oving into the 1980 s, they also began to take into account indigenous rights in their policy by enacting special guidelines. 84 However, most development assistance is conditioned on adherence to conditions favoring specific institutional and economic models which are often at odds with indigenous rights values. This is most evident in development theory's emphasis on market based reforms, such as the leveraging of personal private property. 85 While land titling and registration


56 projects have been the staple o f international lending institutions such as the World Bank and the Inter American Development Bank, these projects rarely take into account the common property regimes of tradi tional indigenous communities. Typically, these land titling mechanisms have be en based on mechanisms foreign to most indigenous communities. 86 However, though most indigenous communities have a communal understanding of their land, and do not actively engage in the buying and selling of their land, it is naively inaccurate to suggest that they have no concept of ownership and title. For nearly a century, anthropologists have recognized the presence of sophisticated customary legal systems within indigenous communities, which protected social needs through norms and prescriptions. 87 Gi ven that the very identity and survival of many indigenous communities is tied to their relationship with their land, this lack of consideration of indigenous concepts of property in development practice has left many indigenous communities alone in the st ruggle to face the challenges of rapidly changing economic and environmental realities. The human rights community has led the way in assisting indigenous communities to face these struggles. In addition to the international legal regimes listed earlier t hat have helped to put broad human rights norms into a context relevant to indigenous communities, there have also been a series of treaty based human rights decisions that have dealt with case s specific to the Americas. The Inter American Human Rights Sys tem has produced key decisions which have helped to shape the national and international dialogue regarding the place of indigenous communities in development. The Inter American System is a treaty based regional human rights system formed by the Organizat ion of American States (OAS). 88 The system includes two principle quasi


57 legal bodies, the Commission and the Court, and operates principally under the American Convention on Human Rights, which was adopted in 1969 and came into force in 1978. 89 Both the Com mission and the Court have passed down decisions that have helped to define and uphold a spectrum of rights relevant to indigenous development. These include rights related to the relationship between religion and land, the re cognition of communal property As early as 1972, the Inter American Commission on Human Rights (Commission) had made note of the need for States to take special measures of protection in order to secure the human rights of their indigenous populations. 90 One of the first Commission ca ses to actually help to define the notion of special measures in the development context was the 1977 case Diana Ortiz v. Guat e mala 91 In Diana Ortiz, the Commission determined that the denial of a tice of religion was a violation of her human rights. The Inter American Court of Human Rights (IACtHR) has also recognized the right to communal property as a human right under the Inter American Convention. This monumental decision was made in the case of Mayagna (Sumo) Awas Tingni Community v. Nicaragua 92 The Nicaraguan State had provided for formal recognition of indigenous rights, but had not taken steps to ensure that these rights were respected in practice. 93 This Court's decision made the importan t distinction that the terminology of humans rights agreements have an autonomous meaning derived from human rights case precedent, rather from domestic law. 94 For example, use of the word "property" in human rights documents includes communally held indige nous property, even if a


58 absence of real title under State law, the mere possession of land by indigenous communities should be sufficient to signify ownership of that land. 95 The Awas Tingni case reiterates the idea that true protection of human rights special measures of protection" to be taken by States, in order to assure the protection of the human rights of their indigenous peoples. 96 Another important de cision was handed down in the Saramaka Case, which affirmed the right of indigenous people to the use and enjoyment of natural resources that lie on and within the land, including the sub soil natural resources. 97 The idea expressed in State law and policy that indigenous people have only a privilege or permission to use and occupy State land, rather than full property rights, is common throughout Latin America. This trend in State decision making represents the heritage of coloni al oppression and paternali sm, and continues to lead to conflict and lack of legal certainty over valuable resources. Research confirms the importance of community based management of timber for the conservation of valuable forest resources as well as for the economic development of forest dwelling indigenous communities. Further investigation also confirms the importance of forming strong partnerships between these communities and takes a vil village is not the isolated, marginalized, misunderstood and mistreated village of yesterday, but instead is the empowered, holistic, and dynamic village of tomorrow the village tha t is possible through a commitment to greater respect for indigenous rights in community based forest management.


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61 35 Ros tonen 2007; Ros Tonen, M.A.F., Wiersum, K.F., 2005. The scope of improving rural livelihoods through non timber forest products: an evolving research agenda. Forests, Trees a nd Livelihoods 15 (2), 129 148. 36 Borgerhoff Mulder M, Coppolillo P. 2005. Conservation: Linking Ecology, Economics, and Culture. Princeton, NJ: Princeton Univ. Press. 37 Bray; Schwartzman, S., M oreira, A., Nepstad, D., 2000. Rethinking tropical forest conservation: perils in parks Conserv. Biol. 14, 1351 1357; Posey DA. 1985. Indigenous Management of Tropical Forest Ecosystems: The Case of the Kayapo Indians of the Brazilian Amazon. Agrofor. Sys t. 3:139 58 ; Posey DA, Balee W. 1989. Resource Management in Amazonia: Indigenous and Folk Strategies. Adv. Econ. Bot. 7. Bronx: N. Y. Bot. Garden 38 Charnley & Poe ; Brosius JP, Tsing AL, Zerner C, eds. 2005. Communities and Conservation: Histories and Po litics of Community Based Natural Resource Managem ent. Walnut Creek, CA: Altamira; Glasmeier AK, Farrigan T. 2005. Understanding community forestry: a qualitative meta study of the concept, the process, and its potential for poverty alleviation in the Unit ed States case. Geogr. J. 171(1):56 69. 39 Balee 1994; Maffi; Posey DA. 2004. Indigenous Knowledge and Ethics: A Darrell Po sey Reader. New York: Routledge. 40 See e.g., Maffi; Fairhead J, Leach M. 1996. Misreading the African Landscape: Society and Ecology in a Forest Savanna Mosaic. Cambridge, UK: Cambridge Univ. Press; Smith EA,Wishnie M. 2000. Conservation and subsistence in small scale societies. Annu. Rev. Anthropol. 29:493 524 41 Belcher & Schreckenberg ; Nagan, Communications Theory. 42 Berkes 2007. 43 Klooster 2002. 44 S. James Anaya is Professor of Human Rights Law and Policy at the University of Arizona Rogers College of Law. He received his J.D. from Harvard in 1983. Anaya is an internationally renowned writer, lecturer, consultant. He has represente d Native Americans and other minority groups in Arizona, as well as indigenous groups in Central America. He was lead counsel for indigenous parties in landmark international case before the Inter American C ourt of Human Rights, Awas Tingi v. Nicaragua in which court upheld indigenous land rights as a matter of international law. 45 S. James Anaya and Claudio Grossman, The Case of Awas Tingni v. Nicaragua: A New Step in the International Law of Indigenous Peoples, 19 Ariz. J. Int'l & Comp. L. 8 28 (2002). 46 Id. 47 Agrawal & Gibson ; Nygren 2005 48 e.g., Cederlof & Sivaramakrishnan 2006, Hale 2006, Cromley 2005 49 Agrawal & Gibson 50 Peters, 2000. 51 Boyd 1999, Charnley & Poe ; Irvine 1989, Peters 2000, Posey 1985 ; Vale 2002 52 Davis. 53 Id.; Van Cott 2007


62 54 Ch arnley & Poe .; Ribot & Peluso; Poffenberger 1999, 2000 55 Chomitz 2007, 56 Horton, Lynn. 2007. Grassroots Struggles for Sustainability in Central America. Lynn Horton is Assistant Professor of Sociology at Chapman University, California. She received her Ph .D. from the University of Texas, Austin. Her research interests include development, globalization, social movements, and gender in Latin America. She has conducted extensive research, writing and grassroots NGO work in Central America. 57 Berkes 2007.; Ho rton. 58 Horton. 59 Id. 60 Id. 61 Bray.; Nepstad. 62 See Westra, Laura. 2008. Environmental Justice and the Rights of Indigenous Peoples: International and Domestic Legal Perspectives. Aspen Publishers. Westra is Professor of Environmental Law at University of Windsor. She obtained a Ph.D. in Philosophy from University of Toronto and a Ph.D. in Jurisprudence from Osgood Hall Law School. She serves as Co chair of International Union for the Conservation of Nature as well as on the Commission on Law and Environ ment (IUCN CEL) Specialist Indigenous Peoples Group. She is an internationally renowned writer, activist and consultant in environmental ethics, policy, law, human rights, and global justice. 63 64 Anaya, S. James. 2009. International Human Rights and Indig enous Peoples. 65 International Labour Organisation ILO, Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, 2 8 I.L.M. 1382; Colchester. 66 Id. 67 Id. at art. 6. 68 Id. 69 Colchester. 70 Anaya, James. 2004 INDIGENOUS PEOPL ES IN INTERNATIONAL LAW 3, 229. Oxford U. Press, 2d ed. 71 International Covenant on Civil and Political Rights, Dec.16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) 72 Article 1 indicates that "[a]ll peoples have the right t o self determination [and] by virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development." Id., at art. 1. Article 27 protects the rights of individuals within the indigenous groups to the enjoyment of exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use array of rights related to indigenous groups' cultural integrity. A naya, supra. The UN System generally


63 only allows claims between state parties against another, 121 there is an Optional Protocol within the in Art icle 27. Id. 73 Draft Declaration on the Rights of Indigenous Peoples, U.N. Doc. E/CN.4/Sub.2/1994/56, Aug. 26, 1994, 34 I.L.M. 541. 74 Id. 75 UN Declaration on the Rights of Indigenous People. For a helpful review of the \ contents of the Declaration, see Ste fania Errico, UN Declaration on the Rights of Indigenous Peoples in Adopted: An Overview 7 Hum. Rts. L. Rev. 756 (2007); Nagan, Winston P. and Judit K. Otvos. 2010. Legal theory and the anthropocene challenge: the implications of law, science, and policy for weapons of mass destruction and climate change. The expanding and constraining boundaries of legal space and time and the challenge of the anthropocene. 12 J.L. & Soc.Challenges 150 219. (Hereinafter Nagan, Anthropocene). What is critical is that the de cision making capacity of indigenous nations has had to evolve to meet the threats to their survival, and to protect the fragile rainforest ecosystem from further deprivation. Thus, it may be that there is an evolutionary necessity which stresses the need to engage in decision making strategies, which include litigation and which is able to appropriate global legal resources to secure the protection of what is in effect a global commons in which the indigenous people are both stakeholders and guardians. Id. 76 Id. at art.3 and art.9. 77 Id. at art. 19 and art. 20. 78 Art. 26 states: 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have t he right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which t hey have otherwise acquired. 3. States shall give legal recog nition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of t he indigenous peoples concerned. Id. at art. 26. 79 Belcher & Schreckenberg 80 Id .; Nagan, Anthropocene. 81 Agrawal & Gibson 82 Interview with Osvaldo Jordan. 83 Id. 84 Id. 85 A very popular, and much critiqued example of this market based philosophy is evident in the work of Peruvian Economist Hernando de Soto. See Hernando de Soto, The Myst ery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else 2000. 86 Van Cott, 2007 87 Nagan, Configurative. See e.g., Bronislow Malinowski. Crime and Custom in Savage Society, 1926; Max Gluckman, The Ideas in Barotse Jurisprudence (1965; E Adamson Hoebel, The Law of Primitive Man: A Study in Comparative Legal Dynamics (1954); K. N. Llewellyn & E. Adamson Hoebe


64 of Law: A Comparative Theory (1971). 88 Secretariat of the Inter American Court of Human Rights, Basic Documents Pertaining To Human Rights In The Inter American System 45, July 2003, 9 OEA/Ser.L/V/I.4 Rev. 9, available at http://www.corteidh.or.cr/docs/libros/Basingl01.pdf 89 Id. 90 See Annual Report of the Inter American Commission on Human Rights, 2005, OEA/Ser.L./V/II/.124, doc. 7, Sess. 37 (2005 ) 91 Diana Ortiz v. Guat e mala, Inter American Commission on Human Rights, Report 31/96, Case No. 10.526 (1977). 92 I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Judgment of January 31, 2001. 93 Anaya 2002. 94 Id. 95 Id. 96 The "special measures" language has been reflected in many cases. See e.g., Indigenous Community Yakye Axa v. Paraguay 17 June 2005, Inter American Court of Human Rights; Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Inter American Court of Human R ights, Judgment of 29 March 2006 ; See The Mayagna Awas Tingni v. Nicaragua, Inter American Court of Human Rights, 2001) 97 Case of the Saramaka People v. Suriname, Inter American Court of Human Rights, Judgment of November 28, 2007


