La Posta Band of Diegueño Mission Indians v. Trump: Acknowledging and Addressing the Harm to Kumeyaay Tribes for Destruction of Their Homelands from the Border Wall Project

• Publication year: 2021
• Author: By Michelle LaPena and Simon Gertler*

LA POSTA BAND OF DIEGUEÑO MISSION INDIANS V. TRUMP: ACKNOWLEDGING AND ADDRESSING THE HARM TO KUMEYAAY TRIBES FOR DESTRUCTION OF THEIR HOMELANDS FROM THE BORDER WALL PROJECT

By Michelle LaPena and Simon Gertler*

Since time immemorial, the Kumeyaay people have inhabited the area that the present border between California in the United States, and Baja California in Mexico, dissects. Since the arrival of Europeans in the region, the Kumeyaay territory, culture, religion, and very existence have been under threat to make way for the colonial project. In the most recent episode of indigenous erasure, the President of the United States now attempts to excavate Kumeyaay burials and destroy Kumeyaay sacred sites to make way for a wall along the southern border. The Kumeyaay people bring this complaint to stop this project for which the President lacks legal authority, and which violates statutory and constitutional rights of the Kumeyaay people.

(Complaint, La Posta Band of Diegueño Mission Indians of the La Posta Rsrv. v. Trump, et al., No. 320CV01552AJBMSB, 1 (S.D. Cal. Aug. 11, 2021))

I. INTRODUCTION

The La Posta Band of Diegueño Mission Indians ("La Posta") is one of twelve bands of Kumeyaay people. On August 11, 2020, La Posta sued the Trump Administration seeking a temporary restraining order and preliminary injunction to halt the construction of President Trump's border wall through Kumeyaay territory.

Not only is the wall visually disturbing, there is little evidence that it prevents illegal immigration or the influx of illegal drugs across the border.¹ The vast majority of drugs seized at the border are actually apprehended at designated border crossings,² and people have already figured out how to get over³ or under⁴ the wall. The wall may mark the relative location of the United States-Mexico border, but for many seeking to cross the border, the wall is just another obstacle to overcome. But the wall is far more damaging to La Posta, functioning as a scar across La Posta's homeland, dividing the Kumeyaay people, and destroying tribal cultural sites and resources that lie in its path. This article describes La Posta's legal battle against this harmful project, and its efforts to be compensated by the Biden Administration for the damage the wall has caused.

II. THE SAN DIEGO AND EL CENTRO PROJECTS

A refrain of President Trump's 2016 election campaign was his promise to build a U.S.-Mexico border wall.⁵ Since taking office in 2017, Trump repeatedly sought appropriations from Congress for border barrier construction, yet Congress repeatedly denied his requests.⁶

For Fiscal Year 2019 ("FY19"), President Trump requested $5.7 billion in border wall funding, which Congress refused to appropriate.⁷ The impasse in Congress over border wall funding triggered the nation's longest partial government shutdown, and ultimately, Congress appropriated only $1.375 billion for border wall funding.⁸ Because the Congressional funding fell short, the Administration reprogrammed $1.5 billion of Department of Defense ("DoD") funds toward border wall construction, citing Section 8005 of the 2019 Consolidated Appropriations Act⁹ ("Section 8005") as authority for the transfer.¹⁰

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Section 8005 authorizes the Secretary of Defense to transfer up to $4 billion "of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction)."¹¹ But first, the Secretary of Defense has to determine that "such action is necessary in the national interest," and even then, the transfer could only be used "for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress."¹² The reprogramming of $1.5 billion of Department of Defense ("DoD") funds toward border wall construction could not satisfy these basic requirements.¹³

President Trump again requested $5 billion for construction of the border wall in FY20. And again, Congress rejected the President's budget requests and allocated only $1.375 billion for border wall construction.¹⁴ Unhappy with the result, the Trump Administration replicated its FY19 scheme to divert funds to build the wall. The Department of Homeland Security ("DHS") initiated a request to DoD for funds for wall construction across approximately 271 miles of the Southern Border. On February 13, 2020, Secretary of Defense Esper announced that DoD would transfer and spend $3.831 billion in funds Congress had appropriated for other purposes on border wall construction. The funding was intended for other purposes but transferred into DoD's Drug Interdiction and Counter-Narcotics Activities fund to assist DHS with border wall construction pursuant to 10 U.S.C. § 284, and then subsequently transferred for use by the Army Corps of Engineers ("Army Corps") to construct the border wall. DoD again justified this appropriations transfer under the 2020 Consolidated Appropriations Act, which included an identical Section 8005 as the 2019 Act.

Part of the FY20 funds went toward construction of approximately fourteen miles of a replacement border wall and seven miles of new border wall, including road construction and other infrastructure, (the "Project") in the San Diego and El Centro Border Patrol Sectors in San Diego County and Imperial Counties (the "Project Area"). Acting Secretary of Homeland Security Chad Wolf invoked section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996¹⁵ ("IIRIRA") as authority for construction of the Project.¹⁶ To avoid having to account for the significant cultural, historical, religious, and environmental impacts of the Project, Acting Secretary Wolf purported to waive application of National Environmental Policy Act ("NEPA"), the National Historic Preservation Act ("NHPA"), the Endangered Species Act ("ESA"), the Native American Graves Protection and Repatriation Act ("NAGPRA"), and the American Indian Religious Freedom Act ("AIRFA"), among other requirements, to the Project Area.¹⁷

In May 2020, Customs and Border Patrol ("CBP"), in cooperation with the Army Corps, began executing the Project on federally-owned land directly adjacent to the border with Mexico in Southern California. The Government claimed that the Project footprint, and thus the majority of the construction activities, would occur within the federal Roosevelt Reservation, a 60-foot strip of land established in 1907 that parallels the international border and functions primarily as a law enforcement zone.¹⁸ But nothing could be farther from the truth. While the wall itself would be located within the 60-foot strip, roads and other infrastructure required to support construction activity and operation of surveillance technology on the wall disturbed a much larger area within the San Diego and El Centro Border Patrol Sectors.

The DHS's issuance of a waiver of most environmental laws for the massive border infrastructure project was uncommon, to say the least. Legal waivers are generally used in a case of an emergency, such as during floods, fires or other natural disasters.¹⁹ In such cases, a waiver will enable emergency services to move quickly to repair levees or clear fire breaks, but IIRIRA's grant of authority to waive any applicable law for the construction of border infrastructure is nearly unprecedented.²⁰ The result was massive environmental damage to endangered species, tribal cultural places, burial sites, and sensitive environmental areas without any consideration or judicial review.

III. THE ADMINISTRATION'S LACK OF CONSULTATION

The Kumeyaay people consider areas near the U.S.Mexico border, including the San Diego and El Centro Border Patrol Sectors, as sacred homelands dating back to time immemorial. The land includes areas that play important roles in the Kumeyaay creation story, in addition to ancestral village areas, ceremonial sites and cremation places.²¹ In fact, CBP's own review of archaeological records and a ground survey in the Project Area revealed more than 135 tribal sites which may have been impacted...