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Citation: 8 Ariz. J. Int'l & Comp. L. 97 1991
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A CULTURE DIVIDED BY THE UNITED
STATES-MEXICO BORDER:
THE TOHONO O'ODHAM CLAIM FOR BORDER
CROSSING RIGHTS
Megan S.Austin
L INTRODUCTION
The international border between the United States and Mexico bisects
the Sonoran Desert, homeland of the Tohono O'odham Indians since time
immemorial.1 Current restrictions on crossing this human-made boundary
line deny the Tohono O'odham fundamental human rights and threaten the
continued existence of their culture. The United States and neighboring
nations should recognize the right of the Tohono O'odham to a cultural
identity, neither divided nor unduly restricted by an international border.
This note discusses the sources of the right of the Tohono O'odham
Indians to cross the international border separating the United States and
Mexico. The first section of this note provides an historical background of
O'odham traditional lands, including the effect on the Tohono O'odham
people of the Treaty of Guadalupe Hidalgo and the Gadsden Purchase which
established the international border. The effects of Spanish colonization,
Mexican independence from Spain and the establishment of the border
significantly changed the lands and the patterns of life of the O'odham
people. The Tohono O'odham Tribe seeks legislation which will recognize
the rights of the O'odham in Mexico and members of the Tohono O'odham
Tribe to pass freely throughout their traditional lands without regard to the
border and the restrictions imposed by immigration and customs laws.
Border crossing rights are necessary to the Tohono O'odham peoples'
freedom to sustain and develop their culture.
The second section of this note analyzes the historical and current situations of other North American indigenous groups whose traditional lands
straddle international borders. This analysis includes a discussion of the
treaty rights and case law concerning border crossing rights of Canadian
Indian tribes. In addition, it examines United States legislation which
recognizes the border crossing rights of the Texas Band of Kickapoo Indians.
Based on the analysis, this note proposes border crossing legislation for the
I. The Tohono O'odham people, formerly known as the Papago Indians, occupy a reservation in the Sonoran Desert in Southern Arizona. Additionally, many O'odham people reside
in the Sonoran Desert in Mexico, although no designated reservation is recognized. For a
detailed discussion of the history of the Tohono O'odham Tribe, see Edward H. Spicer, Cycles
of Conquest (1962).
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Tohono O'odham people. The proposal strives to address the multiple
problems faced by Canadian tribes, the Texas Band of Kickapoo and the
Tohono O'odham people.
The final section of this note examines international legal documents and
organizations that recognize the basic human rights the Tohono O'odham
people seek in their border crossing claims. Although indigenous groups
have encountered many barriers in using international legal principles,
several human rights standards embody customary norms of behavior which
bind all nations. 2 These norms strengthen the Tohono O'odham claim for
legislation recognizing the right to cultural integrity and its elements: freedom to pass through traditional lands, control over these lands and resources,
freedom to practice religion and freedom to develop their economy.
U. HISTORICAL BACKGROUND:
THE FORMATION OF THE BORDER
A. O'odham Lands
The O'odham people lived in the lower Sonoran Desert long before
European conquest. Various groups of O'odham people engaged in agriculture, hunting and gathering or trade, depending on the3 natural environment
and sources of water of the areas in which they lived.
In the period leading up to the Treaty of Guadalupe Hidalgo and the
Gadsden Purchase, 4 Spanish Jesuit missionaries and other settlers arrived in
the area now known as Mexico. They worked to convert the Tohono
O'odham people, as well as5 other Indian tribes, to a European religious,
political and social structure.
In 1821, when Mexico gained independence from Spain, Indians were
deemed Mexican citizens under the Plan de Iguala. 6 Many other laws
2. Applicable human rights documents are discussed infra note 79 and accompanying text.
3. Bernard L. Fontana, The Papago Indians (1953) (unpublished manuscript, on file with
the University of Arizona Office of Indian Programs) was drafted for the use of the Tohono
O'odham Nation; it provides a detailed history of the Tohono O'odham people, their traditional
lands and the various agricultural, migration, food gathering and trading practices. Although
the manuscript is limited in its accuracy, Dr. Fontana's conclusions were accepted as important
evidence in establishing the validity of the Tohono O'odham Nation's aboriginal land claim by
the Indian Claims Commission on September 10, 1968.
4. Treaty of Guadalupe Hidalgo, Feb. 2, 1848, U.S.-Mex., 9 Stat. 922. The Gadsden
Purchase (Treaty of La Mesilla) Dec. 30, 1853, U.S.-Mex., 10 Stat. 1031. These treaties
established the international border between the United States and Mexico and are discussed in
more detail, infra notes 8-13 and accompanying text.
5 Spicer, supranote 1, at 118-51 (describing the Spanish missionary and military activity
during that period).
6. Guillermo Floris Margadant, Official Mexican Attitudes Toward the Indians: An
HistoricalEssay, 54 Tul. L. Rev. 964,976 (1980). Article 12 of the Plan de lguala of February
4, 1821 declared that all Mexican Nationals were citizens without further distinctions.
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accompanied Mexican independence. These laws required individuals to
apply for land grants from the Mexican government to secure title to land.
Spaniards established cattle ranches in the middle of Tohono O'odham
territories and applied for these land grants. As Mexican citizens, the Tohono
O'odham people were required to file for title to land for official recognition
of their ownership by the Mexican Government. However, because of lack
the Tohono O'odham did not
of notice and knowledge of new Mexican law,
7
file, and consequently, their land was taken.
B. The Treaty of Guadalupe Hidalgo and the Gadsden Purchase
In 1848, Mexico ceded a great portion of land north of the Gila River to
the United States. This transfer was executed by the Treaty of Guadalupe
Hidalgo. 8 The Treaty addressed the effect of the land transfer on the
inhabitants of that territory. Specifically, Article IX promised:
Mexicans who, in the territories aforesaid, shall not preserve the
character of citizens of the Mexican Republic, conformably with what
is stipulated in the preceding article, shall be incorporated into the
Union of the United States, and be admitted at the proper time (to be
judged by the Congress of the United States) to the enjoyment of all
rights of citizens of the United States according to the principles of the
Constitution; and in the meantime shall be maintained and protected
and secured in the
in the free enjoyment of their liberty and property,
9
free exercise of their religion without restriction.
The Treaty of Guadalupe Hidalgo does not refer expressly to the Tohono
O'odham Indians. However, the history behind the treaty and several of the
treaty articles validate the interpretation that Indians are included in the
treaty's referefices to "Mexicans".