65 CHAPTER 4 THE CASE OF MORTI FO REST MANAGEMENT PROJ ECT Methodology I gathered the information for the Mort case study over the course of th ree trips to Panama between August of 2010 and January of 2012. The first trip, which was three weeks long, served as a preliminary investigation to narro w the topic of inquiry and begin to establish relationships with contacts. It was during the second t rip, which lasted five w eeks, that the main body of research was accomplished. Given the ongoing nature of the development project and the constantly shifting dynamics of the problems identified, another trip was made for two weeks at the end of January of 2012 The field research was approached from a qualitative, rather than a quantitative perspective While not adhering to the strict methodologies of grounded theory, I did utilize some of its techniques For instance, I would evaluate and use the inform ation that I was gathering in the field in order to identify key issues and stakeholders and to formulate further research questions. This analysis would then serve as the impetus and guide for further investigation. T his conforms to the inductive approac h of grounded theory, in which the research questions themselves are "grounded" in the empirical data as it is gathered. I also utilized to some extent the methodology and epistemology of participant observation, which emphasizes intersubjective understand ing and empathy 1 The goal of this project was inherently subjective since its purpose was to address human problems and to suggest solutions. In some many ways, my presence was intended to have an effect on the audience, although I constantly sought to achieve a balance between the opposing roles of observer and actor in order to maximize the


66 goals of the project as stated above. The detailed, first ha nd gathering of information was intended to increase the face validity 2 of the information gathered as w ell as the presence of trust and rapport established through interpersonal connection. 3 During the three trips to Panama, I was based in Panama City where the project had its central office. I also took several trip s ranging from two to five days each int o the Mort community. Over the course of the three periods in Panama, I was able to conduct and record 42 conversations wit h 20 separate individuals. I spoke with several of the interviewees on multiple occasions. I use the term conversation because the f o rmat ranged from unstructured and semi structured in depth interviews to open ended casual discussions, to group meetings. I was given access both by project directors and Mort community leaders, to many internal documents for review Those that were n ot already in electronic format I either photocopied or took a digital picture of the documents that were not already in electronic format. I also obtained a fair amount of knowledge and understanding of the project dynamics and local issues faced by the c ommunity through semi regular email contact with project directors and occasionally with community members as well. I also obtained various legal documents and co mmentaries online. In order to familiariz e myself with some of the local events, I also did so me archival research of national newspapers online. A series of recordings was made of regular, casual open ended discussions that I had with one particular member of the Mort community who was living and working in Panama City at the time. Several of the recordings were also made during village me etings in which I was an observer as well as a participant. One of the recordings was


67 made during a private meeting that I conducted with the chiefs and their assistants while in Mort The other interviews cover ed a range of perspectives, including project directors and managers, Panamanian indigenous rights scholars and activists a Kuna lawyer, a national lawyer, a Chinese timber company owner, and last but not least, a variety of Mort leaders and community me mbers. In addition to the conversations that were recorded, I had numerous unrecorded conversations and interactions with project staff and with members of the Mort community, which helped to inform my understanding of the context, and also helped to guid e my inquiry. When I was in the village, I stayed with a community member and his family which provided further opportunity for insight into the social context and issues faced by the community and development practitioners. Most of the conversations were in Spanish. When I participated in village meetings or separate meetings with chiefs, there was a local interpreter available to translate between Spanish and Kuna. Most of the Kuna with whom I spoke were fluent in Spanish, although some of the older chief s were not. It is also part of the Kuna custom for the chiefs to work through their personal interpreters when engaging in official business with outsiders, even if they do know how to speak Spanish fluently. I have a basic comprehension of the Kuna langua ge, which also helped me in relating and communicating with the Kuna. Study Site The Mort community is located nearly 30 km off the Pan American Highway in the headwaters of the Chucuna qu e River, in one of the least developed areas of Panama. There ar e no roads into the community, and the only access to th e village is through the jungle by river, or by spur roads bulldozed back into the jungle by timber companies.


68 These roads are only passable for a couple of months each year, during the dry season period between December and March. Each one way trip to or from the village takes at least a full day from Panama City, even though the direct distance to the community is not that far. The road trip back to the point in the Darien Province where one ventures o ff of the highway takes from 3 to 5 hours The time range depends on whether one can manage a ride in a 4X4 Toyota pickup or whet her one has to take public transporta tion l ikely to be an old rec ycled school bus shipped down from the United States. Once back in the Darien, there are a couple of options for proceed ing to the village. In the height of rainy season, most people go by dugout canoe equipped with an outboard motor of 15 to 30 hp. The river "port," most commonly used is called Puerto Limon, and is located about an hour down a dirt road off of the Panamanian Highw ay near the frontier town of Metet From the port, there is a 7 12 hour boat ride up the winding Chucunaque River to the mouth of the Mort River, where the community is located. As the crow flies, the distance from the Pan A merican Highway to Mort is less than 30km, yet the indirect approach and countless loops of the river, stretch the river trip out to 85km. The large window of time estimated for this trip is due to the variations in traveling conditions such as the size of the outboard motor used, the flood stage of the river, and whether or not one runs into debris jams along the river. The jams are created by logs and trees that have been uprooted or dislodged by the torrential flo ods that frequent ly overwhelm the river in the rainy season. The other travel option involves taking a dirt road from the highway community of Zapallal, near Agua Fria. This road is taken for an hour or so by off road 4x4 pickup taxi


69 through the cattle pa stures, agricultural areas, and tree farms that now occupy the land around the Pan American High way. If the trails are not flooded or too muddy, there awaits another 1 2 hour hike through humid, sunbaked pastures and tree plantations and finally into the s haded and cooler forests that begin at the edge of the indigenous territory. Another hour hiking along the narrow, winding, thorn adorned trail; jumping over streams or shimmying across on fallen logs will bring one to the same Chucunaque River, but much f urther upstream. From here the boat ride is only about an hour to the Mort community. The village of Mort is a rustic village with no electricity or running water. The National Context Panama, the Comarca, and the Kuna Panama has been globally recognize d for its relatively enlightened treatment of its indigenous peoples since it became a State in 1903. 4 The economic dependency of Panama to its geographic resource, the Panama Canal, may have indirectly helped its indigenous populations during the nation b attention focused on its metropolitan center. 5 Panama has used a legal, political and territorial framework known as the "comarca" as the primary means of managing its relationship with indigenous communities. The use of the comarca has been criticized as a mechanism that makes it easier for the State to exploit human and natural resources. 6 However, it has also been defended as a mechanism to help the indigenous community to establish internal conditions for econo mic and social development. 7 Both narratives can be supported with selective evidence, although Professor Francisco Herrera, 8 peoples, argues that the former narrative has dominated in most cases, due to the


70 absence of strong political organization with the comarca. 9 The one possible exception has been with the Kuna of the Kuna Yala Comarca, who have benefited from the system due to, among other elements, their strong political sensibilities and a longer history of organized interaction with the State. 10 The comarca is indigenous populations. Between 1953 and 2000, the Government of Panama designated five different geographical zones as semi autonomous indigenous territories, or comarcas. In order of their creation, they are 1. Comarca Kuna Yala, 2. Comarca Ngobe Bugle, 3. Comarca Ember a Wounaan, 4. Comarca Madungand and 5. Comarca Wargandi. 11 Each of the comarcas is divided into at least on e electoral circuit. Elected representatives from these circuits represent the Comarca before the National Assembly. 12 In spite of the relative stability of the comarca regime, Panamanian policies toward its indigenous peoples have varied significantly ove r the decades, ranging from Liberal assimilation to corporatist indigenismo and finally to the neoliberal reforms in the 1990s, and most recently to open conflict over access and control of natural resources and development projects. 13 The way that the coma rca system deals with indigenous populations reflects something of a hybrid in land tenure theory, showing both civil law influences inherited from the Spanish, and the common law influences from the United States. 14 Where as the Spanish tended to treat the indigenous populations in their colonies as wards of the C rown, in the U.S., indigenous people were treated as independent nations. This influenced the way that the colonial powers conceived of the rights of the indigenous peoples to the property under the ir control. Professor Herrera believes that Panama was influen ced by the U.S. reserve


71 system. 15 However, they also clearly held on to the Roman, Spanish, and Colombian heritage of viewing indigenous communities as subjects of the Sovereign, w ith limited ri ghts to the land. 16 In addition to the comarca, Panama has also used the term "reserva," (reserve) to designate special areas of administration. However the and the comarca were not simply alternative names for the same concept. Rather, they wer e two separate types of administration with the reserve generally existing as a legal designation within the comarca. 17 The notion of the comarca within the Panamanian political and legal system has evolved significantly over time, and continues to lack a precise definition. The first time the term "comarca" was used was in 1938 with the creation of the two separate administrative unites of Baru and San Blas. 18 However, t here were few similarities between the two areas. While San Blas was the home of the K una Nation which had managed to achieve relative autonomy from the Panamanian State, Baru was not even an area under th e control of indigenous people. 19 Thus, the current notion of the comarca as an area of semi au tonomous indigenous control is something th at has evolved into what is today. Generally speaking it has referred to an area that was claimed as part of the State of Panama, but was not under its active administrative control. 20 The term "comarca" has been used and understood differently at the same time by different groups, as reflected in the current differences in understanding between the Ngobe and the Panamanian S tate. The Ngobe have had a comarca since 1952, but have been fighting for a "real" comarca, with more autonomy akin to what the Kuna en joy in Kuna Yala. 21 Law 72 of 2008 made some advance in clarifying the concept.


72 Before then, there was much ambiguity, and even now the lines are not clear. 22 This lack of clarity is partly due to the fact that i n Panama there is no "ley marco" or fundamenta l legislation that normalizes the status of its indigenous nations. 23 Dr. Jordan argues that the idea that Panama is somehow advanced in its relationship towards its indigenous people is the "great myth." 24 He notes that unlike so many other Latin American c ountries, Panama has yet to have significant constitutional reform incorporating indigenous rights protections and provisions. 25 The last constitutional text from 1972 is not very favorable. 26 It talks about "reserving the lands necessary," but nothing about autonomy or political or indigenous rights. In regard to the overall discussion of indigenous rights in Panama, questions regarding the ambiguity of the comarca regime get pushed aside in light of ongoing conflicts with indigenous populations that continu e to live outside of th e existing comarca designations T hese areas are known either as "tierras colectivas" or in areas adjacent to the comar cas known as "areas anexas." 27 There are presently estimated to be between 60 and 70 thousand Kuna in Panama, makin g it the second largest indigenous nation in Panama behind the Ngobe. In addition to the four Kuna Comarcas noted above, as many as 10 thousand Kuna live in Panama City. There are also the communities of Pucuro and Paya located in the border region with Co lombia. Although the bulk of the Kuna population now live on a string of islands along the eastern half of Panama's Caribbean coastline, at the time of the arrival of the Spanish in Panama in the early 16th century, they lived in the inland area near the m odern day border with Colombia. 28 The reasons for the mass migration, first to the inland coast, and then to the coastal islands, is the subject of some


73 speculation, with reasons ranging from pressure by the Spanish, to the allure of trade goods available on the coast, to the desire to escape from plague and disease inland. 29 The community based forest manageme nt project studied in this work involves the Kuna community of Mort, which is one of three villages making up the Wargandi Comarca in the interior o f the Darien Province. Unlike their well known cousins along the coast, these communities have had relatively little interaction with outsiders and have received little academic attention. The Wargandi communities notwithstanding, the Kuna are one of the m ost studied and well known native societies in Latin America. 30 The Kuna have long had the ear of a variety of interested westerners, as well as non western listeners, with extensive accounts recorded as far back as 1680 by the French pirate Lionel Wafer. 31 The message delivered from the Kuna was often garbled, due in part to the limitations of the Kuna, but also through the constant misinterpretation and misrepresentation of the Kuna by a host of interested parties. The Kuna of the Kuna Yala Comarca (former ly known as San Blas ) present a relatively rare example of indigenous community/State interactions, where over time something resembling mutually acceptable outcomes have been achieved 32 Professor James Howe tells the story of how the Kuna have, albeit not without setbacks, been able to selectively interact with and adapt the tools of the State in order to largely define their own identity and achieve their own ends. 33 Howe weaves the narrative thread of the story of a collaborative ethnographic effort in wh ich Kuna have actively participated as both subjects as well as agents in the creation of their own identity and reality. As an relationship to writing in the shaping of their ide ntity. The story progresses from the


