SAN DIEGO (CN) — Appearing unclear during a court hearing Thursday about tribal rights to access cultural resources on private land, a federal judge found the federal government should not be forced to stop construction on the border wall along the U.S.-Mexico border in California despite claims human remains were bulldozed over.
U.S. District Judge Anthony Battaglia, a Barack Obama appointee, was unclear about Native Americans’ rights to access cultural resources on private and federal lands during the first court hearing Thursday in a challenge brought by the La Posta Band of Diegueno Mission Indians. The tribe claims President Donald Trump and the federal government have failed to meet tribal consultation requirements regarding border wall construction, which cuts through Kumeyaay land in San Diego.
Attorney Michelle LaPena of Sacramento-based Rosette LLP, representing the tribe, answered affirmatively when asked by Battaglia if the tribe was allowed to access cultural resources even on private property.
Still, after a lengthy court hearing, Battaglia ruled from the bench against the tribe’s motion for a temporary restraining order and preliminary injunction. The tribe had sought to stop the federal government from continuing border wall construction in portions of San Diego where it says human remains have been found at least once during construction this summer.
Following the court hearing, LaPena told Courthouse News they were “extremely disappointed the court failed to acknowledge the incredible harm this project is causing to tribal cultural resources including Native American remains.”
“We will evaluate whether to appeal,” LaPena said.
Justice Department attorney Kathryn Davis told Battaglia because the Supreme Court has previously found border wall construction should continue during litigation challenging the construction of new and replacement barriers along the U.S.-Mexico border, he “should follow the Supreme Court’s lead.”
But LaPena and her co-counsel Simon Gertler emphasized throughout the court hearing how La Posta’s case is different than challenges previously brought by the Sierra Club and the state of California regarding federal waivers of environmental laws to make way for construction of the wall.
“We are not like the Sierra Club; our case has not been before the United States Supreme Court. Tribes have a unique status in relationship to government to government,” LaPena said.
In this case, the tribe isn’t challenging the waivers which have allowed the project to go forward, but are seeking to assert their consultation rights under the Department of Homeland Security’s tribal consultation policy to ensure cultural resources — including human remains — are not disturbed by construction and can be treated appropriately.
The tribe and the federal government are at odds over whether the type of notices, given regarding the project since this past March, meet the tribal consultation threshold under federal law.
Davis said there has been direct engagement with the tribe since mid-May, including a teleconference and the implementation of four cultural monitors who observe construction.
“The meaningfulness of consultation is worn out by the actions on the ground,” Davis said.
LaPena noted the harms caused to the tribe are different than the environmental claims by the Sierra Club and California. She argued the 2020 Consolidated Appropriations Act, in which Congress allocated $1.375 billion for border wall construction, cannot be used on construction fencing projects within historic cemeteries.
But Battaglia wondered how consultation or even halting the border wall construction could prevent harm to tribal cultural resources which could have already been lost.
He said “the irreparability argument is something I’m having a hard time following” since the border wall in San Diego has existed for years and if sacred cultural sites are present, they were desecrated long ago.
The judge also questioned whether the land could be considered a historic cemetery as legally defined in the Consolidated Appropriations Act, echoing Davis’ argument the tribe was “speculating.”
LaPena argued they were not speculating about burial sites in the construction area, instead calling it an “educated guess” based on consultation with tribal and archaeological experts. She said regardless of prior construction, the tribe still had consultation rights that were not met.
“Prior construction disturbing the sites doesn’t negate the requirement for consultation — the expansion of trenches where former fencing was in place is much larger and heavy equipment pulverizes human remains if they are present,” LaPena said.
“Just because something is not identified doesn’t mean it doesn’t exist. The tribe is aware of potential burial sites but because of lack of consultation they have not been able to identify the sites,” she added.
Battaglia said he would issue a written order memorializing his bench ruling.