The Independent View: Pentagon Failed to Consult Native American Tribe on Border Wall Construction

© Sandy Huffaker

The Tohono O'odham Nation, a Native American Tribe in Southern Arizona Opposed to the Building of a Border Wall that could Imperil Wildlife and Artifacts in the Area's Fragile Landscape, is Accusing the Department of Defense (DoD) of Failing to Consult with it Under Federal Requirements.

In a Feb. 7th Letter to Defense Secretary Mark Esper, Tribal Chairman, Ned Norris Jr., said the Department should have Engaged in "meaningful consultation" with Tohono O'odham Leaders because Funding for the Barrier is coming out of the Agency's Budget.

"The Nation respectfully requests that DOD immediately engage in government-to-government consultation ... and that no appropriated funds be expended on border barrier construction activity until such consultation has occurred," Norris wrote in the Letter.

Last year, the U.S. Army Corps of Engineers said the DOD had Awarded Multimillion Dollar Contracts for the Construction of a Steel Wall in Arizona, up to 30 feet Tall in some Sections. The Trump Administration Plans to add 40 Miles for Southern Arizona along Organ Pipe Cactus National Monument and the Adjacent Cabeza Prieta National Wildlife Refuge.

The Tohono O'odham Nation's Reservation, the Second-Largest in the U.S. by Land Holdings, is Located to the East of Organ Pipe, a Federally Controlled 516-square-mile Park Home to Unique Species of Cactus and Recognized as a UNESCO Ecological Preserve.

The Tohono O'odham Nation says there are Various Sites at Organ Pipe that carry Historical Significance, including at Monument Hill, where Crews over the Past week began Blasting the Land and Tearing Down Ancient Saguaro Cacti to make way for the Wall. The Area was once used for Religious Ceremonies by a Distinct Tribe known as the Hia-C'ed O'odham and is where Bodies of Apache and other Indigenous Fighters were Buried, according to the Tohono O'odham Nation's Historic Records.

The Tribe says Bone Fragments have been Found at Monument Hill as well as Near another Site, Quitobaquito Springs, where Construction Crews working on the Border Wall found Remains believed to be Human.

"They're disturbing sacred areas," Norris said. "It's disgraceful to see how much blasting is going on and how the remnants of our ancestors are being disturbed by that blasting."

On Saturday, Protesters, including O'odham Activists, Marched in Opposition to the Border Wall Construction.

Norris said the Federal Government is Supposed to have Consulted with his Tribe based on Executive Order 13175, which says Agencies have "an accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications." The Policies can involve Proposed Actions On or Off Indian Lands. "It's clear they're obligated to have government-to-government consultation with the tribe," said Norris, who began his Term as Tribal Chairman June 2019.

The Trump Administration is using what they call, Federal Waivers to Bypass the Native American Graves Protection and Repatriation Act, to Advance its Border Wall Project.

Other Trump's Acts allows the Federal Government to work around certain Laws in the name of National Security. In addition, a Supreme Court Ruling in 1988 also Diminished Native Americans' Ability to Preserve Sacred Sites on Federally Controlled Lands, such as National Parks.

However, Executive Orders under the Administrations of Bill Clinton and George W. Bush have sought to Accommodate Tribal Sovereignty and ensure Tribes are Consulted, said David Martinez, an Associate Professor of American Indian Studies at Arizona State University. But that still hasn't Happened to its Full Effect. Amid Protests in 2016 over the Building of the Dakota Access Oil Pipeline in North Dakota, Citizens of the Standing Rock Sioux Reservation Complained they were Not adequately Consulted by the U.S. Army Corps of Engineers.

"For most Americans, they don't feel any connection to these places and people. Indian communities and our issues are just abstractions," Martinez said. "Look at the reaction when Notre Dame burned down. You feel an emotional connection to that, even if you're not Catholic," he added. "That kind of emotional connection is abundant in the case of the border issues for the Tohono O'odham."

Richard Monette, a Law Professor at the University of Wisconsin-Madison and a Tribal Law Expert, said it's Rare for Federal Agencies to seek Waivers in Cases related to Tribes and that the Government simply Doesn't Consult with them as it should. "Not many waivers can be couched in homeland security language," Monette added. "For better or worse, this wall can."

The Southern Border along Organ Pipe, West of Tucson, was Once at the Forefront of Drug Smuggling and Illegal Crossings, but the Numbers of Illegal Crossings and Apprehensions have Fallen in recent years.

In a Statement last week, U.S. Customs and Border Protection (CBP) Denied any Biological, Cultural, or Historical Sites were Identified within the Blasting that is taking Place in the Monument Hill area. "CBP's environmental monitor is present during these activities to ensure that if any previously unidentified culturally sensitive artifacts are observed within the project area that construction is halted and the appropriate stakeholders are notified to include tribal nations," the Agency said.

But Norris said the Fact that Bone Fragments appearing to be Human were already Found near Quitobaquito Springs during Construction of the Border Wall is Reason to Halt the Ongoing work. He said he Met with Members of Arizona's Congressional Delegation in Washington last week and is Hopeful that a Resolution can be found. He has called for Buffer Zones around Sensitive areas, for the CBP Not to use Local Wells for Construction and for the Government to "respect tribal sovereignty" by Engaging in Formal Consultation. "For them to say they have not disturbed anything is total ignorance on their part," Norris said.