74 to their extensive use of writing to convey their grievances and requests to the national government, to the drafting of laws, and most importantly for Howe, to the use of writing by the Kuna to record their own history, habits and customs as ethnographers. Howe sheds light on the role of a small but growing class of young, educated men known as cribes and intermediaries, who were often recruited by chiefs in order to facilitate communication with outside officials and dignitaries. By focusing on the integral role that the Kuna have played in facilitating and shaping the delivery o f their own hist ory and identity, Howe shows the importance, even inevitability, of a collaborative approach to ethnography. As indigenous communities become more accessible and integrated into modern societies, and they continue to cultivate their own scholars, it is ess ential that western scholars begin their interaction with indigenous societies firmly entrenched in the tenets of the collaborative approach as they being their interaction with indigenous societies. Howe's enthusiastic championing of the growth of an edu cated, scholarly class among the Kuna raises broader questions regarding modernization and development among indigenous people. How far are the non indigenous advocates of indigenous empowerment and agency willing to go? What happens when indigenous develo pment, whether through greater autonomy, environmentally unstable economic growth, or legal and academic prowess grows to levels that threaten the traditional face of these cultures? Will the special conditions of under this transformation? The Kuna the Comarca, and Development The Kuna took the comarca concept and over time molded it into their own lega l, political and social ly recognized institution. This example would serve the later


75 indigenous movements, not only in Panama, but across Latin America and the world. The Kuna were able to take whatever the original undefined concept was and mold it i nto something akin to autonomy. 34 One of the tools used to accomplish this was what has been referred to as "strategic essentializing." Through the process of str ategic essentializing, the Kuna of Kuna Yala were able to take advantage of the stereotypical imagery that foreigners had of them, and use it to their advantage. 35 The gains that the Kuna made had a significant influence on the development of future comarc as. 36 Indeed, according to well known Kuna lawyer and indigenous rights advocate, Aresio Valiente, all of the indigenous legal protections have come about thanks to the work of the Kuna of Kuna Yala. 37 According to Mr. Valiente, t he lawyers that worked on th e Ngobe Bugle comarca were Kuna, namely Hector Huertas and Mr. Valiente himself. The principle lawyers that worked on getting the comarca status for the Wargandi Comarca in 2000 were also from Kuna Yala, although there are conflicting accounts of who playe d the principle role. 38 Often credit is given to the Alvarado family, who had estab lished the NGO called Dobo Yala. However, Mr. Valient e maintains that he was instrumental in the process along with Hector Huertas as early as 1995. 39 He notes that at the ti me, the government agency COONAPI (Coordinadora National de los Pueblos Indigenas) was more actively involved in supporting indigenous rights than they are now. 40 He maintains that before their involvement, those advocating for the Wargandi communities were only seeking the status of a biological reserve, rather than full comarca status. He proudly notes his involv e ment along with Hector Huertas, in practically every indigenous rights issue in Panama in the last 15 years. Kuna lawyers also played a key role in the establishment of the tierras colectivas. 41 Mr. Valiente is one


76 of only about 10 Kunas who are currently lawyers, all of them having roots in Kuna Yala. 42 He notes that only three of them work in legal aid or indigenous rights issues. Aresio is perhap s best known for his work in achieving intellectual property protection for the mola, though he has written extensively regarding the legal status of indigenous communities in Panama. 43 The Kuna were so adamant about the level of autonomy they should be af forded under the Comarca system in part because of their desire to achieve something similar to what they had achieved under Colombia in the 18 th Century with Tule Nega Comarca 44 It i s important to remember that the Kuna have always been a free society. C o lonial literature makes a key distinct io n regarding indigenous nations between those who had been brought under Spanish rule and those who had not. 45 Those who had not been integrated into Spanish colonial life normally signed peace treaties with the Spa nish, and experienced a much greater level of freedom. The Kuna were one of these nations. They were never conquered. 46 One of the main Kuna experiences with an internationally assisted development project was the Project for the Management of the Wildlands of the Kuna Yala, Panama (PEMASKY). 47 The project, which proposed to create a wilderness forest preserve in the Kuna Yala Comarca, enjoyed support from a wide array of international organizations, such as the Inter American Foundation, the World Wildlife F und, the STRI, USAID, and the MacArthur Foundation. 48 The project was developed in the 1970's as a countermeasure to the proposed expansion of the Pan American Highway into the largely undeveloped Darien Province. 49 However, like the proposed highway expansi on, the plans for the reserve never coalesced. 50 Overall, PEMASKY had mixed


77 success. For the international conservation movement, important inventories of the flora, fauna and ecosystems of the Comarca were created, and for the Kuna, some educational progra ms, professional training and clarification of boundary issues. 51 Overall, the Kuna have shown little interest in large scale development in their territories. In the mid 1970's, the Kuna blocked a multi million government initiated tourism development proj ect. 52 Recently the Kuna have resisted large scale development projects and have focused more on small scale sustainable community based tourist projects, although they do selectively allow cruise ships and yachts sailing through the area to dock and come ashore to interact and buy traditional crafts. USAID has done some work to develop and capitalize on ecotourism with the Kuna of Kuna Yala through the Foundation for the Promotion of Indigenous Knowledge. 53 Overall the Kuna openness to development seems to be gauged largely by whether or not they feel in control of the project and its effect on their communities. 54 Panamanian Policies, Values, and Perspectives Professor Herrera is perhaps Panama's foremost expert on the history of th e Panamanian State and so relationship with its indigenous population. 55 He recounts how 15 or so years ago, after a review of the indigenous situation in Panama, he concluded that Panama had made significant advances in indigenous rights and relations. 56 However, in recent y ears there seems to have been a regression in these areas due to the discovery of important natural resources on indigenous territory, and the State s desire to exploit those resources. 57 Up until the 1960 s, indige nous peoples were not viewed as much of a t hreat to the economic development of the country, but instead were seen mostly as a threat to the socio cultural integrity of the nation. 58 The population was small enough at the time, that there were not so many conflicts over


78 land. 59 However, as land and p opulation pressure increased in the western provinces, the State adopted a policy which released this pressure through offering land in the largely undeveloped Darien Province to the east. 60 At that time, the overall space between a colono and an indigenou s community was relatively large resulting in relatively few conflicts. 61 He notes what an important role the price of global commodities can play on the State's policy toward local development conflicts. In the 70's, he had participated with indigenous eff orts in trying to halt copper mining operations in Cerro Colorado. The project was eventually abandoned due in part to the work that they did, but mostly due to a drop in the global price of copper. 62 However in recent years, the price has been climbing aga in, which makes these operations once again financially desirable. 63 This is a phenomenon that affects indigenous communities across the board. Thus, he sees this growing national and international demand for natural resources as driving the regression in n ational policy towards its indigenous people populations. Professor Herrera conveyed that even now t here have even been rumors circulating of legal proposals to eliminate the comarca status from certain areas, the Ngobe Bugle Comarca in particular. He sees these rumblings as evidence of a growing antagonism towards indigenous rights in Panama due to the desire to exploit resources on indigenous territory. In regard to the legal status of natural resources within the comarcas, he echoed Dr. Jordan's perspect ive regarding the legal ambiguities that persist. He perspective, the land and resources are theirs. However, from the perspective of government agencies and their employees, it belongs to the State. 64 He illustrates the iss ue by telling the story of reforestation


79 projects in the western part of Panama in the 70's. The government paid the local people with food supplies to plant "pino caribena" trees within their traditional territorial boundaries. After 20 years, the trees h ad grown up and it came time to harvest the wood. The indigenous people wanted to harvest some of the wood, but the government prohibited it, saying that it belonged to the State, since they had paid the local people for the rights with food supplies. The indigenous people disagreed. 65 This situation represented a serious lack of communication between the government and indigenous people, which he sees as also being the case in the Wargandi situation. Dr. Jordan fears that if the indigenous communities were to ultimately refuse to acquiesce to government development policy, they will cease to exist, because it is the goal of the government to have them disappear. 66 He hopes that one day the attitudes will change, but doesn't see this happening without a concer ted national policy of affirmative action, with education towards tolerance and diversity. He recalls the account of the Malaria epidemic in the Bayano region where the Kuna would not allow government officials in to the community to fumigate because the c ommunity was engaged in a traditional religious pipe smoking ceremony. 67 They had let the health officials enter the community before the ceremony, and again allowed them to enter afterward. However, the way the situation had been portrayed in the Panamania n media was that out of superstition, the Kuna leaders wanted to let their people die of malaria 68 He concludes that as long as the Panamanian society continue s to think that way judging that wh at the Kunas h ave is only superstition, but what the non indige nous people have i s faith, there will be no understanding or acceptance of Kuna culture by the broader Panamanian society.


80 Though the Panamanian governments of Torrijos, Moscoso, and now Martinelli have had slightly different policies toward indigenous pe ople, they have all basically operated from the same assumptions. 69 The assumption is that indigenous people are backw ard, and need to be modernized. 70 Panamanian law considers the natural resources of the country to be the patrimony of the S tate. 71 However, the indigenous nations of Panama do not accept that concept. 72 They argue that they have rights that go beyond mere use of the land, and there have been a string of recent conflicts over that disagreement. 73 The State claims the resources for the sake of in come. According to Dr. Jordan, all the S tate really wants is money. In his view the issue comes down to balancing between the interests of money and people. He notes that his inclination is towards people, but for many, especially in government, the incl in ation is towards money. T his is a struggle that goes on not only at the State or national level, but also within indigenous communities. 74 One of the great threats to indigenous people is the interests of outside people. 75 However, p erhaps an even greater th reat is the interests of people within who have been manipulated or opted on their own to serve the interests of the outside world. 76 This is a trend happening within all indigenous communities. 77 This is especia lly difficult, because as part of the commun ity, they have the voice and ear of the community. 78 When asked whether the State should allow internally destructive behaviors or decisions to continue, Dr. Jordan provides an insightful response that speaks to the heart of the debate between top down dev elopment vs. community development models. He notes that ultimately the state should allow the internal, local decision to stand, and more importantly to not manipulate what is going on. It is not a question of


81 whether the State is permitting internally de structive decisions, but to what extent the State is enabling or feeding t hose decisions. 79 What the State of Panama often does, as evident in James Howe s book about the Kuna, and from Dr. Jordan's own work on the Ngobe, is to work to find people within th e community who are amenable to advancing the money driven interests of the State. 80 Once the State has identified these people, it then does everything possible to manipulate the local situation to make sure that those compliant individuals are the ones in power. 81 In his opinion, the indigenous communities ultimately lose out most when they are integrated into the dominant society of the S tate. 82 Ultimately, he would never put the fault on the indigenous people. He puts it on the Panamanian s ociety because he feels that in their depths they want to eliminate indigenous identity. They do not want to allow people to live that kind of lifestyle. 83 They want them to modernize, and if they do exist, that it only be in posters, as a type of adornment to the nation al face. 84 In contrast to the Panamanian model, Dr. Jordan notes the Colombian model as perhaps the best system that he is aware of for equitably incorporating indigenous communities into the national fabric. Rather than the dualistic model that Panama has embraced, the Colombian model treats local indigenous communities in a more integrated fashion as a type of local municipality, responsib le for its own governance. 85 Another type of manipulation of indigenous people was evident in the international environ mental conservation discourse of the 80's and 90's that elevated and essenti alized indigenous people as idy llic guardians of the environmen t. 86 This movement tended not to view indigenous people as agents of their own destiny; rather it saw them as objects to be used in the environmental movement. 87 That focus was


82 bound to lead to disenchantment. 88 In the end it played into the hands of the State, who through acknowledging the error of that movement, now had an argument for returning to classical development m odels. 89 According to Dr. Jordan, i ndigenous people were key allies for a time in the environmental movement, but in the end, the movement did not account for a true understanding of the indigenous worldview. Dr. Jordan feels that the main failure of conse rvation and development projects aimed at indigenous people can be found in the very seeds of the project concept, that is in the initiative behind the project. He estimates t hat 90% of development project design initiatives come from outside the communit y. This ends up causing the community to feel like the project is something being imposed upon them. 90 The community is only left with a few different options They can reject the project ignore it, or try to make the most of it. 91 Occasionally, given the o pportunity, the community members themselves will ask for a project. What usually happens though is that the people that live in the communities still have a very different way of thinking than the people that live in the cities. 92 This causes a problem of lack of dialogue and understanding. 93 Project developers think in terms of methodology, deadlines and indicators, whereas communities have distinctive cycles. 94 Often the methods used by projects are not appropriate f or work in a community. However the proje ct staff and community participants are forced to work that way because that is what they have been directed to do. 95 This causes things to be very difficult and ultimately leads to very low success rates. 96 Whether a project is deemed successful may vary s ignificantly depending on the standards being used to assess the project. If a project is judged by its methodology and achievement of indicators, it may be judged a success. However, if a project is


