37 Courts as Colonizers or Protectors?
Indigenous Peoples before the Mexican Supreme Court
Alan Cardenas and Rebecca A. Reid
Indigenous Peoples remain one of the most vulnerable populations in Mexico. Mexico has one of the highest populations of Indigenous Peoples in the Americas, where 21.5 percent of the population identify as indigenous (INEGI 2015). Yet 71 percent of the indigenous population live in extreme poverty (Molina 2018). In 2016, 3.2 million Indigenous Peoples lacked the economic means to purchase basic nutritional food items, and 50.3 percent did not have access to basic services in their homes, such as a concrete floor, running water, and electricity (Rosas 2019). Sixty percent of Mexican indigenous populations have completed less than primary school, and only 2 percent have completed a tertiary education (World Bank 2015). Inequality in Mexico places Indigenous Peoples at a great disadvantage, directly threatening their ability to survive as political and cultural communities. Today, twenty-three indigenous languages are in danger of extinction in Mexico (Escobar 2019). It is thus imperative to evaluate the Mexican judiciary’s ability and willingness to secure the rights of indigenous communities that are necessary for their continued survival.
While courts are frequently heralded as serving as impartial mediums through which marginalized communities can secure their rights, this dynamic may not hold for Indigenous Peoples. In particular, unlike other minority groups that seek equality through their inclusion within the colonial state, Indigenous Peoples seek the repatriation of indigenous land and sovereignty, as distinct political and cultural nations. Thus Indigenous Peoples seek recognition as separate nations with equal sovereignty and powers as the colonial state, which requires the state to relinquish land, resources, and power. Since courts are part of the colonial political structure and contingent on the survival of the colonial state, we ask: To what extent does the Mexican Supreme Court protect Indigenous Peoples’ rights? This chapter thus seeks to fill a gap in judicial scholarship, which tends to overlook and ignore Indigenous Peoples (Pommersheim 2012) and processes of colonization, by offering the first systematic, empirical inquiry into judicial decision-making on Mexican indigenous rights.
Colonization is the process of settling among, and establishing control over, the Indigenous Peoples of an area and appears predominantly as a reference to a historical period of colonialism. However, colonization is an ongoing and cumulative process and structure that seeks the perpetual subjugation of Indigenous Peoples in order to maintain colonial power structures and eliminate challenges to state authority and power (Borah 2018; Muñoz 2013; Sierra 2005). Challenges to state authority and legitimacy arise inherently from the existence of indigenous First Nations—which are precolonial, self-determinative, sovereign political communities with exclusive authority over their territory, resources, and peoples. Colonial power thereby imposes the oppression and elimination of these indigenous communities to maintain state claims for rightful authority and governance over occupied territories. In short, unlike other minority groups that seek equality through their inclusion within the colonial state, Indigenous Peoples seek the repatriation of indigenous land and sovereignty, as separate and equal cultural and political nations. Thus unlike individual rights from other minority groups, indigenous rights are collective rights based on these communities’ political and cultural sovereignty as distinct nations that precede the colonial state and thereby lay claim to the territories and power sought to be unilaterally held by the colonial state. As such, indigenous rights conflict with state interests, and state governments have ensured limited recourse for indigenous communities through policies producing disenfranchisement, violence, poverty, and assimilation.
For example, the arrival of the Spanish in 1521 to what is today Mexico led to an estimated 85 percent of the Mexican indigenous population being killed through a combination of slavery, disease, and exploitative labor extraction. Colonial institutions sought to subjugate Indigenous Peoples through forced labor, requiring the payment of tribute to Spanish colonizers as well as to Spain (Boyd et al. 2019). Even when slavery was formally abolished in 1542, Indigenous Peoples remained slaves via debt peonage, where laborers were forced to work to pay off a debt to the employer who ensured that the laborers never earned a livable wage, never gained their own assets, and never could pay off the debt (Reséndez 2016).
Even after Mexico’s independence from Spain in 1821, the exploitation of indigenous labor was an enduring feature of Mexican society (Joseph and Henderson 2003). Indigenous Peoples had their lands seized, leaving indigenous communities unable to sustain themselves and thus forcing them to sell their labor and becoming increasingly indebted to the point of being sold to landowning patrons (Joseph and Henderson 2003, 244). By the onset of the Mexican Revolution in 1910, a large proportion of Indigenous Peoples was completely landless (Medrano 2010, 184). The post–World War II shift to industrialization further left Indigenous Peoples in extreme poverty as they were forced to move or travel to city outskirts to search for jobs in urban areas (Joseph and Henderson 2003). Any remaining indigenous lands and natural resources were taken and privatized, and foreign industries were permitted to extract natural resources that reside within indigenous territories (Boyd et al. 2019). Hence colonization as a force to subjugate, assimilate, and dominate the Indigenous Peoples of Mexico did not end after slavery or the independence of Mexico from Spain; rather, colonization still thrives in modern-day Mexico.
