On Indigenous Peoples Day in October, in 110-degree heat, a group of 50 or so members of the Kumeyaay tribe and allies gathered on both sides of the U.S.-Mexico border at a spot about 50 miles east of San Diego. The rugged oak-and-sagebrush landscape here is dotted with huge diggers, work trucks, construction crews, and men with guns: private security contractors protecting workers building President Donald Trump’s long promised “beautiful wall.”
The Kumeyaay have called this land home for more than 12,000 years, and Kumeyaay songs have told stories about this land since long before the border arrived to divide it.
“They’re trying to keep us away from our own family, our own friends, our own relatives,” Stan Rodriguez of the Santa Ysabel band, one of the 12 bands of the Kumeyaay nation, told the group.
The blasting and digging paused that day, and the guards stood by, as the Kumeyaay then sang bird songs, burned sage, and danced in religious ceremonies honoring the memory of their ancestors.
Since June, members of Saving Homelands of the Indigenous and Ending Land Desecration, or SHIELD, a U.S.-based Kumeyaay group, have organized dozens of these protests to fight border wall construction, which they charge is dividing Kumeyaay families in California and Mexico, irreversibly scarring the landscape, and desecrating the land where their ancestors’ created remains have been scattered for generations.
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If signed into law, the legislation will criminalize protests by groups and individuals at pipelines and other energy infrastructure.
Each time, construction workers have stopped their vehicles and laid down their tools, and the armed and body-armored guards have stood by, as have federal Border Patrol officers when they have been on the scene.
One day this summer, a construction worker asked bird singers to think of his sick child as they danced. The group prayed for his child as the worker watched from the cab of a huge bulldozer.
“We are out there in a cultural and religious way holding ceremonies and the Border Patrol can’t interfere in any way,” said SHIELD organizer Brooke Baines, a member of the Manzanita band of the Kumeyaay nation, because a 1978 federal law, the American Indian Religious Freedom Act, prohibits management of federal lands in a fashion that prevents Indigenous people from practicing their ceremonies and rites.
This legislation does not leave space for state violence against the performance of religious ceremonies and rites, said Baines, even if they are being used as a form of protest.
Meanwhile, from her law office in Sacramento, attorney Michelle LaPena of the Pit River Tribe of Northeastern California, and a descendant of the Cabazon Band of Mission Indians, is fighting the same battle in court. In a case than names President Trump and several high-ranking members of his cabinet as defendants, LaPena and the band have challenged the use of Defense Department funding to build the wall.
“Our lawsuit is challenging the construction of the border wall on grounds that the transfer of funds was illegal,” said LaPena, the tribal attorney for the La Posta Band of Diegueño Mission Indians, “and that the illegal transfer of funds is causing harm to the cultural and religious rights of the Kumeyaay people.”
The peaceful Kumeyaay protest on Indigenous Peoples Day contrasted starkly with the violence 300 miles away on the same day, when Indigenous activists protesting the wall blockaded Arizona State Route 85 near a border checkpoint.
Here, in an area that for tens of thousands of years has been home to the Tohono O’odham people on both sides of today’s U.S.-Mexico border, Arizona state troopers tear-gassed O’odham protesters and allies and shot at them with rubber bullets.
According to V Lewis, an O’odham tribal member and part of Defend O’odham Jewed (which means “defend the people’s land”), the O’odham were in ceremony when the state troopers attacked, whether or not what they were doing fitted with some perceptions of what such rituals look like. “When we come together under the name of ceremony we come together for a very sacred reason,” Lewis said. “Every Indigenous community has their own different types of ceremony.”
The Arizona Department of Public Safety did not respond to multiple requests for comment on the troopers’ show of force. In a statement to the Arizona Republic, spokesperson Bart Graves said that “as a result of protesters’ failure to comply with a lawful order, troopers deployed smoke from canisters as a means to gain compliance.” When the protesters did not leave Route 85, Graves said, “troopers then deployed tear gas to get the protesters off the highway.” Twelve protesters were arrested, according to the Republic, including three minors.
Lewis said that whether or not the protesters performed their ceremony on the state highway, it was on O’odham land. “All of our land is considered sacred,” they said. “The reason why there was ceremony there, and why we were singing our songs and declaring that space, is to hold that space accountable. That is a checkpoint, meaning that is where violence happens on the nation.”
In a statement released on Oct. 13, Ned Norris, Chairman of the Tohono O’odham Nation, released a statement that sharply criticized the state police response. “The use of tear gas on O’odham and fellow American citizens exercising their sacred constitutional right to protest is utterly appalling, and not something that should be tolerated in our democracy,” Norris said in the statement, which was published online by KOLD 13 News.
Norris also denounced the Trump administration for the violation of his tribe’s lands with border wall construction. “For years, I and other O’odham leaders have been raising the alarm about the very issues that are at the root of this travesty — the wanton destruction of burial and other sites that are sacred to the Tohono O’odham, and that should be protected by law.”
According to U.S. Customs and Border Protection spokesperson Matthew Dyman, CBP agents were not involved in the attacks on the Tohono O’odham protestors.
Asked to comment on the differing responses by Border Patrol officers to the Kumeyaay protests at Tecate, and by the Arizona Department of Public Safety on the same day on State Route 85, Dyman said in email that “CBP coordinated closely with the Bureau of Land Management (BLM) in this location [near San Diego] to secure the construction area and construction access roads to ensure the safety of both the public and construction personnel.”
The Route 85 confrontation came just a few weeks after another violent response against O’odham protesters who had blocked border wall construction on sacred lands inside Organ Pipe Cactus National Monument.
An “hours-long standoff” ended “with shoves and pushes as federal border officers and park rangers physically cleared the area,” according to The Arizona Republic.
“I am not entirely sure why Parks Service felt the need to do violence to people doing [the] Parks Service’s job to protect the land,” said Maxie Adler, an ally of the O’odham protesters who was present at the Organ Pipe protest. “I am still just thinking back to that day and how stunned everyone was.” The two incidents together are “a really big and sad turning moment in the movement,” she said.
In the months leading up to the election, The Trump administration pushed ahead with border wall construction at a rapid rate. In the election’s wake construction continues, and is scheduled to go on through Trump’s final days as president, according to Raini Brunson, a spokesperson for the Army Corps of Engineers.
“Unless a Suspension of Work order is issued, USACE expects contractors to continue work as obligated under their contracts,” Brunson said in email.
According to information obtained from the CBP through public records request, the Departments of Defense and Homeland Security have together signed $676 million dollars of “emergency” contracts with BFBC, a construction company, the San Diego and El Centro, Calif. county areas.
According to an April press release from the Defense Department, one $569 million contract in the region will build a total of 17.7 miles of wall, “with an estimated completion date of June 30, 2021.”
Every penny of that money will be spent on a barrier that desecrates Kumeyaay lands.
On Oct. 16, the 9th U.S. Circuit Court of Appeals denied La Posta’s request for a restraining order to halt construction at the Tecate site. Last week the tribe refiled an amended complaint, and continued to petition for an immediate halt to construction, in the hopes of getting a stop order that will carry past Trump’s departure from the White House in January.
“When we get to a new administration,” La Posta said, “we hope to have the government take a new position.”
Feb. 2, 2021 Correction: An earlier version of this article incorrectly named the agency and title of federal employees who are tasked with patrolling the border. They are agents of U.S. Customs and Border Protection.