First, Article VIII, referred to in Article IX, defines the character of
Mexican citizenship. Additionally, Article VIII reveals some of the political
and social forces behind the treaty. For example, "Mexicans" retained rights
including the freedom to choose citizenship in either country and to own
property. Article VIII states in part:
Mexicans now established in territories previously belonging to Mexico, and which remain for the future within the limits of the United
States, as defined by the present treaty, shall be free to continue where
they now reside, or to remove at any time to the Mexican republic,
7. Id. at 978.
8. Treaty of Guadalupe Hidalgo, art. V, supranote 4, at 926.
9. Treaty of Guadalupe Hidalgo, art. IX, supranote 4, at 930.
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retaining the property which they possess in the said territories, or
disposing thereof....
Those who shall prefer to remain in the said territories may either retain
the title and rights of Mexican citizens, or acquire those of citizens of
the United States....
In the said territories, property of every kind, now belonging to
Mexicans not established there, shall be inviolably respected. The
present owners, heirs of these and all Mexicans who may hereafter
acquire said property by contract, shall enjoy with respect to it guaranties equally
ample as if the same belonged to citizens of the United
0
States.'
It is clear that Mexicans living in the territory affected by the treaty were not
to lose their rights or privileges as citizens of either country.
In using the word "Mexicans", the treaty may seem silent about the rights
of the Tohono O'odham people. Mexican history proves otherwise. During
Mexico's movement toward independence from Spain, between 1808 and
1821, Indians were permitted to vote in Mexican elections and were considered equal to all others in the eyes of the law. 1 The Indians living in the
affected area fall within the treaty's definition of and reference to "Mexicans"
due to their official designation as citizens.
The 1853 Gadsden Purchase' 2 occurred shortly after the formation of the
Treaty of Guadalupe Hidalgo. It authorized the United States to purchase
29,670 square miles south of the Gila River to construct a southern railroad
route. The Gadsden Purchase also reaffirmed Articles VIII and IX of the
Treaty of Guadalupe Hidalgo.' 3 Thus, the treaties recognize that these
indigenous peoples had a right to maintain their land, culture and religion
regardless of the land transfer and new political border.
10. Treaty of Guadalupe Hidalgo, art. VIII, supra note 4, at 929-30.
11. For an explanation ofthe Plan de Iguala which recognized legal equality for the Indians
see Margadant, supranote 6, at 975.
12. Supra note 4.
13. The Gadsden Purchase, art. V, supranote 4, states that "All the provisions of the eighth
and ninth... articles of the treaty of Guadalupe Hidalgo, shall apply to the territory ceded by
the Mexican Republic in the first article of the present treaty, and to all the rights of persons and
property, both civil and ecclesiastical, within the same ....
See also the Treaty of Guadalupe
Hidalgo, supranotes 9-10 and accompanying text for the language of arts. VIII and IX.
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A Culture Divided by the United States-Mexico Border
III. VIOLATIONS OF THE RIGHTS OF BORDER TRIBES
A. The Tohono O'odham Tribe
Despite the treaties' guarantees, policies of the United States and Mexican
Governments have impaired the Tohono O'odham people's rights to live
freely on their lands, to enjoy their sacred beliefs and to sustain their culture
and economy. In 1927, after gradually diminishing the traditional lands of
the O'odham, 14 the Mexican Government established ejidos15 to preserve the
small remnants of land that remained. 16 Some of these ejidos lie next to the
southern edge of the Tohono O'odham nation, separated from the rest of the
nation only by the United States-Mexico border. Other ejidos are scattered
farther to the south.
Although much of the O'odham traditional lands have been taken away,
the Tohono O'odham people still have firm spiritual and familial roots in
these lands. The border constructs an artificial barrier to the freedom of the
Tohono O'odham people to traverse their lands, impairing their ability to
collect foods and materials needed to sustain their culture and to visit family
members and traditional sacred sites.
Specifically, immigration laws prevent many O'odham people from entering the United States from Mexico. Pursuant to these laws, United States
immigrations officers can exclude immigrants and non-immigrants for not
possessing certain types of documentation such as passports and border
identification cards. 17 Immigrations officers can deport "aliens" who do not
carry those forms of identification. 18 Using these laws, the United States can
detain and deport the Tohono O'odham people who are simply travelling
through their own lands, practicing migratory traditions essential to their
religion, economy and culture. 19 Customs regulations have a similar effect.
14. For a discussion on Mexican land reform which reduced the lands of the O'odham
Indians, see Margadant, supra note 6; see also Spicer, supra note 1.
15. Ejido is defined in Ann L. Craig, The First Agraristas 5 (1983) as an expanse of land,
title to which lies with a community of beneficiaries of the Agrarian reform. In most of the
ejidos in Mexico, the property is owned collectively and some lands are for collective use; but
the arable land is divided into individual cultivated ejido plots.
16. See Fontana, supra note 3, at 104.
17. The Immigration and Nationality Act, 8 U.S.C. § 1182(20) (1992) lists several
categories of persons who are not permitted entry into the United States without acceptable
documentation. See also the Texas Band of Kickapoo Act, 25 U.S.C. § 1300b-I 1 (1992) which
was enacted in response to the border crossing problems of the Texas Band of Kickapoo,
including the citizenship status and the type of identification required for the members of the
Band. For a discussion of this legislation, see infra note 56 and accompanying text.
18. 8 U.S.C. § 1251 (1991) Deportation; Adjustment of Status.
19. In 1989, one member of the Tohono O'odham Tribe stated that the "O'odhams' ability
to travel to sacred sites, teach their children the nomadic ways and maintain their language has
been severely hampered by immigration law and the domestic policies of the United States and
Mexico." K.J. Scotta, O'odham Nation'sCase Winning Outside Support, Tucson Citizen, July
24, 1989, at ID (reporting a statement from then Tribal Chairman, Angelo Joaquin).
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United States Customs officials may prevent the Tohono O'odham people
from bringing from one part of their land to another raw materials
and goods
20
essential for their spirituality, economy and traditional culture.
Apart from the imposition of statutes and regulations, political unrest
prevents the Tohono O'odham people from exercising their aboriginal rights.
Currently, there are reports of Mexican ranchers encroaching on Tohono
O'odham ejidos and fencing off sacred sites. 21 Some of those ranches
allegedly facilitate drug trafficking into the United States over the sixty mile
border that cuts through Tohono O'odham lands.2 The loss of lands and
threats to personal safety may force the O'odham people to move into the
23
United States, despite their desire to live on their ancestral lands in Mexico.
