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Shortly after the events of September 11, 2001, and the formation of the Department of Homeland Security, a simple T-shirt began appearing at reservation flea markets, tourist shops, and tribal college campuses. The shirt depicts a photograph taken in 1886 of the Apache leader Geronimo—known for rebelling, with his band of Apache warriors, against Mexican and American encroachment and invasion of their territory—standing with armed family members. The slogan on the shirt reads, “Fighting Terrorism Since 1492.” This simple yet powerful message resonated with Native and non-Native people alike, calling attention to the fact that the land we now call the United States was already occupied by and forcefully taken from Indigenous nations.
The attack on the World Trade Towers initiated drastic changes in U.S. policy on securing its borders. It was the catalyst for the formation of the Department of Homeland Security, which combined 40 different agencies charged with securing the nation in various capacities. U.S. borders came under intense scrutiny and new immigration laws and policies were enacted with far-reaching consequences. How did these policy changes affect the welfare and sovereign rights of tribal nations, especially those whose traditional homelands span the modern borders of the United States, Canada, and Mexico?
U.S. Immigration and Border Enforcement
The United States is a wealthy country by any standard, and each year attracts thousands of immigrants, documented or otherwise, who seek employment, political asylum, and the chance to pursue a better life. With the goal of preventing terrorism after 9/11 and controlling unauthorized immigration and smuggling, the U.S. has spent billions of dollars on tightening borders and monitoring foreigners in the country—with mixed results.
Approximately 39.9 million foreign-born individuals reside in the United States, 11.2 million of whom are said to be unauthorized. About half of these unauthorized immigrants are from Mexico (Passal and Cohn, 2014). In an effort to control unauthorized immigration across the southern border, Congress passed the controversial Secure Fence Act of 2006 and the Consolidated Appropriations Act of 2008, which mandated construction of 670 miles of fence along the 2,000-mile border between the United States and Mexico (University of Texas at Austin School of Law, n.d.). Currently 651 miles of fencing has been completed, at a cost of about $2.4 billion (Department of Homeland Security, 2013; Sais, 2013). There are additional plans to cover a total of 900 miles by 2016, with an assortment of U.S. Border Patrol agents and technology, including surveillance towers, drones, ground sensors, mobile spy systems, and remote video cameras (Preston, 2014). More than 18,500 U.S. agents patrol the southern border, a historically high number (Department of Homeland Security, 2013).
The fence has become unpopular with many borderline communities and local governments, who have formed coalitions and adopted formal statements against it. They attest that it disrupts everyday living yet is easily breached by undocumented immigrants and smugglers. Soon after the border fence was constructed, people began breaching segments with torches, hacksaws, and ladders. Certain sections need continual, almost daily repair. Some parts have settled and gaps between the posts are forming where people can squeeze through. Additional complaints include private property owners whose lands have been divided. Farmers and businessmen along the Texas border in the Rio Grande valley have opposed construction of the fence because it blocks their access to the river and hurts companies that conduct legal commerce across the border (Villanueva, 2008).
Proponents say that its intention is not to stop the influx but mainly to add a layer of security, slowing down unauthorized crossings (Caldwell, 2008). Since 2008, apprehensions by the Border Patrol have dropped by 53%, which according to the federal government indicates fewer attempts to illegally cross the border. Additionally, the amount of drugs, guns, and cash seized by the Border Patrol has increased over the last three years (Department of Homeland Security, 2013). Statistics show that unauthorized immigration peaked in 2007 at 12.2 million, and has declined since then (Passal and Cohn, 2014).