83 judged by whether the overall goals were achieved, often the judgment is less optimistic. 97 The way projects are usually measured is by the reports that are submitted. 98 However, the problem is that development project reports are an art form 99 First, there are the people who know how to write them, and what th ey are expected to include. 100 Then, those who review them have incentives and are motivated to approve them. 101 Finally, those who ultimately evaluate the reports, follow the same standards and methodologies of those who produced them. 102 They are also respondi ng to incentives to produce favorable evaluations. 103 This makes it very difficult to evaluate a project honestly, especially if you do it based on the reports from the actual project. 104 Dr. Jordan argued that a truly effective evaluation could only come from an independent, aca demic standpoint. In contrast, i n the project reports, no one wants to say that the project turned out poorly. Dr. Jordan advised that there are usually two ways that project directors tend to respond to independent academ ic researcher s. They can see the researcher as a potential asset to the project, as someone who can document everything that is happening and share it in a positive light. The other option is that they are afraid that the researcher will have a negative perspective and interpret and report on the project negatively. 105 It is very rare that an independent observer can come in and actually help to rectify mistakes. 106 It is very hard for project developers and directors to accept that they make mistakes. 107 In the end, whether the project directors themselves find the academic's insights useful, the research that is done helps to shed light on what is actually hap pening at the local scale. 108


84 The Panamanian Timber Industry In one of my first inquiries into the Panamanian Timber in dustry I was in formed partes...blancas y partes oscuras," literally "whit e parts, and black parts," 109 referring to the dark, illegal underside of the industry. According to Profes s or Herrera, the original regulations of the "Reforma Agraria," 110 the Panamanian agency responsible for land regulation, allowed all local farmers and indigenous landowners to cut one quality tree and one or two lesser quality trees per year for personal use, such as to build a boat or for their own house. Ho wever, under a new law presented by a lawyer who had worked for INRENARE, the system of Pe rmisos Comunitarios was created. 111 The new system basic ally allowed for the same level of consumption but on a community wide basis. This change in regulation was sup posedly to allow for increased revenues in the community 112 but in practice, this turned into a mechanism for "practically giving away" large quantities of wood at very low prices. 113 The woodcutters would contract with the community leaders for the rights to large numbers of trees from the community allotment, allowing them to go onto communal lands and harvest large quantities of the most valuable species. The going rate throughout the $50.00 per tree for the most valuabl e timber species, including Caoba ( Swietenia macrophylla ) and Cedro Espino ( Bombacopsis quinatum ). 1 Th e timber concession system described was the norm throughout the communally owned indigenous territories within the Wargandi, Madungand and Embera Comarc as. 114 Professor Herrera identifies th e regulatory system that allowed 1 See Salazar, Mauro. PROGRAMA FORESTAL COMUNITARIO DEL DARIEN USAID Plan Integrado de Manejo Forestal Sostenible de la Comunidad de Mort Comarca Wargandi, Darin Panam. Septiembre 2010


85 these practices as on e of the largest legal loopholes in the whole timber system. He notes that is has been long criticized, but still continues to this day 115 The largest timber operation s shut down in the 70's, and that those that remain operate at a relatively small scale. The last "reductos" or remaining sectors of valuable n aturally growing timber species are in the indigenous territories. 116 The large timber companies shut down in pa rt, becaus e of it was not a well conceived industry in Panama. 117 First of all, there was not a comprehensive system of reforestation to allow for future harvest 118 Secondly, even though timber related legislation has undergone various reforms, it has not kep t up with the realities and challenges of the modern world. Legislative reforms were primarily designed to benefit the timber industry and even that, on a short term basis 119 It allows the industry to work faster, at lower costs, without paying taxes. 120 Ove r time, the cost of extracting timber continues to increase due to the growing distances and difficulties of harvesting the trees, as well as the financial limitations imposed by the smaller scales of operation. 121 Th ese factors largely explain why the large scale timber indust ry had to shut down in Panama 122 In the 70 s many companies developed and operated for a short period of around five years extracted as much as possible, and then shut down their operations when they were no longer profitable or at lea st no longer as profitable The current regulations allow for 20 year concessions to allow for greater profitability. 123 Professor Herrera notes that many of the forestry engineers come from the interior of the country and are versed more in the process of plantation forestry, rather than in tropical forestry which requires a longer term investment. 124 Also coming from an economic standpoint they are accustomed to looking for short term profits, rather than


86 long term sustainability. 125 Not only do they not unde rstand the workings of tropical forests, but they know even less about the relationship of local communities with these forests. 126 For the forestry engineer, the timber and the land on which the timber is located, is often seen as a national economic resou rce to be extracted for the economic development of the state as a whole rather than a s community resource that sustains and defines the community, and requires careful long term consideration. Another factor that speaks to the way that Panamanian socie ty views its forests is that the GOP has never developed a comprehensive f orest research program. 127 Those that work in the forestry sector in ANAM know what they know only through experience in the field. 128 When I pointed out that the USAID project w as provi ding some of the missing forestry expertise through the ir independent consultants, Professor emphasized that this missing element was something that not only USAID should be providing but instead that the GOP should also be taking responsibility. The GOP should have developed a large scale research institute through the Ministry of Agriculture and the national universities 129 Instead, h e fe lts that in the next 20 years, Panama may no longer have a commercial timber industry. 130 The government itself treats fo restry as a type of mining, where the resources are extracted but nothing is returned. 131 Although there is an extensive Yale research project on tropical forestry going on at the Smithsonian Institute for Tropical Research (SITR) in Panama which is produc ing a wealth of information on tropical forestry, none of this information is being transferred to the industrial sector due to failures in development policy. 132 [More on Tropical Institute] Although the University of Panama has recently o pened a school of forestry, Professor Herrera feels like it may be too little too late. He notes that the circumstances


87 in Panama aren't really favorable now for an extensive forestry program. This might have worked 50 to 100 years ago, when there were still lots of forest s available. 133 ANAM question of whether timber is harvested sustainably among indigenous communities in Panama. The timber concessions process for timber on communally held land invo lves the community applying each year for the permits to its allotment of timber for that year. Typically, the communities have subcontracted the rights to these concessions to the local non indigenous timber industry. Though ANAM is the government agency that approves these permits, in reality it is a process in which there is very little oversight. 134 Profes s or Herrer a, who worked for INRENARE, the precur sor to ANAM, in the 70's notes that ANAM officials tend to be very cautious in the information that the y share, since much of what they do on an individual basis is not necessarily legal. He, along with many others that interviewed, contends that local ANAM officials frequently accept bribes to put their stamp of approval on permits or timber shipments that have not fully complied with national legislation. 135 The timber industry and local woodcutters will gladly pay off a local official rather than go through the mountains of paperwork called for on the books, and in the process opening their own books to ins pection and th eir revenues to taxation. Ultimately most of the timber harvested from indigenous reserves through the system of "permisos comunitarios" or community permits, escapes taxation and meaningful oversight. 136


88 The Colonos The term "colono" roughl y translates as "settler." It is a term widely used by both the Kuna and non Kuna to designate non indigenous Panamanians living in the Darien especially those that trace their ancestry to the Panamanians of the eastern provinces of Los Santos and Cocl. The term refers to the fact that the Darien was relatively unpopulated by non indigenous Panamanians until the 70's when government policy began to encourage farmers and ranchers from the depressed and over exploited areas of western Panama to resettle in the Darien. Generally speaking, Panamanian society does not view its indigenous populations as a producti ve part of the society. 137 Instead they are viewed as a marginalized and impoverished sector of the country that needs to be brought into the modern worl d, that is into the "true" Panamanian society. 138 On the other hand, the colonos are viewed very positively, similar to the frontier settlers of the western United States. 139 The consequence of this social trend is that all of the policies are designed to br ing the indigenous people out of their backwardness and into the deve loped Panamanian society. 140 The forests are viewed as something to be conquered, as impediments to the full development of the land. 141 The forest is a wild and uncivilized place, and the ca mpesino or colono is the one charged with this noble task. 142 Because of this narrative, policy tends to d evelop in ways that favor this ongoing process of deforestation and land invasion. 143 The Kuna an d other indigenous people have complained a thousand time s about these invasions. 144 The State will occasionally bring them to the diplomatic table and listen to their complaints, but very little is ever done, other than the creation of a perpetual "dialogue" which never leads anywhere and o nly serves to pass the time. 145


89 Profes s or Herrera was working for the GOP in the Bayano region when the Bayano Dam project was getting under way. 146 He recounts how through a process of negotiation, they were able to relocate 80% of the colonos living in the area 147 The move was an a ttempt to preserve the forest for the Bayano Dam watershed. 148 Since the colonos were or tended to be cattle ranchers, it was thought that they would end up deforesting the area surrounding the lake, which would be detrimental to the water supply. 149 The State ended up allowing a small percentage of colonos to stay in the area. This small group turned out to be the seed to the large scale development growth that would ensue in the area. 150 In 1978, the government released a resolution through the Department of A griculture opening up the whole eastern part of Panama to a process of stake holding with an al lotment of 50ha per person. 151 However there was never any oversight to determine how much land each person was actually claim ing and many people settled much mor e than the legal allotment. 152 During this process, most of the people that they had removed during the Bayano project ended up returning. 153 Now there is an overwhelming numerical advantage for the colonos in the area, which has significant political implicat ions in favor of the colonos, over and beyond the general bias in favor of the c olonos throughout the country. 154 During this period, the idea of the comarca was very unpopular. To support the idea of setting aside territory for indigenous people was to be i n opposition to the colonos. Even now, there are proposals to get rid of the comarca. The main reason that the Comarca of Madungand was approved was because it was deemed necessary to protect the area s forest as part of the watershed feeding the D am. Bef ore approving the comarca, the government made attempts to


90 merely designate the area as a hydrological reserve. 155 The government and private industry consultants intentionally allowed the Kuna and Embera communities living in the area to stay as a stopgap m easure to deforestation, acknowledging that their forest based lifestyle would help to maintain the health of the forests. 156 Development Agency Policy, Values, and Perspectives USAID and Chemonics in Panama USAID Panama has always had two main avenues of in volvement. 157 The first is the protection of the Panama Canal Watershed, and the second has been the Darien National Park. 158 In the Darien, USAID is currently involved in two separate areas: the three communities of the Wargandi Comarca and six communities in the Rio Chico region of Embera Wounaan Comarca. 159 Although USAID is funding the project, the implementing company was Chemonics. 160 I was able to talk with one of the Washington based project directors who was in town dealing with some administrative issues She was very pleasant and gracious with her time. She explained to me that Chemonics is a private consulting firm that has been in business for around 36 years. 161 They are just coming up on having completed 1000 projects around the world. 162 They are design ed around managing U.S. government contracts, and 95% of their portfolio come s from USAID contracts. 163 They are organized along regional lines, and also have virtual practice area groups. 164 There is a three tiered project management structure, which includes a director, a manager, and an associate on each team. 165 Chemonics is one of the biggest, if not the biggest USAID contractors, but they do have to compete with other companies for federal USAID contracts. In order to win a bid, very complicated and extensi ve requirements have to be met. She noted that they are one side of the ongoing debate regarding


91 whether federal aid should be distributed as grants through NGO's or as contracts through private consulting companies such as Chemonics. That issue, while in teresting and no doubt relevant to the issues presented in this thesis, goes beyond the scope of this paper. 166 The Nature of the Development Project The USAID project seeks to address the practice of unsustainable timber harvest through the implementation of a system of forest management that allows for regeneration of species and a cyclical, renewable timber harvest. 167 The funding for th is phase of the project was approved for two years. 168 One project director at least, realized and expressed that two year s was an extremely insufficient amount of time to develop and implement the project, much less to achieve the long term goals of the project. He noted that this deficiency in planning was even more pronounced given the particular social and physical condit ions associated with working with the Mort and other Darien communities. This particular director felt that a 5 to 10 year minimum was required for this kind of project to even get off the g r ound. He noted that it takes a good two years just to start any business in the best of conditions many more a community based forest management system with remote, culturally and economically isolated indigenous communities He noted that the funding did have a provision for extending the project for another two years after the initial two years However, he found it strange that the extra funding was contingent on opening work in a new community, rather than on strengthening and continuing the operations already in place. While this perspective raises interesting ques tions, t he issues surround USAID funding and approval of project proposals project are beyond


