Arizona lawmakers back DHS in lawsuit from Tohono O'Odham over border wall

Top Republican Arizona state lawmakers are lining up with the Department of Homeland Security — and against the Tohono O'odham Nation — over whether the federal agency can build 62 miles of border wall through the reservation.

In a new legal brief, House Speaker Steve Montenegro and Senate President Warren Petersen say that Arizona is on the front line — and most affected — by those who cross the border illegally. That includes not just having people in the country who are not vetted but also the drugs they smuggle and the crime they cause.

And that, they are telling U.S. District Court Judge Richard Leon, is why he should conclude that 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.

To back up their claim, 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."

The two GOP leaders blame pretty much all of it on the Biden administration.

"Because of the federal government's reckless policies and lack of enforcement at the border during that time, individuals traveled from various parts of the world, not just from Mexico and nearby Central America, to enter the United States through the southwest border," the pair told the judge.

They also cite the 2023 congressional testimony by Cochise County Sheriff Mark Dannels who told federal lawmakers that border-related crime is "at all-time high," emphasizing deaths and murder investigations, assaults and even attacks on law enforcement officers.

There also is mention of other issues, all of which they argue shows that any potential harms to the tribe are outweighed by the "national security" implications. And they told the judge that he should defer to what Homeland Security wants — in this case, a 62-mile stretch of border wall through the reservation.

"If the federal government has determined that this measure is needed at the border to protect national security and its citizens, then the balance of equities and public interest should tip heavily in favor of the United States," they argued.

Still, the incidents they cited to justify the wall are somewhat dated. And they acknowledged that the tribe's police chief has said that "border crossings on the reservation are at historic lows."

That, the GOP lawmakers said, is irrelevant.

In fact, they contend, even if the statistics are true, that just shows all the more the need for a wall.

The two Arizona GOP legislators aren't the only ones telling the federal judge he should toss out the lawsuit filed by the tribe.

Much of the claim by the Tohono O'odham goes to that question of whether the project shrinks the boundaries of the reservation.

As described by the Department of Justice, it includes a physical barrier and roads as well as other features like lights, sensors and other "detection technology." There also is an option for a secondary fence, though government lawyers say that has yet to be decided.

Tribal attorney Riyan Kanji contends that Homeland Security can't do that because the reservation itself and its boundaries were created by Congress.

Then there's 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 on what is reservation land — the congressionally created boundary — illegally change those lines.

According to the government, the contract was awarded last month, with design work starting this month. Construction activities are not anticipated to start before Oct. 12.
The issues go beyond the question of whether Homeland Security has the right to build the 62-mile fence through what the tribe says is its land. There's also the question of what could be damaged.

Fronteras Desk

1,000-year-old Arizona archeological site damaged during border wall construction

Nina Kravinsky

U.S. Customs and Border Protection said the approximately 1,000-year-old geoglyph in Cabeza Prieta National Wildlife Refuge was disturbed by border wall contractors nearly two weeks ago.

Construction crews working in the Cabeza Prieta National Wildlife Refuge earlier this year — outside the reservation — 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.
No date has been set for the hearing.