Immigration Control at the Local Level
For most of the 20th century, the federal government has taken control of immigration policy and enforcement. As recently as 1996, a Department of Justice Office of Legal Counsel Opinion stated that state police do not have legal authority to “arrest or detain aliens solely for the purpose of civil immigration proceedings as opposed to criminal prosecution” (Roseborough, 1996). However, in 2002, Attorney General John Ashcroft announced a new policy which gave state and local police unprecedented authority to enforce immigration law (Waslin, 2010). Ashcroft’s interpretation of federal immigration law opened the door for states to begin passing some of their own immigration laws. Since then, states have attempted to enact a record number of laws addressing immigration control. In April 2010, Arizona passed what was known as the nation’s toughest bill on unauthorized immigration. Arizona Senate Bill 1070, also known as the Support Our Law Enforcement and Safe Neighborhoods Act, criminalizes unauthorized immigration and requires immigrants to carry identification documents proving their legal right to be in the United States. Under the Act’s original provisions, police officers were mandated to detain and even arrest those they suspect of living and working in the United States illegally and who could not produce valid documentation (Archibold, 2010). In June 2012, the Supreme Court struck down some of these more extreme provisions, but allowed parts of the controversial “show me your papers” section to remain (Sherman, 2012).
Arizona Senate Bill 1070 and similar laws have been heavily criticized. Opponents claim they negatively affect the economy, driving away investment, businesses, and workers (Liasson, 2011). Enforcement of immigration law by local police requires extensive training and additional resources from the limited budgets of cities and states. Moreover, efforts to enforce such laws increase the possibility of racial profiling and civil rights violations, resulting in costly lawsuits (Waslin, 2010). However, tough state immigration laws are favored by others who argue that the federal government is not doing enough to stop unauthorized immigration and that states such as Arizona must act, since drug smuggling and other illicit trans-border activities take place in their backyard (Marizco, 2012).
Since the Supreme Court’s ruling on Senate Bill 1070, the number of proposed state bills on immigration has dropped. Some states, however, continue to pursue policies to discourage immigrants. When President Obama declared that “DREAMers” (undocumented immigrants who came to the United States at an early age) would be eligible to apply for work permits, Arizona, Michigan, Iowa, North Carolina, and Nebraska announced they would not issue them driver’s licenses. Due to the unpopularity of such measures, however, some states have reversed this policy (Freed Wessler, 2013).
Tribal Sovereignty and Border Enforcement Issues
Native peoples have been impacted by foreign-imposed borders ever since European colonization. Tribal lands were artificially divided when the U.S., Mexican, and Canadian borders were formed, cutting off Indigenous people from their traditional homelands, relatives, and sacred sites. Tribes have been displaced and relocated to other regions as well. Currently, 25 tribes have land with approximately 200 miles of international borderlands between the United States, Canada, and Mexico (National Native American Law Enforcement Association, 2002). These tribes must navigate conflicting state, federal, and international policies which sometimes interfere with tribal sovereignty.
One of the first laws that recognized the unique situation confronting Indigenous peoples of the borderlands was the Jay Treaty of 1794, which included a provision maintaining Aboriginal rights to freely pass and to carry on commerce across the U.S.-Canada border. A Canadian Indian, however, must have at least 50% blood quantum in order to pass freely between the two borders. After the War of 1812, the U.S. and Great Britain reiterated these rights in the Treaty of Ghent. Both treaties have been cited in immigration cases by Canadian and U.S. courts, confirming protection of Indian border-crossing and commerce rights. These rights, however, have come under attack and courts’ rulings on the matter are not consistent in upholding Indian rights under the treaties (Osburn, 1999/2000).
On the southern border dividing the United States and Mexico, Native people are generally unable to employ the same rights as those who live along the Canadian border. The Treaty of Guadalupe Hidalgo (which ended the Mexican–American War in 1848) and the Gadsden Purchase of 1853 separated tribal lands in the southern part of the United States. Due to the region’s remote location and sparse population at the time, the U.S. and Mexico did not acknowledge tribal border-crossing rights in these agreements or in subsequent federal laws except with the special case of the Kickapoo Tribe in southern Texas. Due to historical relocations and seasonal migration, Congress passed an act in 1983 allowing Kickapoo tribal members to freely pass across the U.S.-Mexico border (Osburn, 1999/2000). Until recently, tribes such as the Tohono O’odham in southern Arizona and northern Sonora continued normal travel in their homeland as they had done for centuries, prior to the formation of the foreign-imposed border (Tohono O’odham Nation, 2014).
