Abstract 

Excerpted From: Joseph Cauich-Tamay, Indigenous Groups Who Have Been Environmentally Displaced Should Be Considered Environmental Asylees under a Particular Social Group, 24 Rutgers Race & the Law Review 257 (2023) (251 Footnotes) (Full Document Requested)

Climate change is a topic many have only recently begun to take seriously. Throughout recent times, we have seen areas of our planet go from flourishing with life to risking becoming uninhabitable due to natural events. Sometimes these events are unexpected and happen in a moment's time, such as earthquakes or volcanic eruptions, and other times they occur over time, like rising sea levels or the melting of historically snowy areas. More recently, however, we have seen some areas become uninhabitable not because of natural events, but rather due to government action or inaction. Although this can sometimes affect a general population, what has not been discussed nor explored enough is the profound effect this has on indigenous populations. This article will discuss the environmental displacement of indigenous populations caused by governments' failure to protect these vulnerable communities.

Indigenous populations have lived in all parts of the world, and many groups still reside in their native regions. This article will focus on the indigenous populations that have existed in the Americas, specifically in Latin America. Thus, the specific focus will be on indigenous groups such as the Maya of Mexico and Guatemala, and some of the many indigenous groups of Brazil.

Many of these groups continue to be discriminated against and displaced by environmental factors. Although natural events can affect a general population, indigenous populations are disproportionally affected and at a greater risk of subsequent harm. Moreover, their own national governments discriminately target their people and their historical lands. This has even resulted in violent confrontation in which members of these groups are harmed or even murdered. Additionally, there are times when the government, aware of the harm they are currently facing, decide not to provide adequate protections. The perpetrators have included corporations and private business people who seek to dispel these groups from their lands in order to use it for their own gain. Governments have chosen not to protect nor enforce agreements they have with these groups for a variety of unfair reasons. As a result, the groups are harmed by government action or inaction.

In addition to being targeted for their land and ties to the land, these individuals cannot simply relocate to different parts of their country for multiple reasons. Often times, they have a sacred tie to the land and historical use of the land. If dispelled, they would essentially have to restart their way of life. Therefore, moving would be difficult due to discrimination and lack of access to resources they have. Moreover, some of these groups do not speak the primary language of their home country. Rather, they speak indigenous languages and may not be fluent in a given country's primary language. This further perpetuates their ability to relocate to a different portion of the country. Thus, relocation is not a feasible option for these groups.

One key aspect of asylum is that asylees must fear persecution based on one of five protected categories. These categories are political opinion, religion, race, nationality, or particular social group. Although there is some overlap in these categories, this article will focus mainly on particular social group (PSG). Specifically, the article will focus on how indigenous populations should be considered environmental refugees or asylees under the category, given that they continue to face environmental displacement.

There have been attempts for individuals to seek asylum as climate or environmental refugees internationally. These cases have been denied. Only recently has the United Nations opened the possibility of an international standard that may not fully guarantee protection, but is a factor to consider. Moreover, these situations can be distinguished. First and foremost, while the United Nations has mechanisms to compel countries into compliance, there is no ability to enforce international findings domestically. Additionally, the United States has its own interpretation of asylum and its factors, as will be discussed. Secondly, in these situations, environmental displacement has been caused by natural events. Moreover, when these events have occurred, they have affected the majority if not the entire country in a similar manner. As will be discussed, indigenous populations are disproportionally affected by environmental effects and are at times targets of their own governments. Thus, their harm is unique, and the harm and affects are directed toward these individuals.

This article will additionally focus on the lack of available relief for individuals affected by environmental displacement. Furthermore, this article will discuss how the currently available forms of relief are inadequate for the individuals facing environmental displacement. Therefore, current relief should be expanded, specifically PSG, to recognize a relief is needed for these individuals.

In summary, this article will focus on indigenous groups who have been displaced by environmental effects caused by government action, inaction, or by private actors. Furthermore, current immigration laws do not offer adequate protection to individuals who have been displaced. Thus, expanding PSG to include environmental refugees would address this issue.

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Indigenous persons who have been environmentally displaced, either by their government or private actors the government hasn't controlled, should be considered environmental asylees under a particular social group. These groups all meet the particular social group elements given they: 1) share immutable traits; 2) are socially distinct within their society and; 3) are cognizable. Furthermore, they meet the additional requirements of asylum given they: 1) have a well-founded fear of persecution; 2) that fear of persecution is based on both past persecution and future risk of persecution; 3) the persecution is based on their membership in a particular social group; and 4) persecution is being committed by either the government or actors the government cannot or will not control. Although current precedent rejects the broad argument of environmental asylees, it fails to acknowledge specific populations and groups are more vulnerable to environmental displacement and their displacement is being caused directly by government action, or inaction, and they will continue to face persecution based on their membership. Thus, indigenous persons are distinct from current precedent and should be considered environmental asylees.