‘Ordinary Justice’ is the first in a two-part series. Click here to read Part II, ‘The Free Men of the Forest’
On December 19th, 2014, in Dicaro, an indigenous Waorani village in Oil Block 16 of the Ecuadorian Amazon, there was a ceremony to make peace. The genocide case against seventeen Waorani men from Dicaro and neighboring Yarentaro for killing members of another Waorani family group had first been reduced to homicide, then dismissed. The five men who had been held in preventative detention for almost ten months were now free. At the top of a hill, a new longhouse had been constructed for the ceremony, with a frame of thin tree trunks and a roof of layered leaves, many of them still bright green. A sound system was set up inside for the speeches that would be made. It was the only longhouse in sight; most of Block 16’s Waorani live in modest cement or wood homes. Many work for the oil company, Repsol, which operates in and controls Block 16. Outside the longhouse, women in feather crowns painted achiote onto the faces of defense attorneys and members of the press.
The trial of the Waorani was as much about Waorani culture and the nature of justice as the evidence against them. It was about how the Ecuadorian State should (or should not) govern members of a culture that has lived in the rainforest since long before the creation of the Ecuadorian State, and even the arrival of the Spanish in South America half a millennium ago.
Before the 1960s, the Waorani saw isolationism as essential to their survival, and defended their territory with 10-foot spears, which was enough to scare Shell away in 1950. But in the 1960s, a powerful combination of American evangelicals and Texaco succeeded in their campaign for access to Waorani souls and the oil under their land. Since then, as more and more non-Waorani have come to the rainforest, the Waorani have responded in several different ways. Some, like those in Dicaro, live on oil roads and have become dependent on oil companies for jobs, education, and health care. Others have continued to live away from oil roads, turning to tourism for income. But a few family groups have rejected contact altogether, and take strenuous measures to hide themselves in an ever-shrinking forest.
They killed between seven and thirty people, both adults and children. They photographed the bodies with cell phone cameras.
It was one of these family groups (some say the Tagaeri and others the Taromenani), who killed two Waorani elders, Ompure and Buganey, in March 2013. Ompure and Buganey were discovered, stabbed with long wooden spears, 200 meters from Yarentaro, the southernmost community on the oil road in Block 16. The Taromenani-Tagaeri had been in peaceful, though tense, contact with Ompure for about a year. Exactly why they killed him is unclear, but all the theories involve the presence of outsiders: Ompure hadn’t fulfilled their request to stop the constant flow of cowodi (non-Waorani) into the forest; some Taromenani-Tagaeri youth had died after eating food dropped from a helicopter and they blamed Ompure; Ompure had failed to produce the machetes and metal pots the Taromenani-Tagaeri had asked him for. Whatever the reason, in the traditional Waorani worldview, the killing of a family member must be avenged.
Three weeks later, family members of the two slain elders formed a vengeance party. Seventeen men between the ages of twenty-six and sixty-nine participated. After walking seven days through the forest with spears and rifles, they found a Taromenani-Tagaeri house. There they killed between seven and thirty people, both adults and children. They photographed the bodies with cell phone cameras. They spared, and brought home with them, two little girls, around two and six years old.
The killings received international attention, especially later, when a book criticizing the government’s failure to prevent or investigate the attack was banned. The public outcry was intense. Ecuador’s Attorney General is Galo Chiriboga, a former oil executive. In November 2013, his office invited the attack participants to Coca, a small city near the Amazon, to reach a solution to the conflict.
Six of them went, and were asked to give statements. They had no reason to worry: no Waorani had ever been arrested for an intertribal conflict before, or even for defending the rainforest with spears. Not only that, no one had ever been arrested for the killing of an uncontacted Waorani, despite known cases in 2003, 2006, and 2008. While the six men were off giving testimony, a helicopter landed in Yarentaro, near the school. According to Newsweek, men with guns leapt out and took Conta, the eldest of the two Tagaeri girls, in a military-style operation. Conta was then taken to Bameno, a Waorani community that lives in the forest and engages in tourism. The government asked Penti Baihua, the leader of Bameno, to care for her. When the Waorani men in Coca finished giving their statements, they were arrested and charged with genocide.
The prisoners had been freed and the charges dismissed. The Waorani seemed to have gained back at least a little of their autonomy.
A ten-month legal battle followed, with tensions high and rumors flourishing. The arrests, and the re-kidnapping of Conta, constituted a crisis for the Waorani. But December 19th, eleven months later, was a day of peace, at least on the surface. The prisoners had been freed and the charges dismissed. The Waorani seemed to have gained back at least a little of their autonomy. At four in the afternoon, the heat that settled over the deforested area of Dicaro during the day had dissipated, and the defense attorneys, press, and Waorani entered the longhouse together. Inside, a group of Waorani women chanted as the press filmed them up close. A group of men started chanting as well. Speeches began. The Ecuadorian National Anthem played over the loudspeaker. Women pulled children out of the way as a man walked in carrying a bundle of 9-foot spears, which he gave out to the warriors. Held with one end on the ground, they just grazed the sloped roof.
