Capitol Media Services
PHOENIX -- The Tohono O'odham Nation wants a federal judge to immediately halt pending plans by the Department of Homeland Security to build 62 miles of border wall through the reservation.
In new legal papers, Riyaz Kanji, attorney for the tribe, acknowledges that Congress has empowered the federal agency to waive any and all laws necessary to ensure construction of barriers and roads in areas of high illegal entry. That blanket exemption has largely thwarted lawsuits by others seeking to halt new stretches of border walls.
But the lawsuit points out that the tribe has something which it says trumps all of that: the fact that the reservation -- and its boundaries -- were created by Congress.
More to the point, it cites a 1927 law that says changes in reservation boundaries "shall not be made except by Act of Congress.'' And Kanji says the plans to build new primary and secondary barriers within 60 feet of the international border -- the congressionally created boundary -- illegally change those lines.
Kanji is asking U.S. District Court Judge Richard Leon to set a hearing as soon as possible. He said Homeland Security already has issued contract specifications and wants to award a contract sometime this month.
In a prepared response, a spokesman for Homeland Security said that Markwayne Mullin, the agency secretary, is a citizen of the Cherokee Nation "and made clear during his confirmation hearing that he respects tribal sovereignty.''
But there was no promise to halt construction. In fact, the agency said it intends to move forward.
"DHS is committed to ongoing coordination with stakeholders, including tribal nations, throughout planning and construction activities,'' the statement said. "DHS values its relationship with the Tohono O’odham Nation and remains focused on open communication and minimizing impacts.''
The tribe, however, is not backing down. "We would prefer to be using our precious resources to improve the lives of our Nation members,'' said Chairman Vernon Jose.
"We are hopeful that DHS will reconsider moving forward with a border wall and instead implement modern border protection measures,'' he said in his own prepared statement. A tribal spokesman said that includes what already exists like towers with cameras, radar and heat-sensing sensors, as well as new technology that eliminate the need for an actual 30-foot-tall wall.
"But if they insist on an illegal wall, we will stand up for what is right,'' Jose said.
While Kanji is using the legal status of the reservation to get court action, he is arguing that the issue is more than simply one of protecting its boundaries.
He pointed out that long before there was a formal reservation -- and long before the current international border was established in 1854 with the Gadsden Purchase -- the tribe already existed on both sides of the line.
"Today, there still exist 17 O'odham communities and several thousand Nation member residing in Mexico,'' Kanji told the court. "And Nation members regularly cross the border at multiple points (with the Department's knowledge) for important religious, family, and practical reasons.''
He also told the judge that the tribe has always cooperated with Homeland Security.
It allows Customs and Border Protection, an arm of Homeland Security, to operate "forward operating bases'' on the reservation which include not just administrative but living quarters. And the tribe also agreed to lease 10 sites to construct those 160-foot-tall towers equipped with cameras, thermal sensors and radar to feed real-time information to agents within the reservation.
And then there is the agreement to allow vehicle barriers and a patrol road along most of the border. All of that those measures, Kanji told the court "Have proven highly effective'' in deterring illegal border crossings and smuggling within the reservation.
Yet now, he said, Homeland Security wants to build a new 30-foot barrier and a secondary barrier. And that, in turn, also affects more of tribal lands, what with earth moving equipment, grading, establishing concrete batch plants as well as additional roads for construction vehicles and equipment that will obliterate mountain features and vegetation.
There is reason for tribal concern about the effects of border wall construction.
Construction crews working in the Cabeza Prieta National Wildlife Refuge earlier this year damaged a 1,000-year-old, 200-foot-long fish shaped geoglyph -- essentially a design drawn directly on open ground -- by blading directly through the site to build a border barrier.
Customs and Border Patrol said the incident was an accident and that the remainder of the site has been secured. But Rep. Adelita Grijalva said she didn't see it that way.
"Bulldozing a 1,000-year-old sacred site is not an accident,'' she said in a statement, calling it "a predictable result of rushing forward'' with border wall protection.
And that, said Kanji, is just an example of what would happen unless Homeland Security is stopped.
"It will destroy sacred peaks upon which the O'odham have prayed for generations,'' he told the judge.
"It will destroy petroglyphs that constitute 'perpetual prayers,' '' Kanji said. "It will destroy access to specific saguaro cacti that O'odham communities and their ancestors have used for generations to create the saguaro wine essential for certain religions ceremonies.''
And he said it will permanently block certain tribal ceremonies where members cross the border -- with federal permission -- such as an annual walking pilgrimage to Magdalena de Kino.
The bottom line, he told the judge, is that the actions of Homeland Security are an illegal trespass onto the reservation which he said, based on federal law, remains the sole property of the tribe.
More immediately, Kanji wants an immediate injunction to halt any planning or work, including awarding contracts. No date has been set for a hearing.
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