According to a report issued by the National Congress of American Indians, Congress ignored tribal needs when it approved the Homeland Security Act of 2002, which provided direct funding for states (but not for tribes) for enhanced border security measures (National Congress of American Indians, 2005). And the Department of Homeland Security purportedly failed to consult with tribes when it proposed the Western Hemisphere Travel Initiative (WHTI), which mandates that all U.S. citizens must have a passport or other acceptable WHTI document to re-enter the United States from Canada or Mexico (McMullin, 2006). In April 2008, the WHTI ruled that enhanced identification documents of federally recognized Indian tribes are acceptable alternatives to a passport if they meet specific requirements which are similar to those of states developing WHTI-compliant identification (Allen, 2011).
In March 2011, the Pascua Yaqui tribe, located in southern Arizona, announced the creation of Indian Country’s first Enhanced Tribal ID Card that fully complies with the WHTI requirements. The card provides a photograph and personal information that is required on a driver’s license, plus a physical description, a unique tribal enrollment number, as well as a fingerprint (Allen, 2011). This allows tribal members to easily pass through border checkpoints when entering the United States, but typically other nations will not recognize the Enhanced Tribal ID Card as an acceptable travel document. In 2010, members of an Iroquois national lacrosse team were unable to travel to the world championships in Manchester, England, because the United Kingdom would not accept Iroquois-issued passports (Merkelson, 2010). In addition, Mexico now requires all U.S. citizens travelling in Mexico to possess a U.S. passport, including tribal members whose homelands border Mexico (“Plan to Journey,” 2010).
Increased border control efforts such as the construction of the fence between Mexico and the United States have greatly impacted cross-border tribal relationships. The Indian communities who are affected include the Lipan Apache, the Kickapoo Tribe, Ysleta del Sur Pueblo near El Paso, the Tohono O’odham in southern Arizona, the Kumeyaay in southern California, and the Cocopah of the Colorado River Delta (University of Texas at Austin School of Law, n.d.; Villanueva, 2008).
Case Studies: The Tohono O’odham Nation and the Akwesasne Mohawks
The Tohono O’odham Nation of southern Arizona and northern Mexico, and the Akwesasne Mohawks in the United States and Canada, are two examples of sovereign tribal nations whose homelands span international borders. They each have their own unique history, culture, language, and religious traditions. Although they both have had to defend their territories and culture from encroaching European powers for more than 400 years, they have experienced colonization differently and have exercised their sovereignty in their own way. Additionally, they each have unique circumstances regarding the amount of land they control, the resources at their disposal, and illicit activities such as drug smuggling and human trafficking that occur in their homeland on both sides of the international border. The tribes have taken different approaches in negotiating with the U.S., Canada, and Mexico, each of which maintain separate policies concerning Indigenous peoples and tribal nations.
The Iroquois, or Haudenosaunee (people of the longhouse) is a confederacy consisting of six nations including the Oneida, Onondaga, Cayuga, Seneca, Tuscarora, and Mohawk. The Mohawk, or Kaiienkehaka (people of the flint), are located in the eastern region of the Haudenosaunee territory, spread throughout New York State and southeastern Canada in the provinces of Ontario and Quebec. There are approximately 28,000 members of the Mohawk Nation; 13,000 live in Canada and 15,000 in the United States (New World Encyclopedia, 2011).
