The limits and potential of Judicial Review and Truth Commissions in safeguarding the Rights of Indigenous Peoples: an examination of the implications of the US-Mexico Border Security Wall on the Lipan Apache
This is a refereed article published on December 2013
Citation: Akhtar, Z, ‘Self Determination: The Truth Commission on Lipan Apache Customary Rights and Land Appropriations.’
The Lipan Apache are at the forefront of the protest movement against a border wall that has threatened their community with land seizure, destruction of ceremonies, traditional religious practice, burial grounds, sacred sites, subsistence herding and farming. The construction of the security barrier between the US and Mexico has been effected by the US Secure Fence Act of 2006. It has adversely impacted on the US doctrine of administrative deference by providing the Department of Homeland Security the unilateral power to waive 36 Federal laws and suspending judicial review. The exercise of Eminent Domain by the federal government has denied the indigenous communities around the Rio Grande the right to Free Prior and Informed Consent, which are contrary to the principles of the Declaration of the Rights of Indigenous Peoples 2007. There has been a response to this intrusion on Native American lands by the establishment of an incipient Indigenous Peoples' Truth & Memory Commission along the lines of those established in Canada and Australia; which will explore through a Formal Mechanism the historical injustice and the possibility of achieving redress through this tribunal. This will explore the policies both past and present in order to determine the extent of damage from the breach of treaties that the US signed with the Indian tribes.
Key words: Lipan Apache; Native Americans; indigenous peoples; indigenous rights; judicial review; truth and reconciliation commissions; reparations.
The Apache who are known as the Nde' (or people of the land) are located in the proximity of the Lower Rio Grande where the US government has constructed a mega security wall. This landmark is situated on the border with Mexico and presents an obstacle to the free movement of the Nde’ across the previously porous border. It has also resulted in the US government depriving the native people of their estate which was protected under treaty law as an Indian reservation. The Lipan Apache are opposed to this project and have protested to the federal government as the seizure of the land was without the free, prior and informed consent. The outcome has been the assertion of self-determination by means of a Truth Commission that will document the rights that they claim have been infringed.
The focal point of the Native American challenge to the security wall is that there are significant legal fictions in US law which assume the religious and racial superiority of Euro-American settler juridical systems over their customary practices. These override the indigenous peoples’ rights to self-governance, lands and territories. They have now convened academic and professional groups which accuse the US of violating international human rights laws and private property rights in constructing the fence along its southern Mexican border.
The US government has constructed the border wall by the enactment of the Secure Fence Act 2006. This has created a statutory regime to prevent challenges to its construction and militarisation. It has led to protest by the indigenous people who reside in the bordering states of the US and they have raised the matter as a breach of fundamental rights at the UN.
The federal government has provided the Department of Homeland Security the power to construct the wall. It has included an ouster to prevent the jurisdiction of the courts by means of the Real ID Act 2005. Section 102 provides an exclusion clause which omits the grounds for legal challenge of executive decisions. This has suspended the environmental laws that are a plank of legislation which prevents contamination but cannot be challenged in court.
The clause states:
Not withstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements that are in the Secretary’s sole discretion, to determine as necessary to ensure expeditious construction of the barriers and roads. 1
In pursuing the enactment of the wall under the Secure Fence Act the DHS in late 2005 “waived in their entirety” a series of statutes that include the Endangered Species Act 1982; the Migratory Bird Treaty Act 1916; National Environmental Policy Act 1982; Coastal Zone Management Act 1972 ; the Clean Water Act 1999; and the National Historic Preservation Act 1965. There has also been a waiver of the Native American Grave Protection and Repatriation Act 1990, and the American Indian Religious Freedom Act 1994 in Texas.
In September 2012, the Lipan Apache who are the worst effected of the Indian tribes by the building of the wall established a Truth Commission to examine the history of indigenous treaties, land claims and dispossession in South Texas- Mexico in relation to the human rights violations, with assistance from the International Centre for transitional Justice (ICTJ) and the Barcelona International Peace Resource Centre (BIPRC). This has an international dimension and the preamble states as follows:
A Truth Commission could serve an instrumental purpose in the United States and Mexico border region in light of the militarization programs and unresolved jury trials related to forced and armed dispossession exercised by the Department of Homeland Security against certain communities. These issues obviously were repressed by the Bush administration, and have been severely peripheralized by the Obama administration, costing the affected Indigenous peoples and taxpayers enormous resources better applied toward improving social relations and systems with the consent of the peoples. Unfortunately, the border wall--and each preceding system which worked to obstruct Indigenous self-determination in Texas--has been built on historical patterns of ignorance and genocide denial.
