Summer in the Southwest: An Exploration of the Legal Challenges faced by the Local Native American Communities

Widespread unemployment, drug and substance abuse, suicide, lack of quality education—these are just a few examples of the social and systemic challenges faced by those living within the Navajo Nation. They are the same problems experienced by a majority, if not all, Native American communities in the United States. Yet there are only a limited number of nonprofit legal aid organizations that provide free legal services primarily to Native Americans residing on reservations, one being DNA-People’s Legal Services, where I worked as a PHRGE Fellow last summer.

Chaco Culture National Historic Park, New Mexico

Chaco Culture National Historic Park, New Mexico

What is remarkable about DNA-People’s Legal Services is not only its mission to provide civil legal services to those in need, but perhaps more importantly, to promote tribal sovereignty and respect the diverse cultures of the organization’s various clients. During my fellowship, I not only had the privilege of working on matters with licensed attorneys in New Mexico courts, but I also completed tasks for licensed attorneys and tribal advocates within the Jicarilla-Apache and Navajo Nation.

One issue that immediately came to my attention from the first week of the fellowship and recurred throughout the remainder of my summer was the predatory practices of lenders and dealerships situated among the border-towns of the Navajo Nation. A main target of these predatory schemes were elderly, non-English speaking Navajos. As part of my experience with DNA, I had the opportunity to meet with one such victim at her rural residence on the Navajo Nation outside of Farmington, New Mexico. A widowed woman of about eighty years of age, fluent in Navajo and non-English speaking, related her story of the predatory acts taken by a local car dealership.

Though her husband had cancer caused by working at a uranium mine, which would otherwise entitle her to benefits, the mine’s staff are unresponsive to requests for compensation, leaving the widow to subsist on a meager income. A higher income was falsely reported on a credit application used to get the widow a new truck so that her son could transport the firewood needed to heat her home for the winter. Moreover, it was an income that any reasonable care salesman would know that the woman could not afford. Yet the salesman promised that the woman could afford the truck, despite her severely limited income. It was a truck sold to a woman who had never obtained a driver’s license and whose driving experience was limited to operating a truck in a sheep camp on the Navajo Nation in her late teens and early twenties.

Though we were fortunately able to alleviate her legal issues with regards to the predatory lending practices, this story is not anomaly. The prevalence of such businesses near the Navajo Nation exemplify that predatory schemes are an implicit norm. A norm that magnifies the challenges faced by southwestern Native American communities and illustrates one of many modern legal and social challenges faced by the most historically oppressed, and too often forgotten, community in the United States.

-Chelsea Brisbois, JD Candidate 2016



International Corporate Accountability

During the week of June 29 to July 3, I had the unique opportunity to be in a room full of human rights lawyers and advocates representing their respective organizations from the Global North and Global South. These brilliant and inspiring minds were brought together by an Educational Exchange Conference hosted by ProDESC. The organizations present were CAJAR, HRLN, CALS, ERI, SERI, PODER, ECCHR, and the Bertha Foundation. One by one, each organization presented its focus areas, cases, strategies, challenges, successes, and opportunities. Every presentation was followed by a question and answer session. It was during one of these sessions that the following analogy was used: The interaction between human rights defenders and corporations is like “mosquitoes biting a giant.”

This comparison was brought up when we were discussing the various strategic opportunities available for human rights defenders to challenge systems of power, specifically corporations. During the course of completing my report on the right to free, prior, and informed consultation of the indigenous Zapotec community in Juchitán, Oaxaca, where a transnational corporation aspires to build a wind energy park, I found myself coming back to one question: Who is holding this corporation accountable for their role in human rights violations? It turns out that NGOs from both the developed and developing world are asking themselves the same thing because their calls for greater accountability for human rights violations by transnational corporations are growing stronger.