Jorge Yeti, the spokesperson for the Waorani’s legal defense team, who had organized the event, read a letter from Ecuador’s Constitutional Court. When Yeti first invited the press to Dicaro, he believed that the President of the Constitutional Court would attend and sign an agreement with the Waorani, a “Waorani Constitution,” guaranteeing their rights. Later, he told me that the Vice President of the Court would attend instead. Then, an advisor to the President of the Court. In the end, no one from the Court came, though the justices sent their cordial greetings. The only person present who could be said to be from the government was the former mayor of Sacha, a small city in a nearby province. “The President of the Republic appreciates you very much,” he told the Waorani gathered in the longhouse.
Later, Yeti gave a speech as well. “Waorani should be free,” he said, “without being in jail, without manipulation of the State.” He reminded the group that the government’s prosecutors had failed to produce a single body. Though the Waorani had admitted to the killings, the court ruled that self-incrimination was inadmissible, that photos were untrustworthy, and that the lack of bodies made a conviction impossible. But Yeti is by no means anti-government. His house in Dicaro is decorated with posters of President Correa. “More than ever we are with you, Mr. President,” one of them reads.
The oldest prisoner was fifty-six, born into a forest without oil companies or missionaries.
In March 2014, when the Waorani had been in prison for four months, I interviewed their private attorney, Andrés Acaro, in his office (their defense team included both Acaro and four public defenders). He told me that what they had done had not been a crime in the Waorani worldview, but a punishment. The prisoners, he said, were “psychologically very affected, including thoughts of suicide.” The oldest prisoner was fifty-six, born into a forest without oil companies or missionaries, when the Waorani still lived in small family groups scattered across the hilltops, moving every so often so as not to deplete the fruits and animals in a single area, delighting in rediscovering groves that had been planted by their forebears.
In Acaro’s office, pleasantly cool despite the intense heat of the city outside, that world seemed very far away. He showed me four piles of documents, each a foot high, all for the Waorani trial. The Attorney General at that time was appealing to the Constitutional Court for a decision on whether the Waorani should be tried using “indigenous justice” or “ordinary justice.” This was a constitutional violation, Acaro told me—the Attorney General had not gone through the proper procedures. Also, it did not make sense to hold the Waorani in prison (ordinary justice) before the court had determined if it was legal to do so. The trial, he said, had been “constitutional violation after constitutional violation.” Article 171 of the Ecuadorian Constitution guarantees Ecuador’s indigenous the right to practice their own system of justice for intertribal conflicts, as long as it doesn’t interfere with international law or the Ecuadorian Constitution.
At the June Constitutional Court hearing regarding the Waorani case, the Attorney General’s office said, “We have put much effort into trying to understand Waorani culture… they, in turn, should put an effort into trying to understand our culture. Our culture respects life. Our culture respects peaceful coexistence.” In July, the Court ruled in a separate case that ordinary justice must be applied in crimes that involve a loss of life. Shortly after, in the case of the Waorani, the Court found that when using ordinary justice in cases involving indigenous peoples, the principle of interculturality, or the non-hierarchical interaction between two or more cultures, must be applied.
The issue of the killings has been a kind of third rail for the Ecuadorian government. They came under intense criticism for not protecting Ompure and Buganey (the Taromenani-Tagaeri had warned of their impending attack by leaving crossed spears in the area), but also, and especially, for failing to protect the uncontacted Waorani. The state has special obligations to the uncontacted indigenous, enshrined in the constitution, and also ordered by the Inter-American Commission on Human Rights (IACHR) in 2006. After they arrested the Waorani, some of the critics who had taken the government to task for doing nothing about the massacre begged them to free the prisoners.
At the longhouse, the Waorani gave feather crowns and small spears to Acaro and to Fausto Corral, an anthropologist who handles issues of indigenous jurisprudence for the Public Defense of Ecuador. “The government of Ecuador has misunderstood you,” Corral told the Waorani. He urged them to make peace with the Taromenani.
In the end, the court did not just decide based on evidence, but on who the Waorani of Dicaro are culturally. One of the reasons for dismissal was that the participants all testified that, although they had carried firearms, they had only used spears to kill. There was lengthy testimony from several anthropologists and sociologists, one of whom, Jessica Solórzano, said that “the Waorani cultural structure is profoundly rooted in cycles of war and peace.”
Later, in Fausto Corral’s office in Quito, newly decorated with the spear and feather crown he received at the ceremony, I asked him if the Waorani case had set a precedent. He said that it had, that the principle of interculturality must be taken into account whenever indigenous people are tried using ordinary justice. That ruled out preventative detention, he said, because “in all the indigenous systems of justice, there is not a single one that has jail as a form of redress.” Judith Kimerling, a professor and lawyer who works with Ome Gompote Kiwigimoni Waorani, a coalition of Waorani forest communities , says that, according to the Waorani of the coalition, “punishment” does not really exist in Waorani culture. Instead, war is ended by having dialogue, coming to an agreement, and making peace.
This January, seven Waorani were put into preventative detention under charges of sabotage for halting operations at a Petrobell oil field in the western part of the Ecuadorian Amazon. One by one, their lawyers were able to secure their release. The last two spent four months in prison. “Imagine,” said Fausto Corral of the government response to the protest, “120 soldiers against seven Waorani.” If the a precedent of interculterality was set, at least in writing, by the case of the Waorani from Dicaro, the precedent that the Attorney General follows still seems to be preventative detention.