I. Introduction: The U.S.-Mexico Border and Indigenous Peoples

The “Handbook on the Indigenous Peoples’ Border Crossing Rights Between The US and Mexico,” presents a basic framework and outline for an initial reference when addressing the movement of Indigenous Peoples across the US-Mexico border. The movement of Indigenous Peoples across political borders has been restricted, prohibited, or otherwise limited in an unprecedented, and at times, militaristic fashion, especially along the Arizona-Sonora border, as detailed in the Handbook Introduction. Traditional crossing areas have been eliminated or curtailed, and the act of crossing, even at Ports of Entry, has become a point of vulnerability or peril, and even within traditional lands. Cultural, social and spiritual rights, along with customs and rituals, have been violated and/or interrupted. Thus, the ancient right to move, and live within the nations’ own lands, has been seriously disrupted.     
 

Approximately seven Indigenous peoples and their homelands were divided by the historical establishment of the U.S.-Mexico international border—the Yaqui  /Yoeme, the O’odham, the Cocopah / Cucapá, the Kumeyaay / Kumiai, the Pai, the Apaches, and the Kickapoo / Kikapú. The U.S.-Mexico border was established through three international agreements between the United States and Mexico. Through the1848 Treaty of Guadalupe Hidalgo which ended the Mexican-American War, the United States gained lands in Mexico that currently make up present-day California, Nevada, Utah and portions of Wyoming, Colorado, New Mexico, and Arizona. The treaty also established the Rio Grande River as the southern boundary of Texas as a U.S. state.  In 1853, the United States acquired lands south of the Gila River which now make up the southernmost parts of present-day Arizona and New Mexico through the Gadsden Purchase.  Finally, the Chamizal Treaty of 1963 ceded to Mexico a tract of land in the El Paso-Ciudad Juárez region that had been claimed by the U.S. as a result of a massive flood that moved the course of the Rio Grande.  The Indigenous peoples of the lands impacted by these international agreements were neitherver consulted nor adequately considered in the negotiations between Mexico and the United States that would ultimately establish the current U.S.-Mexico international boundary.

Today, the Yaqui are represented by the Pascua Yaqui Tribe of Arizona in the United States and traditional pueblos (communities) in Sonora, Mexico located within the Yaqui Zona Indígena (Indigenous Zone), a land reserve recognized as Yaqui territory by the federal government of Mexico.  The Tohono O’odham (Desert People), Akimel O’odham (River People) and Hia-Ced O’odham (Sand People) are represented by four distinct tribal nations in the United States: The Tohono O’odham Nation, the Gila River Indian Community, The Salt River-Maricopa Indian Community and the Ak-Chin Indian Community. There are approximately nine Tohono O’odham communities in Sonora, Mexico that are located along the border of the Tohono O’odham reservation, with around 2,000 enrolled members of the Tohono O’odham Nation residing in Mexico. O’odham peoples are also related to a number of Piman communities in Sonora and Chihuahua, Mexico. There are thirteen U.S. Kumeyaay reservations in San Diego County and four Mexico Kumeyaay (Kumiai) communities in Baja California. The Yavapai, Havasupai (Supai) and Hualapai (Walapai) of Arizona and the Pai Pai of Baja California, Mexico are interrelated Yuman groups collectively identified as the Pai (or Pa’a).  The Yavapai are represented by three tribal nations in Arizona: The Fort McDowell Yavapai Nation, the Yavapai-Prescott Indian Tribe and the Yavapai-Apache Nation.  The Havasupai Tribe and the Hualapai Tribe are also in Arizona.  The Cocopah / Cucapá are a Yuman people who have traditionally occupied lands along the lower stretches of the Colorado River and the river’s delta as well as areas of southern California and northern Baja California, Mexico.  The Cocopah Indian Tribe’s reservation is located about thirteen miles south of Yuma, Arizona and about fifteen miles north of San Luis, Mexico.  The Cucapá of Mexico reside in Baja California. Apache peoples are represented by nine federally-recognized tribal nations in the U.S., with five located in Arizona, and two state-recognized tribes including the Lipan Apache Tribe of Texas. The Kickapoo / Kikapú are represented by the Kickapoo Traditional Tribe of Texas (KTTT), the Kickapoo Tribe of Oklahoma, and the Kickapoo Tribe ofin Kansas in the U.S., with a community of Kikapú in Coahuila, Mexico.

Impacts of U.S.-Mexico border enforcement and militarization on Indigenous peoples include ecological destruction of their territories resulting from border barrier / wall construction and Border Patrol operations, threats to Indigenous sacred areas, blocked access to traditional areas of Indigenous spiritual and cultural practice, and impediments to movement across Indigenous territories.  Of particular concern to many members of U.S.-Mexico border Indigenous communities is the impact of U.S. and Mexico border enforcement policies on the ability of their communities to maintain social and cultural relationships with community members across the international line. A number of United Nations international legal instruments confirm the rights of Indigenous peoples that are currently violated by U.S.-Mexico border enforcement (see Appendices for selected articles relevant to Indigenous border crossing).  Some Indigenous groups have pursued legal action to address violations through the United Nations reporting system.  For example, in 2017, as a result of collective submissions by the Lipan Apache Women Defense, the Lipan Apache Band of Texas, the Apache Ndé Nneé Working Group, and the International Organization for Self-Determination and Equality, the U.N. Committee on the Elimination of Racial Discrimination (CERD) requested that the U.S. take measures to better ensure the rights of Indigenous peoples on the U.S.-Mexico border. The current U.S. Administration, however, has not fully responded to this request. International human rights law, including rights recently set out in the United Nations Declaration on the Rights of Indigenous Peoples, is not currently recognized as a standard regulatory code for decision-making in U.S. domestic courts of law. The U.S. Department of Homeland Security, however, has established some general policies and practices to facilitate border crossing for Indigenous peoples of the U.S.-Mexico border region.  This handbook focuses on these policies and practices, and was created by the Alianza Indígena Sin Fronteras / Indigenous Alliance Without Borders to assist Indigenous peoples in their efforts to maintain community across the international divide as well as to maintain traditional cultural knowledge and practices through such contact.  Beyond the Western Hemisphere Travel Initiative (WHTI)-compliant identification mandate described below, there are currently no set policies or written procedures specifically regarding Native peoples who cross the U.S.-Mexico border for cultural, social or ceremonial purposes. The Jay Treaty of 1794, which provides certain protections for the border-crossing rights of aboriginal peoples of the U.S.-Canada border region, does not provide protections for Indigenous peoples crossing the U.S.-Mexico border.  Although some legal scholars argue that certain Indigenous border-crossing rights should be protected under the American Indian Religious Freedom Act (AIRFA), the U.S. has waived AIRFA along with dozens of additional U.S. laws to facilitate U.S.-Mexico border enforcement and militarization barrier construction since the passage of the Real I.D. Act of 2005.

 

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