The results of colonization include the extreme poverty and violence that Indigenous Peoples systemically experience, as well as limited ability for Indigenous Peoples to secure their rights (Calvo-González 2016; Correia 2018). Generally, Indigenous Peoples in Mexico have two options for fighting back against government encroachment upon their rights: rebellion and litigation. Indigenous uprisings occurred frequently throughout the country. In virtually all cases, including the Zapatista 1994 rebellion, indigenous protestors were violently struck down by state forces, including the Yaqui, Mayo, Juchitec, Maya, Apache, Comanche, Tzotzil, and others.
Indigenous ability to succeed in litigation remains limited due to the perception that indigenous interests undermine national economic interests and due to their relative lack of power and resources to effectively navigate the judicial system. For example, because Indigenous Peoples do not always speak Spanish and because virtually all aspects of government function—including applications, law, and legal proceedings—are written and conducted only in Spanish, they are forced to rely on certified interpreters and translators for proper legal representation in court (Escobar 2019). While there are sixty-eight distinct indigenous communities in Mexico, there are only twenty-four certified attorneys that can legally practice, speak, and translate Spanish and some indigenous language—thereby leaving many indigenous communities without any legal representation (Toribio and Reyes 2016). Even policies that are designed to protect indigenous claimants require the government to recognize indigeneity (Speed and Collier 2000) and authenticate historical documents titling land to indigenous communities (Medrano 2010), thereby leaving indigenous claimants dependent upon government determinations.
Furthermore, Indigenous Peoples have limited access to national electoral mechanisms and have limited legislative representation. None of the major national political parties create space for Indigenous Peoples, prioritize these communities’ representation, ensure their access to the national political arena, or promote their political participation. In 2018, there were only thirteen indigenous congressional representatives (out of five hundred seats), and in 2017 there were only five indigenous representatives. Furthermore, bills to create a quota system or mandate the inclusion of representatives of Indigenous Peoples on legislative ballots are consistently rejected. The lack of representation limits indigenous access to influence national agendas and policies. Hence Indigenous Peoples remain vulnerable and subject to nonindigenous policies via democratic institutional mechanisms. As such, courts are thus often the only “legitimate” institutional method by which Indigenous Peoples can seek rights protections and remedy violations.
Yet courts face a dilemma when adjudicating these cases. On the one hand, the Mexican Supreme Court’s (Suprema Corte de Justicia de la Nación) role is to interpret the Constitution and limit government power accordingly to protect individual rights. As such, the Court may seek to protect indigenous rights in order to fulfill its constitutional mission and garner increased legitimacy for itself and/or the government within which it sits. On the other hand, granting indigenous rights can threaten the social order and government power because they implicitly recognize preexisting indigenous sovereignty (i.e., prior to colonization) as a self-determinative political community with exclusive authority over its territory and people. Thus the recognition and protection of indigenous rights weaken state claims to legitimate authority over occupied territories and require that the state relinquish its authority over land, resources, and people.
Defining Indigenous Threat to Government Interests
At the heart of the dilemma faced by colonial courts is whether to protect indigenous rights when such protections can reduce government power and hinder government policy interests. A court could attempt to promote its legitimacy, and state legitimacy, by acquiescing to indigenous rights in order to show the public and indigenous communities that the court is unbiased, fair, and rights-oriented. Yet if the court grants indigenous rights then the court could suffer negative repercussions from the state, since it would be actively obstructing state interests, goals, and policies. Facing this dilemma, a strategic court may try to balance these competing incentives by “having it both ways” and recognizing some indigenous rights and not others in order to promote its legitimacy and avoid court-curbing retribution in response to unfavorable decisions (Clark 2009). This strategy may be feasible in that not all rights claims reflect equal threat to the state. Rights claims can be categorized into positive and negative rights, depending on the relationship of the claim to the government.
Specifically, positive rights consist of rights that require government action, such as its provision of goods or services, to fulfill a rights obligation. Thus positive indigenous rights are where Indigenous Peoples are relying upon government authority for the provision of these goods or services. Positive rights thereby reinforce or expand government authority and power because they rely on the state to fulfill these rights obligations. For example, indigenous rights claims seeking the provision of indigenous cultural and educational materials require government action in order to provide these resources. Because indigenous communities are relying on government action for the creation and dissemination of these materials, these cases affirm, reinforce, and legitimize the power of the colonial government. To ask the government to provide these rights implicitly affirms that the government has the authority to secure these rights. Positive rights thereby make Indigenous Peoples dependent upon the central government for these rights.
