Month: December 2020

Violence has been escalating in the northern Mexican state of Chihuahua. The root of this violence is the distribution of water across the U.S.-Mexico border. On February 7, hundreds of farmers rushed a dam on the Río Conchos, forcing the state to call out the National Guard to repel them (Bravo, “Agricultores”). The Boquilla dam was diverting water away from farmers’ fields and into the United States, as mandated by a 1944 treaty. Over the last thirty years, Mexico has developed a significant water debt to the United States (Miranda, “Por qué México debe pagar agua”). The farmers claim there is not enough water to irrigate their parched fields and that they have a right to receive this necessary resource (Stevenson, “Mexican Farmers”).

In the last few months, the farmers showed their frustration with increasingly open displays of rebellion. They blocked railways, burned government buildings, and took politicians hostage. In October, farmers armed with nothing more than sticks and homemade shields stormed the National Guard position on the dam and forced their surrender without casualties. Mexican President López Obrador commented that he was negotiating with the farmers occupying the dam but has also ramped up the National Guard presence in Chihuahua and frozen bank accounts in Boquilla. So far, the National Guard has shot two protestors, killing one and severely wounding the other (Kitroeff, “This is a War”).

These crises may seem modern, but they have deep roots in history extending back centuries. Much of the country is semi-arid or desert, so equitable management of water to the country’s varied interests has been a constant struggle (Endfield, Climate and Society, 140). Poor Mexican farmers have always struggled against the powerful to retain their water rights and have turned to violence when the government fails to equitably manage access (García, “Contaminación y sobreexplotación”). Indigenous communal farming villages have traditionally been at the forefront of this conflict.

Under Spanish colonial policy in Mexico, settlers could not infringe on the property or resources of Indigenous agrarian communities, which were also entitled to sufficient water access to grow their crops (Taylor, “Land and Water Rights,” 194-5). In 1591, however, the crown began a policy requiring all landholders to provide (or purchase) a written title to their land. This initiated a land grab which resulted in many communities losing their land to settlers with written titles (Ruiz Medrano, Mexico’s Indigenous Communities, 101). These private landholders also began drawing more extensively from communal water sources for large-scale irrigation or to power mills. To combat this encroachment, Indigenous communities turned to the courts. Throughout the 1600s and 1700s, Indigenous farmers sought to prove that their claim to water predated those of their competitors. While many communities successfully defended their water access, many other lawsuits ended in defeat or compromise. This resulted in a gradual shift towards consolidated, private water monopolies that rented water access back to the communities that had originally owned them (Lipsett-Rivera, To Defend Our Water, 77-99).

If they failed in court, some communities took drastic measures to defend their water rights. On February 8, 1700 in Zimatlan, Oaxaca, the Indigenous village Santa Maria Lachicho lost a lawsuit over an irrigated field to a Spanish hacienda owner. When the Spanish tried to forcibly evict them from their land, the community repelled their attackers with sticks and hatchets. They used the extra time to grow more food and appeal the court case in Mexico City. In cases like this, threats of violence remained the only alternative when the government had failed to protect these communities from powerful private interests (Love, “The Indigenous Struggle”).

These issues are still very present today. Often, the private interests threatening public water access are American corporations. In this year alone, protests have raged across Mexico over water consolidation or pollution by the mining firm Gold Resource, the brewing company Constellation Brands, and Coca Cola (Agren, “Mexico City,” Arrellano, “Comunidad indígena,” and Henríquez, “Piden en San Cristóbal”). Indigenous communities are usually on the front lines of these protests, risking violent reprisal, imprisonment, or death for speaking out – not to mention risking infection from COVID-19 (Cancino, “Indígenas piden estudio”).

Mexican citizens are now uniting across the country in grassroots campaigns to bring attention to threats on their water rights. Indigenous communities are leading the charge. Agua para Tod@s (Water for All) represents over 400 organizations, Indigenous communities, and universities with the goal of passing a General Law of Water that would enshrine access to adequate and safe water as a basic human right (Contreras, “Citizen Initiative”). On the same day that the Chihuahuan farmers initially stormed the Boquilla dam, Agua para Tod@s presented a petition with 198,000 signatures before Mexico’s National Commision for Water (Conagua) (Mario, “Pueblos indígenas”). Mexico’s current government, controlled by the left-leaning Morena coalition, has committed to passing the General Law of Water through Congress and enacting its recommendations into public policy (“Respalden diputados del PT y Morena”).

