The Tohono O’odham Nation says federal agents and contractors illegally entered tribal lands this week to conduct pre-construction work along the border wall. The tribe claims the agents and workers violated Tohono O’odham code and says it’s working with a legal team to determine what it can do.
Tuesday’s statement, however, comes just days after a federal judge rejected the nation’s request to temporarily stop the border wall project. At the time, the tribe said its lands are sovereign, and the work would diminish the nation’s size.
But with the judge’s rejection and the new claims from the nation, what rights does the federal government have to enter this land?
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Federal agents on Tohono O’odham lands
The Tohono O’odham Nation said approximately 20 masked and armed Customs and Border Protection agents, along with contractors, entered the property. Workers conducted soil testing with drill trucks and other “pre-construction activities” at three separate locations along the border.
The tribal territory is roughly the size of Connecticut and lies in southern Arizona along the nation’s southern border.
Members said their actions were in a “direct violation” of Tohono O’odham Code, Title 4, Chapter 2.
“We previously warned unauthorized individuals attempting to access our land that they would be in violation of trespassing law,” the nation wrote.
Tribal police and CBP SWAT teams have both been deployed to the area, joined by an enhanced surveillance balloon. The nation claims that federal agents also set up a vehicle barricade to prevent the citation or removal of contractors.
An ongoing dispute
The latest development comes as the Trump administration and the nation continue to disagree over the border wall.
In June, the Tohono O’odham Nation filed a lawsuit against the Department of Homeland Security, saying the department’s plans to build a border wall would “illegally violate the Nation’s rights as a sovereign tribe.”
“DHS’s construction of a border wall would take the Nation’s land and diminish the size of the Nation’s reservation,” the Nation said in a statement. “Further, DHS and its contractors would be trespassing on the Nation’s land in violation of the Nation’s right to the exclusive use of its reservation and resources.”
However, on Aug. 13, a federal judge ruled against the Nation’s request to halt work, finding that a 60-foot strip of land designated a “public reservation” in 1907 allows the government to build a wall without impacting the reservation’s boundary.
In an 18-page opinion, the judge said the nation’s claims don’t warrant a temporary injunction, but said, “I fully expect the government in the months ahead to follow through on its guarantees of consultation and cooperation with the Nation to address the Nation’s concerns regarding border wall construction!”
Whether the incident Tuesday was within that 60-foot strip is unclear, and the Department of Homeland Security did not respond to Straight Arrow’s request for comment.
What rights do these entities have?
In the statement, the tribe cites its own code, titled “Removal and Exclusion of Non-members,” which says the nation can remove and exclude nonmembers from land within its boundaries.
Under the nation’s law, removal generally goes through the Tohono O’odham Judicial Court, although the code provides an emergency process and allows tribal police to detain nonmembers in certain circumstances.
The code, however, also includes an exception when a nonmember is authorized by federal statute or administrative regulation to be present on tribal lands.
Partnership over ownership
Historically, when it comes to border protection, CBP has worked closely with the Tohono O’odham Nation.
The tribe has previously agreed to construction of on-reservation border vehicle barriers, patrol roads, surveillance towers and Border Patrol operating bases.
Other tribal nations also work closely with federal law enforcement and even private security companies. The Navajo Nation recently announced it would start using Flock cameras on tribal land, drawing scrutiny over privacy concerns and questions about tribal sovereignty — and where it applies.
Those same cameras also rest on Tohono O’odham land, according to the Tucson Sentinel.
Did agents trespass?
Earlier this month, a federal judge ruled that the 60-foot-wide Roosevelt Reservation likely exists along the nation’s border and noted that the government had instructed its contractor to keep the project’s footprint within that federal strip.
Outside of that space, things get more complicated.
The judge did not resolve what authority the federal government would have for construction activities outside the Roosevelt Reservation. In fact, he acknowledged that “significant uncertainties remain” about the scope of construction and how it could interfere with Nation land outside the 60-foot strip.
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