Handbook on Indigenous Peoples’ Border Crossing Rights Between the United States and Mexico
Researched and written by:
Alianza Indígena Sin Fronteras / Indigenous Alliance Without Borders & Christina Leza (Associate Professor of Anthropology and Indigenous Studies, Colorado College)
The “Handbook on the Indigenous Peoples’ Border Crossing Rights Between The US and Mexico,” presents a basic framework and outline for an initial reference when addressing the movement of Indigenous Peoples across the US-Mexico border. The movement of Indigenous Peoples across political borders has been restricted, prohibited, or otherwise limited in an unprecedented, and at times, militaristic fashion, especially along the Arizona-Sonora border, as detailed in the Handbook Introduction. Traditional crossing areas have been eliminated or curtailed, and the act of crossing, even at Ports of Entry, has become a point of vulnerability or peril, and even within traditional lands. Cultural, social and spiritual rights, along with customs and rituals, have been violated and/or interrupted. Thus, the ancient right to move, and live within the nations’ own lands, has been seriously disrupted.
This manual was funded, in part, by the Seventh Generation Fund for Indigenous Peoples, the RESIST Foundation, and the Tides Foundation, and through the support of the Agnese Nelms Haury Program in Environment and Social Justice at the University of Arizona. Dr. Patrisia Gonzales, associate professor at the University of Arizona, contributed to this manual.
This handbook should be used as a reference for movement across the U.S.-Mexico border for Indigenous social, cultural, and spiritual purposes. It is not, however, a legal document or a complete guide on immigration laws and border policies impacting Indigenous peoples.
The appropriate Embassy or Consulate, the tribal liaison for the relevant U.S. Customs and Border Patrol sector and, when needed, an immigration law attorney should be consulted to address questions not fully addressed in this handbook.
View All Parts of the Border Crossing Rights Manual
The U.S. Western Hemisphere Travel Initiative (WHTI) is a joint initiative of the Department of State (DOS) and the Department of Homeland Security (DHS), created in response to the U.S. government’s 9/11 Commission recommendations and the Intelligence, Reform and Terrorism Prevention Act of 2004 (IRTPA) in effect since June 1, 2009. WHTI requires all individuals entering, or re-entering, the United States to present a passport or another U.S.-approved document that confirms the individual’s identity and citizenship to an official at ports of entry. All U.S. citizens entering the United States by air must present a valid U.S. passport or a U.S. Trusted Traveler Program card: NEXUS (for travel between the U.S. and Canada), SENTRI (for travel into U.S. from Mexico) or FAST (for commercial truck drivers transporting shipments into U.S. from either Canada or Mexico). Trusted Traveler Program cards are granted to “low-risk” travelers and require a rigorous application and interview process. U.S. citizens may also present a U.S. military I.D. when traveling on official military orders.
U.S.-authorized permanent residents of the U.S. must present a Permanent Resident Card (Form I-551, or “Green Card”) when entering the United States at air, land and sea ports of entry.
At land and sea ports of entry, U.S. citizens may present a U.S. passport, a U.S. passport card (used for entry into U.S. from Canada, Mexico, the Caribbean, and Bermuda; can also be used for domestic air travel), an Enhanced Driver’s License (a driver’s license with limited passport features only issued in some states), a Trusted Traveler Program card, a U.S. military I.D. when traveling on official orders, a Form I-872 American Indian Card, an Enhanced Tribal I.D. Card, and, for the time being, a standard tribal photo identification card. Enhanced Driver’s Licenses (EDLs) and Enhanced Tribal I.D’s (ETCs) make use of Radio Frequency Identification (RFID) technology. WHTI mandated that tribal identification cards must be enhanced with this technology to qualify as a valid document for entry into the U.S. but is currently permitting/allowing standard tribal photo I.D. cards to be used at land and sea ports of entry to provide some transition time for tribes developing an ETC. As of the publication of this manual, aAn exact date for the end of this transitional period has not been announced.
U.S. permanent residents, U.S. citizens and Mexican citizens can also use a Global Entry Card, another Trusted Traveler Program card, for expedited entrance into the U.S. at land and sea ports of entry. Like ETCs and EDLs, Global Entry Cards have RFID technology. See List of Useful Contacts and Online Resources for web sources with information on how to apply for Trusted Traveler Program cards.
Enhanced Tribal Identification Cards (ETCs) are similar in form to a U.S. passport card. RFID technology in these cards allows data sharing between Customs and Border Patrol (CBP) and tribal nations to verify the enrollment and U.S. citizenship status of the card holder. WHTI also requires updating of the information available through ETCs as deemed necessary by Homeland Security. In 2010, the Tribal Homeland Security Grant Program was amended to include some funding support for the development of ETCs. The Pascua Yaqui Tribe was the first tribal nation to develop and issue an ETC in 2010. The Kootenai Tribe of Idaho began issuing its ETC in 2011. At least seventeen additional tribes are now in the process of developing their own ETCs.