B. CanadianBorder Tribes
The experiences of Canadian Indian tribes illustrate similar rights violations. Various responses to these experiences indicate strategies and solutions
that will help the Tohono O'odham Tribe realize its rights through legislation.
Several indigenous tribes live on ancestral lands divided by the border
between Canada and the United States. A '"reaty of Amity Commerce, and
Navigation"24 of 1794 established a Joint Commission to settle boundary
disputes between the United States and Canada. 5 This treaty specifically
refers to the Indians living along the border. Article It of the treaty states:
It shall at all Times be free to His Majesty's Subjects, and to the
Citizens of the United States, and also to the Indians dwelling on either
side of the said Boundary Line freely to pass and repass by Land, or
Inland Navigation, into the respective Territories
and Countries of the
26
Two Parties on the Continent of America ....
20. One of the grievances ofthe Tohono O'odham people is that their right to practice their
religion is seriously inhibited because customs agents and Border Patrol officers do not allow
unfettered access across the border. KJ. Scotta, Tohono O'odham Seek Sovereignty, Tucson
Citizen, July 17, 1989, at IA, 2A. See also legislative history to the American Indian Religious
Freedom Act, Pub. L. No. 95-341, 92 Stat. 469 (1979). Border officials often confiscate articles
such as feathers of common birds, pine leaves or sweet grass because they believe them to be
illegal, 3 U.S. Code Cong. and Admin. News, 95th Cong., 2d Sess. (1978) at 1262, 1264.
21. These acts are reported by KJ. Scotta, Tohono O'odham Seek Sovereignty, Tucson
Citizen, July 17, 1989, at IA, 2A.
22. Id.
23. Id.
24. Treaty of Amity, Commerce, and Navigation, Nov. 19,1794, U.S.-Gr. Brit., 8 Stat. 116
[hereinafter Jay Treaty].
25. Sharon O'Brien, The Medicine Line: A Border Dividing Tribal Sovereignty, Economies andFamilies,53 Fordham L. Review 315, 318 (1984).
26. Jay Treaty, supra note 24, 8 Stat. at 117-18. Article Ill also provides: "nor shall the
Indians passing or repassing with their own proper Goods and Effects of whatever nature, pay
for the same any Impost or Duty whatever. But Goods in Bales, or other large Packages unusual
among Indians shall not be considered as Goods belonging bona fide to Indians."
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The 1796 Explanatory Article to the Jay Treaty reiterated that all persons
specified in the treaty27shall be free to pass and repass the boundary and to
engage in commerce.
In 1814, the Treaty of Ghent terminated the War of 1812 between the
United States and Great Britain. 28 In addition to ending hostilities and
reestablishing boundaries, the Treaty explicitly refers to the rights of the
Canadian tribes. Article IX states:
The United States of America engage to put an end, immediately after
the ratification of the present treaty, to hostilities with all the tribes or
nations of Indians with whom they may be at war at the time of such
ratification; and forthwith to restore to such tribes or nations, respectively all the possessions, rights, and privileges, which they may have
enjoyed or been entitled to in
one thousand eight hundred and eleven,
29
previous to such hostilities.
Under the Treaty of Ghent, any Indian rights recognized by the Jay Treaty,
which may have been hindered by the War of 1812, were reaffirmed.
Despite this explicit provision, the United States and Canada often ignored
the rights of the Canadian Indian tribes. Immigration officials deported
Canadian Indians who were working on the United States side of the border
pursuant to their rights under the Jay Treaty. For example, in McCandless
v. U.S. ex rel. Diabo,30 Paul Diabo, a member of the Mohawk Tribe,
challenged the 1924 Immigration Act.31 Prior to 1924, United States Immigrations permitted Canadian-born Indians to enter and remain in the United
States without being designated aliens. The 1924 Act provided that aliens
ineligible for citizenship were not permitted as immigrants. This was read
with the Citizenship Act of 192432 which stated that all non-citizen Indians
born within the United States could become citizens. These Acts were
interpreted to prohibit Canadian-born Indians from entering the United States
as immigrants.
Paul Diabo travelled regularly between Canada and the United States to
work in construction of highrise buildings. 33 After many years of work, he
was arrested on a warrant issued by the Commissioner of Immigration for
27. Explanatory Article to art. Ill of Jay Treaty, May 4, 1796, U.S.-Gr. Brit., 8 Stat. 130.
28. Treaty of Peace and Amity, Dec. 24, 1814, U.S.-Gr. Brit., art. IX, 8 Stat. 218
[hereinafter Treaty of Ghent).
29. Id. art. IX, 8 StaL at 222-23.
30. 25 F.2d 71 (3d Cir. 1928).
31. Imnmigration Act of 1924, ch.190 § 13(c), 43 Stat. 153,162, repealed,Immigration and
Nationality Act of 1952, Pub. L. No. 82-414 § 403, 66 StaL 163,279.
32. Citizenship Act of 1924, ch. 233, 43 Stat. 253, replacedby 8 U.S.C. 1401(b) (1982);
see also, O'Brien, supranote 25, at 326 n.65.
33. 25 F.2d at 71.
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allegedly entering the United States without complying with immigration
34
laws. He was deported after a hearing.
Diabo asserted that under Article III of the Jay Treaty and as a member
of a North American Indian Tribe, he was exempt from immigration laws.
The court held that the right to cross the border freely was an aboriginal right
recognized and affirmed by Article Ill of the Jay Treaty and that the rights
recognized by those treaties were not abrogated by the War of 1812. The
court stated:
[We are not here dealing with the rights and obligations of the two
signatories to that treaty to and from each other, but with the rights of
a third party created by the joint actions of the signatories... If through
the War of 1812 the Six Nations remained neutral, as they had through
the Revolutionary War, there was no reason why either of the contending nations in 1812 should desire to change the status of the Six Nations
35
and thereby anger and drive them into hostilities.
After the McCandless decision, Congress passed the Act of April 2, 1928
which exempted Indians from the Immigration Act of 1924.36 That Act states
in part:
Nothing in this subchapter shall be construed to affect the right of
American Indians born in Canada to pass the borders of the United
States, but such right shall extend only to persons who possess at least
37
50 per centum of blood of the American Indian Race.