Despite these huge steps forward, the future is far from certain. López Obrador continues to call for limiting the power of private interests but has yet to produce any substantive change. He has also been hesitant to resist Trump’s demands, whether they be over immigration, trade, or the water debt (Kitroeff). It is unclear how Joseph Biden’s election will alter this relationship, but the water debt is unlikely to disappear soon. In addition, many scholars and legal experts warn that private interests have strong influence over Conagua’s policy development (Ramírez, “Académicos”).

This problem is only going to get worse as climate change increases the frequency of droughts and floods and the rising population on the border leads to increased demands for water. Mexicans are now turning to tactics developed over centuries by Indigenous communities to resist resource consolidation by powerful monied interests. It is vital that policymakers recognize the leading role Indigenous communities are taking in this national struggle for natural resource rights, because it is ultimately their land and lives on the line. This is why public water reform must be a rural and Indigenous issue first, and not simply an urban renewal program.

Indigenous communities have centuries of history adapting to and resisting changes in environments, demographics, and governments. Mexico’s history shows that, despite the power imbalance, these communities have proven much more durable than the Mexican nation, which has seen countless successful popular uprisings. Acquiescing to the United States may have short-term benefits, but ignoring the demands of an increasingly desperate population is unsustainable.

Bibliography

Agren, David. “Mexican City rejects plans for giant US-owned brewery amid water shortages.” The Guardian (United States). Mar. 23, 2020. https://www.theguardian.com/world/2020/mar/23/mexico-brewery-mexicali-constellation-brands?CMP=share_btn_tw.

Arrellano, Daniel. “Comunidad indígena contra minera estadounidense.” Regeneración Radio (México). Feb. 13, 2020. https://regeneracionradio.org/archivos/9521.

Bravo, Tomas. “Agricultores ocupan una represa en México para evitar la entrega de agua a EE.UU.” Reuters en Español (México). Feb. 7, 2020. https://actualidad.rt.com/actualidad/342398-agricultores-ocupan-represa-mexico-agua-eeuu.

Cancino, Karina. “Indígenas piden estudio para determinar contaminación del Río Santiago en Nayarit.” Aristegui Noticias (México). Feb. 20, 2020. https://aristeguinoticias.com/2002/mexico/indigenas-piden-estudio-para-determinar-contaminacion-del-rio-santiago-en-nayarit/.

Conteras, Arturo. “Citizen Initiative in Mexico Boosts Water for All.” Havana Times (Cuba). Feb. 9, 2020. https://havanatimes.org/features/citizen-initiative-in-mexico-boosts-water-for-all.

Endfield, Georgina. Climate and Society in Colonial Mexico: A Study in Vulnerability. Malden: Blackwell, 2008.

García, Viridiana. “Contaminación y sobreexplotación: principales problemas del agua en México.” Contralínea (México). Jan. 19, 2020. https://www.contralinea.com.mx/archivo-revista/2020/01/19/contaminacion-y-sobreexplotacion-principales-problemas-del-agua-en-mexico.

Henríquez, Elio. “Piden en San Cristóbal revocar permiso de agua a Coca Cola.” La Jornada (México) Jun. 24, 2020. https://www.jornada.com.mx/ultimas/estados/2020/06/24/piden-en-san-cristobal-revocar-permiso-de-agua-a-coca-cola-617.html.

Kitroeff, Natalie. “‘This is a War’: Cross-Border Fight Over Water Erupts in Mexico.” The New York Times (United States). Oct. 14, 2020. https://www.nytimes.com/2020/10/14/world/americas/mexico-water-boquilla-dam.html?searchResultPosition=1.

Love, Cody J. “The Indigenous Struggle for Water Rights in Seventeenth Century New Spain.” Master’s thesis, University of North Carolina, 2020. https://doi.org/10.17615/dcmq-pm89.

