Cementing a State of Exception in the Borderlands: How a Supreme Court Ruling Impacts the Tohono O’odham Nation
In the “Constitution-mangled zone” in the borderlands, Tohono O’odham say Supreme Court ruling fortifies an occupation.
In 2017, when I was interviewing people at Customs and Border Protection headquarters in Washington, DC, one official told me point-black, “We’re exempted from the Fourth Amendment.” The Border Patrol, according to him, can circumvent the Constitution and conduct unwarranted searches and seizures. I suppose I didn’t hide my look of surprise too well (he said it so authoritatively and casually!), because the officer immediately followed that up with a quick “the Supreme Court ruled that many decades ago.”
On June 8, the U.S. Supreme Court again validated this “exemption” and strengthened it. In Egbert v. Boule the court ruled to protect federal agents, particularly Border Patrol agents, from civil rights lawsuits (by making it much more difficult to do so). Central to the case was a Fourth Amendment claim. U.S. Border Patrol agent Erik Egbert entered innkeeper Robert Boule’s property in Blaine, Washington, without a warrant to check the immigration status of some recently arrived guests. When Boule protested Egbert’s presence, Egbert threw him against a vehicle and then to the ground. In its ruling in favor of Egbert, the Supreme Court wrote that “regulating the conduct of agents at the border has national security implications,” and that there would be a “risk in undermining border security.”
As SCOTUSblog contributing writer Howard Wasserman told NPR, “Considerations of national security and foreign affairs that are endemic to immigration enforcement and immigration issues are always going to make it improper for a damages action to go forward.” As has been the case since 9/11, the broad yet ill-defined notion of national security trumps all else.
But there is a longer history to this, as the CBP official alluded to at the beginning. Geographer Reece Jones, author of the forthcoming Nobody Is Protected: How the Border Patrol Became the Most Dangerous Police Force in the United States, told me that this was “the latest example of the continued evisceration of Fourth Amendment protections. … The Supreme Court had previously ruled that Border Patrol agents needed lower standards of evidence to stop vehicles, could operate permanent checkpoints deep inside the U.S., and could use racial profiling in all of their work. Now, even when citizens are subjected to egregious abuses of authority, there is no mechanism to hold Border Patrol agents accountable.”
“I Feel Like I Have No Civil Rights”
The impacts of Egbert v. Boule reverberate way past Blaine—across a border zone that has a jurisdiction of 100 miles from all international boundaries (including coasts), an area where 200 million people live, nearly two-thirds of the U.S. population. In these areas the Border Patrol can operate with extra-constitutional powers, selectively suspending rights. Using this power, the agency has created a pseudo state of exception. The Tohono O’odham Nation is perhaps one of the southern borderlands’ sharpest examples of this—many of the nation’s residents refer to Border Patrol presence as an “occupation,” and you can’t leave the reservation without going through a Homeland Security checkpoint. The nation is located in southern Arizona and shares about 70 miles of the international boundary with Sonora, Mexico, which is also O’odham ancestral land where many tribal members live.
When I asked elder David Garcia, a former representative of the nation’s legislative council, about the ruling, he told me that this sort of lack of accountability for Border Patrol agents, combined with violations of civil and constitutional rights, have been happening on the nation since “way before” the ruling.
Garcia knows well; he spent more than a year documenting abuses for the American Civil Liberties Union in 2014 and 2015. He told me about the case of an elderly O’odham man who lived close to the border in a house that didn’t have electricity. In the night, a Border Patrol commando unit stormed into his house and accused him of smuggling. The agents didn’t have to bang down a door to get into the house, because there was none, only a blanket hanging from the front entrance. After the unit determined that he was not a smuggler and left, the man reported the incident to the Tohono O’odham Police Department. But, Garcia said, nothing happened. This is just one example of years and years of the Tohono O’odham making such complaints, Garcia told me, and nobody responding.
Indeed, a decade ago I witnessed an agent question Garcia aggressively and disrespectfully with my own eyes when the Tohono O’odham elder graciously took me down to the border at Papago Farms for a story I was working on. When Garcia reported the incident to the Border Patrol in Casa Grande, an officer answered and listened, but nothing happened. People are always reporting complaints, Garcia told me, and nothing happens. Nothing ever happens.
And there are a wide variety of complaints. The traffic stops, for example, included people forced out of their cars, maced, and beaten with a billy club, like an O’odham man named Arturo Garcia, whom I interviewed for my book Border Patrol Nation. Over the years, I have heard many similar stories, ranging from Border Patrol blocking a funeral procession and then showing up at the cemetery for the burial, to pulling over a man who said he was simply driving north from the international divide. Six agents surrounded him with automatic, high-caliber weapons. In a case that I reported for In These Times, Joaquin Estevan was accused of having a fraudulent identification when crossing from Mexico into the United States, where he lived, and was arrested, detained, and then deported back to Mexico. This has been going on for years, as elder Ruth Ortega, who didn’t have a birth certificate because she was born at home, testified in 2001: “Even though I am a great-grandmother, the Border Patrol still chases me.” According to Garcia, the Border Patrol has had a number of town hall meetings with community members over the last decade or so where they “would just listen to the complaints and then do nothing.”
“Anthony” from the nation’s Gu-Vo district boiled it down to this: “I feel like I have no civil rights,” he told Tucson’s KVOA, a television station.
The Constitution-Mangled Zone
The ramp-up of border militarization on the nation over the last two decades has included an influx of agents (there is a Border Patrol substation and military-style forward operating base on the nation), the construction of vehicle barriers, and a significant buildup of surveillance infrastructure epitomized by 10 Integrated Fixed Towers designed by the Israeli company Elbit Systems. Amy Juan, a longtime Tohono O’odham cultural activist who grew up on the border on the reservation, viewed the Supreme Court ruling in this context.
“It makes me question what was it that made the push for this decision to have more protection around the Border Patrol and their actions,” Juan told me, “when at the same time they are also beefing up on their militarization. What are they looking to do especially with these robot dogs and all of this technology and other things that they are bringing into their operations. That will definitely have the effect of hurting people.” And this effect doesn’t happen just right on the border, Juan stressed. The Border Patrol operates throughout the entire reservation, including checkpoints more than 40 miles from the international divide.
The 100-mile border zone has been referred to as a “Constitution-free zone.” Even though the ACLU makes it clear that people’s constitutional rights do apply in the borderlands, and that it is important to say so, at the same time it is accurate to say that the Constitution has become mangled. There is no war, but government forces operate in a permanent state of exception as if there were one, and this Supreme Court ruling is just the latest example of national security overriding civil liberties.
“I don’t agree with this ruling. I don’t agree with this law,” Juan told me. “I think it needs to be the opposite. Instead of more protections for agents, there needs to be more protection for the people.”
In terms of accountability, Vicki Gaubeca, the director of the Southern Border Communities Coalition, told me that “ultimately Congress has to create a statutory private right of action against federal law enforcement. Right now, that right of action only exists against local and state law enforcement officials.” One congressional initiative that addresses that was introduced by California senator Alex Padilla on June 17: S. 2103, Accountability for Federal Law Enforcement Act.
Juan concurs: “Despite the ruling, this doesn’t take way from the accountability that Border Patrol has to the people and their communities. Because there has to be. There’s damage that’s been done, not just to the people but to the land.”
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