Tribes protest and litigate in an ongoing bid to halt construction of the notorious project.
By: Colleen Connolly
In mid-July, a group of people gathered for a prayer ceremony at the border between the United States and Mexico in Southern California 50 miles southeast of San Diego. American citizens arrived from the north and Mexican citizens from the south. Together, these two groups represented the Kumeyaay Nation. For several hours, the group sang and danced in a circle around the invisible line in the dust that separates Mexico and the U.S. The only indication of the boundary was the corrugated metal border wall that construction crews were erecting with heavy machinery right next to them.
Ana Gloria Rodríguez, a Kumeyaay citizen who grew up in Mexico and now lives in California and works on the Sycuan Reservation between San Diego and the site of the ceremony, crosses the border at least a few times a month to visit family and friends. She has participated in many ceremonies over the years, but this one was different—emotional, intense, and intimidating. U.S. border patrol agents stood near the participants on the north side, urging them to hurry up. Mexican troops watched them from the other side. And in the skies above, two helicopters were suspended in the air, the sound of their blades threatening to drown out their prayers, sung in their native language.
Kumeyaay citizens and activists have been praying and protesting at the border wall nearly every day since late June. But attempting to stop the border wall has proved extremely difficult. The laws that should protect their land from environmental degradation and defend their religious freedom and sacred sites have been waived by the Trump administration in the name of national security. As construction crews work at record speed to build the border wall before the election, there is little the Kumeyaay can do but try to slow down their progress.
There are more than 25 federally recognized Native American tribes from California to Texas that straddle the southern border: Kumeyaay ancestral lands, dating back more than 12,000 years, lie on either side of the U.S.-Mexico border, cleaving the nation in two and encompassing the area between San Diego and the Imperial Counties to about 60 miles south of the boundary. They say the remains of their ancestors are buried there and are being desecrated by the dynamite used in the construction process. The project cuts through other sacred sites such as Tecate, a historic Kumeyaay village. The wall threatens to cut off already tenuous connections between Kumeyaay south of the border and Kumeyaay to the north.
The laws that should protect their land from environmental degradation and defend their religious freedom and sacred sites have been waived by the Trump administration in the name of national security.
For Rodríguez, the struggle is about more than just a wall. It’s also about her right to exist. “A lot of people, when they talk about the Kumeyaay Nation, they always talk about the people from the past,” she says. “I say, ‘No, we’re still here.’ We speak the language and do our religion. We’re still here.”
In 2016, Cynthia Parada, a councilwoman for the La Posta band, one of several tribes of the Kumeyaay Nation, led a protest against the construction of a Navy SEAL training center in Coronado, California. She said Kumeyaay ancestors were buried there and asked the Navy to move the boundaries of the project a short distance to protect the remains. But the Navy pursued the project and built the center.
Four years later, Parada found out about the border wall construction after it had already begun. In June, she gathered a group of people and they went to the construction site, arriving just before a scheduled explosion. Their protests delayed it for days. “This just reminded me so much of Coronado all over again,” Parada says. “They just want to blow through and ignore laws and just destroy everything. Enough is enough.”
The Trump administration has bypassed dozens of laws to build the border wall quickly, including several environmental laws and three others of particular concern to the Kumeyaay: the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, and the Religious Freedom Restoration Act.
Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress established waivers for certain laws when the federal government builds border barriers. But that measure only allowed Washington to waive two—the National Environmental Policy Act and the Endangered Species Act—for 14 miles along the border near San Diego. Beginning in 2002, Congress expanded the reach of the act and gave the power to enact waivers to the secretary of the Department of Homeland Security.
A number of lawsuits have been filed to stop construction, and one line of argument is to challenge the waivers. Attorney Jean Su, the lead litigator on a 2019 challenge to the waiver provisions led by the Center for Biological Diversity, a Tucson-based nonprofit conservation organization, says this expansion of powers is unconstitutional. The way the law is written now, she says, means the Department of Homeland Security can waive an “infinite number” of federal and local laws to build barriers near any border, not just the southern border. The Trump administration has waived 65 laws. George W. Bush waived five; Clinton and Obama waived none.
After a federal district court ruled that the waivers did not violate the separation of powers principles by handing too much authority to the executive branch, the Center for Biological Diversity appealed to the Supreme Court, which declined to hear the case in June. “The only way that we’re truly going to get long-term justice on this statute is either for the judiciary and the Supreme Court to strike it down as unconstitutional, which it is, or [through] congressional reform,” Su says.
Different bands of the Kumeyaay have filed two separate lawsuits since August trying to get around the waivers and halt construction of the wall. A federal judge denied their request for an injunction on the first lawsuit that argued that federal authorities did not properly consult with tribes before starting construction and that the funds used to build the wall were unlawfully transferred from the Department of Defense. The second is still pending: That case argues that Chad Wolf, acting secretary of Homeland Security, does not have the authority to waive any laws because he has not been confirmed by the Senate.
A cultural monitor assigned by Customs and Border Protection to look for archaeological artifacts on the construction site has found evidence that the site is a Kumeyaay burial ground: with human bones and soil that shows signs of cremated remains. This development should have stopped construction, at least temporarily, but the law pertaining to the discovery of human remains on Indian lands also has been waived. Border officials have pushed back too, saying the bone was technically outside the construction zone.
In the meantime, members of the Kumeyaay and fellow activists show up at the border almost every day, facing increasing threats from border patrol agents and even an attack by a counterprotester. On September 21, two people were arrested after authorities ordered them to evacuate immediately.