The more recent decision in Akins v. Saxbe38 holds that Indians have the
right of free passage as was guaranteed by the Jay Treaty and recognized by
the McCandlesscourt.39 Despite the Akins decision and the 1928 legislation,
the Immigration and Naturalization Service has failed to uphold the rights of
Canadian tribes. For example, Canadian born Indians are forced to carry
alien registration cards in their own lands. 4° Immigration and Naturalization
officers, uninformed about indigenous peoples' rights, often harass tribal
34. Id.
35. Id. at 72.
36. Act of April 2, 1928, ch. 308, 45 Stat. 401, replaced by 8 U.S.C. § 1359 (1982). See
also O'Brien, supranote 25, at 327 n.73.
37. 8 U.S.C. § 1359 (1982).
38. 380 F.Supp. 1210 (1974).
39. Id. at 1221.
40. O'Brien, supra note 25, at 330 n.89. Information about border abuses experienced by
Canadian tribes is documented in a report by the Federal Regional Council of New England
entitled Indiansand the NorthernBorder-Testimonyfor The Select Commissionon Immigration
andRefugee PolicyHearing,add. la (Nov. 19, 1979).
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members and deny them their freedom to pass through their lands. 41 Furthermore, customs officials have violated religious rights by opening medicine bundles the Indians carry. 42 According to tradition, once a spiritual
leader seals them, the bundles must not be opened or handled. They contain
and provide health, protection and purity for the people
only legal substances
43
who wear them.
Several court decisions have upheld claims by both the United States and
Canadian Governments that customs exemptions under the Jay Treaty no
longer apply to Indians. The Supreme Court of Canada in Louis Francisand
HerMajesty the Queen44 held that treaties must be supplemented by statutory
action. Thus, only legislation can remove or impose customs duties or change
the conditions under which goods can be brought into the country.4 5 The
court found that no legislation permitted Indians to bring goods over the
border free of duty. As a result, an Indian resident of a reserve in Canada
had to pay customs duties on three articles he brought into Canada from the
United States for his own personal use. The Francisdecision, even though
arising in the narrow context of customs duties, weakened the rights recognized by the Jay Treaty and Treaty of Ghent. It removed an essential element
of the Jay Treaty right to pass and repass the border which separates and
divides native lands.
In the United States, several court decisions have crippled the rights of
the Canadian Indians by holding that the War of 1812 abrogated Article III
of the Jay Treaty. In U.S. v. Garrow,46 Annie Garrow, a full blooded Indian
woman of the Canadian St. Regis Tribe of Iroquois, entered the United States
with twenty-four hand-made baskets. Pursuant to the Tariff Act of 1930,47
the border official collected a duty on her baskets. The court decided that
Annie Garrow had to pay duties on the baskets because Article III of the Jay
Treaty permitting Indians to import their own goods and effects free of duties,
41. O'Brien, supranote 25, at 330.
42. Id. at 322. O'Brien refers to the American Indian Religious Freedom Act, Pub. L. No.
95-341, 92 Stat. 469 (1978), (codified in 42 U.S.C. 1996 (1982), which resolves that the policy
of the United States is "to protect and preserve for American Indians their inherent right of
freedom to believe, express, and exercise the traditional religions of the American Indian...
including but not limited to access to sites, use and possession of sacred objects, and the freedom
to worship through ceremonials and traditional rites." The law requires Federal Agencies "to
evaluate their policies and procedures in consultation with native traditional leaders in order to
determine appropriate changes necessary to protect and preserve Native American religious
cultural rights and practices." Id. at 470.
43. This description of the medicine bundle can be found in the Legislative History for
Pub. L. No. 95-341, 92 Stat. 469 (1978), Interior and Insular Affairs Committee, American
Indian Religious Freedom Act, H. Rep. No. 1308, 95th Cong., 2d Sess. 3 (1978), reprinted in
1978 U.S.C.C.A.N. 1262, 1264.
44. S.C.R. 618 (1956).
45. Id. at 626.
46. 88 F.2d 318 (C.C.P.A. 1937).
47. 19 U.S.C. § 1001. para. 411.
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was terminated by the War of 1812.48 Consequently, Indians' rights to import
goods must depend on statute. The Tariff Act of 189749 revised import duty
laws and omitted the free entry of goods and effects of Indians.
More recently, in Akins v. U.S.,50 the United States Court of Customs and
Patent Appeals held that the War of 1812 and subsequent Congressional
enactments abrogated Article III of the Jay Treaty. In Akins, a Penobscot
Indian had to pay customs duties on a pair of hiking boots he purchased in
Canada. 5 1 The court held the clear language of the Tariff Act of i897
[r]epealed sections of the Tariff Act of 1894, including the duty
exemption and all other acts inconsistent with the repealing statute.
The language of the duty-free provision of the Jay Treaty is substantially identical with the repealed provision. The Tariff Act of 1897
served not only as an expression of Congressional intent to repeal the
statutory right, but also as a termination
of the Indian duty exemption
52
of Article III of the Jay Treaty.
The McCandless decision concerning the right to pass freely over the
border retains some value since GarrowandAkins exist in the narrow context
of customs regulations. However, the customs cases have hindered the
border crossing rights of Canadian Indians. As illustrated by the examples
of violations, border tribes like those in Canada as well as the Tohono
O'odham cannot pass freely if they are subject to these customs laws.
Furthermore, any inconsistencies between the customs regulations and the
case law interpreting those regulations may serve to obscure the rights of the
Tohono O'odham people in litigation.
One proposed method of avoiding violations of the rights of the Canadian
Indian tribes divided by the international political border is passage of a
comprehensive Indian border act binding both countries. This legislation
would include provisions for border crossing rights, tax free goods, eligibility
for and payment of medical costs, education, social assistance and legal aid.5 3
In addition, the Canadian Indians could negotiate with both United States
and Canadian immigration and customs agencies to secure a right to pass and
carry personal goods over the border.54 In the early 1980s, the Blood Tribe
48. 88 F.2d at 323.
49. Act of July 24, 1897, ch. 11,30 Stat. 151, repealed by Tariff Act of 1930, supranote
47. The Act of 1897 omitted a provision recognizing a duty exemption on the goods and effects
of Indians. A prior statute, the Tariff Revision of Aug. 27, 1894, ch. 349, para. 552, 28 Stat.
509, 543, exempted the "peltries and other usual goods and effects ofIndians passing or repassing
the boundary line of the United States." See also 88 F.2d at 321.
