F ive hundred years after the Spanish conquest, indigenous people from deep in

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2 Indigenous Farmworker Project: Legal Protection for California s Isolated Farmworkers By Jack Daniel, Alegria de la Cruz, Mike Meuter, and Jeff Ponting Jack Daniel Directing Attorney Alegria de la Cruz Staff Attorney, Indigenous Farmworker Project Mike Meuter Migrant Unit Director Jeff Ponting Directing Attorney, Indigenous Farmworker Project California Rural Legal Assistance P.O. Box 1561 Oxnard, CA ext. 227 F ive hundred years after the Spanish conquest, indigenous people from deep in the Mexican interior and from the Guatemalan highlands have again been displaced. Fleeing persecution and in search of farm work since the early 1980s, they have immigrated to rural California and other parts of the United States. Culturally and linguistically isolated, indigenous farmworkers experience the most extreme forms of discrimination and exploitation and have quickly become California s most marginalized workers. To address the varied challenges of providing legal services to this new immigrant population, California Rural Legal Assistance has committed considerable human and economic resources. Most of the indigenous farmworkers in California come from a highly underdeveloped region in the southern Mexican state of Oaxaca known as la Mixteca. Indigenous farmworkers have been driven from what have always been Mexico s poorest states by a 50 percent drop in average real wages and from Guatemala s wartorn areas by concerted assaults on their lives and way of living. Large numbers of them are illiterate and not fluent in Spanish, much less English. The native languages spoken in California s fields now include pre-columbian ones such as Mixteco, Triqui, Zapoteco, Kanjobal, Mam, and Quiché. Because of the migratory nature of agricultural labor, the population of Mixtecos living and working in California s San Joaquin Valley fluctuates between 65,000 and 100,000 annually. (Demographers estimate that indigenous farmworkers will comprise as much as 25 percent of the total farm labor force by 2010; this would mean as many as 200,000 indigenous farmworkers in California by 2010.) Because of their cultural and linguistic characteristics, many of these indigenous farmworkers are especially open to abuse in California s fields even though they immigrated in time to take advantage of the special agricultural workers provisions of the Immigration Reform and Control Act. 1 1 Immigration Reform and Control Act of 1986, Pub. L. No , 100 Stat (1986). Clearinghouse REVIEW Journal of Poverty Law and Policy September October

3 Indigenous farmworkers face multiple challenges. A disproportionate number are concentrated in the most seasonal, low-paying, and backbreaking agricultural labor in California. All too frequently other Mexican- and Guatemalan-born workers discriminate against them because of their darker skin, supposed backward culture, and failure to speak or understand Spanish. In California s Central Valley, indigenous farmworkers (largely Oaxacan and of Mixtec origin) work in the grape, raisin, tomato, fig, garlic, and olive farms. Faced with the Central Valley s chronic unemployment that often reaches 20 percent, indigenous farmworkers are at the mercy of the notorious farm labor contracting system and struggle to earn $10,000 annually. Thus survival, for both individuals and families, depends upon the ability to migrate and follow the crops at a moment s notice. California Rural Legal Assistance s work with indigenous farmworkers reveals that they suffer countless wage, hour, health, and safety violations. They routinely earn less than the minimum wage and are deprived of state-mandated rest and meal periods. Illegal deductions for work supplies such as pruning shears, gloves, protective goggles, and hoes are commonly taken from their pay. They often work in the fields in temperatures exceeding 110 degrees without drinking water and toilet and hand-washing facilities. Their jobrelated injuries (pesticide poisoning, falls from ladders, back strain from heavy lifting and prolonged bending, farm machinery related accidents) are often left untreated. In short, their working situation is generally appalling. Some cases border on peonage. The cultural and linguistic divide, as well as the necessity often to migrate without notice, leaves indigenous farmworkers vulnerable to abuse in employment relationships, housing, education, and access to health care. In September 1993, in response to the increasing number of indigenous farmworkers laboring in California fields, California Rural Legal Assistance developed the Indigenous Farmworker Project. At the project s inception, California Rural Legal Assistance had an experienced and talented group of Chicano community workers who easily overcame the linguistic and cultural barriers that had impeded advocacy on behalf of farmworkers. Indigenous farmworkers, however, presented both linguistic and cultural challenges that even California Rural Legal Assistance s most experienced advocates could not overcome. Successful advocacy would be possible only with the aid of interpreters who not only spoke the client s indigenous language but also were aware of the unique cultural differences distinguishing indigenous clients from different regions in Mexico. The has helped California Rural Legal Assistance meet several linguistic and cultural challenges posed by the arrival of indigenous Mixteco farmworkers in communities throughout California. Initially the project almost exclusively focused on informing indigenous farmworkers about basic wage, hour, and working condition standards and about landlordtenant and migrant education rights. The project has since employed and trained members of the Mixteco community to conduct such outreach, distribute community education materials, give advice and make referrals. With seven indigenous Mixteco community workers from Sonoma County in Northern California to Ventura County in Southern California, California Rural Legal Assistance s project currently employs more Mixtecos than local, state, and federal government agencies in California combined. California Rural Legal Assistance meets its responsibilities under Title VI, in part through the project s provision of linguistically and culturally competent services to California s fastest-growing farmworker population. 2 The project s community workers, because of their Oaxacan background, understanding of Mixteco culture, and ability to speak Mixteco Alto or Bajo, have enabled California Rural Legal Assistance to relate with relative ease to communities 2 Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d (2004), mandates that language access and culturally competent services be provided to individuals seeking services from entities who receive federal funding. 290 Clearinghouse REVIEW Journal of Poverty Law and Policy September October 2004