As of yet, no international legally binding instrument exists to hold corporations accountable for failing to uphold human rights standards. International human rights standards have traditionally been the responsibility of governments. The first call for such an instrument began in the 1960s. Since then, the UN “Protect, Respect and Remedy” Framework and the UN Working Group on Business and Human Rights have been established. Nevertheless, without an accompanying legally binding document, it is doubtful how effective these truly are. While it is unclear when or whether the demand for such a document will be met, one thing is certain: transnational corporations have and are only continuing to gain power and influence on the world economy that often negatively impact the human rights of communities where these corporations conduct operations. Without a uniform set of standards at both the national and international level, those affected by such acts, like the indigenous Zapotec people, will remain vulnerable without meaningful access to the justice they not only deserve, but to which they are entitled.

So, I leave you to ponder this question: until we have effective national and international standards to hold transnational companies accountable for human rights violations, how do we bite in the right place to get the giant to scratch? The answer we came up with during the conference seems rather simple: Follow the money.

For more information about this issue, read this article and visit the UN Human Rights website.

-Kacy Cuenta

The Indigenous Zapotec Community of Juchitán

Kacy Cuenta (center), surrounded by her ProDESC team

Kacy Cuenta (center), surrounded by her ProDESC team

For the past twelve weeks, I had the opportunity to advocate for the rights of the indigenous Zapotec community as a Program on Human Rights and the Global Economy (PHRGE) Fellow in Proyecto de Derechos Económicos, Sociales y Culturales (ProDESC) in Mexico City. As a non-governmental organization, ProDESC’s mission is to defend the human rights of underrepresented workers and communities in Mexico so as to promote a higher quality of life and participation in their own development. It is this very mission combined with my interest in corporate accountability that attracted me to this organization. I contributed to ProDESC’s current work regarding human rights violations in the consultation process for the implementation of a wind energy project in Juchitán.

International Labour Organization Convention No. 169 provides that States are obligated to guarantee the indigenous peoples’ right to free, prior, and informed consultation when legislative or administrative decisions and actions could directly impact their lives. To comply with this, Mexico devised a Protocol for the development of wind energy projects. The State initiated the consultation process in November 2014. ProDESC formed an Observation Mission to ensure that the process was being conducted according to the highest standards of human rights. I was tasked with composing a report that compared the Protocol with (1) the reports published from the Observation Mission and (2) the standards established in Saramaka People v. Suriname and Kichwa Indigenous People of Sarayaku v. Ecuador, two court cases decided by the Inter-American Court of Human Rights.

I have identified that in the first two phases alone, most of the principles of the Protocol have not been followed. The Zapotec peoples are being coerced by authoritative representatives of the wind energy company, prevented from gathering to discuss their interests prior to sessions, limited by biased moderators from participating, and living in a hostile environment filled with threats and attacks of intimidation. Moreover, the community’s customs and way of life are not respected; for example, interpreters are unqualified and inconsistently translate pertinent information. Above all, the information provided is lacking and requests for further information are not met; therefore, they are unable to properly evaluate the project. Mexico has failed to ensure that the Zapotec peoples are properly consulted on the implementation of a wind energy park that could affect their cultural and social life. Subsequently, Mexico is also violating their fundamental right to cultural identity.

It is clear that simply having a written Protocol that incorporates international mechanisms is not enough; enforcement of said Protocol is essential. More often than not, such enforcement is lacking because corporations exploit the State’s need for economic development. States cannot fall prey to this. They must remain grounded and not allow the economic interests of corporations to take precedence over the human rights of the potentially affected community. In this case, the consultation process is one of the first Mexico has tried to conduct. Therefore, it is crucial that the violations already identified be addressed to prevent a bad precedent from being established.