Mario, Marlo. “Pueblos indígenas presentan ante el congreso de Ley General de Aguas.” Somos El Medio (México). Feb. 10, 2020. https://aguaparatodos.org.mx/pueblos-indigenas-presentan-ante-el-congreso-iniciativa-de-ley-general-de-aguas-somos-el-medio.

Miranda, Fanny. “Por qué México debe pagar agua a Estados Unidos?” Milenio (México). Feb. 8, 2020. https://www.milenio.com/estados/por-que-mexico-debe-pagar-agua-a-estados-unidos.

Lipsett-Rivera, Sonya. To Defend Our Waters with the Blood of Our Veins: The Struggle for Resources in Colonial Puebla. Albuquerque: University of New Mexico Press, 1999.

Ramírez, Érika. “Académicos, Investigadores, y ONG señalan que viejos grupos de poder manejan la Conagua.” Contralinea (México). Sep. 18, 2020. https://www.contralinea.com.mx/archivo-revista/2020/09/18/academicos-investigadores-y-ong-senalan-que-viejos-grupos-de-poder-manejan-la-conagua/.

“Respalden diputados del PT y Morena iniciativa ciudadana para crear la nueva Ley General de Aguas.” Mi Punto de Vista (México). Mar. 11, 2020. http://www.mipuntodevista.com.mx/respaldan-diputados-del-pt-y-morena-iniciativa-ciudadana-para-crear-la-nueva-ley-general-de-aguas/.

Ruiz-Medrano, Ethelia. Mexico’s Indigenous Communities: Their Lands and Histories, 1500-2010. Boulder: University Press of Colorado, 2011.

Stevenson, Mark. “Mexican Farmers take over dams to stop water payments to US.” Associated Press (United States). Feb. 5, 2020. https://apnews.com/7863206c51408b958479179c39035e28.

Taylor, William B. “Land and Water Rights in the Viceroyalty of New Spain.” New Mexico Historical Review 50, no. 3 (July 1, 1975): 189–212.

Ruth Bader Ginsburg’s death has led to a reconsideration of her judicial career. Her work as a lawyer and jurist who championed equal protection, particularly as it pertained to women’s rights, has been centered in these discussions. Yet, her record on American Indian law has not been foregrounded in most national conversations about her legacy. Here, Ginsburg’s status as a “progressive” justice can be called into question. Attention to how her opinions on federal Indian policy changed over time also allows us to see the “pendulum swings” in American Indian law in one jurist’s decisions.[i] Her death also bears with it the question of what the future of the American Indian Law may look like, and it seems likely that the Court will take a harsher stance against tribal sovereignty and self-determination.

Until the latter half of 2005, Ginsburg’s decisions in cases regarding Indian law were defined by either ignorance of this body of law or a disregard for tribal sovereignty and self-determination. [ii] While still working for the American Civil Liberties Union, Ginsburg directly challenged tribal sovereignty in an effort to prevent gender discrimination in Santa Clara Pueblo v. Martinez (1978). Because Ginsburg had never seriously encountered a case with tribal sovereignty at its center, legal scholar Carole Goldberg argues that this case was marked by Ginsburg’s ignorance.[iii] A similar claim could not be made in Ginsburg’s decision in the City of Sherrill v. Oneida Indian Nation (2005).[iv]

Though twenty-seven years had passed since Ginsburg’s initial foray into federal Indian policy and Ginsburg was now a seasoned veteran of the Supreme Court, there was little substantive change in her respect for tribal sovereignty. In the late 1990s, Oneidas’ worked to repurchase land that was part of their initial reservation as a means to reclaim land that had been stolen.[v] Upon repurchasing the land, Oneidas argued they did not need to pay taxes to the city of Sherrill because the land was rightfully their sovereign territory. Lower courts determined in favor of Oneidas, but the Supreme Court decided against the nation in an 8-1 decision. Ginsburg’s opinion is worth quoting at length:

Given the longstanding, distinctly non-Indian character of the area and its inhabitants, the regulatory authority constantly exercised by New York State and its counties and towns, and the Oneidas’ long delay in seeking judicial relief against parties other than the United States, we hold that the Tribe cannot unilaterally revive its ancient sovereignty. . . The Oneidas long ago relinquished the reins of government and cannot regain them through open-market purchases from current titleholders.[vi]

Ginsburg’s opinion not only fundamentally misunderstood that Oneidas’ land was seized, not “relinquished,” but it also suggested that there was a statute of limitations on land rights cases, setting a dangerous precedent for other cases in this vein.

