Tribe Says Border-Wall Construction Is Trashing Burial Sites

(AP Photo/Matt York)

SAN DIEGO (CN) — The Kumeyaay people, whose presence along the San Diego-Mexico border preceded the international boundary now designated by fencing President Donald Trump is fortifying with a wall, sued the federal government this week, claiming border wall construction is desecrating sacred burial sites.

The La Posta Band of Diegueno Mission Indians sued Trump, the Department of Homeland Security and border officials in the Southern District of California on Tuesday, claiming border wall construction along San Diego’s boundary with Mexico violates the Administrative Procedures Act and constitutional rights of tribal members.

They seek an injunction temporarily blocking border wall construction and for a monitoring program to allow tribal monitors to stop work to recover human remains and cultural items uncovered during construction.

Young tribal members have been leading a protest by blocking access roads used for the border wall construction project. The tribe says its members have been threatened with arrest and criminal trespass while attempting to access sites to pray and engage in religious ceremonies within the project area.

One of 12 bands of Kumeyaay people, the La Posta Reservation is located along the Laguna Mountains 56 miles east of San Diego. Kumeyaay people have lived in the San Diego border region for 12,000 years, moving through a system of trails, some of which have religious significance based on a creation story like the story of Genesis in the Bible.

The creation story features landmarks of the Southern California terrain, including sites along the U.S.-Mexico border.

“La Posta citizens hold ceremonies and gatherings at these places, and without access to them, the Kumeyaay people are not able to practice their religion,” the Native American tribe claims in its 19-page complaint.

The Kumeyaay also have burial practices which require the proper treatment of deceased tribal members in the event of exhumation to ensure proper reburial. They claim border wall construction is defiling their ancestral burial sites.

Only one “cultural monitor” from the tribe has been allowed within the 21-mile project area, according to the complaint. When the cultural monitor observed an exhumation, she was denied access to “properly treat the remains in a culturally appropriate manner.”

The complaint notes human remains have been found at least once during border wall construction — on July 10 — but “CBP did nothing to protect them from the path of a heavy construction equipment” in violation of the Native American Graves Protection and Repatriation Act.

“Defendants are currently constructing the border wall directly through Kumeyaay burial sites and sacred lands, causing irreversible and easily avoidable damage to Kumeyaay remains, cultural items, history and religious practices,” the tribe claims.

“Jacumba, known to contain an ancient tribal cemetery, and Tecate, a historical Kumeyaay village site, are located within the path of the border wall project,” the tribe adds.

Pointing to a Ninth Circuit finding that Trump’s reallocation of Department of Defense funds to border wall construction was unlawful, the tribe claims $3.8 billion in Pentagon funds appropriated for other purposes were illegally transferred by Defense Secretary Mark Esper this past February.

That money is funding the construction of 14 miles of replacement border wall and seven miles of new border wall in San Diego and Imperial counties. In July, however, the Supreme Court declined to stop the federal government’s diversion of military funds to pay for the project.

Acting Homeland Security Secretary Chad Wolf invoked the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 as the authority for constructing the project and waiving applicable federal laws.

Other groups and the state of California have also challenged the use of the act to waive environmental protection laws abandoned during construction of the border wall, but their legal challenges have failed.

“To avoid having to account for the significant cultural, historical, religious and environmental impacts of his rash actions, Acting Secretary Wolf waived multiple federal laws designed to protect historical, religious and cultural resources, the environment and the rights of Indian tribes and their members,” the La Posta Band claims.

As a result, the tribe says the federal government has failed to consult with them regarding the project’s impacts on religious and cultural resources. While Customs and Border Protection officials engaged in a phone call with tribal representatives in June, a Zoom call on July 8 and a site visit on July 10, the tribe claims they have not been provided sufficient information about the construction plans.

“Both CBP and Army Corps representatives were informed about the presence of Kumeyaay human remains and burials in the line of construction. CBP has failed to stop construction to investigate any of the human remains, despite pleas from La Posta,” the tribe claims.

The La Posta Band of Diegueno Mission Indians is represented by Michelle LaPena of Sacramento-based Rosette LLP. She did not immediately return phone and email requests for comment.

The Department of Justice did not return an email request for comment.

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