The indigenous peoples are represented through the Lipan Apache LAW- Defense (El Calaboz Rancheria). This was formally constituted in the summer of 2007 with the aim of promoting the autonomy, recognition, self-determination, and human rights of the indigenous communities of the Lower Rio Grande Valley and northeastern Mexico related through ancient lineal ties. The group has petitioned the United Nations Committee on the Elimination of Racial Discrimination (CERD) for help to stop the violations. Their intention is to censor the US by the CERD on grounds of the lack of the utilization of its Early Warning and Urgent Action procedures in constructing this wall.2
This article examines the impact of the wall on the Nde’ Apache and other indigenous peoples, the administrative law challenges under the Chevron principle which the US has denied, the use of the Eminent Domain powers and the basis for the Truth Commission that has established.
2.0 Exclusion of judicial review
Administrative Law doctrine in the US allows for the judicial review process under the principle that Congress cannot enact laws that are contrary to the Constitution and it is the Federal Courts’ role to interpret these provisions. In Marbury v. Madison3 it was ruled that the balance of powers doctrine permits an enquiry into the legality of the Executive’s decisions, which can be invalidated and requirement placed for a body to apply the writ of mandamus.
The rule was stated by the Supreme Court that the Executive’s actions were invalid:
Where aspecific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy. 4
The Court also stated that it was the duty of the judiciary to state the ambit of the law and if two laws conflict then the Court will decide on the operation of each. The above case established a precedent under Article 3 of the Constitution by vesting the authority in the Supreme Court of the US to declare provisions in statutes void. In this instance the plaintiff was granted a declaration that Section 13 of the Judiciary Act of 1789 was unconstitutional because it expanded the original jurisdiction of the Supreme Court beyond that permitted by the Constitution.
This rule has to be interpreted along with the fact that the US Constitution sets no express limits on how much federal authority can be delegated to a government agency, but limits the authority granted to a federal agency within the statutes enacted by Congress. The courts have addressed the issue of what standard of review should be applied by a court to a government agency's own reading of a statute when it is charged with administering a departmental project.
The legal test for the courts to determine if the administrative agency has the powers necessary to override the statutes in interpreting a specific law was set out in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.5 This dispute was based on the amendment to the Clean Air Act in 1977 and the issue was if the government department had correctly applied the law in regulating the industry standards. The aim of the statute was to obligate the states who had failed to attain the air quality standards established by the Environmental Protection Agency to do so. The CAA required these 'non-attainment' states to establish a permit program regulating 'new or modified major stationary sources' of air pollution.
In its first circular the EPA defined a source as any plant that produced pollution. However, in 1981, the Agency adopted a new definition that allowed an existing plant to receive permits for modern equipment that did not meet standards as long as the total emissions from the plant itself did not increase. The Natural Resources Defense Council, a lobby group, challenged the EPA regulation in federal court. An affected party, Chevron Inc., then appealed the lower court's decision and the case went to the Supreme Court over what standard of review should be applied to a government agency's own reading of a statute that authorizes that agency to take action. The Court, in an opinion by Justice Stevens upheld the EPA's interpretation by formulating a two step test when it is reviewing determinations:
(1) Whether the statute is ambiguous or there is a gap that Congress intended the agency to fill. (If the statute is unambiguous, and the interpretation runs contrary to the statute, then the interpretation is considered unreasonable as the text of the statute prevails.)
(2) If an agency's interpretation is reasonable, then the court will defer to the agency's reading of the statute.
This case has set the precedent for determining whether to grant deference to a government agency's interpretation of its own statutory mandate. It lays down the standards of the doctrine of "administrative deference". The US courts have taken a case by case approach where administrative discretion has been an issue.
This has been described as being harsh in effect in an article in Virginia Law Review by Cass R Sunstein who states as follows: 6
Where possible the Step Zero question should be resolved in favour of applying the standard Chevron framework – a framework that has dual advantage of supplying the operation of regulating law and giving policy makers authority to undertake action that are likely to have been the victims of specialised action political accountability.’
