Arizona governor sides with Tohono O'odham in fight against border wall

Gov. Katie Hobbs is siding with the Tohono O'odham Nation in its bid to at least delay work on a border wall the federal government wants to build along its boundary with Mexico.

"Arizona's own record demonstrates that vigorous border security does not require disregarding tribal sovereignty,'' Justin Cox, a private attorney representing Hobbs, told the Court of Appeals for the District of Columbia. He said the state has achieved "major enforcement results'' through cooperation with the tribe.

But Hobbs is not asking that the 62-mile double-layered 30-foot-high steel and concrete barrier be canceled entirely — at least not at this point. Nor is she taking a position on the underlying legal question of whether the land where the twin walls are being proposed belongs to the tribe or the federal government.

What she wants is to stop further work while these issues are worked out.

The more immediate issue is that, absent a court-ordered pause in federal government activity, there will be "irreparable harm'' once the preliminary work is done and construction begins, Cox said. He said there's reason to believe that could happen.

"Prior border wall construction conducted without meaningful tribal consultation results in documented, irreparable damage to sacred sites and cultural artifacts,'' he told the court.

He cited a 2020 incident in which federal contractors building a section of border wall inside Organ Pipe National Monument engaged in blasting that damaged a sacred site that held cultural artifacts and human remains. And earlier this year, a contractor damaged an ancient, 200-foot-long fish-shaped geoglyph, essentially a design drawn directly on open ground, by bulldozing through the site to build a border barrier.

At the center of the dispute is the U.S. Department of Homeland Security proposal to build the 62-mile barrier. Tribal officials filed suit claiming that amounted to an illegal trespass on their land.

Last month, however, U.S. District Court Judge Richard Leon in Washington, D.C., tossed the case.

He specifically rejected arguments that this was tribal land, pointing out a 1907 proclamation by then-President Theodore Roosevelt declaring the first 60 feet of land north of the border with Mexico belongs to the United States. He also noted that Congress did not establish a reservation for the Tohono O'odham tribe until 1917.

Even if that was not the case, Leon said the needs of the United States to secure the border trump the tribe's concerns. "Given the national security and foreign policy considerations related to the border wall, deference to the government is warranted,'' he wrote.

Tribal attorneys appealed, contending that the ruling is incorrect.

But more immediately, they want the appellate court to issue a preliminary injunction to pause further work while the issues are hashed out.

The tribe erected "no trespassing'' signs and tried to remove contractors from the reservation. But the contractors returned, this time accompanied by armed federal agents.

Cox, in his filing on behalf of the governor, said a stay is appropriate.

He pointed out that Leon, in refusing to halt work, wrote that many of the harms the tribe fears "could be mitigated through consultation with the Nation and accommodations.'' The judge also said he expects the Department of Homeland Security would "follow through on its guarantees of consultation.''

The attorney for Hobbs said, "events have since tested that expectation."

"Within hours of the ruling, DHS's general counsel posted, 'We respect tribal sovereignty but not to the detriment of border security. The wall is getting built. Our authority is beyond dispute,' '' Cox told the appellate court. That led to the contractors being escorted onto the reservation by armed agents to start work, he said.

"Consultation that follows the destruction of a sacred site is not consultation; it is notification,'' Cox said. "The value of consultation lies entirely in its capacity to shape a decision before that decision is made — particularly where, as here, the decision is irreversible.''

Anyway, Cox said, halting construction while the case proceeds would impose "minimal harm'' on the government.

He said it leaves in place the extensive infrastructure the tribe has already allowed on its land, including two forward operating bases for Customs and Border Protection, 10 fixed towers with surveillance technology, vehicle barriers along the majority of the southern border, vehicle surveillance units, and a highway checkpoint. On top of that, there is state-level border enforcement.

"An injunction that preserves time for consultation would not disarm the government,'' Cox wrote. "It would reinforce the collaborative model that has produced the very security gains the government now touts.''

In siding with the tribe, the Democratic governor also finds herself at odds with Arizona Senate President Warren Petersen and House Speaker Steve Montenegro, who are Republicans.

In their own legal brief, Petersen and Montenegro said the interests of Homeland Security outweigh the concerns of the Tohono O'odham, both in terms of erecting a fence on what the tribe says is reservation land as well as dividing the tribe, which has existed for centuries on both sides of the border.

Lee Whitesell, a private attorney retained by the legislative leaders, cited the history of Arizona dealing with border crime and incidents, including "millions of dollars that the state has spent to assist with border-related security.'' They blame pretty much all of that on the Biden administration.

Petersen and Montenegro acknowledged that the tribe's police chief has said "border crossings on the reservation are at historic lows.''

But they said even if that is true, that's because the Trump administration has "made border security a top priority," a situation they said isn't guaranteed to continue.

"A future administration may return to the lax practices of prior administration and choose to pull personnel from the border; to retract border security policies; and to again send an implied message to the world that the integrity of our border will not be enforced,'' their legal filing states.

Hobbs' attorney, however, told the appellate court all that is legally irrelevant to the immediate question of whether construction should be halted until the case is heard.

He said preliminary injunctions are designed to deal with harms that can occur while a case is being decided. Cox also noted that even the federal government says that, at least for the time being, border encounters are at historic lows.

"What a future administration might do has no bearing on whether construction must begin this fall,'' he said.

The appellate court has not set a date to hear arguments.