Negative rights, on the other hand, are those where the government is restrained from acting or interfering in particular areas or issues, thereby limiting government action and authority (Currie 1986). Negative rights claims are thus threatening to the state because they seek the limitation of government power. For example, the right of consultation is a negative right in that it compels the state (and third parties) to consult with indigenous communities prior to engaging in any activity that would affect indigenous communities. This right curtails government power by requiring indigenous consultation—and presumably consent—before implementing any policy or action that would affect them. In other words, the right to consultation limits the ability of the government to act unilaterally.
Cases involving indigenous sovereignty, autonomy, self-determination, land ownership, and jurisdictional powers are also representative of negative rights claims, where Indigenous Peoples are seeking to limit and reduce government authority relative to their own authority within their lands and communities. In these cases, Indigenous Peoples are asking the Court to force the state to return land and resources, to acknowledge indigenous sovereignty, and to recognize self-determination and autonomy of indigenous communities. These rights thus terminate unilateral state action and authority over indigenous land, resources, and peoples. This is threatening in individual cases, where each negative rights protection directly limits state power, but also in the aggregate, since the entirety of the Mexican territory was originally held by Indigenous Peoples, and granting these rights to some indigenous communities could incentivize other communities to litigate for similar results. In short, these rights ask the Court to force the state to recognize a competing sovereign authority and relinquish its ability to own and exploit indigenous land and resources.
Thus these two categories of rights have different effects upon state power, which may motivate the Court to protect less-threatening rights (i.e., positive rights) while rejecting more threatening rights (i.e., negative rights). This strategic balancing act of protecting some rights and not others can allow the Court to maximize its position as a legitimate, rights-oriented institution while maintaining state interests when they are most directly threatened, thereby preserving the social order and avoiding state retribution. Hence we expect that cases pertaining to negative indigenous rights are less likely to garner Court support compared to cases pertaining to positive indigenous rights.
Data and Methods
We constructed an original dataset consisting of all indigenous-related cases adjudicated by the Mexican Supreme Court using all publicly published decisions available on the Supreme Court website: https://www.scjn.gob.mx. We define indigenous-related cases as all cases with either an indigenous petitioner or indigenous respondent, including cases with nonindigenous petitioners/respondents on behalf of Indigenous Peoples. This dataset consists of 126 cases from 2002 to 2019.
However, the data publicly available on the Mexican Supreme Court website is not a comprehensive list of cases. For instance, Rivera (2016) notes that throughout the early 2000s more than 300 constitutional controversies were filed by various state representatives against congressional action regarding the limitations of the San Andrés Accords. Yet the website data includes only 44 of the more than 300 constitutional controversies, with 43 cases determined in 2002, and 1 case determined in 2003. This implies that the available data are not exhaustive. Because Court summary and statistical reporting do not identify indigenous cases, we have little recourse to identify the docket from which these cases are taken or changes in the Court docket over time. Without a clear explanation for the selection of case publication and the amount of information provided within each case, the availability of data could present validity issues. Hence our results, while accurate for the data we have, cannot be used to infer Court behavior and decision-making more generally. The available case files are, nonetheless, the only data available for public access, and thus the only medium through which to empirically examine the behavior of the Court and Indigenous Peoples’ case law.
The dependent variable for our analyses is case outcome, where we distinguish between cases that are in favor of the indigenous litigant(s) versus cases that represent losses to indigenous litigants. Most of the case outcomes were clear losses and wins, except for three remanded cases and one partial win. The three remanded cases were coded as losses, because these cases did not achieve success in the Court and thus depend on a lower court decision. The partial win case was coded as a win because the main rights claim of this case was granted. The data consist of a total of fifty-seven wins and sixty-eight losses. However, the combination of sampling issues and limited number of observations preclude any quantitative analysis. As such, we offer qualitative analyses to evaluate how the Supreme Court treats indigenous rights, focusing on comparisons between negative rights and positive rights cases. We identify negative rights cases as all cases whose claim seeks the limitation or termination of government interference within indigenous affairs, while positive rights cases depend on government provision and action. Within our data, there are a total of seventy-nine negative rights cases and forty-six positive rights cases.
We also divide our cases by case type to acknowledge unique characteristics of the Mexican legal system as well as different levels of threat across case type. In particular, we distinguish between constitutional controversies, amparo, and attraction cases. Constitutional controversies establish precedent and apply nationally, rather than only to the individuals who are party to the suit. As such, these decisions reflect changes to national policy in lasting ways. Indigenous rights cases presented as constitutional controversies are thus particularly threatening to government power in that they alter national policies in each case. In contrast, amparo and attraction cases do not establish precedent, cannot nullify laws, and only apply to the individuals in the suit. In order for an amparo ruling to become precedent, the Court must issue five similar amparo rulings in plenary session by a vote of at least eight (out of eleven) justices in agreement and without any contrary rulings (Gledhill and Schell 2012). Once a ruling becomes precedent, then that precedent applies to all other courts and cases. These legal rules make amparo and attraction cases less threatening to government power than constitutional controversies in that they are generally limited to specific individuals. Hence we expect that the Court is less likely to support indigenous rights in constitutional controversy cases compared to amparo and attraction cases, in addition to being less likely to support negative rights relative to positive rights within each case type.