The Courts’ favour a more complex framework which invites an independent judicial judgment in certain circumstances. This illustrates a desire to constrain an agency’s discretion when it seems particularly unlikely to be fairly exercised. The agency’s goals can be accomplished in much simpler and better ways above all, by insisting both on the rule of law constraints embodied in Step I and 2 and on continued judicial review for arbitrariness.
The conservation groups along with the Native American tribes that are most affected have raised the issue of the powers of the DHS and the Secretary of Homeland security to suspend the 22 statutes to construct the border wall. In Defenders of Wildlife v Chertoff7 the federal court for the District of Columbia considered a challenge based on the defendants' non compliance with several laws with respect to the construction of physical barriers and roads along the U.S.-Mexico Border in Arizona within the San Pedro Riparian National Conservation Area ("SPRNCA"). They raised the issue of the Bureau of Land Management’s grant of the right-of-way for the construction of the wall that violates the Arizona-Idaho Conservation Act of 1988. 8
The Arizona –Idaho Act allows the district courts to consider only those claims that allege a violation of the Constitution, which caused the plaintiff to allege that the waiver provision of the REAL ID Act violated the separation of powers principles embodied in Articles I and II of the Constitution because it “impermissibly delegates legislative powers to the DHS Secretary, a politically appointed Executive Branch official”.
The District Court held that the waiver does not offend the principles of separation of powers or the non-delegation doctrine, and rejected the plaintiffs' contention and granted defendants' motion to dismiss. The DHS also succeeded in this case in blocking an attempt by the plaintiff to issue an Environmental Impact Statement in view of the effects the waiver would have had on the vegetation of the area. The US Supreme Court declined to issue a writ of certiorari and compel the lower court to respond to the two points raised by the appellants, firstly, whether “ the waiver constitutes an unconstitutional delegation of legislative power to the Executive”, and secondly, “whether the exercise of the waiver effected an unconstitutional act of repealing the federal laws in violation of Article 1, Section 7 of the Constitution. 9
This was a reversal to those seeking greater accountability of administrative action. In Waving Goodbye to Environmental Laws of Arizona, Tana M Sanchez 10 argues that the District of Columbia lawsuit did not have a wide terms of reference. The Court considered only one issue - whether the DHS secretary’s waiver of Federal statutes violated the separation of powers doctrine. It distinguished the power to partially repeal or amend laws on the ground that the waiver clause did not alter the statute. She interprets the decision to agree with the right of the executive branch to be allowed discretion in matters relating to security and immigration and the Real ID’s waiver provision as concerned with these two such issues. Sanchez asserts that the District Court’s decision in Chertoff impacts on the separation of powers doctrine when the law includes an “intelligible principle” within the statute that narrows the exercise of legislative power delegated to the Executive branch to a level “not lower or higher than necessary.” She states:
The decision in Chertoff allowed ephemeral policy pressures to override solid constitutional considerations. The District Court overlooked the factors distinguishing the Department of Homeland Security‘s waiver of authority at issue in earlier decisions. Chertoff goes beyond offending environmental concerns to also effect humanitarian, philosophical and deep rooted constitutional issues. As the consequences of the decision begin to take shape, Chertoff will probably not survive the critical eye of the future.11 3.0 Breaching treaties signed with the Indian tribes The building of the security wall and the accompanying surveillance has led to the seizure of Native American land under the powers of eminent domain. This is land granted to them under the treaties, recognized in later Case Law and by the Indian Claims Commission. 12 Those who have suffered the most from land seizures are the Lipan Apache, Tohono Oodham, Kickapoo, and Copaco nations. They live on the hinterlands of the US- Mexican border, are US citizens and their tribes have sovereign status. Their objection to the construction of the wall is based on the fact that the barrier is a breach of the treaties signed with the tribes by the US government that gave them rights to travel over the border. The Indian tribes’ relations with the federal government are governed by the Commerce clause that is incorporated in the US constitution. Article I, Section 8, Clause 3 states “the Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes”. 13This confers a broad discretion of a plenary power of Congress to legislate over Indian nations. However, in 1848, the federal government signed the Treaty of Guadelope Hidalgo with Mexico. The treaty governs the status of the tribes resident on the borderlands. The DHS has been empowered to purchase the land owned adjacent to the border wall by eminent domain on a compulsory basis. This is under the power of eminent domain principle that allows a mandatory power to purchase land for the construction of the wall. The federal government has interpreted the exclusion clause of the Real ID Act in investing it with the authority to ‘take’ land under the due process clause of the 5 Amendment in the Bill of Rights. This allows a purchase of estate based on the considerations of ‘public good’ and ‘necessity’ and lays down a strict test that is subject to this ‘appropriation’ clause requirement. Article 5 states:
No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
The US government has cited eminent domain as a legal device to seize land to construct the wall. This is an imperative that recognizes the power to appropriate private estates according to the statute granting authority to exercise those powers. This is an inherent power that a public authority would execute if it considers it necessary and is considered an attribute of a common law jurisdiction. th
The Lipan Apaches lost their lands at the birth of the republic of Texas in 1836. The conveyance of their lands from Mexico to Texas led to the loss of their ancestral lands. At the Indian Claims Commission the tribe raised the matter in a claim against the US government. In Lipan Apache Tribe v US 15 Ind Cl. Com 532 (1965) the Commission dismissed the case for showing no cause of action. The defendant successfully raised the defence of not being the owner of the public lands in Texas at the time of the transfer and consequent extinguishment of title. The land was not returnable on that basis as the federal government was owner at the time of possession.
