VII. Possible Avenues for Further Recognition of Indigenous Rights at the Border

While Indigenous peoples transected by the U.S.-Mexico border do not have the support of treaties regarding border crossing rights as do many peoples transected by the Canada-U.S. border with the Jay Treaty, it is nevertheless possible for border peoples on the U.S.-Mexico border to secure border crossing rights through legislation.  The Kickapoo serve as a historical example of this possibility for other Indigenous nations divided by the U.S.-Mexico border. Although the Jay Treaty does not directly apply to the Kickapoo, who are named in the treaty, Congress drew on the language of section 289 of the Jay Treaty to essentially extend Jay Treaty rights to “freely pass and repass the borders of the United States and to live and work in the United States” to Kickapoo community members, regardless of country of origin. With sufficient public and political support, similar legislation could be passed to secure border crossing rights for other U.S.-Mexico border Indigenous nations.

Despite the large discretionary power that has been given to CBP in heightened efforts to enforce the borders of the United States, including the waiving of AIRFA for border barrier construction, the language of the Real I.D. Act does not sanction the waiving of AIRFA or other laws in the treatment of Native persons or spiritual items when moving across or near the U.S.-Mexico border. U.S. tribal nations whose religious freedoms are impacted by a lack of official procedures for handling Indigenous persons and cultural objects at the border might consider joint legal action to establish procedures that will better ensure these freedoms.

The Alianza Indígena Sin Fronteras has advocated for the development of comprehensive legislation that would address Indigenous border crossing rights at both the Canada-U.S. and U.S.-Mexico borders, and has envisioned summits that would include both tribal government leaders and grassroots community leaders of Indigenous nations on these borders to discuss perspectives on border policy and goals for policy development. The 2019 Tribal Border Summit in Tucson, Arizona organized by the Pascua Yaqui Tribe, the Tohono O’odham Nation, and the National Congress of American Indians appears to build toward this vision. The Indigenous Alliance Without Borders has also advocated for the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) by U.S. tribal governments on the U.S.-Mexico border to help build a common reference for Indigenous border crossing rights. Although no U.S. court has ever recognized the moral force of international human rights law regarding Indigenous rights, potential still exists for the implementation of language in the UNDRIP and other international rights instruments in the development of new domestic laws and public policies. Courts in Australia and Brazil, and the national legislature of Japan, have drawn from international rights documents in determining certain rights of Indigenous peoples within these nations.