92 the scope of this paper and would require level of access to information and perspectives to which I not have significant access. Mr. Montenegro explained that o ver the years, the communities engaged in number of harmful practices that have hurt their own interests, and have contributed to the continued unsustainable harvest. From his perspective, many of these practices were the result of the communities hav ing typically negotiated the sale of timber a ciega," or blindly. The lack of information and understanding on the part of the community in these negotiations led to a number of bad business practices. These bad practices have included lack of sufficient oversight of timber operations within the community, and bad valuation strategies He indicated that he major failure in valuation was the practice of selling the wood according to a per tree price, rather than by board foot. 169 Regarding lack of oversight by the community, Mr. Montenegro note d that often the communities had no idea going into a season how many trees were going to be cut or how many had been cut in the past. In response to this problem, the overall strategy of the project was to work with i n the community to develop a "plan de manejo," or management plan for sustainable timber harvest In addition to development of the management plan, the project was designed to train the community members in how to carry out the plan. 170 Thus there is a tech nical forestry component to the project, and a socio economic component. The project also envisioned helping the community to increase efficiency and production of some of the already existing alternative revenue sources such as coffee, plantain, and sale of the traditional textile called the mola. 171


93 The overall idea behind the development of the management plan would be for the community to know what the quantity and quality of the timber was that would be available in a particular parcel each year. 172 This way, the community would be able to invite different companies in each year to bid on the trees in a controlled and systemized fashion 173 The community would sign a contract with one or more timber interests, and use advancement s from the sale to pay their own people to oversee the harvesting. 174 Intensive replanting of trees was not part of the Chemonics forest management model. 175 Instead the model counts on selective cutting and protection of seed bearing individuals to allow for natural regeneration over th e 25 year cycle. 176 Even so, there was some talk regarding planting along the rivers to help prevent erosion, although to my knowledge this has yet to be carried out in the Mort community. 177 That is how the system is supposed to work anyway. In the case of M ort issues were complicated by the fact that at the time the project was initiating its contact with the village, a timber company operative came into the community with 20 thousand dollars in cash and convinced them to sign a contract giving him the rig hts to operate exclusively in their territory for the next 20 years. This complex issue will be explor ed in more depth in below in the subsection dealing with the problems i dentified by the Mort leaders and community m embers As part of the management pla n, Chemonics developed a series of maps of the territories that were to be part of the harvest cycle The project foreste rs along with community members that were trained by the project personnel divided the territory up into quadrants us ing GPS devices t o record coordinates which were then plugged into


94 computerized maps. 178 In the case of the Mort community the territory was divided into 25 parcels of around 800 hectares a piece. 179 Each year, one quadrant was to be harvested. For the upcoming harvest yea r, a "commercial census" is conducted, in which every tree is supposed to be accounted for by going from tree to tree and taking measurements and GPS coordinates. 180 These measurements are also incorporated into the computerized maps and spreadsheets as part of the management plan. 181 When I first interviewed Mr. Montenegro, they had not yet developed a computerized model for the Mort territory, since they were still in the early stages of working with the community. By the end of my active research a comprehe nsive set of maps had been completed of the territory, as well as the commercial census of the first quadrant to be harvested. Harvest of the first quadrant in the community of Mort began during my last trip to Panama before completing this thesis, in Jan uary of 2012. Although the maps were not available when I first interviewed Mr. Montenegro, he did show me how the system worked using a computer model from a Chemonics project in Bolivia Through later research, it became clear that many of the foresters involved in the Darien project s in Panama including the national project director were drawn from the ranks of Bolivian forestry professionals. These foresters had cut their teeth in an extensive USAID collaboration with the Bolivian government during th e 80's and early 90 s This collaboration was known as BOLFOR. None of the technical forestry directors were Panamanian, which c onfirming Profes s or Herr e ra account of the lack of silvicultural professionals in Panama The same was true for a host of consult ants that


95 were called in from time to time. Instead these professionals were brought in from, among other places, Guatem ala, the U.S., Bolivia, and Colo mbia. There were a couple of key exceptions to the lack of Panamanian expertise. One of the foresters em ployed full time by Chemonics was a Kuna man originall y from Kuna Yala, Prxedes Vsquez To my knowledge, Mr. Vasquez is the only Kuna who has completed university level training in forestry. Although he had no previous contacts within the Kuna communiti es of Wargandi, he was very instrumental in facilitating the knowledge was also key in the process of training members of the community who hired by the project to impleme nt various project initiatives. When the project first got under way, Mr. Montenegro, a Panamanian educated and trained economist specializing in community developmen t was serving as the director of the socio economic component of the project. However, s hortly after interviewing him, about a year into the project implementation, he resigned from the project. From then on, the focus of the project took a decidedly technical turn as the field operations became overseen primarily by a Guatemalan forestry eng ineer with vast experience all over Latin America and the world Mauro Salazar Mr. Salazar, a genius in his own right was the former regional director for the World Wild Life Foundation (WWF) in Central America. Although the project became heavily focused th e challenges of implementing the technical elements of the forest management plan it did continue to have a scaled down socio economic component which focused generating and strengthening alternative economic sources


96 of income The projects were managed from the Panama City office and implemented in the field by a younger crew of up and coming Panamanian development practitioners. One of the alternative economic projects being developed was a community coffee plantatio n plot. The development and management of the plot was to serve as an educational opportunity, and would eventually be able to produce a source of group income for the village. The project members specifically designated this project for the women of the c ommunity. Chemonics supplied the seedlings, hired a project manager, purchased tools, and provided ongoing training and consultation. The plot was to contain 1000 plants and to be managed by the woman's cooperative with the assistance of the Chemonics pers onnel. Another alternative program was designed to train the agricultural producers of the community in ways to improve the output and commercialization of their products. This was ostensibly to help the community deal with the devastating loss of much of their crops during record flooding the previous year. They took a list of the people from the community who had been affected by the floods. They were developing a program of training to help those people improve their agricultural production methods. As p art of this program, Chemonics brought in a couple of members of a CBE that had already been established in the Rio Chico Embera community to help out. He noted an example of the difference between how USAID conducts its operations and how other projects do, such as the Cambio Climatico or UN funded Climate Change project. They had gone into the communities during a Congreso G eneral to present their work and ended up paying people to stay for the presentation. This is something that USAID would not perm it, as the distribution of funds follows a very strict process.


97 Chemonics is trying to promote business within the community, such as agriculture. They wanted to try to find businesses outside of the community that would be willing to work with the village However, he now sees this as very unlikely given how unreliable the village seems to be. He repeated his idea of the Kuna community representing "un tipo de gente que hoy dicen una cosa y maana otra, people that says one thing today and s He and his boss had be en asking t hemselves w hat kind of business would want to work with this type of community He summarized his feelings on the various problems they were facing with the idea of the phrase "pan hoy, ambre ma ana His perception was that the community was only interested in taking handouts rather than implementing long term change. He understood that in order to really make changes, and not just give handouts, they would real ly need to try to find ways to change the way these communities operate. Problems in project implementation identified by Chemonics staff Earlier, it was noted that development projects directors tend to approach independent academic researchers in one of two ways: either as an asset to the project goals, or as a threat to be avoided. Overall, and certainly at the beginning of my investigation, I was welcomed as an asset. There was a high level of frustration among the project staff regarding working with t he Mort community because of their unique history, culture and characteristics. Because of my family's history with the community, they saw me as someone that could perhaps help them to break through in their attempts to communicate and work with these pe ople. With this in mind, early on one of the project directors identified some of the unique challenges of working with the Mort community. These problems serve as a good reference point for the overall inquiry into


98 the problems faced by the project as it relates to working with indigenous communities. These problems will be contrasted with the main problems as viewed from the perspective of the Mort leaders and community members. Of the various indigenous communities being targeted by the USAID project, Wargandi was considered the most "atrasado," which might be translated as either the "least developed" or the "most backward." However, out of the three Wargandi communities, Mort was considered to be the most open, thoug h the differences between the comm unities were not substantial. He surmised that this may be due to the historical presence of evangelical protestant missionaries within the community. Problem One: Lack of sufficiently educated and trained person nel within the community : When Chemonics pe rsonnel sought to begin working with the Mort community, they had difficulty finding people within the community who had sufficient education and technical skills to work with the project. 182 Most of those from the community who had pursued higher education or specialized training no longer lived within the community. 183 The project had approached some of these people, but found that they were not available for one reason or another. The director surmised that the reluctance to work within the community might have to do with the easier living conditions and higher wages available outside of the community. The one person in particular that he identified happens to be a good friend of mine, Teobaldo Martinez. This is the Kuna with whom I had a series of extended conversations on Mort related issues. My conversations with him regarding his thoughts on the project and his relationship to the community provide an interesting point of contrast between the perspectives of the project managers and that of an actual me mber of the community


99 who had chosen to live outside of the community. The insights that he provided will be found throughout the work and noted accordingly. A brief biography of Teobaldo and another young Kuna man involved in the project will be included in the section on Mort The Kuna culture of Mort dictates that in order to work within the village on community projects, one must be part of the village work force and be living within the Mort community. As noted earlier, most of the individuals who were identified as good candidates to work with the project because of their education and training were no longer living within the community. This reality made working with these individuals logistically challenging if not impossible. The project was pri marily seeking people who would spend the majority of their time within the village. Not only did these individuals have work and relationship commitments outside of Mort they would also not be allowed to hold official positions of leadership within the community. Problem Two : political divisions within the community. There have traditionally been two political parties who vie for influence and votes in the Mort Community, the PRD and Arnulfista parties. In Wala the political divisions are particularly strong This division has led to opposing groups taking side regarding the projec t and con tributed to t he delay in Wala s approval of the Chemonics project within the Wala territory. Problem Three : The director found one custom withi n the village to be particularly troubling and difficult to understand. Anytime a private or governmental body wished to enter to community, they were subjected to a number of substantial fees. This was the case, even when the purpose of the trip was expli citly to provide aid to the community. The project members continued to be subjected to these fees even after several trips to the community when the benevolent purpose of their

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100 trips should have been well understood. This practice of the Mort community o f constantly charging fees for permission to work within the community and for various services was one that would come out throughout the study, and one that caused much frustration among the project staff. The director that I first interviewed noted tha t he was brought to the point of nearly resigning each time he visited the community because of the lack of gratitude among the community. Interestingly, for reasons that are not clear to me, he did end up resigning from the project shortly after our meeti ng. One example of the practice of charging outsiders for their services to the community comes from the fee structure for transportation by boat along the Chucunaque River into and out of the community using the village dugout and motorboat. According to the director, the standard rental fee for a member of the community was $40.00. The charge for teachers was $100.000, and the charge for private or governmental project members was $300.00, or over 7 times what was charged to a community member. This fee was begrudgingly paid by the project due to their need to move forward with the project. It was noted that this practice of char ging aid workers to enter a community was not exclusive to Mort but that it was especially extreme in this community. He c om pared the people of Wargandi to the Marxist concept of the "lumpen" or lumpenproletariet. In his frustration he described the community as evangelistic involvement with the Kuna, and his own Jesuit background, Mr. Montenegro concludes that these are the people who need the bible. If Jesus were here today, thes e are the ones to who m he would go

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101 Mr. Montenegro recounted how Chemonics had donat ed a water filter to each of the three communities since none of the three communities have purified water. Typically the communities get their water from the rivers, even when they are brown and dirty from flooding. These filters were given as donations from USAID through the embassy. For some unknown reason, Nurra refused to accept the filter, which he was baffled him. To him the rejection of the water filter was a symbol of the irrationality present in many of these communities. The living conditions in Mort are difficult. They had considered ecotourism options, but he conditions are too difficult. He said that they don't have a hospitable mindset. They charge $5.00 for a bowl of rice and an egg, when it cost no more than .50 cents to make. He mention ed the teachers that work in Mort and how much they hate it. They get charged for everything. It is very difficult to work in Mort He understand that they are struggling to make ends meet, but in other areas of Panama people are in similar conditions an d don't have that attitude. Again, he encourage d me to do a cross community analysis to show that it not a Kuna thing, but rather a Wargandi thing. He m ention ed Teo again, that he helped them with translating some materials into Kuna. He notes that Teo doesn't seem interested in working with the project, and again surmises that it has to do with the difficult living conditions. He mentions how difficult and dangerous climbing the bank is. He doesn't understand why they don't do anything about it. If the project offers to help, they want to charge them. He again mentions how frustrating it is to work with them, and how he has nearly resigned twice because of them. He feels like his work is being wasted and not making a difference.