This led to an appeal by the tribe to the Indian Court of Claims in Lipan Apache Tribe v. United States, 180 Ct . C1. 487 (1967)in which it pleaded that Indian aboriginal land rights had never been forfeited to the Republic of Texas or its predecessors in sovereignty. The Court held that Apaches could recover against the federal government for loss of aboriginal lands under the Indian Claims Commission Act 1946 clause 4 ("claims arising from the taking by the US, whether as a result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant") or clause 5 ("based upon fair and honorable dealings . . .") if the proof established that by their conduct the US representatives dispossessed the Indians from their Texas lands.
The Court also stated that the plaintiff might recover under clause 5 if the evidence established that by its action, the US entered into a special relationship with the Apache tribe which indicated that the defendant had a special responsibility or duty to protect the Indians ' aboriginal lands from the trespass of third parties.
In the last of this trilogy of cases that involved the Indian Claims Commission there was a judgment in Lipan Apache Tribe v US (1975) 36 Ind Cl Com 7 that fixed the lands of the Apache tribe to a designated sector as determined in the previous ruling. The Lipan Apache were deemed to enjoy a right of occupation since time immemorial adjacent to the Rio Grande River and along the contours of their reservation in south west Texas. Their neighbours the Mescalero Apaches were also awarded a specific part of the reservation that belonged to them solely. The substance of the tribes' claims outside of these boundaries was rejected.
However, the Lipan Apache have been dispossessed in the exercise of the power of eminent domain for the purpose of building the wall. This has been challenged in the courts in Eloisa G. Tamez v. Michael Chertoff/U.S. Department Homeland Security,14 when a consolidated case of 20 Lipan Apache landowners resisted seizure on the grounds their property was sacrosanct under the previous guarantees. In this instance the Federal Court in Brownsville ruled that Secretary of Homeland Security Michael Chertoff violated the constitution to build several hundred miles of border fencing in Southern Texas. There was a breach of the 5 Amendment right because the 6 month time span for consultation before purchase was a very short time scale. The Court also held that the Secretary of Homeland Security had to consult with property owners to minimize the adverse impact of any border activity and it had to conduct an environmental survey which required immediate compliance.
The decision stated that if the parties are unable to negotiate a fixed price for the land the Government sought then the DHS may seek to condemn the land under an expedited procedure of the Declaration of Taking Act 1946. The court ordered the Federal agents to conduct negotiations and to “seek to minimize the adverse impact of any entry into the lands on the environment, cultural and economic rights.”
However, the plaintiff’s lawyer Peter Schey who is the director of the Centre for Human Rights and Constitutional Law in Los Angeles believes that a remedy is available under the Section 564 of the Appropriations Act 2007. This provision rendered the Secure Fence Act obsolete and the DHS was required to consult with the communities before implementing the Environment Impact Statement. th
The purchase of any private land for public purposes has to satisfy the test for public utility and public use. The modern conception of public use is a common law test and no definition is verifiable under statute law. The just compensation provision of the Fifth Amendment did not originally apply directly to the states, but the federal courts have stated that the Fourteenth Amendment amends the effects of that provision to apply to the states.15
The main focus is on the ‘due process’ clause that binds the judicial body to exercise the rule as to a fair hearing and natural justice in the taking of any private land for public purposes that has as its basis the grounds of necessity, but there is no absolute power that can be discerned by the case law.The Fifth Amendment only limits the power of eminent domain by requiring that "just compensation" be paid if private property is taken for public use.
