Hobbs sides with Tohono O'odham in federal border wall lawsuit

Gov. Katie Hobbs is siding with the Tohono O'odham Nation in its bid to at least delay work on a border wall the federal government wants to build along its southern boundary with Mexico.

“Arizona's own record demonstrates that vigorous border security does not require disregarding tribal sovereignty,” Justin Cox, a private attorney representing her, told the Court of Appeals for the District of Columbia. He said the state has achieved “major enforcement results” through cooperation with the tribe.

But Hobbs is not asking that the 62-mile, double-layered, 30 foot-high steel and concrete barrier be canceled entirely — at least not at this point. Nor is the governor taking a position on the underlying legal question of whether the land where the twin walls are being proposed belongs to the tribe or the federal government.

What she does want, though, is to stop further work while these issues are worked out.

The more immediate issue is that, absent a court-order pause in government activity, there will be “irreparable harm” once the preliminary work is done and construction actually begins. Cox said there's reason to believe that could happen.

“Prior border wall construction conducted without meaningful tribal consultation results in documented, irreparable damage to sacred sites and cultural artifacts,” he told the court.

He cited a 2020 incident where federal contractors building a section of border wall inside the Organ Pipe National Monument engaged in blasting that damaged a sacred site that held cultural artifacts and human remains. And earlier this year, a contractor damaged an ancient, 200-foot-fish-shaped geoglyph — essentially a design drawn directly on open ground — by bulldozing through the site to build a border barrier.

At the center of the dispute is the proposal by the Department of Homeland Security to build that 62-mile barrier. Tribal officials filed suit claiming that amounted to an illegal trespass on their land.

Last month, however, U.S. District Court Judge Richard Leon tossed the case.

He specifically rejected arguments that this was tribal land, pointing out a 1907 proclamation by then-President Theodore Roosevelt declaring the first 60 feet of land north of the border with Mexico belongs to the United States. He also noted that Congress did not actually establish a reservation for the tribe until 1917.

And even if that was not the case, Leon said the needs of the United States to secure the border trump the tribe's concerns.

“Given the national security and foreign policy considerations related to the border wall, deference to the government is warranted,” he wrote.

Tribal attorneys appealed, contending that ruling is incorrect.

But more immediately, they want the appellate court to issue a preliminary injunction to stay further work while the issues are hashed out.

The tribe erected “no trespassing” signs and tried to remove contractors from the reservation. But all that did was result in the contractors coming back, this time accompanied by armed federal agents.

Cox, in his filing on behalf of the governor, said a stay is appropriate.

He pointed out that Leon, in refusing to halt work, wrote that he believes that many of the harms the tribe fears “could be mitigated through consultation with the Nation and accommodations.” And the judge also said he expects that the federal government and the Department of Homeland Security would “follow through on its guarantees of consultation.”

“Events have since tested that expectation,” Cox wrote.

“Within hours of the ruling, DHS's general counsel posted, ‘We respect tribal sovereignty but not to the detriment of border security. The wall is getting built. Our authority is beyond dispute,’” Cox told the appellate court. And that, he said, led to the contractors being escorted onto the reservation by armed agents to start work.

“Consultation that follows the destruction of a sacred site is not consultation; it is notification,” Cox said. “The value of consultation lies entirely in its capacity to shape a decision before that decision is made — particularly where, as here, the decision is irreversible.”

Anyway, Cox said, halting construction while the case proceeds would impose “minimal harm” on the government.

He said it leaves in place the extensive infrastructure that the tribe already has allowed on its land, including two forward operating bases for Customs and Border Protection, ten fixed towers with surveillance technology, vehicle barriers along the majority of the southern border, vehicle surveillance units, and a highway checkpoint. And on top of that there is state-level border enforcement.

“An injunction that preserves time for consultation would not disarm the government,” Cox said. “It would reinforce the collaborative model that has produced the very security gains the government now touts.”

In siding with the tribe, the Democratic governor also finds herself at odds with Senate President Warren Petersen and House Speaker Steve Montenegro.

In their own legal brief, the Republicans said the interests of Homeland Security outweigh the concerns of the Tohono O'odham, both in terms of erecting a fence on what it says is reservation land as well as dividing the tribe, which has existed for centuries on both sides of the border.

Lee Whitesell, a private attorney retained by the pair, cited the history of Arizona dealing with border crime and incidents, including “millions of dollars that the state has spent to assist with border related security.” And they blame pretty much all of it on the Biden administration.

The pair acknowledged that the tribe's police chief has said that “border crossings on the reservation are at historic lows.”

But they said even if that is true, that's just because the Trump administration has “made border security a top priority.” More to the point, they said that situation isn't guaranteed to continue.

“A future administration may return to the lax practices of prior administration and choose to pull personnel from the border; to retract border security policies; and to again send an implied message to the world that the integrity of our border will not be enforced,” their legal filing states.

Cox, however, told the appellate court all that is legally irrelevant to the immediate question of whether construction should be halted until the case is heard.

He said preliminary injunctions are designed to deal with harms that can occur while a case is being decided, keeping the situation the way it was. And Cox said that even the federal government says that, at least for the time being, border encounters are at historic lows.

“What a future administration might do has no bearing on whether construction must begin this fall,” he said.

The appellate court has not set a date to hear arguments.