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102 There is a perception am ong the project directors that the Mort community is a place where one's word is not valid. People say they will do one thing one day, and then something else the next. He noted that this makes doing business with these types of communitie s extremely chal lenging. Problem Four : consensus democracy : Another problem that the project encountered had to do with local governance. In Mort and the other Wargandi communities, the Kuna concept of democracy is based largely on broad consensus among the working male gathers regularly to conduct its religious and political affairs. These meetings, which are held regularly several times a week and on an as needed basis, are open to the public and serve as the public space in which all issues are hashed out, grievances aired, and decisions made. From the Chemonics perspective, this form of governance leads to stagnation in decision making, making it difficult for the project to plan and implement activities with efficiency. More than just a difficult system to navigate, one director went as far as to pronounce this system a failed system of governance. An example is the experience with another of the Wargandi communities, the village of Wala. At that point Chemonics had been waiting for six months on a decision from Wala on whether the project would be allowed to continue. Chemonics sought this approval in the form of a "convenio de trabajo" or project agreement which would be signed by the village authorities. Apparently there was broad community consensus regarding moving forward with the project, but there was a group of around three

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10 3 individuals who were adamantly opposed. By consistently making their voice heard, they had been able to hold up the project approval. At various points throughout the project, the project sought to identify and hire individuals to perform a variety of project related duties or functions. Perhaps the most significant of these was the creation and selection of a board of directors for the community based enterprise (CBE) that was being developed and registered as an essential part of the long term community project management. In addition to eventually taking over as the entity in ch arge of managing the communit sustainable timber enterprise, the CBE was also a necessary component for complying with USAID funding requirements. In order to make grants or "donations" directly to the community, the community had to have a legally validated commercial identity. This was a completely foreign concept to the village on so many levels. Over the course of several months, the village went through the process of selecting and withdrawing s everal candidates for the position before finally settling on a set of young men for the positions. However, i n the end even these men were rejected. This caused the project staff no end of frustration, which they were not shy about sharing with the commu nity. Their model required a stable set of capable community members to serve on the board of the CBE in order to begin to receive training, learn the necessary skills, develop working relationships with the project staff, and serve as liaisons between the project staff and the community and community leadership. Problem Five : weak governance : Ricardo Montenegro explained how certain differences in governance between the Wargandi and Embera Wounaan communities that Chemonics was working with made a big diff erence in the development of the

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104 project. The Embera Wounaan Congreso General is better organized and has more authority wi thin the comarca. The Congre so General of Wargandi is very weak and has almost no authority. Because of this the Wargandi communities decided to leave the decisions regarding working with Chemonics up to each individual community, w hereas in the Embera Wounaan Comarca, the Congreso General was able to make that decision for all of the communities. Nurra has gone back and forth several t imes regarding approval of the project. According to the sahila, most of the community does want to move forward, but again, there are a few who do not who are holding up the project. T he Comarca as a whole is having territorial disputes The legal boundar ies are set on paper in Ley 34, but the physical boundaries are maintained by clearing a path along the traditional boundaries. They are having problems with people entering their territories. This is a problem not just with colonos, but also with the Kuna of the Madungand and Kuna Yala comarcas, which share some territorial boundaries with Wargandi. Mr. Montenegro thought that the way I could help the community the most would be to work with them on their decision making and governance practices. He drew my attention back to the Carta Organica which he says they treat as if it was their B ible, yet they do not understand it very well. He pointed out the first article of the Carta Organica mentioning the Congreso General and notes how they have no written r egulations and the Congreso General has no effective power. He continued with suggestions of how I could be involved with the strengthening of the decision making institutions in the community. He suggests doing a comparative study between Mort and other Kuna communities, such as Kuna Yala, which have stronger institutional

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105 structures in order to show them that it can be done. He thinks if they see an example from Kuna Yala, they would be more apt to take note. Another example was offered of how Chemonics had an agreement with village regarding transportation of project staff into and out of the village. On one instance the village did not come through on an arrangement for transportation The project leader went to the sahila to try to discuss the situati on but the sahila dismissed him, saying that the failure responsibility Instead, the sahila directed the project member to go work the issue out with the owner of the motor. Mr. Montenegro saw this as an inconsistency in that on one level everything requires approval of the village, but when something doesn't come through the village authorities don't take responsibility. Mort Community Policies, Values, and Perspectives General Characteristics of the Wargandi Comarca The Wargandi Comarca was established by Law 34 of 2000, 184 making it the third Kuna comarca to be established, behind Kuna Yala, and Madungand There are also two other Kuna communities that are not part of any comarca, the communities of Pucuro and Paya, located near t he Colombian border. Mort Nurra, and Wala are the three village communities that make up the Wargandi Comarca. The total population of the three villages is estimated to be between 1500 and 2000 individuals, making it the least populated of the three com arcas. The name "Wargandi" comes from the Kuna words war ," meaning tobacco and di ," w hich means water or stream. 185 Before the legal formation of the Comarca, there were efforts to legally categorize ctually accomplished. 186 Thus the area remained in legal limbo, though the three Kuna communities maintained de when the Pan A merican

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106 Highway was improved and extended further into the Darien that the Wargandi communities began to get much notice on the national scene It was at this time that efforts were begun in earnest to establish a comarca in the region. 187 Though separated politically and geographically, the Kuna of all three comarcas and of th e Pucuro and Paya communities still consider themselves to share the same essential cultures and beliefs. 188 However, the Kuna of Kuna Yala feel that the other Kuna co mm un it ie s have begun to lose a fair amount of their t ra di tio na l cultur e due to pr ol on ge d exposure to Latin culture. 189 Aresio Valiente noted that the chiefs outside of Kuna Yala chant more about Simon Bolivar than they do about their own ancient Kuna heroes. He notes that the people of Pucuro and Paya have lost the most, to the extent that they do not even chant anymore and many of them speak Spanish better than Kuna. Even th ough these communities live the farthest political and population center, he notes that they have had a lot of contact with the "wagas" ( Kuna term for non indigenous Panamania n nationals) over the years. 190 Unlike their better known Kuna Yala cousins, the Kuna of Wargandi and Madungand have not made a presence for themselves in the national political dialogue. 191 This is not to say that national party politics has not infiltrated the local villages, since it clearly has in Mort However, Aresio Valiente feels that the Kuna of Kuna Yala have been more successful in drawing the boundaries between national political issues and internal community issues. The Mort Community: A History o f Concessions and Neglect Whereas the Kuna of Kuna Yala have generally prohibited commercial timbe r concession on their land along the coast 192 the Kuna of Wargandi and other area of the Darien, have a long history of granting concessions dating back into th e mid 70's. This

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107 has occurred in spite of general di sapproval from the Kuna of Kuna Yala and direct criticism by Kuna Y ala leaders. 193 Chemonics Forest Operations Manager, and former World Wild Life Fund Central American Regional Coordinator, Mauro Salazar recounted to me how the area is crisscrossed with old l umber roads and skid trails. 194 The majority of the most traditionally valuable commercial species have been long gone. These were the softer wood species used primarily for construction and furniture, s uch as Cedro Espino and Caoba. However, there is now a strong enough market demand for tropical hardwoods, which are still abundant in the area. Historically these trees were left beh ind because they were very difficult to work with, and it was much more p rofitable to concentrate on the other species. 195 The first wood to be extracted was the soft wood, which is much easier to harvest and run through saw mills. 196 What is being targeted now is hardwood, and he figures they must be using different kinds of mach inery now. 197 The fact that wood is still being sold in "tucas or large unprocessed portions, is indicative of the lack of modernization. 198 This continues to be done in spite of all of the talk of "value adding" and whatnot. 199 The intermediary timber companies are the ones coming out on top rather than the indigenous communities or the Panamanian society at large. The Project Comes to Town When the Mort community was first approached by USAID and Chemonics staff regarding the possibility of developing a project, the community was not sold on the idea. 200 There was a fear that the project would either seek to put limitations on the 201 After years of

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108 marginalization, neglect, and outright deception by any number of outside interests, the community is generally suspicious of outsiders that come seeking to conduct business. 202 On my first research related trip into the community, I requested a meeting with the sahilas (chiefs) of Mort I had alerted them ahead of time by letter as well as through personal contacts of my arrival and interest in working with the community. I told them about the investigatory purpose of my trip, emphasizing my interest in hearing their perspective on the Chemonics project, and my willingness to hear any concerns or questions that they might have. I also informed them that I was in the process of studying to become a lawyer, and that I had a particular interest in working with indigenous communities. I noted that I was focusing on l egal and institutional issues of the project, so I would like to hear about any legal concerns or issues that they were facing. I also told them that I would try to help them to the extent that I could to work through some of these issues. During that firs t meeting, the village chiefs with the help of their "secretarios" or "sik k wis presented a number of concerns. Interestingly, they had very little to say at the time about the details of the Chemonics project, but instead had concerns which were not dire ctly related to the project. These issues will be summarized below. Although the project dynamics were of little concern to them, the issues that they did raise bear directly on the long term success of the forest management project. Problems Identified b y Mort Leaders and Community Members Problem One: the colonos and land invasions : The Kuna community of Mort as with virtually all of the indigenous communities in the Darien, ha s had long standing and persistent problems with colonos. These problems center arou nd two issues. The first

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109 has to do with land grabbing and encroachment into indigenous territory. The second issue is the cutting and theft of valuable trees In the case of Mort both of these problems are exacerbated by the fact that the colono ranches now extend all the way from the Pan A merican Highway to the edge of the Mort territory, some 25 30 kilometers away. In the late 70's when the Mort community first realized the need to demarcate a territorial boundary, there were still miles and miles of virgin forests between their territorial boundary and the highway. 203 In 2000, when the Comarca was officially recognized by the GOP, not only had the colonos deforested everything between the highway and the territorial boundary, there were also a number of colono families that had expan ded their ranches past the well defined traditional boundaries and into Kuna territories. Even tho ugh these invasions had been contested by the Kunas and had been the source of several confrontations between the Kuna and the colonos, when the law was created defining the Comarca boundaries, a provision was included that stating "La Reforma Agraria reconocer los derechos posesorios de los habitantes no indgenas que tengan estos derechos, dentro de los lmites de la Comarca Ku na de Wargandi, al momento de entrar en vigencia la presente Ley. Las tierras reconocidas a los no indgenas no forman parte de la propiedad colectiva de la Comarca." 204 ( "The Agrarian Reform will recognize the pos s es s ory rights of the non indigenous inhab itants that have those rights, within the boundaries of the Kuna Wargandi Comarca, at the time of entry into force of this Law. The lands granted to the non indigenous do not constitute part of the collective property of the Comarca." 205 )

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110 With this brief back ground in mind, the first issue that the Mort lea d ers brought to my attention was a couple of document s that had been causing fear and confusion in the Mort Community for years. 206 The brief and poorly drafted document contained the signatures of the autho rities of the Congreso General of Wargandi appearing at the top of the document. The signatures appeared to have been pasted from another document, as they were misaligned with the rest of the document. The document attempted to convey, albeit poorly, that the authorities of the Comarca had agreed to grant a particular colono and his 11 children, the rights to an additional 1000 hectares of land within the Wargandi Comarca, in an area belonging to the Mort community. To make a long story short, it turns ou t that this family was one of the original families that had possessory rights within the Comarca in the year 2000. At least this is what the official list provid ed by the Reforma Agraria office indicated. This list was not made available until 2008, and i t is unclear how the determination was made regarding which colonos actually had the possessory rights in 2000. Nonetheless, this obviously fraudulent document had been circulating and causing confusion and fear among the Mort community for the last 10 ye ars. The issue was fresh in their minds, because they had recently received notice from the Reforma Agraria office that they needed to do something about this doc u ment because the family was still petitioning the office to extend their land holdings into t he community. I assured them that from a legal standpoint the document was clearly fraudulent and the request being made was illegal. However, I also told them that it was important that they determine the administrative status of the petition just to make sure that the Reforma Agraria was not actually giving credence to this document. I agreed to do what I could to help them with this.

