Tohono O’odham Nation Sues DHS To Block Border Wall Construction On Tribal Land

The Tohono O’odham Nation has filed a federal lawsuit seeking to stop the Department of Homeland Security from moving forward with a planned border wall project across tribal lands in southern Arizona, arguing that the project would violate tribal sovereignty, alter reservation boundaries, and damage sacred cultural sites.

The lawsuit, filed June 16 in the U.S. District Court for the District of Columbia, names DHS Secretary Markwayne Mullin, Customs and Border Protection Commissioner Rodney Scott, and U.S. Border Patrol Chief Rosario Vasquez as defendants in their official capacities, according to the Nation’s complaint.

The Nation also filed a motion for preliminary injunction on June 17, asking the court to block DHS, CBP, Border Patrol, and their agents from taking steps toward construction of the planned wall or associated infrastructure on the reservation. The motion also seeks to prevent the government from entering into contracts or agreements in furtherance of the project.

The Tohono O’odham Nation’s reservation shares approximately 62 miles of border with Mexico. The Nation says it has cooperated with federal border security efforts for decades while opposing a permanent border wall on its lands.

In a video statement announcing the lawsuit, Chairman Verlon M. Jose said the Nation filed suit “to halt” DHS efforts “to take parts of our reservation land and water to construct a border wall.” Vice Chairwoman Carla L. Johnson said the Nation took legal action because “in just a few weeks, Customs and Border Protection will be awarding the contract to build a wall on our reservation.”

The lawsuit centers on two legal claims: alleged ultra vires diminishment of the reservation and federal common law trespass. The Nation argues that DHS lacks authority to move forward without congressional approval because reservation boundaries may not be changed except by an act of Congress.

The complaint cites 25 U.S.C. § 398d, which states that changes in the boundaries of reservations created by executive order, proclamation, or otherwise for the use and occupation of Indians “shall not be made except by Act of Congress.”

According to the complaint, President Woodrow Wilson initially established the Nation’s main reservation by executive order in 1916, setting apart approximately 2.8 million acres for the exclusive use and occupancy of the Nation, then referred to by the federal government as the Papago Indians. The Nation argues that Congress later ratified and enlarged the reservation’s boundaries.

The complaint alleges that the planned construction would permanently change and diminish the Nation’s reservation boundaries and would constitute a trespass on reservation lands adjacent to the international border.

The Nation says DHS informed tribal leaders on May 15 that CBP would release a contract solicitation for the Tucson 5 Wall Project. According to the complaint, the solicitation included construction of approximately 62 miles of primary and secondary border wall, technology, a patrol road, cameras, and lighting, with CBP targeting a contract award in June 2026.

The complaint says CBP later provided a statement of work and project specifications requiring a “new 30-ft primary vertical barrier” and a secondary vertical barrier within 60 feet of the international boundary line. The Nation also alleges that CBP provided a map showing proposed access routes through the interior of the reservation and conducted a planned bidders site visit on the reservation with representatives from five potential contractors.

The Nation argues that the planned wall and related infrastructure would permanently relocate the southern boundary of the reservation north of the existing border, disestablish reservation status for land occupied by the wall and associated infrastructure, destroy sacred peaks, damage petroglyphs, interfere with religious practices, and disrupt cross-border family and community ties.

The complaint says the O’odham people existed on both sides of the current international border before the Gadsden Purchase and before the reservation was established. The Nation says many O’odham religious and cultural practices still involve travel across both sides of the border, including the Baboquivari Run, the Salt Run, the Magdalena Pilgrimage, and the Feast of Our Lady of Mount Carmel in Sonora.

According to a Nation background issue brief, the Nation is a federally recognized sovereign tribe located in southern and central Arizona with more than 37,000 enrolled members. The brief says approximately half of the Nation’s members live on reservation lands, while approximately 3,000 enrolled tribal members continue to reside on ancestral lands in Sonora, Mexico.

The issue brief says tribal members make frequent, sometimes daily, trips across the border to visit family, conduct business, access services, visit sacred cultural sites, and perform religious ceremonies.

The Nation also argues that it has supported border security through existing measures, including vehicle barriers, patrol roads, federal facilities, surveillance towers, and tribal law enforcement cooperation.