50.
51.
52.
53.
54.
551 F.2d 1222 (C.C.P.A. 1977).
Id. at 1223.
Id. at 1230; see also the Tariff Revision of 1894, supranote 49 and accompanying text.
O'Brien, supranote 25, at 349.
Id. at 349-50.
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established a border committee to negotiate with the Canadian Government
for legislation permitting the import and export of certain tariff-free goods. 55
These continuing struggles of Canadian tribes illustrate the need for clear
recognition of Indian border crossing rights and suggest some method of
achieving that goal.
IV. TEXAS BAND OF KICKAPOO
BORDER CROSSING LEGISLATION
Another North American indigenous group, the Texas Band of Kickapoo,
provides a more concrete solution for the problems of border tribes. The
unclear citizenship status and poor living conditions of the Texas Band of
Kickapoo motivated Congress to pass legislation recognizing border crossing
rights. 56 This legislation attempts to address many of the same problems the
Tohono O'odhamn people encounter. Analysis of this Act provides insight
into how it can be adapted by the Tohono O'odham in their struggle for
recognition of border crossing rights.
The Texas Band of Kickapoo originated in the Great Lakes region and
slowly migrated to Texas because of conflicts with Europeans, Americans
and other Indians.5 7 Experiencing clashes with Texans, the band escaped
into Mexico and Oklahoma. For years, the Kickapoo moved, both voluntarily and involuntarily, between Mexico and Oklahoma. They moved to avoid
conflicts with Americans, to visit family members and to practice their
religious traditions at ceremonial sites in Mexico. 58 By 1940, after a period
of settlement in Nacimiento, Mexico, water shortages, conflicts with ranchers
and a reduction in agricultural productivity caused the Kickapoo Indians to
join the flow of migration to the United States to find work on farms. 59 The
Texas Band of Kickapoo still resides in the village of Nacimiento, but many
members now live in the community of Eagle Pass, Texas. As of 1985, the
members of that community lived under a bridge in forty huts and shared one
water fountain.60
Congress responded to the life-threatening living conditions of the Kickapoo by passing the Texas Band of Kickapoo Act6' in 1983. In that Act,
55. Id. at 315 n.2. These on-going negotiations are one example of the efforts of the
National Congress of American Indians ("NCAr') and the National Indian Brotherhood ("NIB")
to assist in settling border difficulties.
56. Texas Band of Kickapoo Act, 25 U.S.C. § 1300b-1 1. Specific provisions of this
legislation are discussed infra notes 61-73 and accompanying text.
57. Oscar Martinez, Troublesome Border 71-72 (1988).
58. H.R. Rep. No. 858, 97th Cong., 2nd Sess. 3 (1982).
59. Martinez, supra note 57, at 73.
60. Richard J. Meislin, Land Offer Unsettles Tribe in Mexico, N.Y. Times, Jan. 14, 1985,
at A2.
61. 25 U.S.C. § 1300b-1l.
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Congress recognizes the Band as a North American Indian Tribe even though
it has no ancestral claim to land in Texas. In addition, the Act states that
"notwithstanding the Immigration and Nationality Act, all members of the
Band shall be entitled to freely pass and repass 62
the borders of the United
States and to live and work in the United States."
In the 1950s, prior to the Act's passage, the Texas Kickapoo were granted
parole status by the United States Immigration and Naturalization Service
pursuant to the Immigration and Nationality Act. 63 Pursuant to that status,
members of the Band carried cards which stated "Parolle - Kickapoo Indian
pending clarification of status by Congress." 64 The parole status permitted
Band members to cross the United States-Mexico border. However, the
status had to be renewed yearly, and it did not give them permanent border
65
crossing rights.
Addressing the parole status, the Act provided for the Secretary of the
Interior to establish a roll of members of the Texas Band of Kickapoo. 66 For
a period of five years after the roll was established members could apply for
United States citizenship. 67 Once citizenship was granted, Immigration and
Naturalization Service provided the applicant with a card or other identification "in order to facilitate border passage." 63 Under the Act, the right to cross
the border applied to all members of the Band; but as a practical matter, only
those members of the Band who did not apply for United States citizenship
would have occasion to invoke it. 69 Those Kickapoo who were not United
States citizens or could not establish their citizenship would have all the rights
70
of citizenship except the right to vote and to hold public office.
This Act clarified the citizenship status of members of the Texas Band of
Kickapoo. In addition, it did not alter their land and other rights in Mexico,
whereas exclusively granting United States citizenship would terminate their
rights to ejido lands. 71 Under this scheme, however, those Kickapoo who
elected against citizenship in order to keep their lands in Mexico may have
62. 25 U.S.C. §§ 1300b-13(d).
63. McCarran-Walter Act, 8 U.S.C. § 1182(d)(5) (1952).
64 S. Rep. No. 684, 97th Cong., 2nd Sess. 4 (1982).
65. Id.
66. 25 U.S.C. § 1300b-11.
67. S. Rep. No. 684, supranote 64, at 6. The legislative history points out that Congress
intended that the member applying for citizenship under this legislation could not seek or retain
Mexican citizenship as well. This election of citizenship in either Mexico or the United States
follows the procedure embodied in Article VIII of the Treaty of Guadalupe Hidalgo, supra note
10, at 929-30. This Article provided a one year period during which Mexicans who lived in
territory ceded to the United States could elect United States or Mexican citizenship. For a
discussion of the Treaty of Guadalupe Hidalgo, see supra note 4 and accompanying text.
68. S.Rep. No. 684, supra note 64, at 6.
69. Id. at 9.
70. Id.
71. Id. at 15.
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trouble crossing the border. Without a government-issued card, their border
crossing rights may not be respected by border officials.
In addition to citizenship and border crossing provisions, the Act states
that the Band shall be eligible for Indian services and programs without
regard to the existence of a reservation. 72 The Act provides for consent and
to ensure
cooperation with officials or agencies of the Mexican Government
73
that the services meet the tricultural needs of the Band.
Sensitivity toward the tricultural needs of a tribe should extend beyond
the provision of basic services such as health care, education and welfare
programs. The United States and Mexican governments should recognize
unique rights and needs based on border tribes' aboriginal traditions. The
Texas Band of Kickapoo Act provides a starting point in devising new border
crossing legislation to address the rights of the Tohono O'odham.
