VI. Violations of Border Crossing Rights and Filing Complaints
In the American Indian Law Alliance’s handbook Border Crossing Rights between the United States and Canada for Aboriginal People, the Law Alliance observes that the amount of documentation needed for an aboriginal person to cross with the rights recognized under the Jay Treaty will depend on the officer processing an entry at the port of entry, and also notes that their research shows that less documentation may be needed if the individual crossing looks “Indian.” On the U.S.-Mexico border, however, physical features stereotypically associated with Indigenous peoples such as brown skin and black hair are also stereotypically associated with the general Mexican population. As on the Canada-U.S. border, the officer’s handling of an Indigenous person’s border crossing will depend on that officer’s previous experience in handling Indigenous border crossings, any cultural training that officer may have received for such crossings, and unfortunately, any racial or ethnic prejudices the officer may hold. To further verify that a person crossing the U.S.-Mexico border is Indigenous, officers have sometimes made inappropriate requests such as asking the person to speak their Indigenous language or, if the person is a traditional singer or dancer, asking the person to sing or dance although the officer is not necessarily educated on the individual’s Indigenous language or traditions. Given the amount of discretionary power given to CBP officers in border areas, Indigenous individuals refusing such requests may experience delays or denials to cross. However, Indigenous persons are not obligated to answer such questions if they are not comfortable doing so. If a CBP officer asks a question that you find culturally inappropriate, you are advised to calmly answer, “I do not feel comfortable answering that question for cultural reasons,” and offer to provide any additional documentation that you may have but have not yet shared with the officer and/or suggest that the officer contact tribal nation officials or others who can further verify your identity and reasons for entering the United States.
There are also no official CBP procedures in place for the search and handling of Indigenous objects such as ceremonial items. If crossing the border with items that must be handled according to a specific cultural protocol, it is advisable to communicate with the tribal representative(s) and CBP officials involved with a planned border crossing to help make CBP officers who will process the entry aware of the culturally appropriate ways of interacting with the item(s).
Again, CBP officers have great latitude in what they may ask or do in the interest of U.S. border enforcement. However, CBP has expressed a commitment to making CBP officers aware of and sensitive to Indigenous cultural and religious traditions. CBP also has personnel in the CBP Office of Internal Affairs trained to investigate allegations of misconduct and discrimination. If you have complaints or concerns about an experience with CBP officers at the border, a complaint should be submitted online through https://help.cbp.gov/app/forms/complaint.
Complaints and concerns should also be reported to appropriate tribal nation officials and the CBP tribal liaison and congressional representatives. Tribal nations and CBP tribal liaisons may be able to assist in communicating your concerns to CBP officers and may also take your concerns into account in future cultural training for CBP officers. Cultural education training for CBP officers is often initiated and led by tribal nations. Both the Kumeyaay and the Pascua Yaqui nations, for example, have worked with border officials to ensure this type of cultural education training.
For additional information on legal rights and advice for all when interacting with Border Patrol, see the ACLU Know Your Rights document in List of Useful Contacts and Online Resources.