All the constitutional controversies in our data reflect negative rights claims. Furthermore, all these cases result in a loss, except for a single case decided in 2014. This preference to reject indigenous rights claims in constitutional controversies may reflect the Court’s reticence to support indigenous rights when it is most costly and threatening to government power. However, this inference is limited in that the vast majority of these cases occur in 2002 (43 cases) originating in Oaxaca and Chiapas in response to 2001 constitutional reforms that were enacted in response to escalating pressure derived from the 1994 Zapatista rebellion.
The single indigenous win before the Court occurs in case 32/2012. This constitutional controversy was filed by the indigenous community of Cherán, asking the court to review violations of the indigenous community’s right of sovereignty after the state passed electoral reforms concerning their community without prior consultation of the community. The Court supported the indigenous community’s claims, citing the constitutional obligation for prior consultation.
For comparison, in 2015 a similar electoral reform case (constitutional controversy 41/2015) resulted in an indigenous loss, where indigenous members of the city council of San Juan Juquila Mixes were removed from office by the state governor and replaced with members of his own political party. The Court found that the unilateral removal of these indigenous members did not violate any procedural laws because it was carried out via citizen assembly. Furthermore, the Court held that the defendants did not even have standing, since constitutional controversies can only be filed by government officials—which was a position they no longer owned due to their removal.
For amparo and attraction cases, our data consist of forty-eight amparo cases and sixteen attraction cases, and there is more variation across positive versus negative rights and case outcomes. Table 1 shows the breakdown of case outcome by positive versus negative rights in each case type.
|Type of right||Number of case wins||Number of case losses|
Table 1. Case outcomes in amparo and attraction cases
Descriptively, indigenous success before the Court occurs most for amparo cases pertaining to positive rights claims. Since indigenous litigants appear to win amparo cases frequently, it appears that amparo proceedings are an effective method of obtaining indigenous rights. For attraction cases, indigenous litigants actually won more cases when claims consisted of negative rights, while they tended to lose slightly more cases pertaining to positive rights. This descriptive result seems to contradict our hypothesis; however, these differences are small—and recall that these cases fail to take into account both the underlying docket from which they are drawn and the selection processes the Court uses to decide whether they want to hear attraction cases as part of their discretionary docket.
To better investigate the relationship between positive and negative indigenous rights and court outcomes, we qualitatively examine cases by issue area. The most frequent legal claims issued by indigenous litigants in our data consist of the rights to native language materials, the right of prior consultation, and the recognition of indigeneity. The provision of native language material reflects a positive rights claim since the government is obligated to act to provide these goods. While this right to native language materials is designed to assist Indigenous Peoples with maintaining their traditional languages within their communities and navigating Spanish institutions, this provision also makes Indigenous Peoples dependent upon the colonial government to have access to basic materials in languages they understand and to have the ability to survive as cultural communities threatened with the loss of their language and culture through hundreds of years of assimilation and exploitation. In other words, Indigenous Peoples are required to rely on the colonizing government to preserve their linguistic and cultural heritage, to obtain an education in a language they can comprehend, and to navigate political systems that they had no input in creating, yet to which they are subjected.
The rights of prior consultation and recognition of indigeneity form negative rights in that they require the government to limit unilateral action, as well as to carve out areas within which the state has minimal or no authority. For the right of prior consultation, these claims require the government to consult with indigenous communities to negotiate intended government (and third party) activity, rather than the government unilaterally pursuing its interests at the expense of Indigenous Peoples. The recognition of indigeneity is a negative right in that once recognition is obtained, then the government is required to limit its activities with regard to that individual or community. In essence, recognition of indigeneity mandates that the individual or community are eligible for indigenous rights such as autonomy and self-determination, which are not available to nonindigenous peoples, which directly reduces the authority of the state over that individual/community. As such, we expect that the Court is more likely to support indigenous claims asking for the provision of native language materials (i.e., positive right) and less supportive of claims seeking the enforcement of rights of consultation and recognition of indigeneity (i.e., negative rights).