Since European contact in the early 1600s, the Mohawk people have demonstrated an indomitable spirit and a steady persistence to maintain a cultural identity and independence from the European colonizers. During the colonial days, they were caught up in battles between the English, French, and the Americans over control of resources and land. Many thousands died during this time due to disease epidemics and colonial wars. Following the American Revolution, Great Britain and the U.S. drew an international border along the 45th parallel which split Mohawk territory in two. The Jay Treaty of 1794 between the U.S. and Great Britain, which controlled Canadian territories at the time, reiterated and recognized Aboriginal border-crossing and trade rights. Accordingly, the Mohawks, as well as other tribes, continued to bypass colonial trading restrictions between the two countries (George-Kanentiio, 2006).
In addition to the loss of lands and continued encroachment on Mohawk territories, logging led to massive deforestation, compromising their traditional means of survival. Yet they managed to subsist by adapting old ways to a new environment. Many began to relocate for part of the year, becoming loggers, steelworkers, and boatmen to help support their families. Others made a living by selling crafts. During the prohibition era of the 1920s, the Mohawks’ unique location straddling two countries enabled some tribal members to profit from illegally transporting liquor from Canada to the United States, which resulted in confrontations with border agents and police officers (George-Kanentiio, 2006).
Throughout the early 20th century there was a revival of traditional culture and political activism. The Mohawks upheld that their homelands were never surrendered by any “legitimate treaties” and took aggressive political action to demonstrate their right to self-determination. In 1924, the Haudenosaunee rejected the American Indian Citizenship Act, which legally granted U.S. citizenship to Indians. They did not want to endanger their treaty rights by accepting citizenship in what they considered a foreign nation. Additionally, the Haudenosaunee sought international acknowledgement of its nation status from the League of Nations (George-Kanentiio, 2006).
Traditional forms of subsisting off the land were further compromised with the construction of the St. Lawrence Seaway in 1959, which polluted the river valley. A system of locks, channels, and canals, the seaway gave Atlantic Ocean vessels access to the Great Lakes. Mohawk men sought construction work on the project, which helped improve their economic situation, but also alienated some from the land and their traditional tribal customs. Rather than seeking work elsewhere, some Mohawk communities opened up stores and used their sovereign nation status to sell tax-free gasoline and tobacco. High-stakes bingo and casinos soon followed. International smuggling networks sprang up on the highways and waterways that passed through Mohawk territory and across the international borders, which led to an increase in violence, hijacking, and murder (Bonaparte, 1999/2002). These changes led to great divisions in the community but also brought much-needed jobs and income into the area.
Today, the Mohawks maintain two governing bodies: one traditional council and one Western governmental system imposed on them by the U.S. The people generally did not participate in the non-traditional system, actively resisting the new form of governance. In the last 30 years, however, the elected Mohawk Council and the traditional Mohawk Council have worked on a stronger relationship, but disagreements and deep divisions still surface (George-Kanentiio, 2006).
After 9/11, U.S. scrutiny of the Canadian border increased dramatically. With a greater police presence on and off the reservation, highly profitable human- and drug-smuggling activity on Mohawk lands was sharply curtailed (George-Kanentiio, 2006). Until recently, over 2 million cars crossed the U.S.-Canada border on Akwesasne Mohawk lands every year, including tribal members who frequently traversed it to visit family, shop for groceries, or go to work. In 2009, however, the Canadian government announced plans to arm their border patrol agents at the Mohawk station. The Mohawks regarded armed agents from another country on their land as occupational forces, and in protest, tribal members barricaded the bridge out of concern for the safety of residents and to defend their rights as a sovereign nation. Rather than relenting, the Canadians closed their station and the Mohawks temporarily ferried tribal members across the St. Lawrence River on boats (Mann, 2009; Martin, 2010). To address the border-crossing dilemma, the Canadian Border Security Agency has since set up an official border-crossing corridor on the Canadian mainland, which has caused long delays for tribal members commuting on a daily basis across the border (Coyne, 2012).