“It’s kind of devastating out there,” Parada said. “On the first day we were out there, there was a lot of untouched land. In a lot of areas there was no wall. We found midden soil and artifacts. Now you go back out there, and those places are already destroyed and dug through. It’s just frustrating.”
Two hundred and forty miles east along the border, citizens of the Tohono O’odham Nation are engaged in a similar struggle. The U.S. Army Corps of Engineers is building a wall just a stone’s throw from the Quitobaquito Springs in Organ Pipe Cactus National Monument in Arizona. The Tohono O’odham consider the springs sacred, and they are one of the only aboveground sources of water in the Sonoran Desert.
The unique status of these tribes as sovereign nations—with the right to govern themselves on federally recognized tribal land—but whose members are split between two countries stretches back to the 1848 Treaty of Guadalupe Hidalgo and the 1853 Gadsden Purchase. Under the pacts, the United States absorbed several thousand square miles of land from Mexico. The deals officially created the international boundary, and the Indigenous communities who lived there suddenly found themselves living in one country or the other, though not really belonging in either.
Indigenous people on both sides share native languages and traditions, as well as family trees. Christina Leza, an anthropologist and author of Divided Peoples: Policy, Activism, and Indigenous Identities, says that until recently, they identified themselves as a member of a tribe before identifying as American or Mexican. But that is changing: As the border becomes more militarized, people are increasingly identifying with one country or the other.
The border has long posed threats to tribal sovereignty and cohesion, but the consequences of aggressive federal overreach trouble the tribes. “The threat was always there, and there’s always been an imposition on tribal sovereignty along the U.S.-Mexico border,” Leza said. “But it felt much more clear, I think, with the entrance of the Trump administration because this was an administration that was not talking about negotiating but was just talking about going into places and putting up border walls and placing restrictions on movement.”
Verlon Jose, the governor of the Traditional O’odham Leaders in Mexico and former vice chairman of the Tohono O’odham, has seen firsthand how the border has changed. He is a dual citizen of the United States and Mexico, but considers himself first and foremost Tohono O’odham.
As a kid, Jose crossed the border from the United States to Mexico frequently to visit family, but it wasn’t until he was an adult that he realized he was crossing an international boundary. “For the longest time, in some areas there was no fence,” he said. “In some areas, there was a barbed wire fence that was half down. And we’re cattle-ranching people, so we go through different gates and whatnot. I thought we were just going through another pasture, so I didn’t know we were actually going into Mexico.”
Crossing the border on ancestral lands became more challenging in 1996 with the passage of the immigration reform act, which ramped up national-security border concerns. In the years since, Indigenous people found many of their traditional pathways blocked by new barriers and fences.
The Tohono O’odham are used to working with Customs and Border Protection and making compromises to secure the border, but Jose said they never agreed to the 30-foot steel barriers for Trump’s wall. Like the Kumeyaay, the Tohono O’odham say construction of the wall is desecrating the remains of their ancestors, draining the sacred Quitobaquito Springs, as well as threatening the endangered species that live there.
In February, construction crews blew up part of Organ Pipe Cactus National Monument to build a section of the border wall. That same day, Tohono O’odham Nation Chairman Ned Norris Jr. testified before a House subcommittee and compared the project to “the DHS building a 30-foot wall through Arlington Cemetery, through the grounds of the National Cathedral, or through George Washington’s Mt. Vernon.”
The border wall will permanently impact tribes like the Tohono O’odham and the Kumeyaay. The division of their nations began long before Trump, however. Jose traces it all the way back to the Gadsden Purchase 167 years ago. “It’s as if someone got a knife and drew it across the heart of the Tohono O’odham,” Jose said. “And it is forever scarred, and it forever hurts.”
The unique status of these tribes as sovereign nations—with the right to govern themselves on federally recognized tribal land—but whose members are split between two countries stretches back to the 1848 Treaty of Guadalupe Hidalgo and the 1853 Gadsden Purchase.
The outcome of the presidential election in November may achieve what the Kumeyaay and Tohono O’odham have been unable to do: stop border wall construction. Joe Biden has pledged to do this if elected, but he has not promised to take down any existing structures. The consequences of Trump’s wall are likely to linger when he leaves office, whether in a few months or in four more years.
The Kumeyaay and the Tohono O’odham continue to pray in the meantime. And they are not alone. At the end of September, the Tohono O’odham invited members of tribes and nations across the region to gather for a healing ceremony at the Quitobaquito Springs. A few weeks earlier, two O’odham activists were arrested for protesting construction there.
Verlon Jose and Ana Gloria Rodríguez attended the ceremony, along with members of other nations including the Navajo and the Yaqui. Border officials stayed away, and tribal members in Mexico stayed south of border, except for elders. Rodríguez wanted to cross to greet them, but was warned not to. Instead she waved across the newly dug trench from the north. For two days, the group prayed together for healing—for their nations, for the environment, and even for the border agents and construction workers. Jose said the only word he could use to describe it was “powerful.”
The next day, the National Park Service closed the Organ Pipe Cactus National Monument for safety reasons related to the ongoing construction. Tribal members will now need permission to enter. Jose has one simple request for the authorities deciding the fate of their sacred land: “Include us at the table.” “I echo the statement ‘For they know not what they do,’” he said, “because they do not know what they do to us as locals, as Tohono O’odham, as people that have lived here since time immemorial.”