Border Wall

NAGPRA waived to build U.S.-Mexico fence
© Indian Country Today April 11, 2008. All Rights Reserved
Posted: April 11, 2008
by: Rob Capriccioso


WASHINGTON - The Department of Homeland Security in conjunction with the Department of the Interior has waived nearly 40 federal laws, including the Native American Graves Protection and Repatriation Act, to try to speed construction of a border fence between the United States and Mexico.

''Congress and the American public have been adamant that they want and expect border security,'' Secretary of Homeland Security Michael Chertoff said in a statement, which announced the action April 1. ''We're serious about delivering it, and these waivers will enable important security projects to keep moving forward.''

NAGPRA, a federal law passed in 1990, created a legal process for federal agencies and institutions that receive federal funding to return American Indian human remains and cultural items to their respective tribes or lineal descendants.

Sherry Hutt, the national NAGPRA program manager, said she was not informed that the waiver would happen before it did; she's put in a call to DHS for an explanation.

''I want to know more about how they're proceeding,'' she said. Several tribal officials nationwide have said that they, too, were not informed of this decision.

Officials with DHS say they are trying to be mindful of culturally focused laws but have found it necessary to make blanket law waivers, since legal challenges have already greatly extended the timeline to build the controversial fence between the U.S. and Mexico.

''We will continue to work with tribal nations and tribal leaders to ensure that we are collaborating before we proceed with any major construction,'' said Laura Keehner, a spokesman for DHS. ''We invite the government-to-government discussions, and definitely expect that to continue.''

Under the waiver, more than 55 miles on the Tohono O'odham Reservation in Arizona would be affected, as well as several miles on lands owned by individual Indians and on other Indian communities.

In total, the waivers apply to 470 miles of land in a stretch of area from California through Texas. In making the waivers, Chertoff is striving to meet a deadline by the end of the year to survey and build nearly 700 miles of fencing. Three hundred and nine miles of fencing have already been built.

NAGPRA's waiver is but one of several recent DHS moves that are impacting Native peoples. Several Apache landowners on the Rio Grande in January asked DHS to halt the seizure of their lands for the U.S.-Mexico border. The department has declared that it is using the principle of eminent domain to survey and possibly ultimately take possession of land. DHS is currently suing the landowners so that building of the fence can proceed.

Despite the lawsuits, Keehner said that DHS is not trying to be insensitive. She even suggested that the building of the fence could be beneficial for Indians.

''Quite frankly, Indian country is incredibly [affected] by drugs coming into communities,'' Keehner said. ''Building this fence is another way that helps our efforts in keeping out drug dealers, drugs and human smuggling - so it's really better for the entire homeland.''

Although legislators who support border control are happy with Chertoff's decision-making, some lawmakers are already questioning the need for blanket waivers.

''I favor building barriers along the border where border patrol agents think they will help them do their job,'' Senate Energy Committee Chairman Jeff Bingaman, D-N.M., said in a statement. ''In fact, I have helped secure millions of dollars for vehicle barriers in New Mexico. But I have not yet heard any justification for why the Bush administration cannot abide by current laws in the construction of this fence.''

Federal law gives Chertoff full authority to mandate such waivers, but some policymakers are particularly concerned by this most recent instance because Chertoff provided little reasoning on why they were necessary.

''While the [REAL ID] Act gives the Secretary the unilateral authority to waive those laws, I always understood that the Secretary would make that determination only to the extent necessary, after careful consideration and analysis,'' Bingaman wrote in a letter to Chertoff sent on April 1. ''I share your desire to improve security along the border and I agree that there may be certain instances where it is necessary to waive legal requirements; however, there must be a sound justification for doing so.''

In Chertoff's announcement of the waivers, he indicated that Interior Secretary Dirk Kempthorne had urged him to take the action.

Bingaman has also written to Kempthorne, asking for ''analyses, justifications and recommendations'' on why Kempthorne felt the waivers were so important. To date, he has not received a response.

In March, the Defenders of Wildlife advocacy group and the Sierra Club filed a petition asking the U.S. Supreme Court to hear its argument against the REAL ID Act, which grants Chertoff his waiver power. The groups contend that the REAL ID Act's waiver provision unconstitutionally allows the DHS secretary unilaterally to repeal laws, which they say threatens the system of checks and balances assured in the Constitution.

The organizations are currently calling on tribes to file amicus briefs, if the case were to be heard by the Supreme Court.

''We want to be reaching out to tribes because this waiver process is now starting to affect laws that affect them,'' said Brian Segee, a staff attorney with the Defenders of Wildlife. Beyond NAGRPRA, he said tribes should be especially concerned about Chertoff's waiver of the National Environmental Policy Act and the National Historic Preservation Act.