4 which are normally extremely insular and wary of outsiders. Such interaction has been essential to building trust between California Rural Legal Assistance and the indigenous farmworker community. A client group previously inaccessible has been a source of some of California Rural Legal Assistance s most successful advocacy in the last ten years. While the project has maintained its original emphasis on community education and outreach, in recent years California Rural Legal Assistance has augmented its community worker staff with two attorneys and a director so that it could expand its role within the California Rural Legal Assistance migrant program to tackle broader and more complex litigation and other impact projects described below: In 1998 the project uncovered a trailer park located next to and on top of an Environmental Protection Agency superfund site. Over the next four years the project was the galvanizing force behind the Casas San Miguel Housing project relocation of 58 largely indigenous Oaxacan farmworker families (over 275 people), the majority of whom demanded that they be moved into decent housing. By March 2002 these families had either received a financial settlement allowing them to purchase a new home or moved into a newly constructed and mortgage-free home in what is now the largest development project with homes owned by indigenous Oaxacans outside Oaxaca. The project s development of a trusting relationship with the Mixteco community as well as its efforts to educate and pressure private enterprises and foundations and federal, state, and local governments on how best to serve the indigenous Oaxacan community was critical to preserving client trust and securing client interests during the four-year struggle to relocate families and construct homes. During the 2000 census enumeration the project s community workers and staff led community-based outreach, education, and assistance to census respondents in counties served by California Rural Legal Assistance local offices and identified approximately 10,000 farmworker housing units believed to be at high risk of census undercount because of their low visibility. The project s work in the census and the 245-I (family reunification for immigrants) community education outreach efforts resulted in unprecedented civic engagement by the Oaxacan community in the central San Joaquin Valley. In 2002 and again in 2004, in Lopez v. Diaz (Group File No ) (Cal. Labor Comm n Nov. 1, 2000) and Diaz-Zarate v. Cortes-Garcia (Case Nos & ) (Cal. Labor Comm n June 21, 2004 ), the project represented Mixteco and Zapoteco farmworker crews with over sixty members per crew who had been paid less than the state minimum wage of $6.75 an hour, were not paid wages for between two weeks and two months of labor, and were denied state-mandated rest and meal periods by farm labor contractors who were judgment proof. The project persuaded the California labor commissioner to hold hearings, issue decisions against the farm labor contractors, enter judgments with the court, and satisfy those judgments through the State Farm Labor Contractor Fund. The project s efforts in these two matters have guaranteed to these workers unpaid wages and penalties amounting to $200,000. In Gomez v. Western Farm Services (No. BC310267) (Cal. Super. Ct. Los Angeles County Feb. 6, 2004) the project and cocounsel McNicholas & McNicholas LLP filed a complaint on behalf of 150 residents of Lamont, California, and members of the general public who suffered injury when the fumigation of an onion field with the pesticide chloropicrin (the same chemical used in tear gas) drifted over their apartment complexes on consecutive evenings in October The plaintiffs seek damages for pain and suffering, lost earnings, and injunctive relief Clearinghouse REVIEW Journal of Poverty Law and Policy September October

5 against the pesticide applicator, grower, and landowner responsible for the two drift incidents. In California many grassroots indigenous farmworker organizations promote cultural and linguistic recognition of the different indigenous Oaxacan communities. In the United States, aside from California Rural Legal Assistance s Indigenous Farmworker Project, the Oregon Law Center, and the Michigan Migrant Legal Assistance Project, few services are directed specifically at the indigenous Oaxacan farmworker population and the grassroots groups working with them. The Frente Indígena Oaxaqueño Binacional is a well established cross-border political organization serving indigenous farmworkers in both the United States and Mexico. The Indigenous Farmworker Project and Frente Indigan Oaxaqueño Binacional have developed a strong relationship on outreach, education, and language interpretation. California Rural Legal Assistance helped Frente Indigan in its internal development efforts and so enabled Frente Indigan to expand its services. As much as legal advocacy is crucial to the preservation of the health and safety of the indigenous community, the need for collaborative efforts to be duplicated with other indigenous farmworker communitybased organizations has become increasingly obvious. California Rural Legal Assistance, through the, has made remarkable progress in working with California s indigenous farmworker community. Nonetheless, with a rapidly increasing indigenous farmworker population, as well as changing socioeconomic conditions both in the United States and south of the border, California Rural Legal Assistance must be prepared to reevaluate and, if necessary, drastically alter its role as an advocate if it hopes to keep up with the needs and desires of a dynamic client population such as indigenous farmworkers. 292 Clearinghouse REVIEW Journal of Poverty Law and Policy September October 2004