Personhood, Agency, Law, and Justice

Flag of the Mapuche People.

Flag of the Mapuche People.

Research Project by Ana Mariella Bacigalupo, PhD

Shamanic Justice and International Human Rights in Chile
Judge Karen Atala’s Transformative Vision and her LGBT Rights Child Custody Case

Published May 10, 2022

Title: Personhood, Agency, Law, and Justice
Feature Article by Jay Carreira, BA ’22, The Baldy Center staff
Keywords: law and religion, Indigenous courts, legal anthropology, colonialism, Indigenous customary law, shamanism.

Ana Mariella Bacigalupo’s research project, “Shamanic Justice and International Human Rights in Chile: Judge Karen Atala’s Transformative Vision and her LGBT Rights Child Custody Case,” was funded in part by The Baldy Center Research Grant, 2018-2019 . In the project, Bacigalupo analyzes parallels and tensions in shamanic justice, legal practice, and international human rights.

Bacigalupo investigated this complex case to explore the numerous ways that it impacts discussions of law and religion. In her study, she notes that shamans and judges both serve as mediators between multiple and separate worlds. Both must draw upon deep knowledge and broad contexts to provide justice and balance for those surrounding them, and they are held in high regard for their ability to do so. In practice, judges should serve as a secular alternative to the religious underpinnings of shamanic decisions, but Judge Karen Atala’s case calls into question whether there can ever truly be a secular court system.

Chilean Judge Karen Atala’s legal practice was challenged in 1995 when a shamanic spirit claimed jurisdiction over the court of Pucón, a town in central Chile with about 22,000 residents. Eighty percent of the cases she saw in the court were those of the Mapuche, the Indigenous people whose traditional territory includes regions of Chile, Argentina, and Patagonia. The shamanic spirit instructed Atala to incorporate indigenous Mapuche values and practice in her decision making. So, to comply with the shamanic spirit’s challenge, Atala began using Mapuche common law to resolve disputes before they ended up in court.

The shamanic spirit also transformed Atala, a non-Mapuche, into a lesbian by merging her identity with the spirit’s own identity. This change ultimately led to the Chilean Supreme Court denying Atala the custody of her daughters after she divorced her husband and publicly came out in 2002. The Chilean Supreme Court perceived her as a deviant who should not be allowed to raise her own children based on their Catholic moral norms, similar to their habitual condemnation of Mapuche practices such as polygynous marriages and shamanic co-gendered identities.

The spirit’s transformation of Judge Atala created parallels between her suffering at the hands of Chilean law due to her sexual identity and the suffering of the Mapuche people, who have been punished repeatedly by Chilean law through the expropriation of their land and discrimination against their sexuality and gender practices. These parallels in suffering allowed the shamanic spirit to work through Judge Atala to fight the discrimination perpetrated by the Chilean government.

Judge Atala fought the custody decision and filed a discrimination lawsuit with the Inter-American Commission on Human Rights (IACHR) 10 years later in 2012. She argued that there should be a difference between Catholic morals and the legal rights that she held through the secular Chilean state and through international human rights laws. The Inter-American Commission on Human Rights ruled that the Chilean state law had violated Atala’s right to equality in addition to ruling that discrimination against sexual orientation and gender identity is a violation of the ethics of international law.

Cases such as Judge Atala’s challenge common assumptions about the workings of law with regard to religion and spirituality.
Judge Karen Atala. Photograph courtesy of Kena Lorenzini.

Judge Karen Atala. Photograph courtesy of Kena Lorenzini.

Multiple perspectives are critical for understanding the nuanced and complex interplay between law and religion.

Bacigalupo believes that cases like Judge Atala’s challenge common epistemological assumptions about the workings of law, particularly as they pertain to religion and spirituality. Her examination of the case interrogates the ways in which indigenous communities continue to be colonized in subtle ways when they are forced to secularize their discourses in order to be taken seriously by lawyers, academics, and politicians, yet are still subject to the religious morality that is propagated by state law.

The work continues, as Bacigalupo draws on information provided by Judge Atala herself and from those who have worked with her or in the courts where she worked, including local Mapuche, the families of the shamans Judge Atala worked with, and a Chilean human rights lawyer who specializes in indigenous rights in Latin America. She believes these multiple perspectives are critical for understanding the nuanced and complex interplay between law and religion, and how it culminated in the circumstances of Judge Atala’s case.

Ana Mariella Bacigalupo, PhD.

Ana Mariella Bacigalupo, PhD

Ana Mariella Bacigalupo, PhD, is a professor in the Department of Anthropology. Through her work on the consciousness and transformational politics of more-than-humans (sentient landscapes, spirits, shamans, the undead), Professor Bacigalupo rethinks previously theorized epistemologies, politics, and forms of power to produce decolonial knowledge. She shows how more-than-human places challenge traditional ideas of personhood and drive collective ethics and social and environmental justice. Drawing from critical race and feminist theory, queer theory, new materialism and studies of indigeneity in the Colonial Anthropocene, Professor Bacigalupo analyzes the social, political, and cultural implications of more-than-human consciousness and queer shamanic politics, which challenge state histories, contemporary understandings of time, writing, and social and historical memory. Faculty profile.

Book cover.