A Nation fact sheet says the reservation covers 2.8 million acres, roughly the size of Connecticut, and that the Nation spends millions of dollars each year on border security. The fact sheet says the Nation has approved two CBP forward operating bases staffed 24/7, a long-term lease for an on-reservation ICE office, vehicle barriers along the length of the border, CBP checkpoints, leases for Integrated Fixed Surveillance towers, participation in a High Intensity Drug Trafficking Task Force, the Shadow Wolves tracking unit, and additional surveillance technology.

The fact sheet states that unlawful border crossings on the Nation’s lands have decreased more than 95% in the past two years.

“For decades, the nation has cooperated with the federal government on border security, allowing on-reservation vehicle barriers, high-tech sensors, forward operating bases, and more,” Johnson said in the video statement.

Jose said the existing approach has reduced unlawful crossings on the Nation’s lands by more than 95% over the past two years.

“A border wall is unnecessary and ineffective,” Jose said.

Johnson called the wall “a wasteful political gimmick” and said it would “separate our families, desecrate our sacred sites and waters, and harm our natural environment, while doing nothing to actually make us safer.”

Jose said the Nation did not want to file the lawsuit. “We would prefer not to file this lawsuit, and instead use these resources for our people,” Jose said. “And it is our hope DHS will reconsider their plans once they see the strength of our arguments. However, at this point, we have been left with no other choices. We must stand up for what is right and protect our people, our culture, and our future.”

DHS said in a statement reported by ABC15 that Mullin, who is a citizen of the Cherokee Nation, “made clear during his confirmation hearing that he respects tribal sovereignty.”

“DHS is committed to ongoing coordination with stakeholders, including tribal nations, throughout planning and construction activities,” the department said. “DHS values its relationship with the Tohono O’odham Nation and remains focused on open communication and minimizing impacts.”

Capitol Media Services reported that DHS did not promise to halt construction and said the agency intends to move forward.

The dispute comes as President Donald Trump’s administration continues to pursue expanded physical barriers along the southern border. Trump’s January 2025 executive order, “Securing Our Borders,” states that it is U.S. policy to secure the nation’s borders through physical walls and other barriers supported by personnel and technology, and directs the secretaries of Defense and Homeland Security to take appropriate action to deploy and construct temporary and permanent physical barriers to ensure complete operational control of the southern border.

An April 2025 White House memorandum, “Military Mission for Sealing the Southern Border of the United States and Repelling Invasions,” directed federal agencies to provide for Department of Defense use and jurisdiction over certain federal lands along the southern border, including the Roosevelt Reservation, a 60-foot-wide strip of land owned by the federal government along the U.S. side of the border in California, Arizona, and New Mexico, while expressly excluding federal Indian reservations.

Rep. Adelita Grijalva (D-AZ7), whose district includes the Tohono O’odham Nation, posted support for the lawsuit on X. “DHS should not be allowed to steamroll a second border wall through lands that are sacred to the Tohono O’odham Nation,” Grijalva wrote. “Respecting tribal sovereignty is not optional — it is the law.” 

Grijalva also told ABC15 that DHS was “willing to violate tribal sovereignty, threaten endangered species, and pour billions of taxpayer dollars into a second useless border wall.” She cited the 1927 statute requiring an act of Congress to change reservation boundaries as support for the Nation’s position. 

Sen. Ruben Gallego (D-AZ) also criticized DHS over the planned wall. ABC15 reported that Gallego questioned Mullin during his confirmation process in March over building walls on tribal land, and Mullin said at the time that there were other ways to secure the border beyond physical infrastructure.

“For years, the Tohono O’odham have worked cooperatively with CBP on securing the border while respecting the Tribe’s history and heritage,” Gallego told ABC15. “Now, the administration has refused to engage in real, meaningful consultation with them, despite giving me assurances that they would. We do not have to choose between securing the border and respecting tribal sovereignty.” 

The lawsuit follows earlier controversy over border wall work in Arizona. In May, Grijalva issued a statement after a DHS contractor damaged the Las Playas Intaglio, a 1,000-year-old cultural site tied to the O’odham people, during border wall construction on the Tohono O’odham Nation. 

The Associated Press reported that CBP said a contractor “inadvertently disturbed” the site west of Ajo on April 23 and said the remaining portion had been secured. AP also reported that CBP Commissioner Rodney Scott was speaking with tribal leaders to determine next steps. 

Jose and Johnson also cited previous damage at Quitobaquito Springs and Las Playas Intaglio in their video statement, saying the Nation had already seen the effects of border wall construction on sacred O’odham sites.

No hearing date has been set in the Tohono O’odham Nation’s lawsuit, according to KNAU.