Provision of Native Language Materials
Cases pertaining to government responsibility to provide Indigenous Peoples with educational and judicial materials in their native languages include four full cases in our dataset. Three of these cases seek educational material for Indigenous Peoples. Specifically, case 272/2019 originates as an amparo suit from the state of México requiring the provision of educational materials for Indigenous Peoples with disabilities. Cases 19/2016 and 584/2016 arise from Hidalgo as an attraction and amparo suit, respectively, seeking native-language educational materials for public schools. In all three cases, the Supreme Court voted in favor of indigenous litigants, which is consistent with our expectations regarding positive rights, since these cases do not threaten government power or authority.
Amparo case 78/2014 involves the request of an indigenous petitioner against the Human Rights Commission of the State of Hidalgo after the Commission failed to provide the petitioner with information concerning his legal status in his native Hñähñu (Otomi) language. The petitioner had solicited his information for a criminal procedure in his native language, but the Commission only provided him with the information in Spanish, claiming that the petitioner did not need the documents since he spoke Spanish. The Supreme Court held that Indigenous Peoples have the right to request documents in their native languages and that the responsible institutions must provide them, even if the petitioners speak Spanish. Thus the Court provided positive protection for the indigenous litigant by affording him translated documents. Consistent with our expectations, this positive rights case does not directly threaten government authority; instead, it expands governmental powers in a way that makes indigenous litigants dependent upon the federal government for resources to participate or even navigate within colonial institutions.
Right of Prior Consultation
The right of prior consultation consists of the requirement of governments, public officials, and businesses to consult with indigenous communities prior to any construction, extraction, or appropriation of indigenous lands and resources, as well as prior to the passage of new laws that would affect indigenous communities. The intent of this right is that any policy, construction, or development project would receive indigenous consent before its initiation. However, the right to prior consultation, pursuant the Mexican constitution, does not actually require indigenous consent—just consultation. This reduced obligation therefore allows for indigenous communities to be presumably involved in the decision-making processes but does not allow them to directly dictate or impact the outcome. In other words, prior consultation rights can be fulfilled and construction can occur even if the indigenous communities consulted did not consent to the construction. Hence the threat inherent in this negative right is limited in that it only requires consultation rather than consent; however, it still marks a negative right in that it forces the state to negotiate with Indigenous Peoples before engaging in the intended activities.
The cases in our dataset consisting of the right of prior consultation as the primary legal claim include cases pertaining to genetically modified organisms (GMOs), the passage of new laws, infringement or development on indigenous lands, and environmental damage.
Protection from GMOs
Six cases in our dataset reflect cases from indigenous communities seeking redress for the introduction of genetically modified organisms (GMOs) into indigenous lands, specifically those related to soybean GMOs: 241/2015, 198/2015, 499/2015, 270/2015, 500/2015, and 498/2015. All these cases are amparo suits with negative rights claims from Campeche and Yucatán. In all cases, the Court granted legal victories to indigenous litigants regarding rights of consultation. For example, in amparo case 499/2015 multiple indigenous communities filed for protection against the General Directorate of Food, Agriculture, and Fisheries and the General Directorate of Environmental Impact and Risk. These indigenous communities claimed that the General Directorate released genetically modified soybeans into their lands and cited harmful environmental repercussions that threatened their community well-being as well as their cultural integrity. They argued that the permit to release GMO soybeans onto their communal lands was invalid and that the organization failed to properly consult with the affected indigenous communities. The Court confirmed that these organizations had violated the indigenous communities’ right to consultation, determining that there was a lack of appropriate consideration for the communities’ cultural well-being.
Hence these cases obtained legal victories in terms of rights of consultation despite seeking negative rights claims. This is contrary to our expectations, though we should also note the potentially limited legal victories achieved here. In particular, while the Court agreed with indigenous litigants that their rights of prior consultation were violated, this does not directly protect indigenous lands from previous, continued, or future GMO dissemination. Instead, these indigenous litigants are now only guaranteed in their ability to consult with the General Directorate of Food, Agriculture, and Fisheries and General Directorate of Environmental Impact and Risk. Previous environmental or cultural damages were not redressed by the Court, and no federal protections were installed. Furthermore, the Court explicitly limits the application of any potential federal protections to only these specific indigenous litigants, so that other affected communities (not a party to these specific cases) must undergo the lengthy and costly litigation process to obtain similar rights.
Passage of New Laws
Action of unconstitutionality case 31/2014 was filed by the President of the Human Rights Commission of the State of San Luis Potosí, arguing against the constitutionality of a state law. Action of unconstitutionality cases allows branches of government, subgroups of branches, and political parties to petition the Supreme Court arguing against the constitutionality of legislation that applies to the general population. The petition before the Supreme Court asserted that the state law violated several provisions of the Mexican constitution regarding the indigenous right of prior consultation, where the law had not been properly consulted with affected Indigenous Peoples prior to its passage. The Supreme Court issued a winning verdict for indigenous communities, enforcing that indigenous communities must always be consulted prior to carrying out any legislation or amendment that affects indigenous communities and declaring the state law null and void. This outcome is contrary to our expectations in terms of negative rights; yet it also reflects issues of federalism, where the state law is overturned in favor of federal laws. Thus it is possible that the federal government and indigenous communities shared mutual interests in this case.
