Tribes Sue Over Border Wall

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Above photo: A group of Kumeyaay Indian tribes say the Trump Administration has hampered their ability to practice their religious beliefs and cultural traditions with the construction of the border wall. SherryVSmith via depositphotos.com.

Washington – A group of federally recognized tribes sued the Trump Administration on Wednesday over construction of the U.S.-Mexico border wall, saying the controversial barrier impinges on tribal members’ ability to practice their religious beliefs and cultural traditions.

A group of five Kumeyaay Nation tribes filed the lawsuit in federal D.C. court against three government agencies — the Department of Homeland Security, U.S Customs and Border Protection and the U.S. Army Corps of Engineers — and their top executives.

The Kumeyaay Nation is a group of 13 federally recognized tribes whose members reside in southern California and Mexico. Tribal members regularly travel back and forth between countries for cultural and religious purposes because the border region contains sacred sites, trails, plans and medicines, as well as a number of historic landmarks.

In the lawsuit, the tribes argue that the federal government violated federal religious freedom and immigration laws in constructing the 30-foot tall border wall and its related trench and infrastructure.

The government violated the Religious Freedom Restoration Act (RFRA) by imposing “substantial burdens” on Kumeyaay religious practice without demonstrating that the burden is justified by a compelling government interest, the suit alleges. The tribes also claim the federal government violated the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) because they failed to consult with the tribes on how to avoid the unnecessary destruction and desecration of Kumeyaay religious and cultural sites, human remains, sacred and funerary objects and the historical record of their culture that marks the landscape, the lawsuit claims.

The treatment of human remains is especially important in Kumeyaay traditional religious belief, according to the filing. In the tribe’s religion, a person’s soul cannot rest in the afterlife if parts of his or her body are separated from each other after death. The destruction or disturbance of human remains at Kumeyaay burial sites is considered sacrilegious.

While the top officials of the three government agencies are named in the litigation, the legal complaint takes aim at the actions of Chad Wolf, who has served as the acting Secretary of Homeland Security since last November. Wolf has yet to be confirmed as Secretary by the Senate, which held a hearing on the matter the same day the Kumeyaay filed the border wall suit.

In the lawsuit, the tribes argue that because Wolf is not confirmed as Secretary, he has no legal authority to waive the application of federal laws related to the border fence. The suit alleges Wolf and DHS illegally violated five federal laws, including the National Environmental Policy Act, the National Historic Preservation Act, the Endangered Species Act, the Native American Graves Protection and Repatriation Act (NAGPRA) and the American Indian Religious Freedom Act (AIRFA)

The suit also claims Wolf violated the Free Exercise Clause of the First Amendment by singling out Native American religious practices in his attempted actions to waive AIRFA and NAGPRA.

Wolf has “impose(d) special disabilities on the basis of religious views or religious status,” with respect to Native American religions, but not other religions, the lawsuit notes.

The tribes are seeking a declaratory judgment and injunctive relief to protect the Kumeyaay people’s ability to practice their religious beliefs and cultural traditions at and across the border region.

The five Kumeyaay tribes suing the federal government on behalf of their members are the Manzanita Band of Kumeyaay Nation, the Campo Kumeyaay Nation, the Ewiiaapaayp Band of Kumeyaay Indians, the Iipay Nation of Santa Ysabel and the Sycuan Band of the Kumeyaay Nation.

The tribes are joined in the lawsuit by John Elliot, a member of the Manzanita Band who practices traditional Kumeyaay culture and religion and uses the areas near the border wall for ceremonial purposes, as well as the Kumeyaay Heritage Preservation Council, which represents nine Kumeyaay tribes and is charged with protecting their religious and ceremonial life.

The lawsuit filed on Wednesday follows a similar legal action filed last month against the Trump administration by another Kumeyaay tribe. In August, the La Posta Band of Diegueno Mission Indians of the La Posta Reservation asked a Southern California federal judge to halt construction of the border wall until U.S. government officials could guarantee adequate consultation and protection of La Posta religious practices and cultural heritage.

Judge Anthony Battaglia of the U.S. District Court for the Southern District of California denied the La Posta tribe’s request for a temporary restraining order and preliminary injunction without prejudice.

The tribe has since filed an appeal in the U.S. Court of Appeals for the Ninth Circuit. The federal government has until Oct. 2 to file a response.

A spokesperson said U.S. Customs and Border Protection would be unable to comment due to pending litigtation.  Representatives of the tribes, as well as spokespersons for Homeland Security and the Army Corps, did not respond to requests for comment.