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111 On my trip out of the community, I stopped by the regional Reforma Agraria office in S anta Fe, a small town along the Pan American Highway. I discovered that while the colono family was no longer relying on the shady document to make their request, they had just that month submitted 11 different petitions for 100 hectares each. 207 The official was helpful enough and even made a list of the names and petition numbers for me, but seemed to be completely ignorant as to the legality or implications of the situation. In accordance with the procedure conveyed to me by the Reforma Agraria official, I ended up drafting an official lett er denouncing the petition for the community. The chiefs signed the letter and attempted to submit it to the regional office. However, they were notified that they would have to take it to the central office in Panama City. This is where it might be useful for the reader to take note of the educational, cultural, technological, economic, and geographic complexities of this task in this indigenous context. What might otherwise seem to be a relatively simple task is actually quite difficult in this context. The difficulty is evidenced in part by the 10 years it had taken to resolve this simple legal issue. Of course, the issue is only resolved on paper, if that. The actual situation with this colono family living on and within the territorial boundary of the Mort community is another question that remains unanswered and unresolved. Problem two: colonos and the cocobolo curse. The village leaders also brought up the second related issue of the constant cutting and theft of valuable trees, especially cocobolo ( dalbergia retusa ) Later, I was to find out the full extent of this problem, and how in many ways it threatens the very fabric of the local society and the viability of any meaningful forest management project. Maur o Salazar first explained to me that th ere is an ongoing rape of the Mort forests of valuable timber species, especially of the prized

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112 hardwood cocobolo. 208 He explained that since the eastern boundary of the Mort ter ritory is formed by the Chucurt River there are cattle ranches all along tha t eastern side of the river. He recounted how all along that river there has been a huge extraction of trees, and that this year there have been tractors that have illegally entered the Mort territory. They are primarily taki ng trees of high value such as C ocobolo and B alsamo ( myroxilum balsamum ) Every day there is rough cut lumber being brought down the riv er to the ports nearest the highway near Metet ANAM is supposed to be working to prevent this but they do very little to help the indigenous people to guard their territory and worse yet are complicit in the approval of the wood for sale and transport out of the Darien. The community itself does not have the economic resources to be doing constant vigilance of their whole territory. The community is v ery vulnerable and is constantly being invaded by colonos. The second issue brought to my attention by the village leaders was the timber concession contract that they had signed the previous year.(See Appendix B) The contract was between the village and a timber operator referred to widely as "el Chino whose legal name is Guo Jian Zhang Zeng Mr. Zhang is immi grant owner and operator of International Woodwork Corporation, Inc., 209 a local timber com pany that had set up operations in the Darien in the last couple of years to harvest and process tropical hardwood species in to high end flooring products. It is believed that t hese products are primarily marketed and shipped to China. 210 The year before, Mr Zhan g had made a trip into the village after some precursory negotiations with the community in order to enter into an agre ement to

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113 wood in the upcoming years. As a little incentive to the offer, he brought with him 20 thousand do llars in cash a s an advancement." This story was corroborated by several different people, including community leaders and Chemonics directors. As the story was recounted to me by a Chemonics director, prior to the signing of the contract, Chem o nics had also been in discussion with the Mort community about entering into an agreement to develop a sustainable forest management project. Chemonics had a preliminary comm itment from the village and was scheduled to sign a work agreement on a Monday. The woodcu tter undercut this process by coming into the village two days before on a Saturday with the 20 thousand in cash to distribute to the village in exchange for their commitment to working with him and signing the contract. Realizing they had been duped, Chem onics and USAID members used their clout and contacts to intervene in the situation. Since they had already been in conversations with ANAM to get permits to work in Mort they told the woodcutter that if he did not convince the village to work with USAID they would not allow him to get the necessary permits through ANAM. Chemonics has a "convenio institucional" or institutional arrangement with ANAM, in which ANAM has agreed to only accept management plans from Chemonics, WWF, or other internationally re cognized environmental agencies. The woodcutter, holding the purse strings, and seeing his operations at stake, then called the community and directed them to agree to work with USAID. It was also noted that woodcutter has a lot of clout in the community. Whenever the project runs into institutional barriers involving the village, they have been in the habit of calling the woodcutter to have him sort things out. USAID has no control over the woodcutter,

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114 since it is a commercial enterprise. It is a "relacio n equitativa." They want to help the village have a good contract, but instead what they got was a "contrato leonino" or an unfair, one sided contract. Apparently USAID warned the village not to sign the contract, that they would help them to have a better one, but the village did not take heed of these warnings. 211 The contract bound the parties for 20 years and there were witnesses to the signing. The 20 year period reflect the legal limit imposed by Panamanian law on timber concessions. 212 A year after the signing of the contract, the true nature of the contract was beginning to sink in for the village. They had a sense that they were bound by the contract but felt as if it was unjust that the lumber company could possess such control over their land, just because they had signed some document in the heat of the moment. I agreed to review the contract for the village to determine what their options might be. After reviewing the document and relevant law, talking to national lawyers, and reviewing model contr acts, I found a number of weaknesses in the contract. However, no open and shut case for nullifying the contract presented itself. A full review of the contract is beyond the scope of this work, but below I provide a summary of the main issues presented b y the contract. First of all, the Congreso General of Wargandi did not approve the contr act. Any exploitation of natural resources within the Comarca requires the approval of the Congreso General This requirement is listed in the law that created the Warg andi Comarca, as well as in the Carta Organica of the Comarca. 213 However, given the operational weakness of the Wargandi Congreso General, this approval was never provided.

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115 We beg a n by discuss ing some of the commercial, contractual issues involved, includi ng the issue of the contract with the Chino. Mr. Salazar notes that there are important provisions missing such as fines for non completion of work. The Chino gains everything and has nothing to lose. There is not a provision for revising prices. The price is per tree, rather than per board foot. He said that all contracts can be broken, but that they did not want to get involved in that aspect. They want the Congreso General to assert itself to negate the contract. He said that they are not going to "move r ni un dedo" to resolve that situation because it is up to the community. Apparently they do not want to send the message that it s ok to break contracts. Chemonics needs to work with the woodcutters and doesn't want to create insecurity in regard to the value of a contract. As the Washington based director had told me, an integral part of the sustainability of the project is the establishment of strong working relationships with the private commercial sector. Mr. Zhang is one of many woodcutters in the area. He has been working in the area for many years. I asked if there is a way to compare the contract to others. He said the woodcutters have no interest in creating fair contracts and that there is no mechanism to ensure that. He said that they have ver y poor "plan de manejos" which financially responsible for replanting the trees, but that was not included in the contract. I asked him again if there was some way to force the w oodcutter to change the contract, and he reiterated that they could not, because it was a contract between two fully informed voluntary parties.

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116 I ended up drafting a model contract, which I presented to the village along with a summary of my findings. I used the model contract to demonstrate the weaknesses of the former contract and encouraged them to use their newfound knowledge to pressure the timber operator into renegotiating the contract for the next harvest season. 1 Bruyn, Severyn (1966) The human perspective in sociology: The methodology of participant observation Englewood Cliffs, NJ: Prentice Hall. A classic defense of participant observation. 2 [more on face validity] 3 Id. 4 Herrera, Francisco. 1989, The State Indian relations in Panama: 1903 1983. University of Florida. 5 Id. 6 Id. 7 Id. 8 Herrera is Director of Anthropology and History at the University of Panama. He obtained his Master of Arts in Latin American Studies from University of Florida. Herrera is also Director of Huma n Ecology at the Institute of Renewable Natural Resources in Panama. He has conducted extensive research, writing the environment and history of Panama. 9 Interview with Francisco Herrera. 10 Id. 11 Constitucin Poltica de la Repblica de Panam de 1972 Const., tit. III, ch. 5, art. 123 (Pan.); see Ley No. 16, 19 February 1953, Ley por la cual se organiza la Comarca de San Blas (Kuna Yala) Law Creating the San Blas Region (Kuna Yala), Gaceta Oficial No. 12.042, 7 April 1953 (Pan.), reprinted in Aresio Valiente Lopez, Derechos De Los Pueblos Indigenas De Panama 69 74 (2002), available at: http:// www.oit.or.cr/unfip/publicaciones/panama.pdf; Ley No. 22, 8 November 1983, Ley por la cual se crea la Comarca Ember de Darin Law Creating the Ember de Darin Region, Gaceta Oficial No. 19.976, 17 January 1984 (Pan.), reprinted in LOPEZ, supra, at 83 33; Ley No. 24, 12 January 1996, Ley por la cual se crea la Comarca Kuna de Madungandi Law Creating the Kuna de Madungandi Region, Gaceta Oficial No. 22.951, 15 January 1996 (Pan.), reprinted in LOPEZ, supra, at 121 25; Ley No. 10, 7 March 1997, Ley por la cual se crea la Comarca Ngbe Bugl Law Creating th e Ngbe Bugl Region, Gaceta Oficial No. 23.242, 11 March 1997 (Pan.), reprinted in LOPEZ, supra, at 137 48; Ley No. 34, 25 July 2000, Ley que crea la Comarca Kuna de Wargandi Law Creating the Kuna de Wargandi Region, Gaceta Oficial No. 24.106, 28 July 20 00 (Pan.), reprinted in LOPEZ, supra, at 195 200. 12 For instance, the 1994 Constitution provided that the San Blas Comarca (renamed Kuna Yala), would be divided into two electoral circuits, with each electing one legislator to the National Assembly. Consti tucin Poltica de la Repblica de Panam de 1972 Const., as amended, tit. V, ch. 1, art. 141, 1994. Article 141 divided the Darin Province (home to three of the five Comarcas) into two electoral circuits. The 1972 Constitution created a separate electora l circuit for the Chiriqu province, due to its majority indigenous population. Constitucin Poltica de la Repblica de Panam de 1972 Const., as amended, tit. XV, ch. 2, art. 321(1)(l), 1994. This area was later incorporated into the larger Ngobe Bugle

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117 Comarca, and prior to the 2004 elections was divided into three electoral circuits. See Decreto Ejecutivo No. 194, 25 August 1999, La Carta Orgnica Administrativa de la Comarca Ngbe Bugl Administrative Organic Law for the Ngbe Bugl Region arts. 162 63 Gaceta Oficial No. 23.882, 9 September 1999 (Pan.), reprinted in LOPEZ, supra note 273, at 172. 13 Interview with Osvaldo Jordan. 14 Interview with Francisco Herrera. 15 Id. 16 Id. 17 Inte rview with Osvaldo Jordan. 18 Id. 19 Id. 20 Id. 21 Id. 22 Id. 23 Id. 24 Id. 25 Id. 26 Constitucin Poltica de la Repblica de Panam de 1972 Const., as amended, tit. XV, ch. 2, art. 321(1)(l), 1994. 27 Id. 28 Howe, James 2009. Chiefs, Scribes and Ethnographers: Kuna culture from inside and out. University of Texas Press, Austin 29 Id .; See also Chapin, M. (2000) Defending Kuna Yala: PEMASKY, the Study Project for the Management of the Wildlands of Kuna Yala, Panama. A Case Study for Shifting the Power: Decentralization and Biodiversity Conservation.Washington, D.C.: Biodiversity Su pport Program; Interview with Teobaldo Martinez. 30 Id. 31 Id. 32 James Howe is currently a professor of Anthropology at the Massachusetts Institute of Technology. Professor Howe received an A.B. degree from Harvard College (1966), an M.A. from Oxford Univers ity (Social Anthropology, 1967) and a Ph.D. from the University of Pennsylvania (Anthropology, 1974). His research is focused on political and historical anthropology, indigenous state relations, and missionization. He has worked closely with the Kuna for nearly 40 years, beginning his ethnographic studies with the Kuna in the early seventies. 33 Id. 34 Interview with Osvaldo Jordan.

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118 35 Jordan, Dissertation, Forthcoming. 36 Id. 37 Interview with Aresio Valiente, title, organization (Month day year). 38 Id. 39 Id. 40 Id. 41 Id. 42 Id. 43 [Cite works of Valiente] 44 Inte rview with Osvaldo Jordan. 45 Id. 46 Id. 47 Chapin, 2006 Forthcoming. 48 Dean E. Cycon, When Worlds Collide: Law, Development and Indigenous People, 25 New Eng. L. Rev. 761, 776 (1991); World Wildlife Fund, Defending Kuna Yala, http:// www.worldwildlife.org/bsp/publications/aam/panama/panama.html 49 Cycon. 50 Haven Cook, The End of the Road: The Darien Jungle, 10 Int'l J. Wilderness 41, 43 (2004). 51 Id. 52 Rainforest Alliance, The Kuna of Panama Aim to Develop a New Kind of Tourism, June July 2001, http://www.rainforest alliance.org/neotropics/eco exchange/2001/july01 2.html 53 Mapes, Forthcoming. 54 Id. 55 Interview with Francisco Herrera. 56 Id. 57 Id. 58 Id. 59 Id. 60 Id. 61 Id. 62 Id.

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119 63 Id. 64 Id. 65 In terview with Francisco Herrera. 66 Interview with Osvaldo Jordan. 67 Id. 68 Id. 69 Id. 70 Id. 71 Interview with Osvaldo Jordan. 72 Id. 73 Id. 74 Id 75 Id. 76 Interview with Osvaldo Jordan. 77 Id. 78 Id. 79 Id. 80 Interview with Osvaldo Jordan. 81 Id. 82 Id. 83 Id. 84 Id. 85 Interview with Jordan. 86 Id. 87 Id. 88 Id. 89 Id. 90 Interview with Osvaldo Jordan 91 Id.