Infringement upon Indigenous Land
Several cases before the Supreme Court pertain to infringements upon indigenous lands due to development projects, mining, and the building of roads, windmills, and universities. These cases thus reflect the government or government-granted third parties’ power to use or extract from indigenous lands without the adequate prior consultation with Indigenous Peoples who own those lands. While all these cases thus constitute negative rights claims, seven cases resulted in indigenous victories before the Court, while four resulted in losses.
For example, case 23/2014 asks the Court to review an amparo claim against the state of Guerrero, where the state had granted a mining concession without appropriate prior consultation with the indigenous community. The Court upheld the indigenous litigants’ argument, finding that the state had sought to exploit and extract natural resources from indigenous land without conducting prior consultation.
Amparo 781/2011 was filed against the Barrancas del Cobre Trust for a development project organized by the Secretariat of Tourism. The indigenous community cited the exploitation of their land and the lack of consultation for the development project and sought remunerative redress for damage caused by the project construction. The Court supported the indigenous community partially, where the amparo was only afforded in recognition of the lack of proper prior consultation. The Court held that the community did not provide sufficient evidence showing that damage was done to their territory, hence dismissing their second claim. Thus the Court upheld the right of prior consultation but did not provide redress for the alleged environmental damage.
Amparo case 600/2018 asks the Supreme Court to review the construction of a windmill farm by a Spanish company on indigenous lands without prior consultation. The indigenous litigants argued that the permits for construction should not have been issued prior to the consultative process and that consultative process was not properly carried out since the indigenous community and company did not formally meet to agree to the terms and conditions (as the process was mediated by the Secretariat of Energy). The Supreme Court issued a loss to the indigenous litigants, stating that the terms and conditions were clearly communicated between both parties and that the issuance of a permit does not necessarily indicate the immediate initiation of a project.
These cases thus show that while the Court offers indigenous wins in terms of consultation, these rights are curtailed to the extent that the Court avoids requiring direct consultation to discuss terms and conditions, avoids providing redress for environmental damages caused by these projects, and enables the issuance of project permits prior to consultation processes.
Two cases pertain to indigenous communities explicitly requesting redress in response to environmental damage in their lands: 522/2018 and 631/2012. One case resulted in an indigenous victory (631/2012), while case 522/2018 resulted in an indigenous loss.
Attraction case 552/2018 asks the Supreme Court to attract an amparo case filed by an indigenous community who cited damages to their community as a result of the expropriation of a part of their territory to construct a hydraulic dam. The construction project caused ecological damages and flooding that resulted in the displacement of Indigenous Peoples living on the affected land. The district court dismissed the request, citing a lack of standing of the petitioning litigants as representatives of the communities. The Collegiate Court forwarded the case to the Supreme Court to consider for attraction, but the Supreme Court decided to not attract the case (which we consider a loss since the community has no further avenues for redress).
Amparo case 631/2012 involves the Yaquí tribe from the state of Sonora suing multiple federal agencies and the state of Mexico for environmental damages caused by the construction of an aqueduct and for the failure to consult the affected communities. The Supreme Court held that the state of Mexico and environmental agencies did not properly consult the indigenous communities and affirmed the lower court order for appropriate consultation with the Yaquís. The Court further stated that if any environmental damage was reported then construction would be required to be suspended.
Hence the Supreme Court appears to regularly affirm indigenous rights of prior consultation, which is contrary to our expectations for negative rights cases. In most of these cases, however, the Court grants that the right of consultation was violated as a simple acknowledgment but never includes reparations to remedy environmental or cultural damages. Similarly, suggesting that the right of consultation is fulfilled so long as the terms and conditions are “clearly communicated” (amparo 600/2018) instead of enforcing mutual negotiation between parties ensures that indigenous consent is irrelevant and limits indigenous agency in controlling their lands. These cases may suggest that the Court is more comfortable with affirming abstract or limited indigenous rights in a manner that does not directly threaten government economic interests.
Recognition of Indigeneity
There are two cases that pertain to the recognition of indigeneity: 156/2011 and 64/2016. Case 64/2016 involves a constitutional controversy from Oaxaca arguing for the legal recognition of an indigenous group so as to preserve their culture and land. Consistent with our expectations, the Court issued a loss to these indigenous litigants.