While the Mohawks continue to confront and cope with their trans-border dilemmas, the Tohono O’odham Nation, which straddles the U.S.-Mexico border, has its own set of challenges. The Tohono O’odham reservation lands, consisting of 2.8 million acres, are located in southern Arizona and northern Sonora, Mexico. Currently, there are approximately 25,000 Tohono O’odham, most of whom live on the U.S. side of the international border. Approximately 1,500 tribal members live in Mexico, but traditional O’odham lands there are not formally recognized by the Mexican government (Villanueva, 2008). The tribe’s biggest employers are its three casinos. Proceeds generated there have helped fund some basic infrastructure and public facilities on the reservation, but the unemployment rate remains high and 40% of the O’odham live below the poverty level (Dougherty, 2007).
The Tohono O’odham are descendants of the Hohokam, who were semi-nomadic farmers. The O’odham were well-established on their lands for centuries before contact with the Spanish in the 1680s. Although some Tohono O’odham adopted the Roman Catholic faith and adopted European livestock and farming patterns, they strived to maintain their traditions and culture as well (Jose, 2009). In 1821, Mexico gained independence from Spain and proceeded to close the Spanish missions throughout the Tohono O’odham homeland. Mexican citizens began encroaching on areas traditionally occupied by the O’odham, leading to increased conflict. Following the Gadsden Purchase of 1853, Tohono O’odham lands were split by the demarcation of the current U.S.-Mexico border. Neither the U.S. nor Mexico consulted with the O’odham when they drew the borderline (Jose, 2009).
With increased migration to the Southwest, disputes over land and water use between the Tohono O’odham and non-Indian ranchers and farmers forced the O’odham to move farther from traditional irrigation sources (Jose, 2009). In 1874, an executive order established a reservation of 71,000 acres for the Tohono O’odham (Dougherty, 2007). In 1916, the federal government set aside more than 2 million additional acres for the reservation. More parcels of land were added over the next 30 years, making it the second-largest reservation in the United States.
The traditional decentralized government of the O’odham focused on the family and clan in each village where there was a headman who helped settle disputes. However, that dramatically changed with the Indian Reorganization Act of 1934, which created centralized tribal governments with a Western-style legislative council. Many tribal members continued to employ their traditional governance system, yet the new system gradually increased its power, as it held the authority to manage tribal funds and interact with other governments.
Currently, the Tohono O’odham control 75 miles of the border between the United States and Mexico. Until recently, the international border had little effect on the O’odham traversing it (Tohono O’odham Nation, 2014). But with the more recent inundation of unauthorized human and drug trafficking and stricter border-crossing laws, the borderline has come to affect the O’odham in many ways.
Border enforcement in other urban areas, such as San Diego and El Paso, has pushed drug smuggling and illegal immigration to more remote areas such as O’odham lands. Indeed, the Tohono O’odham reservation is the second-largest corridor for such illicit activity, which has become increasingly more sophisticated and violent (Dougherty, 2007). While it is part of O’odham culture to help those in need, tribal members must now lock up their homes and exercise caution when traversing their lands (Jose, 2009).
The influx of Mexican immigrants and smugglers on Tohono O’odham land has exhausted the resources of tribal medical facilities, tribal police, and even the tribal trash-removal system. Additionally, smugglers offer as much as $1,500 per person to drive illegal immigrants from the reservation to the Phoenix metropolitan area. With the prospect of quickly earning large sums of money, this can be an attractive if dangerous opportunity for a poverty-stricken tribal member (Jose, 2009).
While the Tohono O’odham would like to put an end to the influx of unauthorized immigrants and drug smuggling on their lands, many are unhappy with enforcement activities and, like the Mohawks, see it as an invasion of a foreign culture on their lands (Dougherty, 2007). The O’odham are now prevented from crossing the border freely, which makes it difficult to collect and transport traditional foods and materials, and to visit family members and sacred sites. The Tohono O’odham Nation must now produce passports and border identification cards for its citizens to enter into the United States. Border agents have been known to detain and deport members of the tribe (Tohono O’odham Nation, 2014). The Homeland Security Department’s decision to construct a wall along the reservation border is also controversial with many residents. Tohono O’odham tribal chairman Ned Norris Jr. has formally and repeatedly objected to the construction of the wall, noting threats to wildlife and damage to ancestral burial sites and sacred places (Norris, 2008).