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120 92 Id. 93 Id. 94 Id. 95 Interview with Osvaldo Jordan. 96 Id. 97 Id. 98 I d. 99 Id. 100 Intervi ew with Jordan. 101 Id. 102 Id. 103 Id. 104 Id. 105 Interview with Jordan. 106 Id. 107 Id. 108 Id. 109 Interview with Francisco Herrera. 110 [Background on Reforma Agraria, cite to original regulations] 111 [Cite to new law] 112 Id. 113 Id. 114 Interview with Francisco Herrera. 115 Id. 116 Id. 117 Id. 118 Id. 119 Id. 120 Id.

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121 121 Id. 122 Id. 123 Id 124 Interview with Francisco Herrera. 125 Id. 126 Id. 127 Id. 128 Id. 129 Interview with Francisco Herrera 130 Id. 131 Id. 132 Id. 133 Id. 134 Id. 135 Id. 136 Id. 137 Id. ; See also Inter view with Osvaldo Jordan. 138 Interview with Osvaldo Jordan. 139 Interview with Francisco Herrera 140 Id 141 Id 142 Id 143 Id 144 Interview with Francisco Herrera. 145 Id. 146 Id. 147 Id. 148 Id. 149 Interview with Francisco Herrera

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122 150 Id. 151 Id. 152 Id. 153 Id. 154 Intervi ew with Francisco Herrera. 155 Id. 156 Id. 157 Interview with Ricardo Montenegro, title, organization (Month day year). 158 Id. 159 Id. 160 Id. 161 Interview with Amy Bodman, organization (Month, day, year). 162 Id. 163 Id. 164 Id. Amy Bodman was serving as the direc tor of a Latin America project, and was one of approximately Id. 165 Interview with Amy Bodman 167 Interview with Ricardo Montenegro. 168 Id. 169 Id. 170 Id. 171 Id. 172 Id. 173 Id. 174 Intervie w wi th Montenegro. 175 Intervie w with Montenegro. 176 Id. 177 Id. 178 Id.

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123 179 Id. 180 Id. 181 Id. 182 Intervie w with Montenegro. 183 Id. 184 Ley 34 185 Interview with Teobaldo Martinez. 186 Francisco Herre r a, persona l communication. 187 Id. 188 Interview with Aresio Valiente. 189 Inte rview with Aresio Valiente 190 Id. 191 Id. 192 Interview with Aresio Valiente. 193 Id. 194 Interview with Mauro Salazar, title, organization (Month day year). 195 Id. 196 Herrera 197 Id 198 Id 199 Id 200 Interv iew with Teobaldo. 201 Id. 202 Id. 203 Personal communi cation, Joseph Goodman. 204 Ley 34, art. 2 205 Id. 206 See Appendix A 207 Interview with Reforma Agraria official, Santa Fe, Darien.

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124 208 Interview with Mauro Salazar 209 See www.iwcpanama.com. (last visted 3/10/12) The web site names Guo Jian Zhang Zeng as the curre nt operator of International Woodwork Corporation Inc. It goes on to note that he, along with his partners have 5 years of experience in the wood flooring business, with products that offer the durability, efficiency and versatility that their customers r equire. The site claim s that the wooden flooring offered has been developed according to every standard of quality and professionalism. The site emphasi zes that the company is in strict compliance wi th national laws and conscientiou s in all aspects that r elate to the Ricardo J. Alfaro (Tumba Muerto), Edif. Century Tower Ofic.421 piso 4, Panam, Repblica de Panam. Id. 210 Id 211 Ricardo 212 Interview with Francisco Herrera. 213 See Ley N 34 de 25 de julio de 2000, que crea la Comarca Kuna de Wargandi y promulgada en la Ga ceta Oficial N 24,106, 28 de julio de 2000; Decreto Ejecutivo No. 414 (De 22 de octubre de 2008) "Por el cual se adopta l a Carta Orgnica Administrativa de la Comarca Kuna de Wargandi. The Carta O rganica or organic charter, which is created by Executive decree, is roughly equivalent in Panama to an indigenous constitution that codifies internal norms of conduct based on cust omary law (usos y cost umbres). See Jordan, supra at n. 29.

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125 CHAPTER 5 CONCLUSION This work h as dealt with an important issue at the intersection of the disciplines of law and the social sciences. The New Haven approach to law and policy has served to focus the work on policy trends, participants in policy making, and the values and perspectives r epresented by these trends and participants. T his thesis has focused on i nternational devel opment policy as it relates to co mmunity based forest manageme nt among indigenous communities T his focus has been provided through both the review of literature and trends in development, as well a s through the presentation of the Mort case study. The questions now are hat general insight or recommendations might be drawn from the case study with regard to the broader context of sustainable development among indigenous communities and hat might be the consequences if the present policies illuminated by this study are not reformed? The recommendations represent alternatives to the status quo, and can be thought of as a form of creative thinking, rather than scientific prediction. The recommendations drawn from a local case study f emphasis on localized understandings of "pe rspectives" and "operations." The their value positions. While the indigenous community does have a certain amount of power to work with, it would be short sighted to view power as the only value to be maximized. Instead other values need to be considered. The review of problem perspectives in this work makes the case that the top down development poli cy approach, even in the case of a community based project such as the one in question,

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126 still belies a wide gap in values between the development practitioners and the local indigenous community. Many of the problems faced by the development practitioners in working with the indigenous community may be understood as a conflict of values. The conflict s of values were partially inherent in the competing interests between the parties. However, many of th e problems that have been examined may have been better addressed through a better understanding of the values being expressed by the Mort community. The primary values expressed were those of respect and security, and to a lesser extent wealth accumulation. Many might come into focu s when understood as a process of value accumulation and the regulation of that process. A similar process is at work in the individual motivations of the project directors, as well development policy to take hold in the local indigenous context, the community must accept the control mechanisms being implemented. In the same way, the development practitioners must understand the local control mechanisms at work in the communit expression of its own policy norms. The perspectives and problems presented in this case study reveal that these dynamics are poorly understood, and scarcely addressed. One way to better understand these dynamics in future project development and impl ementation would be to engage in a thorough process of research and knowledge integration before attempting to move forward with technical operations. This process would benefit from disciplines of inquiry called for by the New Haven school, such as trend identification in local decision making, clarification of the socia l and legal context, identification of key decision makers, clarification of values and value conflicts, and

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127 prediction of problems. Although some of these tasks were implicitly at play to varying degrees in project development and implementation, overall they were lacking. This oversight tended to ignore the sequential impact of policy decisions and has led to negative repercussion. Indeed the very continuance of the development operations have been hanging in the balance for some time. This is not to mention the limited probability that any sort of sustainable timber management practices will actually continue once the USAID project pulls out later in 2012. The problems of sustainable deve lopment in general, and those faced in the USAID project in particular, emerge from a particular social context. Any response to the problem should therefore emerge from an understanding of the context. This thesis has shed light on this context as a humbl e attempt to contribute to more sustainable development policy decision making. The apparent goals of the sustainable development project were noble, to fight global poverty and maximize the human potential of the local indigenous communities while also co nserving the environment for human survival and fulfillment The project concept certainly reflected the three basic characteristics of community based development. It did vest a degree of responsibility and authority in the community. It did have as its c entral objective the goal of providing the local communities with social and economic benefits from the forests. Finally it had as a central management goal, the ecologically sustainable use of the forest. However, it is questionable whether the project in vested enough time and resources to confidentially obtain the commitment of the community in these goals. By most measures, the community was not involved at all in the actual conception and planning of the overall project. To the extent that it did come o n board, it was more as a reaction

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128 to the costs and benefits associated with accepting or rejecting the project. In this sense the project failed to fully develop a partnership with the community, especially on that did not conflict with the traditional so cial and governance structures. The elements of successful community based partnerships that were identified earlier were weak at best. Partnership objectives were not fairly and openly negotiated. The public sector was not active ly involved through impart ial brokers. Neither was it apparent from the investigation that much consideration was given to any possible socio economic drawbacks. The assumption was that the project would be overall beneficial to all of the stakeholders, regardless of the various ob stacles and setbacks. On the other hand, it does seem that e quitable and cost effec tive institutional arrangements were sought to the extent possible and the benefits of the project were arguably sufficiently and equitably shared across stakeholders. The p roject certainly incorporated measures to maintain sustainable ex ploitation levels, but there is lit tle evidence that these measures will survive the withdrawal of the investment of extensive oversight, involvement and resources by USAID. The nature of the problems identified and anticipated as a result of current development policy reveals th e potential benefits of a greater commitment to respecting the indigenous rights norms of the United Nations Declaration on the Rights of Indigenous Peoples in develop ment policy. The study reveals that there are constant efforts at every level of policy making to force indigenous communities into policy molds that are not only foreign to them, but also destructive to their community integrity. Article 3 of the Declara tion gives indigenous people the right to self determination and Article 9 guarantees the right to belong to an indigenous community and live in accordance with

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129 indigenous customs and traditions. Further, Articles 19 and 20 recognize the right of indigenou s people to participate in all levels of decision making in matters concerning them. Article 26 in particular, speaks to the relationship of indigenous communities to their land and resources. It upholds not only the broad right to land and other resources traditionally owned, occupied, or otherwise acquired, but also the rights to use, develop and control these resources according to the traditional customs and land tenure systems. An explicit, systematic development and implementation of these principles in every level of development policy is necessary in order to increase the legitimate participation of local indigenous stakeholders. The incorporation of indigenous rights norms into development policy is not merely a burden to be born e by development pra ctitioners, but also represents an ongoing evolution in the decision making capacity and governance of indigenous communities These communities are engaged in a struggle to meet and adapt to the threats to not only their cultural and political survival, b ut also to the fragile rainforest ecosystem with which they have historically maintained a sustainable relationship. There may be something akin to an evolutionary necessity which stresses the need to engage in decision making strategies which seek to adv ance indigenous rights norms through political an d legal action. Only through informed adaptation in decision making are indigenous communities and their advocates able to appropriate global political and legal resources to secure the protection of their role in what is in effect a global commons in which the indigenous people are both stakeholders and guardians. Thus explicit incorporation of the norms of the Declaration into international development policy will indeed advance the goals of sustainable de velopment by ensuring that

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130 indigenous communities are full participants in the creation of and implementation of development norms. The problem of sustainable development will only be successfully addressed t hrough the establishment of partnerships based o n broad consensus among all par ties. This study has only scratched the surface of the issues presented, whether in general or in the particular case of the Mort community. The field is ripe for further research and advocacy. Thus this work concludes with just a few suggestions of avenues for further research and advocacy. First, the political and financial motivations that lead to the creation of specific development projects among indigenous communities must be better understood and openly addressed. Thi s open n ess is crucial in order to address the deep seeded inconsistencies in development policy that lead to unsustainable policy initiatives that do not adequately incorporate indigenous perspectives and norms. Second, more research and advocacy needs to be targeted at the policy and regulations governing State level a gencies such as ANAM. These agencies in the best of scenarios merely ignore the needs of indigenous communities in the oversight and regul ation of natural resources. However, more often the overly bureaucratic, corrupt regulatory system that has been imposed on the local practices and realities serves to actively harm the interests of indigenous communities. Thus, the State is complicit in the ongoing destruction of indigenous livelihoods and natural resources. To the extent that development agencies ignore these realities, they too are complicit in this destruction. Third, a venues must also be investigated and pursued to encourage efficient and transparent cooperation between international de velopment agencies and local government agencies Efficiency and transparency between these

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131 stakeholders is crucial if indigenous rights norms are going to be implemented with any consistency or efficacy. Fourth more research and advocacy must be dedicate d to understand ing and address ing the conflicts that arise between indigenous communities and the non indigenous settlers who l ive near them. Finally, more research must be dedicated to t he cultural and environmental consequences o f unsustain able timber harvest upon local indigenous communities. These negative consequences persist nearly unaddressed in the community of Mort, both through poorly conceived and regulated gover nment approved harvest plans, and through the ongoing th eft of valuabl e timber specie s.

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150 BIOGRAPHICAL SKETCH Benjamin Goodman was born in Michigan, but grew up in Panama as the son of evangelical missionaries workin g with the Kuna of the Darien. Benjamin remained in Panama until his senior year of high school when he returned to Michigan. He went on to attend Wheaton College in Illinois and to complet e his Bachelor of Arts in Philosophy and International Relations at the University of Mi chigan. Benjamin continued his education by pursuing a dual degree program at the University of Florida. He expects to graduate with a Juris Doctor from the Levin College of Law and a Master of Arts in Latin American Studies from the University of Florida in May of 2012.