Amparo case 156/2011 originates in Hidalgo where a suit was filed against The National Commission for the Development of Indigenous People (CDI) and other organizations for failing to recognize the indigenous petitioners’ municipality as indigenous, thereby violating the community’s right to self-determination. The Supreme Court determined that because the state of Hidalgo already recognized the municipality as indigenous via a state governor decree, the case failed to meet formal requirements to appear before the Court, which declared itself legally incompetent to adjudicate the matter. This loss is consistent with our expectations regarding governmental threat in that the Court’s issuance of a loss hinders the ability of that Hñähñu (Otomi) community to be federally recognized and thereby obtain indigenous protections. In addition, the Court’s decision to deflect indigenous recognition to a state governor risks the devolution of indigenous affairs that often leaves Indigenous Peoples without adequate protection and directly erodes their sovereignty rights by inviting conflict with local officials (Reid and Curry 2019). Hence both cases pertaining to indigenous recognition conform to our expectations that this type of negative right pushes the Court to serve as a colonizing force rather than a guardian of rights.
These three areas of legal claims reveal that the Court does not uniformly reject indigenous rights claims. Yet the Court appears much more comfortable in affirming positive rights, as shown in the provision of native language materials, than negative rights that may undermine or threaten government power. While the Court does not reject all negative rights cases, the cases involving the right to prior consultation illustrate the limited stance the Court takes in affirming negative indigenous rights. Instead of providing substantive reparations or protections, the Court consistently affords only the simple acknowledgment of violations of the right of consultation—a right which, in and of itself, serves mostly as a symbolic, legitimating performance. Without requiring indigenous consent, the right of consultation is designed to appease dissent, without fundamentally altering the colonizing structures and processes that systematically disenfranchise Indigenous Peoples even within their own jurisdictions and lands. Without the right of consent, the right to consultation is merely a nice way of “clearly communicating” to Indigenous Peoples what will be (unilaterally) done to their lands (amparo 600/2018). Furthermore, the Court’s hesitancy to recognize indigeneity corroborates its limited role in protecting indigenous rights in the face of state interests.
Nonetheless, these results suffer from the lack of publicly available documentation that could otherwise assist in more in-depth legal analysis and systematic evaluation. This analysis suggests that there is much to be desired in the Mexican Supreme Court’s protections of indigenous rights. The 2018 presidential victory of Andrés Manuel López Obrador promised a new relationship between the state and Indigenous Peoples, particularly with the creation of the 2018–24 National Program of Indigenous Peoples. We hope that these efforts include more robust indigenous rights protections and more effective avenues for redress within the Mexican courts, to promote a more fair, diverse, and vibrant democracy and to protect the rule of law through the advancement of indigenous rights.
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- Write down as many names for Indigenous Peoples or First Nations you can think of. How many could you list?
- In how many classes did you learn about Indigenous Peoples? In what context did you learn about them? Were they always discussed in the past tense or only during colonialism? Reflect on how you have been introduced to indigenous issues.
- Write a land acknowledgment identifying on whose (indigenous) lands you and/or your university reside. A land acknowledgment is a short statement that identifies the relevant Indigenous Peoples on whose land you/the institution now reside, as an expression of gratitude and appreciation to honor the Indigenous Peoples who have lived, worked, and protected that land.
For more information on land acknowledgment statements:
- Though the Zapatista movement was more successful than previous movements in that it effectively garnered international attention and led to constitutional reforms to secure some indigenous rights. ↵
- Financiero (2018). ↵
- Global Americans (2017). ↵
- Global Americans (2017). ↵
- However, many parts of the Mexican Constitution are symbolic rather than binding (Zamora et al. 2004), especially if the constitutional provision lacks corresponding implementation legislation. The Mexican constitution is viewed as a normative and exhaustive document that outlines broad policy goals; yet constitutional provisions mandate no obligation for fulfillment. The interpretational flexibility to not enforce constitutional provisions unless explicitly supported by legislation may incentivize the Court to reject indigenous rights claims. ↵
- Estadística mensual, Julio 2019, Suprema Corte de Justicia de la Nación, https://www.scjn.gob.mx/sites/default/files/pagina/documentos/2019-09/SGAEM0719.pdf. ↵
