Unnecessary Measures

Public and native lands advocates say McCain’s proposed legislation gives Border Patrol unrestricted access that is unnecessary and detrimental

Nellie David is concerned for the Native American youth growing up in what she sees as an increasingly militarized Tohono O'odham Nation.

These days, a walk or drive around her hometown of Ajo almost always leads to being questioned by U.S. Border Patrol agents roaming the tribal land. David remembers the time she and two friends were surrounded by a handful of Border Patrol trucks in a remote area of the reservation merely over their presence there. Another example is a recent evening when she took her dog on a walk in the desert, and "all of the sudden a helicopter comes up and gets really close to me, checking us out," she says.

"The rez (reservation) is surrounded by checkpoints," says David, who currently lives in Tucson, while finishing law school at the UA. "We are indigenous people, and for them to ask, 'Where are you from? Where are you going?' It's like, 'who are you?'"

When she heard about a border security bill that U.S. Sen. John McCain recently introduced—which would waive laws on all federal public land within 100 miles of the U.S.-Mexico border, and essentially grant law enforcement immediate access to every corner of the borderlands—she says she thought the bill is going to make things worse. Most law enforcement, already, has no respect for things such as burial grounds and other places on the reservation that are considered sacred, she says. How much more freedom can they get, she wonders.

"What they are doing is, they are coming in and taking away everybody's rights, and any sense that people have of community," she says.

To critics, Senate Bill 750 is bad for civil rights and detrimental to the environment.

The legislation, which McCain introduced back in March with the support of U.S. Sen. Jeff Flake, would allow Customs and Border Protection to enter all federally managed land, including national parks that are currently protected by federal laws. McCain says this is an improvement that would eliminate the "unnecessary red tape" that prevents Border Patrol from doing its job. But groups like the Sierra Club and the Center for Biological Diversity, as well as Native American and immigration rights advocates say it is more about overreach, because the agency already patrols these lands as they please.

In terms of the environment, CBP and Border Patrol currently collaborate with the U.S. National Park Service, U.S. Forest Service and the U.S. Fish and Wildlife Service. Land managers get to weigh in on law enforcement plans on or near such protected lands, and vice-versa. If McCain's bill were to see the light of day, Border Patrol could decide to build a surveillance tower in the middle of the Buenos Aires National Wildlife Refuge or the Saguaro National Park without any input from land managers, or anyone, according to environmentalists who oppose the bill.

"On the immigration side, what (McCain) is doing is saying the only way to deal with (the issue) is to take an enforcement only approach, nothing else. This legislation reaffirms that," Congressman Raúl Grijalva told the Tucson Weekly. Last week, Grijalva spoke at an S 750 forum, alongside the Sierra Club Grand Canyon Chapter's Dan Millis, Coalición de Derechos Humanos' Isabel Garcia and Alianza Indigena Sin Fronteras, Indigenous Alliance Without Borders' José Matus.

The congressman says Department of Homeland Security and Border Patrol representatives have repeatedly expressed at congressional hearings that McCain's proposal wouldn't work. "McCain's bill is a political statement both on environmental laws, which Republicans are opposed to, and pushing Congress further away from immigration reform," Grijalva adds.

Plus, some of these waivers currently exist, he says. During the George W. Bush administration, Congress passed the Real ID Act in 2005 and the Secure Fence Act the following year, which Grijalva explains were a series of waivers for border security enforcement in public lands. Grijalva sees that as the beginning stages of messing around with sovereignty, and McCain's bill might lead to complete carelessness for it, in the sense that DHS would be given more power than the Department of Agriculture or the Department of the Interior.

In an email to the Weekly, McCain press secretary Julie Tarallo wrote that contrary to what critics allege, the legislation would not "absolve" Border Patrol from obeying federal environmental laws, nor would it "waive its government-to-government tribal consultation responsibilities."

"According to a 2011 report by the U.S. Government and Accountability Office, Border Patrol agents reported that these laws have restricted and delayed their operations, while several agents-in-charge noted that they were 'unable to access certain areas in a timely manner' because of the time it takes land managers to complete necessary property assessments," Tarallo says in the email. "The fact is, this bill would enhance Border Patrol's ability to protect—not harm—Arizona's national parks, protected areas, and wildlife, which are being badly damaged by the many hundreds of miles of illegal foot and vehicle traffic by drug cartels and human smugglers who continue to exploit U.S. land management laws."

The Senate Homeland Security and Governmental Affairs Committee passed the bill in May, but it hasn't moved at all since. Grijalva says it is not likely to pass on its own, but if McCain attaches it to a must-pass bill—as was the case this past fall, when McCain and Flake (as well as U.S. Reps. Ann Kirkpatrick and Paul Gosar) attached the Southeast Arizona Land Exchange and Conservation Act, to the National Defense Authorization Act, handing over the sacred land of Oak Flat to foreign mining company Resolution Copper—S 750 could sneak its way into becoming law.

Whether that is likely or not, protests—big and small—with discontent constituents have been popping up throughout Tucson. The most recent one happened while McCain privately met with Tucson Electric Power staff at the utility company's headquarters in downtown Tucson.

"What is going to happen is every archeological site, every cultural site, every wetland or creek could potentially be completely destroyed by the Border Patrol and there is nothing anyone can do about it if on federal public land," says Cyndi Tuell, an attorney, and volunteer with Save Oak Flat and the Sierra Club's Borderlands campaign. "Sacred tribal places would have absolutely no protection from anything Border Patrol."

She and several other advocates have been trying to meet with McCain to discuss the Oak Flat giveaway, as well as their concerns for S 750, but Tuell says his office constantly tells them the Republican senator isn't available.

"He meets with the people who make him millions of dollars, he doesn't meet with the average citizen," she says. "Basically, if you disagree with the position of your senator, he is going to refuse to meet with you, and then tell the world he is representing the will of the people of Southern Arizona, and that is not true."

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