Commentary: Congress must repeal the waiver authority to protect Kumeyaay cultural legacy

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[July 16, 2020] In southeastern San Diego County between Campo and Boulevard, the Kumeyaay Bands are pressing the Border Patrol and the Army Corps of Engineers to grant them access to their ancestral lands where they have lived for over 12,000 years. Government contractors are detonating explosives for replacement border wall, and blasting the area will desecrate and damage sacred artifacts and ancestral remains. The Kumeyaay have asked for mandatory soil testing and on-site cultural monitors to confirm that human remains, and other cultural artifacts, are not destroyed. More generally, they are also asking to nullify the waiver authority, an arbitrary power granted to the Secretary of Homeland Security in 2005. For this to happen, though, Congress must repeal the Homeland Security secretary’s broad authority to unilaterally waive all legal requirements to construct barriers along the border.

Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 gives the Secretary of Homeland Security, an unelected executive branch appointee, extraordinary power to dismiss dozens of local, state and federal laws, including the Native American Graves Protection & Repatriation Act and the American Indian Religious Freedom Act, to expedite border wall construction. This government project, approved in March, is possible because of the unprecedented waiver authority.

The replacement border wall will consist of 18-foot steel bollards topped with flat panels, meant to replace decades-old corrugated metal landing mats. The new border fencing needs to be at least 10 feet deep to sustain the height of the new border wall in an area known for high winds. However, according to local Kumeyaay leadership, relics and artifacts have been found 25 feet deep in the ground. Border Patrol and the Army Corps of Engineers are relying on an outdated and dubious land survey from 2010 that suggests there are no ancestral remains in the area. So far, government representatives have refused to provide any documentation that they have conducted a more recent archeological study of the land with potential cultural interest.

The Kumeyaay face a similar struggle that other tribes along the U.S.-Mexico border have faced since 2005. As recently as February of this year, in Arizona, Border Patrol officials blew up Monument Hill, a Tohono O’odham Nation sacred site in the Organ Pipe Cactus National Monument. This happened as O’odham Chairman Ned Norris testified at a congressional hearing regarding border wall construction and how it destroys sacred sites and erases tribal culture.

The Lipan Apache of south Texas, the Kickapoo Tribe in the Eagle Pass area, the Ysleta del Sur Pueblo in the El Paso area of west Texas, and the Carrizo/Comecrudo Nation of Texas have all spoken out against the impact of border wall construction on their tribal lands. In addition to criticizing a lack of consultation, members of those tribes have expressed concern for how border walls will divide their ancestral lands, limit access to cultural sites, and impact religious ceremonies. Border wall construction in those areas also occurred because of the waiver authority under Presidents Bush, who invoked it five times, and Trump, who so far has invoked it 24 times.

Desecration of lands will continue throughout the borderlands unless Congress acts with urgency. Sen. Kamala Harris, D-California, expressed her outrage in a tweet and Rep. Juan Vargas, D-San Diego, sent a letter to Department of Homeland Security Acting Secretary Chad Wolf concerning “capricious” border wall construction affecting the Kumeyaay in his district. As recently as last year, environmental groups advocated to repeal Section 102, but the divisive political climate in Congress will unlikely see a bill passed any time before the November elections.

Read the full piece here: Pedro Rios Op-Ed