- Furthermore, not all cases contain equal information. Some cases only contain only the case number or only the subject information and nothing else. The cases whose description included sufficient information detailing the petitioning party, the issue, the date, and verdict, were coded onto the dataset. Cases that did not include any information are omitted from the dataset. Most of the published cases available on the Supreme Court website are “highly reduced summaries” of the Court’s final judgment that are usually drafted by clerks of the Court (Zamora et al. 2004, 193). While the Mexican Supreme Court has made considerable effort to become a more transparent institution in recent years (Castillejos-Aragón 2013), the publication of specific cases online could be due to administrative limitations, as the Supreme Court faces significant caseloads that often make them unable to spend time composing full opinions for each case and electronic publication may be delayed (Zamora et al. 2004). It is also possible that the publication of specific cases is strategic. Staton (2010) argues that judicial communication strategies, such as the selective promotion of cases on public websites, are designed to improve transparency of the court in certain cases so as to promote judicial legitimacy and power. In other cases, the court may prefer public ignorance to avoid undermining judicial legitimacy (Staton 2010). ↵
- Atracción cases are coded as losses if the Court decided to not take the case, which is a total of sixteen cases. ↵
- Constitutional controversies (Controversia Constitucional) represent concrete claims challenging the constitutionality of laws. These cases are part of the Court’s mandatory jurisdiction, and the Supreme Court has original and exclusive jurisdiction to hear these cases in pleno (i.e., en banc). These cases permit elected government officials and representatives, but not individual citizens, to file constitutional controversies on behalf of their constituents when a law or policy that is passed by state or federal legislative branches conflicts with constitutionally protected rights (Finkel 2005; Domingo 2000). These cases are largely designed to resolve separation of powers and federalism questions, particularly adjudicating interstate boundary disputes, federal interbranch conflicts, and state-municipal conflicts over the autonomy of local governments (Staton 2010). Constitutional controversies establish precedent with the intention of maintaining legal consistency and applicability across the nation (Vargas 1996). ↵
- Amparo cases protect individuals from abuses of government authority and is an old institutional feature of Mexican law, created in the early nineteenth century and codified in the 1857 Constitution and later in the 1917 Constitution, which remains in effect today. Part of the Court’s mandatory jurisdiction, amparo claims seek to resolve cases involving violations on individual constitutional rights (Borah 2018). These cases represent concrete, a posteriori claims under the jurisdiction of federal courts. (A posteriori refers to the fact that the case can only occur after a violation has occurred and the party in the suit has suffered an injury. This is in contrast to a priori cases that can resolve future, potential violations and injury. Concrete claims refer to the fact that the claim has generated actual injury to the parties of the suit, while abstract review refers to the possibility of future injury but where the injury has not yet occurred.) If amparo is granted, then the judgment offers the individual in the suit protection or redress, often in the form of stopping the implementation of government action or mandating a specific action by public officials. Generally, there is a high level of government compliance with the Supreme Court’s amparo decisions (Zamora et al. 2004). ↵
- Generated via a 1988 constitutional amendment, attraction (atracción) cases are those that ask the Supreme Court to “attract” a case that usually falls outside of its jurisdiction, arguing that the elements of the case present fundamental implications for the law (Castillejos-Aragón 2013). If the justices agree in attracting a case, then the court hears the appealed case that would otherwise fall outside of its jurisdiction (Staton 2010). Hence as discussed in Reid (2020), these cases reflect the Court’s nonmandatory jurisdiction where the Court can decide whether to hear a case. ↵
- Others who face the same problem (even by the same agency) must file separate suits, and the Court rarely consolidates cases. ↵
- Precedent here refers to jurisprudencia obligatoria. As a civil law nation, Mexico does not have a legal tradition of precedent, but jurisprudencia obligatoria has developed to ensure stability and consistency in law in a manner similar to precedent. ↵
- There is “informal precedent” as well, which refers to when three or four cases have been decided such that it seems likely that the law with become precedent, thereby incentivizing and signaling to lower court judges to follow that ruling (Zamora et al. 2004). These likely or upcoming precedents, however, have no official legal weight until they meet the formal requirements. ↵
- The Zapatista Army of National Liberation (EZLN) began organizing in 1983 in response to poverty in Chiapas and organized a revolt in 1994, which was met with violent state repression. Conflict continued until the 1996 San Andrés Peace Accords was signed by President Zedillo, but he never sent the agreement to Congress for legislative ratification and instead increased military presence in Chiapas. The conflict remained unresolved with rights repression and violence until President Fox entered office in 2000 and immediately submitted a watered-down version of the Accords for legislative ratification and amended the Constitution in 2001 to grant states the option to allow indigenous self-governance (Eisenstadt 2011). ↵
- The recognition of indigeneity allows individuals and communities to pursue both negative and positive rights claims. However, because indigeneity creates a political space within which state power is limited and can be further limited via negative rights claims, we categorize this claim as a negative rights claim. In essence, the more people and communities recognized as indigenous, the less power the state has over all these groups. Indeed, a prominent political strategy used in several countries to facilitate indigenous extermination by ensuring that they have few, if any, protections or resources upon which to rely is to fail to recognize Indigenous Peoples (Reid and Curry 2019). ↵
- Instituto Nacional de los Pueblos Indígenas (2018). ↵