There are other Indian nations who have been effected by the eminent domain power. The Tohono Oodham Indian reservation came into effect by an Executive Order in 1874. It is divided into 13 districts, two of which are adjacent to the U.S.-Mexican border. The security wall will bisect their territory along the 75-mile international boundary on the southern reaches of the tribe’s designated territory. According to the US agencies this Indian reservation is a conduit for drug smuggling and racketeering. They cite this as a reason for the Border Patrol and National Guard’s mobilisation across their border with Mexico. The federal officials allege that it is the second-biggest trafficking corridor for drugs and illegal immigrants on the U.S.-Mexican border. The only manned crossing on the US side of the border is the San Miguel Gate. 16 The tribe fears that the wall will destroy tribal traditions with the approximately 28,000 U.S.-based Tohono members being denied their unfettered migration into Mexico. The land is fertile and has sacred symbols for the tribe. The construction of the wall has impinged on ancestral remains, such as the unearthing of a Tohono Burial Ground. This has galvanized the tribe into opposing the deployment of the Border Patrol Police on their lands. In a critical article in the ‘Indian Country Today’ a report by Jeff Hendricks states as follows: 17 The remains of the indigenous O'odham people were unearthed on 21 May during the construction of the border wall between the US and Mexico. As a results the local O'odham residents are demanding that the remains be returned to them. The remains were unearthed near the Tohono O'odham community of Ali Jegk and local residents have made statements that the unearthed remains are those of their ancestors dating back at least seven generations. The desecration of this burial ground is to the O’odham an unacceptable violation of the Native American Graves Protection and Repatriation Act (NAGPRA). The traditional O'odham residents of Ali Jegk are demanding that the remains be released back into their custody for a traditional reburial ceremony.’’
At the 2007 Indigenous Nations Border Summit staged on August 29- October 1 the border fence was dubbed the "Berlin Wall" by the International Indian Treaty Council. st This is because it runs counter to the U.S. obligations under the Treaty of Hidalgo that guaranteed the right of the Indian nations to be mobile and traverse over borders. The treaty forms a basis for uninhibited travel across the boundary and as the inhabitants living at the time of the land transfer were considered Mexican nationals, the indigenous populations were included in its provisions.
Article IX states:
“… the rights of the indigenous peoples’ shall be maintained and protected in the free enjoyment of liberty and property and the people shall be secure in their religion without restriction. ”
These rights of access were considered by the Indian tribes as universally recognised and by making access of the Native people more difficult to meet relatives in Mexico the security wall is undermining the guarantees set out in the treaties that facilitated free movement across borders. The IITC has suggested that the US government should be required to produce an Environmental Impact statement by the Mexican government. 18 This EI statement should then be implemented to conserve the ecology and to preserve the indigenous people’s traditional way of life.
In Walled States and Waning Sovereignty19 Wendy Brown argues that the building of the security barrier represents the dissolving effect of globalization on national sovereignty and is leading to the universal construction of borders to prevent breach of borders. It is an exercise of sovereignty that is causing the opposite of the desired effect by leading to discrimination and violence. This is a paradigm shift in the sovereignty desired by Hobbes because “as the sovereigns begin to lose power, they become more fixated on defining their space and they begin cordoning-off of ‘sacred space’ through borders and through ‘us versus them’ social relations”. 20
Brown’s analysis focuses on the dwindling political sovereignty in the modern age by a resurgence of what she refers to as “sub-national” and “post-national” “religiously legitimated violence,” as observed in the case of Israel’s religious identity. The outcome of “this post-Westphalian shift towards wall building, especially in the last half of the 20 century has caused Israeli’s theologically connected government, which uses a state of exception to justify its building of its border wall regardless of international public opinion, is less striking than it may have been even fifty years ago”. th
This estimation of walls as stockades represents a popular desire which when executed is a proclamation of political sovereignty of nation states. However, in terms of effect the barriers do not protect from a national or sovereign threat but are perceptive of globalised threats emanating from amorphous groups outside the borders. There is a common approach in the policies that have the effect of fortifying the boundaries in the US, Europe and the Middle East.