In May, the Department of Homeland Security informed the Tohono O’odham Nation, the largest Native nation located along an international border, that it was beginning construction on a border wall that would cut through its reservation. But DHS failed to ask the Tohono O’odham’s authorization to cut through its lands, which include present-day Arizona and the northwest Mexican state of Sonora. The nation sued the Trump administration in June, seeking a preliminary injunction to block border wall construction on its lands. The border wall “would have devastating effects on the Nation’s lands and its people,” according to the complaint.
Experts say DHS’s failure to seek the tribe’s consent fits into a long history of the United States failing to honor tribal sovereignty, especially when that sovereignty conflicts with the US’s own plans. Any time the federal government tries to interfere with the borders of a Native nation, it is inherently “threatening the territorial sovereignty of a tribal nation,” said Dr. Keith Richotte, a member of the Turtle Mountain Band of Chippewa Indians and law professor at the James E. Rogers College of Law at the University of Arizona.
Since its inception, the United States has frequently flip-flopped on its understanding of tribal sovereignty. Former Justice Antonin Scalia reportedly once said the nation’s highest court was “just making it up” when it came to Indian law. It’s a remark that, years later, still best sums up the US government’s attitude toward tribal sovereignty—and DHS’s border wall plans are just the latest example.
Native nations are sovereign governments with nation-to-nation relationships with the federal government. Their sovereignty pre-dates the United States, and though Indigenous people were granted US citizenship under the Indian Citizenship Act of 1924, it didn’t make tribal nations any less sovereign. Instead, it stratified Native identity, making Indigenous peoples citizens of their respective tribal nations and of the United States.
When the founding fathers wrote the US Constitution, they established treaty obligations as the “supreme law of the land,” along with the Constitution and federal law. The first treaty between the US and a Native nation was written in 1778. Over the next 93 years, the United States entered into some 368 treaties with Indigenous nations—most of which were subsequently broken. These early treaties are a sign that from its inception, the US acknowledged tribal nations’ sovereignty—even though it typically failed to honor it. In its infancy, the United States used treaty-making with Native nations as the foundation for its own sovereignty, said Caroline LaPorte, an Immediate Descendant of Little River Band of Ottawa Indians and staff attorney for the Indian Law Resource Center. “They saw [treaty making as] an inherent necessity—something that was required for them to be able to establish themselves as a sovereign power,” LaPorte told me.
Because of its 62-mile stretch of reservation land bordering Mexico, the Tohono O’odham Nation has a longstanding cooperative relationship with Homeland Security and other federal agencies like the FBI, Drug Enforcement Administration, and Bureau of Indian Affairs. In the complaint, the Nation says that it spends an average of $3 million of its own funds annually to maintain border security, but that the federal government is now crossing a line.
But Indigenous communities and the US government have different views on sovereignty. LaPorte said that the even the term “sovereignty” is a “very western word,” tied up in a western understanding of power. Early settlers viewed sovereignty in a top-down manner, in which an actual sovereign, like a king or queen, ruled over a people—it’s the exact kind of power early American colonists were fleeing. That idea of sovereignty still shapes the US’s relationship to Native nations today.
“Western understandings and their ideals make claims to not just ownership, but dominion over the land,” Richotte said. “Whereas Native communities have tended to recognize that there’s not necessarily ownership of [land], but that there’s an engagement and a participation with it.” He explained that Indigenous communities often see the land as the source of everything they need—food, water, clothing, religion. When that land is taken away, it represents a fundamental attack on how Indigenous people understand the world and their capacity for survival. For the Tohono O’odham Nation, a border wall would create a physical separation between the nation’s communities on opposite sides of the border, but it would also impede on religious rituals and practices, threaten sacred plants and animals, and destroy sacred mountain peaks, including Baboquivari Mountain—the home of the O’odham Creator I’itoi.
The Trump administration’s immigration crackdown has become just the latest excuse for the federal government to trample over tribal sovereignty.
Even with policy and treaties in place that have established reservation borders and tribal sovereignty, the US still likes to wield power against Native nations when it’s convenient. Though the US initially valued treaty-making as a means to establish its own legitimacy and acquire land, its attitude toward tribes soured as it established military dominance and economic power on the continent. When the US wanted to continue its expansion South, Congress passed the Indian Removal Act of 1830 and facilitated the forced removal of thousands of Indigenous peoples from the southeastern United States to Indian Country. And when Manifest Destiny called for US expansion West, the Dawes Act of 1887 authorized the government to take more than 90 million acres of land from Indigenous peoples. “If Native peoples are ever in the way of the collection of resources—which again is the purpose of colonialism—then there’s going to be friction,” Richotte said.
The debate over the border wall is just the latest example of the federal government choosing to ignore tribal sovereignty whenever it’s politically convenient. It also isn’t the first time the Trump administration has trampled over tribal sovereignty to enforce its immigration agenda: The recently closed Alligator Alcatraz immigrant detention center was located in Big Cypress National Preserve in the Everglades, the homelands of the Miccosukee Tribe. The detention center was built within 1,000 feet of Miccosukee villages, but despite that, the tribe was not consulted in its construction. The tribe, which has called the detention center a direct violation of its sovereignty, is now involved in a lawsuit against DHS, Florida, and Miami-Dade County.
Between Alligator Alcatraz and the border wall on Tohono O’odham lands, it seems that the Trump administration’s immigration crackdown has become just the latest excuse for the federal government to trample over tribal sovereignty. “We’re dealing with an administration right now that is not particularly conciliatory in any way…and [is] willing to move far outside of the boundaries which other administrations have been willing to operate under,” Richotte said. “What that means for Indian Country is hard to tell right now, but it is a reminder that the fight for sovereignty is constant, and one needs to be ever vigilant.”