V. PROPOSALS FOR TOHONO O'ODHAM
BORDER CROSSING LEGISLATION
The experiences of Canadian border tribes, as well as the provisions of
the Texas Band of Kickapoo Act highlight several fundamental rights which
Tohono O'odham border crossing legislation should recognize. In addition
to a general right to cross the border, the legislation should address border
identification requirements, management of ports of entry, search and inspection policies and customs regulations. Most importantly, the legislation
should recognize the Tohono O'odham Tribe's rights to participate and to
negotiate in national government decisions affecting the tribe. This participation component is crucial. Without the voice of the Tohono O'odham
people, decisions affecting their cultural rights and freedoms may not recognize an unqualified right to cross the border.
The Blood Tribe74 and the Texas Band of Kickapoo 75 set precedent for
the rights of negotiation and participation. Through intergovernmental
agreement, the United States Government and the Tohono O'odham Tribe
could establish policies and regulations concerning identification, search and
inspection and customs. For example, Tohono O'odham border crossing
legislation should allow the tribe to establish a membership roll, but should
avoid requiring identification issued by the United States Government.
72. 25 U.S.C. §§ 1300b-16(a).
73. 25 U.S.C. §§ 1300-16(b); see also legislative history in S. Rep. No. 684, supra note
64, at 11, which contemplates that the provision of services should accommodate the unique
culture of the Texas Band of Kickapoo derived from the aboriginal Kickapoo Tribe, Mexico and
the United States. The section authorizes the United States and Mexico to work together and to
enter joint funding agreements to provide these services to the Band.
74. O'Brien, supra note 25, at 315 n.2.
75. See supra note 56 and accompanying text.
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Identification such as tribal membership cards should be sufficient for border
passage. Furthermore, the tribe should be party to the decision about the
identification requirements.
The Tohono O'odham people would not be exempt from search and
inspection laws due to the problems with drug trafficking between Mexico
and the United States. However, non-Indian border officials are not familiar
with the traditions of the Tohono O'odham people. As illustrated by the
experiences of the Canadian tribes, non-Indian officials often confiscate legal
substances which are crucial to spiritual and cultural traditions.16 To avoid
violations of these important rights, the Tohono O'odham people could work
in some capacity advising border officials about tribal traditions and monitoring the treatment of the people.
The suggested provisions recognize the tribe's power of self-government,
a basic right necessary for the continued survival of the Tohono O'odham
culture. The Tohono O'odham claim for effective border crossing legislation
is strengthened by recent movements in international law focusing on cultural
rights for indigenous groups.
VI. INTERNATIONAL SUPPORT FOR
BORDER CROSSING RIGHTS
The continuous violations of the rights of the Tohono O'odham people in
the midst of ineffective, unenforced federal legislation require an investigation into the capacity of international law to recognize and support the human
rights claims of indigenous groups. This section examines the possible roles
of international law and international organizations in addressing the Tohono
O'odham right to protect and nurture their culture through border crossing
77
legislation.
The Tohono O'odham claim invokes the fundamental right to be free from
discrimination based on religion, race, ethnicity and language. The Constitution of the United States protects these basic rights. In addition, these rights
76. See Interior and Insular Affairs Committee, American Indian Religious Freedom Act,
supranote 43 (describing a serious violation of religious rights when border patrol agents open
the medicine bundles which tribal members carry); see also O'Brien, supra note 25, at 322. In
many ceremonies and traditional gatherings of both the American Blackfeet and Canadian Blood
tribes, tribal members often trade animals, meat, berries, roots, herbs and handmade goods.
However, Canadian and American customs laws prohibit the import and export of certain plants
and animals that are important to those ceremonies.
77. A complete discussion of all international human rights instrunents is beyond the scope
of this article. For further information on international human rights for indigenous peoples, see
S. James Anaya, The Capacityof InternationalLaw to Advance Ethnic or NationalityRights
Claims, 75 Iowa L. Rev. 837 (1990); Hurst Hannum, New Developments in IndigenousRights,
28 Va. J. Int'l L. 649 (1988); Robert A. Williams, Jr., Encounters on the Frontiers of
InternationalHuman Rights Law: Redefining the Terms of IndigenousPeoples' Survival in the
World, 1990 Duke LJ. 660.
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are protected by several international documents such as the United Nations
Charter,78 the Universal Declaration of Human Rights, 79 the International
Covenant on the Elimination of All Forms of Racial Discrimination 80 and
the International Covenant on Civil and Political Rights." However, these
sources of protection tend to focus on individual rights, thereby impairing
82
the recognition of the group rights sought by the Tohono O'odham Tribe.
The rights most crucial to the Tohono O'odham Tribe are those collective
rights which will allow its culture to survive. They include the right to
self-governance, the right to maintain communal ownership of land and
resources, the right to determine their own relations with the United States
and other3 peoples, and the right to preserve their culture, language and
8
religion.
The Tohono O'odham Tribe is claiming a certain amount of autonomy or
"self-determination" in seeking to eliminate violations of these rights through
border crossing legislation. A "human rights approach" to self-determination,84 rather than a traditional view which associates self-determination with
secession, 85 may be more effective in addressing the Tohono O'odham claim.
Indigenous autonomy claims under international law require an understanding of the flaws of the traditional interpretations of self-deternination.
New movements in international law emphasize human rights of indigenous
groups and recognize their collective rights.
78. U.N. Charter art. 1, para. 3.
79. Universal Declaration of Human Rights art. 2, G.A. Res. 217 A(m), 3(1) U.N. GAOR
at 71, U.N. Doc. A/810 (1948).
80. International Convention on the Elimination of All Forms of Racial Discrimination,
Mar. 7, 1966, G.A. Res. 2106A (XX), 20 U.N. GAOR Supp. (No.14), U.N. Doc A/6014 (1965)
(entered into force Jan. 4, 1969).
81. International Covenant on Civil and Political Rights, Dec. 16,1966, art. 2(1), G.A. Res.
2200 (XXI), U.N. Doc A/6316 (1967); see also, Anaya, supra note 77, at 837 nn.1-4 (1990)
(explaining that these documents respond to and support claims of non-discrimination for the
members of an ethnic or nationality group within the context of larger society).
82. Williams, supra note 77, at 686; see also Anaya, supra note 77, "IT]here is an
individualisticbias toward human rights conceptions within modern international law which
impede the recognition of collective or group rights. This bias results from Western liberal
political philosophy... "Id. at 843 (emphasis in original). This Western liberal view
acknowledges the rights of individuals on the one hand and the sovereignty of
the total social collective on the other, but is not alive to the rich variety of
intermediate or alternative associational groupings actually found in human
cultures, nor is it prepared to ascribe to such groupings any rights not reducible
either to the liberties of the citizen or to the prerogatives of the state.
