Indigenous Community Statement:

Indigenous Community Comments on Proposed Rules: Documents Required for Travelers Departing From or Arriving in the United States at Sea and Land Port-of-Entry from within the Western Hemisphere—Proposed Rule DK# USCBP - 2007 – 0061 on Indigenous Land Border Crossings. As stated under section G. “Members of US Native American Tribes” of the Proposed Rules, “DHS and DOS invite comments from those United States tribes that enroll members who continue to cross the border for a traditional purpose.” These community comments are in response to this invitation and serve as a statement of support to the comments submitted by individual tribes of the U. S. Southern border in which each tribe is required to explain its traditional border crossings by:

• specifically identifying the federally recognized tribe;
• indicating the traditional destination or destinations across the border that are visited by members of the tribe;
• explaining in detail the purpose or purposes of all such travel;
• relating all such travel to traditional ethnic, religious, cultural or other activities of the tribe;
• indicating the frequency of the travel; and
• specifying the border crossing point or points which are generally utilized to travel to each destination;

And further required to specify 1) enrollment information that the tribe is willing to make available to U.S. Customs and Border Protection (CBP) from Tribal Enrollment records, 2) ability to provide CBP with enrollment information on a regular basis, and 3) promise to work with CBP on enhancement of alternative border crossing documents in the future.

Historical Background for Southern Border Native American Tribes:

The establishment of the present US-Mexico border was instituted by the Treaty of Guadalupe Hidalgo ratified in 1848 and the Gadsden Purchase of 1853 wherein the signatory governments of both republics agreed to delineate realms of jurisdiction between both parties, namely the governments of the United States of North America and that of the Republic of Mexico.

At no point in this process were the self governing nations of the Indigenous Peoples of the treaty territories—specifically those whose traditional territories were to be bisected by the international border to be established—collectively consulted or integrated by way of plebiscite or free and fair elections as to their free choice to obtain or retain citizenship and nationality within either republic, or as members of their respective Indigenous Nations. Today, indigenous nations divided by the U.S.-Mexico border include the Kumeyaay of California, the Tohono O’odham, Pascua Yaqui, Gila River Indian Community (Akimel O’odham), Cocopah, and Yavapai Apache of Arizona, and the Kickapoo of Texas, Oklahoma and Kansas.

Developments in international law regarding the rights of Indigenous Peoples to maintain cultural ties across international borders since establishment of the present U.S.-Mexico border include the principle of Special Measures as referenced in ILO Convention 169, and the Declaration on the Rights of Indigenous Peoples adopted by the UN Human Rights Council on June 29, 2006 and the UN General Assembly on September 13, 2007. Taken as a whole, the trajectory of these developments contributes to the mutual respect among States and Nations of Indigenous Peoples which provides the foundation for normalization of peaceful relationships.

In good faith pursuit of such peaceful relationships, we submit the following comments as an interim action of engagement to be followed by a more adequate process of hearing and regional consultation with the Southern border tribes, Nations of Indigenous Peoples along the U.S.-Mexico border.

Comments:

The U.S. Department of Homeland Security (DHS) and the Department State (DOS), in consultation with the Southern border tribes, should establish clear guidelines for Indigenous mobility and passage, inspection, and admissibility across the U.S.-Mexico border. Such guidelines must be specifically developed to ensuresurvival of Indigenous border tribes whose history, unique languages and cultures, family connections and cross border tribal community activities precede the establishment of the national border by millennia, and to ensure that Indigenous human and civil rights are respected and not violated. Norms and policies must be created to establish and maintain a well-organized system of complaint resolution.

Further, guidelines on Native American land border crossings set forth by DHS and DOS must specifically ensure recognition of each Indigenous Nation as both culturally distinct and politically unique autonomous groups that must be recognized as such by DHS and DOS government officials in consulting U.S. tribes on border crossing issues.

The many economic, demographic, and cultural changes that are rapidly taking place throughout the U.S. Southern and Northern Border regions are forcing many Indigenous border tribes to intensify efforts to prevent further loss of their ancient cultural traditions. An increasingly important component of such efforts is the strengthening (and in some cases, reestablishing) of social, familial, and cultural ties with culturally affiliated Indigenous Peoples in Mexico and Canada who share a traditional language, ceremonial knowledge, and cultural customs.

DHS and DOS must work closely with Native American tribes on both the Northern and Southern borders, as well as the Canadian and Mexican governments, to help resolve the immigration-related concerns of indigenous nations and protect the rights of mobility and passage of these nations by applying existing statutory and regulatory authority in a manner that takes into account each Indigenous Nation’s unique historical, cultural and economic circumstances.

In response to,

1. Proposed Acceptance Of Satisfactory Tribal Enrollment Documents At Traditional Border Crossing Points For Tribes Who Continue Traditional Land Border Crossings.

We believe and agree that U.S. Homeland Security should accept each U.S. Indigenous Nation’s Tribal Enrollment Card as an alternative border crossing document when crossing and re-crossing the border by land.

2. Possible Alternative Treatment of U.S. Native Americans

We believe that special provisions should be made for U.S. Native Americans because for cultural and economic reasons we do not have an equal opportunity to obtain the same identification documents as other U.S. citizens, but are often able to obtain tribal enrollment identification.

Therefore, we believe that CBP should accept all tribal enrollment cards from all federally recognized Native American tribes as necessary to facilitate cultural ties between U.S. Native American Nations and culturally affiliated groups across the U.S.-Mexico border.

Furthermore, we recommend,

3. Alternative Treatment for the Inspection and Admission of Nonimmigrant Visitors who are Members of, or Culturally Affiliated with, Southern Border Native American Tribes

Due to both cultural and economic factors, members of native communities in Mexico that share membership or cultural affiliation with U. S. Southern border Native American tribes are often not able to provide the types of documentation necessary to prove nonimmigrant intent and financial solvency in order to obtain Mexican passports, U. S. Laser Visas, or border crossing permits. The Department of Homeland Security and the Department of State should work closely with the Mexican government and U. S. Southern border tribal governments to help resolve the special immigration-related concerns of Southern border tribes as described in the Immigration and Naturalization Services Office of General Counsel document, The Immigration-Related Concerns of the Southern-Border Native American Indian Tribes, to help ensure the preservation of our unique languages and cultures in compliance with existing U.S. policies for the preservation of U.S. Native American cultures. National guidelines for Southern border indigenous land crossings should recognize the special status of nonimmigrant indigenous community members affiliated with Southern border Native American tribes who visit the U. S. for traditional or cultural purposes, since contact between Mexico and U.S. indigenous community members is vital to the preservation of cultural traditions within U. S. Southern Border Native American communities. In addition, since members of culturally affiliated native groups in Mexico are often not qualified for enrollment in the respective U.S. Southern border tribe and for the cultural and economic reasons previously stated, they must apply for special entrance permits or international travel documents sponsored and initiated by U.S. tribal governments. Therefore, U. S. Native American tribes on or near the U.S.-Mexico border should be provided with options for alternative border crossing documentation for nonimmigrant visitors from Mexico who are members of, or affiliated with U. S. Southern border tribes.

These comments are submitted by the Alianza Indígena Sin Fronteras and its community partners for your consideration and adoption on the Proposed Rule DK#USCBP -2007-0061

If you are interested in becoming a community partner in support of this statement, please contact us by email at alianza@indigenasinfronteras.org