If the Sherrill decision typified Ginsburg’s decisions from 1978 through the beginning of 2005, the months and years following Sherill were more promising. (There is also some anecdotal and legal evidence that Ginsburg came to regret the Sherrill decision.)[vii] In Wagnon v. Prairie Band Potawatomi Nation (2005), Ginsburg called into question her opinion in Sherrill from six months prior in a dissent (joined by Justice Kennedy) that affirmed the Prairie Band Potawatomi Nation’s right to levy taxes at a gas station on their land. In a more careful consideration of federal Indian Policy than in previous cases, Ginsburg affirmed the “sovereign status of Indian Tribes” and argued that “a State may not ‘unlawfully infringe on the right of reservation Indians to make their own laws and be ruled by them.’”[viii] While Ginsburg did not always side in favor of Native American nations after Wagnon, she did seem to give greater attention to the importance of tribal sovereignty than in earlier cases.

The final major American Indian Law case that Ginsburg decided on—McGirt v. Oklahoma (2020)—provides not only a lens into Ginsburg’s legal pendulum swing but also a lens into thinking about the future state of American Indian Law in the Supreme Court.  In McGirt the Court decided in favor of the Muscogee Nation’s right to tribal sovereignty over much of eastern Oklahoma.[ix] Ginsburg joined the majority in the 5-4 case. This decision was particularly striking given that the defendant and member of the Muscogee Nation, Jimmy McGirt, was being tried for sex crimes against a child. McGirt argued that the state of Oklahoma had no jurisdiction in this case, which the Court affirmed. This decision seemingly went against Ginsburg’s fairly consistent efforts to protect the constitutional rights of children and demonstrates some changeability in her beliefs on tribal sovereignty, even if her legacy as a jurist remains marked by the Sherrill decision and the precedent it set.[x] With Ginsburg’s passing, the future of American Indian law is once again up in the air. Here, McGirt is again instructive

Breaking with the conservative bloc on the Court, Justice Gorsuch sided with the majority and wrote the opinion in McGirt. His decision evinced a careful reading of Muscogee treaty rights, arguing that the nation “received assurances that their new lands in the West would be secure forever . . . Because Congress has not said otherwise, we hold the government to its word.”[xi] This decision fits within Gorsuch’s longer history of “recognizing tribal sovereignty and self-determination.”[xii] Justice Kavanaugh joined Roberts, Thomas, and Alito in the dissenting opinion in McGirt.

Trump’s other appointee, Amy Coney Barrett, will probably continue in her mentor Antonin Scalia’s footsteps and his consistent rejection of tribal sovereignty and self-determination.[xiii] This is a horrifying reality as the Indian Child Welfare Act (ICWA) is currently being challenged in Brackeen v. Bernhardt. This act prevents the separation of Native American children from their respective nations. Should it be struck down by the 5^th Circuit Court, it will likely arrive before the Court. Barrett’s conservatism and her own controversial adoption of children from Haiti has led some to conclude that she will decide against ICWA should it reach the Court.[xiv] The future of American Indian Law after Ginsburg, therefore, is bleak because Gorsuch’s brief ability to swing the pendulum towards tribal sovereignty and self-determination likely died along with Ginsburg.

[i] Pendulum swings are spoken of often in literature on American Indian Law, especially as it pertains to sovereignty. See, for instance, Walter R. Echo Hawk, In the Light of Justice: The Rise of Human rights in Native America and the UN Declaration on the Rights of Indigenous Peoples, (Golden: Fulcrum, 2013), 180. Echo-Hawk’s list of the ten worst and best Indian Law cases also speaks to the significant pendulum swings in federal policy, see, In the Light of Justice, 155-177. For another example of this language see, “American Indian Sovereignty, Federal Assimilation Policy, and Indian Self-Determination – A time-line of oscillations,” uiIdaho online, February 10, 2005, https://www.webpages.uidaho.edu/~rfrey/pdf/shared/sovereingty.pdf

[ii] Carole Goldberg, “Finding the Way to Indian Country: Justice Ruth Bader Ginsburg’s Decisions in Indian Law Cases,” Ohio State Law Journal Vol. 70:4 (2009): 1003.