Id. at 843 (citing S. James Anaya, The Rights of lndigenousPeoplesand InternationalLaw in
Historicaland ContemporaryPerspective,Harv. Indian L. Symp. 191 (1990)).
83. Indian Law Resource Center, IndianRights Human Rights 4 (1984).
84. Anaya, supra note 77, at 841.
85. See infra text accompanying notes 91-94.
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A. Interpretations of Self-Determination
One of the purposes of the Charter of the United Nations is "[t]o develop
friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples ... ."86 Two United Nations covenants, the International Covenant on Civil and Political Rights8 7 and the
International Covenant on Economic, Social and Cultural Rights88 expand
on the general rights covered by the United Nations Charter. In both
covenants, Article I states: "All peoples have the right of self-determination.
By virtue of that right they freely determine their political status and freely
' 89
pursue their economic, social and cultural development.
Although these documents clearly acknowledge a right of self-determination, this right traditionally has been applied only in the context of decolonization. 90 This restrictive view erects barriers for indigenous groups.
National governments associate claims of self-determination by indigenous
populations with attempts to secede from the state, a threat to the existing
state boundaries and national unity.9 Furthermore, although the United
Nations recognizes the principle of self-determination in its Charter, 92 it
limits that principle by stating that any disruption of national unity is contrary
93
to the purposes of the United Nations.
Thus, the traditional interpretations of self-determination are limited to
two alternatives. One is the right of an ethnic, racial, religious or other
minority within a sovereign state to be free from oppression by the central
86. U.N. Charter, art. 1, para. 2.
87. International Covenant on Civil and Political Rights, supra note 81.
88. International Covenant on Economic, Social and Cultural Rights, U.N. Doc. A/6316
(1967).
89. Id. art. I; see also International Covenant on Civil and Political Rights, art. I, supra
note 81.
90. For a discussion of the history of self-determination, see Umozurike 0. Umozurike,
Self Determination in International Law (1972), especially ch. IV; see also Louis B. Sohn, The
New InternationalLaw: Protectionof the Rights of IndividualsRather than States, 32 Am. U.
L. Rev. 1, 49 (1982) which states: "An initial attempt was made to confine the right of
self-determination to the peoples of the non-self-governing territories which belong to colonial
empires that are the objects of specific obligations under Art. 1(3) of the Covenants [International
Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and
Political Rights] as well as under arts. 73 and 76 of the U.N. Charter."
91. Anaya, supra note 77, at 840; see also Andree Lawrey, Guaranteeing Indigenous
Rights, 23 Vand. J. Transnat'l L. 703,763-764 (1990). "The concept of self-determination often
provokes an immediate negative reaction that stems from self- determination's linkage with the
creation of new states through decolonization or secession ....
92. See supranote 78 and accompanying text.
93. U.N. Res 1514, para. 6. articulates that limitation. Richard Falk interprets the U.N.
Charter as concluding that "self-determination for peoples must be reconciled in practice with
the existing geographical delimitation of territorial boundaries of sovereign states." Richard
Falk, The Rights of Peoples (In ParticularIndigenousPeoples), in The Rights of Peoples 26
(James Crawford ed., 1988).
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government.94 The other is a claim for secession from a sovereign state.
Unfortunately, both of these alternatives fail to accomodate the unique
situation of indigenous groups.
On the other hand, the "human rights approach" to self-determination 95
focuses on the right of cultural survival, a human rights principle recognized
in various international treaties. 9 6 Therefore, self-determination does not
necessarily mean secession. 97 Instead, indigenous groups should frame
claims of self-determination with the specific human rights necessary to the
survival of their culture.
B. Movements in Human Rights for Indigenous Groups
Several international organizations are directing their attention specifically to the collective rights of indigenous populations in response to the
barriers indigenous populations have encountered under international law.
In 1989, the International Labor Organization ("ILO") drafted Convention
on Indigenous and Tribal Peoples (Convention No. 169),98 a revision of ILO
Convention No. 107. 99 Drafted in the 1950s, ILO Convention No. 107 was
the only convention related specifically to indigenous rights. It emphasized
policies of integration and assimilation of indigenous people into the dominant culture. 1°°
In contrast, Convention No. 169 emphasizes the protection and recognition of the social, cultural, religious and spiritual values of indigenous
peoples. As a necessary element of that policy, the Convention also seeks to
expand the right of participation in state governmental decisions. Convention No. 169 states that indigenous peoples,
94. Antonio Cassese, PoliticalSelfDetermination-Old Concepts andNewDevelopments,
in UN Law Fundamental Rights 37 (Antonio Cassese, ed., 1979). This view sometimes is
labelled as "internal self determination," as opposed to "external self-determination" which is
associated with secession.
95. Anaya, supra note 77, at 841. Under this approach, "self-determination arises within
international law's expanding lexicon of human rights concerns and accordingly is posited as a
fundamental right that attaches collectively to groups of living human beings."
96. Id. at nn. 22-25; see also, Charter of the United Nations, supra note 78, arts. 13, 55, 57
and 73; International Covenant on Civil and Political Rights, supra note 81, art. 27; Convention
on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, art. II.
97. Raizda Torres, Note, Rights ofIndigenous Populations,16 Yale J. Int'l L. 127, 163-64
(1991).
98. Convention (No. 169): Convention Concerning Indigenous and Tribal Peoples in
Independent Countries, June 27, 1989, International Labor Conference, (reprinted in this
issue-Eds.) (entered into force Sept. 5, 1990) [hereinafter ILO Convention 169].
99. Convention (No. 107): Convention Concerning the Protection and Integration of
Indigenous and other Tribal and Semi-Tribal Populationsin Independent Countries,June 26,
1957. International Labour Conference, 328 U.N.T.S. 247, (reprinted in this issue-Eds.)
(entered into force June 2, 1959).
100. Russel L. Barsh, An Advocate's Guide to the Convention on Indigenous and Tribal
Peoples, 15 Okla. City U. L. Rev. 209 (1990); see also Williams, supranote 77, at 663 n.4.
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shall have the right to decide their own priorities for the process of
development as it affects their lives, beliefs, [territories] [lands], institutions and spiritual well-being and to exercise control, to the extent
possible, over their own economic, social and cultural development.