In an effort to study the effects of the fortification of the U.S.-Mexico border, Tohono O’odham Community College is proactively creating a new borderlands studies program which will look at the many issues Indigenous communities who live on international frontiers face, including land use policies and the sociopolitical and cultural ramifications of the borderline. Those who enroll in this program will undoubtedly contribute to the international dialogue and help policy makers address these evolving and complicated issues (Quijada et al., 2015).
Conclusion
Although information on past and present U.S. immigration policy and enforcement is readily available, there are few mentions of tribal nations or Native people and how they are affected by these policies. Tribally controlled borderlands, however, are arguably the most vulnerable areas when it comes to the U.S. government’s enactment of stricter border control measures. As evidenced by the passage of the Homeland Security Act and the establishment of the WHTI, involving tribes in the decision process was an afterthought. Additionally, states are enacting immigration laws and policies that fail to consider tribal sovereignty or the general concerns of Native people. When a tribal member is outside of reservation lands in states such as Arizona, he or she could potentially be detained or arrested as an illegal immigrant if a police officer makes a misjudgment. It is possible for an Indian person to be “undocumented” because birth certificates were not always issued for home births on reservations until more recently. Moreover, English may be a second language for many traditional O’odham, which could also mislead a police officer or border patrol agent.
Tribes have begun creating WHTI-compliant identification cards which will make entering the United States from neighboring countries easier, but the information required for these cards raises privacy and tribal sovereignty issues. In the current climate, travelling internationally could be a precarious endeavor unless tribal members possess a U.S. passport. Additionally, since tribal borderlands are often located in remote areas, more illegal immigrant traffic and smuggling activity funnels through tribal lands. Yet tribes generally do not have the resources to control such an influx. Allowing states and the federal government to intervene could provide much-needed assistance, but it also raises issues of tribal sovereignty.
The Tohono O’odham and Mohawk nations’ circumstances vary greatly. Although they are both tribal nations with the same innate Indigenous rights, the American Indian policies of the U.S., Mexico, and Canada differ greatly. The Tohono O’odham are not legally protected to travel freely in their homelands, whereas the Mohawks’ rights to cross the international border are protected by treaty.
The Tohono O’odham are generally poor by Western standards, but perhaps due to their remote geographic location and the vast lands they control, they have largely maintained their cultural identity. In their view this makes them wealthy. These cultural values are in danger of being compromised. Since they do not have the resources to control their borders, they allow U.S. and state agents onto their lands. Although the various law enforcement agencies, officials, and entities try to cooperate, many residents resent their presence.
The Mohawk, on the other hand, have a much smaller border area to control and fewer problems with unauthorized immigration. They have more economic power because they have used their sovereign status and proximity to large, off-reservation cities to start businesses and seek employment. Additionally, historical and current examples illustrate that the Mohawks have shown that they are willing to strategically take political and even military action to defend their interests.
Just like most developing nations in our global society, tribes need assistance. As evidenced by the Tohono O’odham Nation, managing tribal borders may be preferable, but not feasible. Partnerships that are beneficial to all involved and respectful of Native cultures and sovereignty are necessary to sustain a healthy future. The proposed borderlands studies program at Tohono O’odham Community College could help increase academic discourse on the subject and influence international policy for the O’odham and other Indigenous peoples situated along the international frontier.
It is important for policy makers and citizens alike to continue to educate themselves about Indigenous peoples and tribal issues. With the many problems facing our planet today, perhaps the Western problem-solving approach to the border may not the best answer, since it is Western thinking that arguably created the transborder problems in the first place.
Rachael Marchbanks is publisher of Tribal College Journal.
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