[iii] Goldberg, “Finding the Way to Indian Country,” 1005-1007. It should be noted that Thurgood Marshall wrote the Court’s opinion in favor of the Santa Clara Pueblo.

[iv] This case is consistently listed as one of Ginsburg’s worst decisions.

[v] For a brief synopsis of this case, see, Michael L. Oberg, “RBG’s Notorious Opinion in the Native American Sovereignty Case Is Also Part of Her Legacy,” last modified September 22, 2020, https://thewire.in/world/ruth-bader-ginsburg-sherrill-v-oneida

[vi] For the full decision see, City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 202 (2005), https://www.oyez.org/cases/2004/03-855

[vii] See, “Ruth Bader Ginsburg wants Trump to Appoint a Native American Woman to the Supreme Court,” The Buffalo Chronicle, May 5, 2020, https://buffalochronicle.com/2020/05/05/ruth-bader-ginsburg-wants-trump-to-appoint-a-native-american-woman-to-the-supreme-court/ and Oliver O’Connell, “Ruth Bader Ginsburg’s Greatest Regret Revealed,” Independent, September 22, 2020, https://www.independent.co.uk/news/world/americas/ruth-bader-ginsburg-supreme-court-regret-oneida-nation-sherill-native-americans-b534565.html. Matthew Fletcher, a law professor at Michigan State has also contended that Ginsburg attempted to limit the harm that case caused after the fact, but this was a case of too little too late. See, Keri Blakinger et. al “RBG’s Mixed Record on Race and Criminal Justice,” The Marshall Project, n.d., https://www.themarshallproject.org/2020/09/23/rbg-s-mixed-record-on-race-and-criminal-justice

[viii] See, Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 116–31 (2005) (Ginsburg, J., dissenting), https://supreme.justia.com/cases/federal/us/546/95/#tab-opinion-1961985 and Goldberg “Finding the Way to Indian Country,” 1034.

[ix] For an overview of this case and its importance, see, Jack Healy and Adam Liptak, “Landmark Supreme Court Ruling Affirms Native American Rights in Oklahoma,” The New York Times, July 11, 2020, https://www.nytimes.com/2020/07/09/us/supreme-court-oklahoma-mcgirt-creek-nation.html

[x] For Ginsburg’s record on supporting children’s constitutional rights, at least in criminal proceedings, see Heather Renwick’s consideration of Ginsburg’s legacy in Keri Blakinger et. al “RBG’s Mixed Record on Race and Criminal Justice”

[xi] See, McGirt v. Oklahoma, 591 U.S. (2020), https://supreme.justia.com/cases/federal/us/591/18-9526/#tab-opinion-4271575

[xii] Anna V. Smith, “What Trump’s Supreme Court Pick Holds for Indian Country,” High Country News, December 11, 2020, https://www.hcn.org/issues/49.22/tribal-affairs-what-trumps-supreme-court-pick-could-mean-for-indian-country#:~:text=(According%20to%20an%20analysis%20by,86%20percent%20of%20the%20time.)&text=In%20early%20December%2C%20the%20Supreme,Welfare%20Act%20and%20sovereign%20immunity.

[xiii] For a brief summary of Scalia’s record on this point, see, Matthew Fletcher, “Justice Scalia’s Indian Law Record,” Turtle Talk, February 17, 2016, https://turtletalk.blog/2016/02/17/justice-scalias-indian-law-record/

[xiv] For an overview of the very real fears that the Indian Child Welfare Act will be overturned should it arrive at a court with Barrett on it, see, Mary Annette Pember, “Amy Coney Barrett and the Fate of Native Adoption Law,” Indian Country Today, October 12, 2020, https://indiancountrytoday.com/news/amy-coney-barrett-and-the-fate-of-native-adoption-law-4oKdAmOCKUq-HDbZ2fj5sQ?fbclid=IwAR0Xd5RObOQfEtt7gOzzTgWM3hxJawxKehiLZOmNGnOPTjcEtilI17B0Hgw