In addition, they shall participate in the formulation, implementation
and evaluation of plans and programmes for national and regional
development which may affect them directly. 10 '
During the negotiations which gave rise to Convention No. 169, the ILO
Secretariat proposed to require governments to obtain the consent of indigenous groups before taking legislative or administrative measures which
would affect them. 1° 2 The U.N. Working Group on Indigenous Populations 10 3 suggested a revision requiring state governments to "obtain the
informed consent [of
indigenous groups]... freely expressed through their
1 4
own institutions."'
After most governments rejected the proposed language as a threat to
national unity, ILO Convention No. 169 reached a compromise. The resulting language instructed governments to
consult the peoples concerned, through appropriate procedures and in
particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which
may affecthem directly... The consultations carried out in application
of their Convention shall be undertaken in good faith and in a form
101. ILO Convention 169, supra note 98.
102. Barsh, supranote 100, at 218. Convention No. 107, art. 5(a) required governments
to "seek the collaboration of these populations and their representatives." Collaboration does
not give the people an effective voice in decision-making. In the Partial Revision of the
Indigenous and Tribal Populations Convention, 1957 (No. 107), Report VI (1), International
Labor Conference, 75th Session (Geneva 1988), the ILO Secretariat concluded:
(a) that indigenous and tribal peoples have a right to participate in the decisionmaking process in countries in which they live for all issues covered by the
revised Convention and which affect them directly; (b) that this right of participation should be an effective one, offering them an opportunity to be heard and
to have an impact on the decisions taken; (c) that in order for this right to be
effective it must be backed up by appropriate procedural mechanisms to be
established at the national level in accordance with national conditions; and (d)
that the implementation of this right should be adapted to the situation of indigenous and tribal peoples concerned in order to grant them as much control as possible
ineach case over their own economic, social and cultural development.
Id. at 30.
103. The U.N. Working Group on Indigenous Populations is discussed in detail infra note
105 and accompanying text.
104. Barsh, supranote 100, at 218, citing the Partial Revision of the Indigenous and Tribal
Populations Convention, 1957 (No. 107), Report VI (1) at 30. International Labor Conference
75th Session (Geneva 1988).
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of achieving
appropriate to the circumstances, with the objective
10 5
agreement or consent to the proposed measures.
Although this revision improves upon ILO Convention No. 107, many
indigenous groups criticize it for its failure to require the consent of indigenous peoples to governmental actions which have direct impact upon
them.'0 6 Despite its vagueness, this Convention represents a movement
toward defining the collective rights of indigenous groups and requiring
negotiations with indigenous representatives before the enactment of legis7
lation.I
Another important international organization focusing on indigenous
human rights is the United Nations Working Group on Indigenous Populations (Working Group). The Working Group, established in 1982 by the
Subcommission on Prevention of Discrimination and Protection of Minorities, directs its attention to the collective rights of indigenous peoples. 10 8 The
task of the Working Group is to
examine the application of the existing human rights standards involving indigenous peoples, with priority given to the most basic rights
including the right to life, freedom from torture, and equality before
the law, and with special attention to any situation indicating genocide.
The evolution of a standard should concern: land and mineral rights;
self-management, consultation, participation, self government or self
determination; freedom of religion and traditional religious practices;
and the right to maintain their own culture, language and way of life. 1°9
Although the Working Group is not a judicial body, its procedures allow
indigenous representatives and organizations to present oral and written
interventions at annual sessions in order to gather data to formulate international standards for indigenous rights. 110
Currently, the Working Group is drafting a third version of the Universal
Declaration on the Rights of Indigenous Peoples i1 which addresses the
collective rights of indigenous groups. This Universal Declaration strives to
105. International Labor Organization Convention (No. 169), arts. 6.1(a) and 6.2., reprinted in Barsh, supra note 100, at 219.
106. Lawrey, supra note 91, at 719.
107. Barsh, supranote 100, at 219-20.
108. Torres, supra note 97, at 159. For further discussion of the Working Group, see
Williams, supranote 77, at 660.
109. 1982 U.N.Y.B. 1065, U.N. Doc. E/CN.4/Sub.211982/33 (1982); see also Lawrey,
supra note 91, at 720.
110. Hurst Hannum, New Developments in IndigenousRights, 28 Va. J. Int'l L. 649, 661
(1988); see also Williams, supranote 77, at 665-67.
111. Second Revised Draft Universal Declaration on the Rights of Indigenous Peoples
(reprinted elsewhere in this issue-Eds.).
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bring attention to indigenous rights and focus international criticism on
domestic indigenous policies which fail to meet the standards. 112 Furthermore, the Universal Declaration has the capacity "to translate the stories told
by indigenous peoples of the human rights they want protected into terms
that settler state governments, particularly in the West, will take seri1 13
ously.,"
Focusing on the stories told by indigenous groups, the Draft Universal
Declaration identifies the most frequent concerns raised in the sessions.
These concerns are the distinct nature of collective rights of indigenous
groups, the importance of territorial rights to indigenous survival, and the
recognition of indigenous groups' rights to autonomy and protection of
indigenous rights by international law. 14 The efforts of the Working Group
and the Universal Declaration signal a new approach to indigenous rights
which directs attention to and sets standards for human rights claims like the
Tohono O'odham claim of cultural survival.
VII. CONCLUSION
The Tohono O'odham Tribe suffers fundamental human rights violations
under current policies governing the international border between the United
States and Mexico. The survival of this indigenous culture depends upon its
ability to pass through traditional lands freely, to collect raw materials for
traditional foods and crafts and to visit religious sites and family members.
Current policies and laws of the United States deny the Tohono O'odham
these rights. Border crossing legislation will help to eliminate these abuses.
However, in order to be effective, the legislation must allow the Tohono
O'odham people to participate in decisions regarding regulation of the
border.
The goal of the Tohono O'odham Tribe is to protect its culture and assure
its continued existence. Approaching the Tohono O'odham claim for border
crossing rights as a claim for basic human rights places indigenous groups
within the scope of international principles. The new movements of intemational law focus on the unique claims of indigenous groups, which amount
not to secession, but to a level of autonomy which permits the survival of
their cultures. Guided by these fundamental international principles, the
United States and neighboring nations must recognize the right of the Tohono
O'odham to keep their culture alive.
112. Lawrey, supra note 91, at 770.
113. Williams, supranote 77, at 684.
114. Id. at 684-85.
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