-Kacy Cuenta

PHRGE in Geneva: Concluding Observations Released

On Friday, The UN Committee on the Elimination of Racial Discrimination (CERD) released its Concluding Observations, following its review of the United States on August 13 and 14.  Northeastern Law student Hannah Adams represented PHRGE at the review and lobbied the committee on the issue of access to justice in civil cases, and the negative outcomes experienced disproportionately by people of color when unrepresented in civil matters where basic human needs are at stake.  In their Concluding Observations the Committee made strong recommendations about this issue in Paragraph 23:

Access to Legal Aid

While welcoming the steps taken by the State party to improve access to justice by indigent persons, such as the Access to Justice Initiative launched in March 2010, the Committee remains concerned at the ongoing challenges faced by indigent persons belonging to racial and ethnic minorities to effectively access legal counsel in criminal proceedings in practice. It also reiterates its concern at the lack of a generally recognized right to counsel in civil proceedings (CERD/C/USA/CO/6, para.22), which disproportionately affects indigent persons belonging to racial and ethnic minorities to seek an effective remedy in matters such as evictions, foreclosures, domestic violence, discrimination in employment, termination of subsistence income or medical assistance, loss of child custody, and deportation (art. 6).

The Committee reiterates its previous recommendation that the State party adopt all necessary measures to eliminate the disproportionate impact of systemic inadequacies in criminal defence programmes on indigent defendants belonging to racial and ethnic minorities, including by improving the quality of legal representation provided to indigent defendants and ensuring that public legal aid systems are adequately funded and supervised. It also recommends that the State party allocate sufficient resources to ensure effective access to legal representation for indigent persons belonging to racial and ethnic minorities in civil proceedings, particularly with regard to proceedings that have serious consequences for their security and stability, such as evictions, foreclosures, domestic violence, discrimination in employment, termination of subsistence income or medical assistance, loss of child custody, and deportation proceedings.

The Committee also recommended that the U.S. provide for legal assistance in all immigration-related matters in Paragraph 18.  Read the full Concluding Observations.

PHRGE in Geneva: Day 5

Today’s video blog is an update from the second and final day of the CERD (Committee on the Elimination of Racial Discrimination) review of the U.S. in Geneva where I am representing PHRGE as part of the U.S. civil society delegation.  Today the Committee again brought up concerns about access to counsel in civil cases, the issue I’ve been focused on here.  The committee also raised concerns about the racially disparate impact of the foreclosure crisis, and the criminalization of homelessness, two issues the housing group I’ve been working with were hoping would get some attention.  Here is some more media coverage and the UN’s press release about the second day of review.  This is my last post, as I am leaving tomorrow.  Thanks for tuning in- I will keep you updated on our follow-up activities, and post the Concluding Observations when they come out!

Unfortunately in this video I am sitting directly in front of the direct sunlight, so apologies for the poor quality.  Here are some better pictures of the Palais de Nations.

Palais de Nations 3Palais de Nations 1 Palais de Nations 2

PHRGE in Geneva: Day 4

Today was an exciting day in Geneva at the review of the U.S.’s compliance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).   The Civil Society delegation had an informal briefing with the CERD Committee this morning, and then this afternoon the official review of the United States with the US government delegation began.  Here is a picture of my colleague Erin Smith from Columbia Human Rights Institute and I speaking with CERD Committee member Ion Diaconu at the civil society briefing about access to justice.  Spoiler alert: after this conversation Mr. Diaconu raised the issue of access to counsel in civil cases with the US government in the review this afternoon!  It is important that committee members raise the issue because they are then likely to publish a “concluding observation” on it.  Concluding observations represent the comments and recommendations of an international human rights body on the U.S.’s treaty compliance, and can be used in domestic advocacy and accountability efforts.

CERD advocacy

Also, on a slightly different note, I mentioned in a previous blog entry that Ron Davis (the father of Jordan Davis) is in Geneva advocating against racial gun violence and Stand Your Ground laws- here is an article in Al Jazeera about his advocacy at CERD, in the context of the recent killing of Michael Brown in Furguson, MO.  Today the CERD Committee specifically spoke of Mr. Davis’ testimony in their comments to the United States.