A Memorandum of Agreement (MOA) between a federally-recognized U.S. tribal nation and the CBP is needed to begin the process of a tribal nation’s ETC development. Once negotiations between a tribal nation and CBP are complete and a MOA is signed, information technology (IT) working groups begin development of the ETC. Once the IT working group approves production, a memo is sent to CBP field officers describing the ETC’s security features, artwork for the ETC is finalized, and CBP issues a press release on the new ETC.
See List of Useful Contacts and Online Resources in this manual for additional information on how to apply for a Tribal Homeland Security Grant to develop an ETC and resources for ETC development. Grant monies for ETC production are annual and tribal nations may reapply. The Pascua Yaqui Tribe currently offers ETC development services to other tribes.
Although Form I-872’s title “American Indian Card” suggests that it can be used by any American Indian, it is a card issued exclusively to Kickapoo community members. Kickapoo peoples have traversed the largest swath of territories across the United States and Mexico, migrating from their original territories as Algonquin peoples. Since the 1700s, Kickapoos, had crossed back and forth between the United States and Mexico, after they was granted a landbase in Coahuila, Mexico. In the early twentieth century, Kickapoo began migrating back and forth across the U.S.-Mexico border near Eagle Pass, Texas for seasonal agricultural work. To support the demand for migrant Kickapoo farm work, Tthe U.S. Immigration and Naturalization Service (INS) (INS, no longer in existence) began issuing renewable border passage cards to individual Kickapoos crossing the border into Texas during the agricultural season. U.S. Congress established the Texas Band of Kickapoo Act in 1983 to further facilitate this movement. The Act permitted any member of the Kickapoo Band whose name appeared on a tribal roll to apply for U.S. citizenship within five years of the Act’s passage and guaranteed that application would be automatically granted upon receipt. The Act further specifies that “all members of the Band,” regardless of citizenship, “shall be entitled to freely pass and repass the borders of the United States and to live and work in the United States” (25 U.S.C. § 1300b-11). The Act federally recognized the Kickapoo of Texas as a Native community in the U.S. and further established that Mexican Kickapoo in Mexico could use a special border passage card (American Indian Card) created to ensure Kickapoo passage into the U.S. from Mexico. According to WHTI, members of the Kickapoo Traditional Tribe of Texas and the Kickapoo Tribe of Oklahoma, and Kickapoo members in Mexico who heold an American Indian Card may couldntinue to use this card when crossing the border. The Kickapoo remain unique in their recognition by the U.S. government as a binational U.S.-Mexican Indigenous community whose members are secured relatively free passage across the U.S.-Mexico border, regardless of residence and citizenship. It should be noted that INS is no longer in existence, having been absorbed into the Department of Homeland Security in 2002 and most of its functions dispersed between U.S. Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE), and U.S. Customs and Border Protection (CBP). In 2018, through an agreement with U.S. Customs and Border Protection (CBP), the KTTT began issuing Enhanced Tribal Cards.
According to WHTI, Mexican citizens are required to present a Mexican passport with a visa, or a Border Crossing Card. In order to qualify for a renewable laser visa for short stays in the United States, Mexican citizens must first have a Mexican passport. In order to obtain a passport, Mexican citizens must have photo identification and proof of residence with documentation such as utility bills and pay stubs. Mexican citizens must also prove economic solvency—financial capacity for travel and reason to return to one’s country—to qualify for a laser visa. To prove economic solvency, a Mexican citizen must have a minimum of around 2,500 pesos in a bank account. Many Indigenous individuals in Mexico, however, are subsistence farmers or piece together cash incomes through a variety of non-wage earning activities. Many also lack access to public utilities and do not possess photo identification. Indigenous persons in Mexico may, therefore, find it difficult to prove their residence or identities as Mexican citizens according to Consulate requirements. The cost of both the passport and laser visa is also prohibitive for most Indigenous persons existing in subsistence economies.
Some U.S. tribal governments, and groups like the Alianza Indígena Sin Fronteras and the Kumeyaay Border Task Force, have been able to work with Mexican and U.S. Consular officials to have certain of the requirements waived for Mexican Indigenous relatives applying for laser visas needed to participate in ceremonial and cultural events held in the United States. In 2002, for example, Mexico’s Indigenous affairs agency, Instituto Nacional Indigenista (INI), assisted Kumeyaay cross-border efforts by issuing photo identification cards to Kumeyaay in Mexico. Through informal agreements with the Mexican Consulate in San Diego, Kumeyaay were able to obtain Mexican passports for Kumeyaay in Mexico as well as members of another neighboring Yuman community, the Pai Pai. The Border Task Force then worked with U.S. immigration officials in San Diego to obtain laser visas for these members. The Kumeyaay transported busloads of Mexican Indigenous community members, 50 at a time, to the U.S. Embassy in Mexico to obtain the necessary documents. By 2006, the Border Task Force had acquired laser visas for 680 Mexican Kumeyaay and Pai Pai, and about 1,000 laser visas by 2007. Currently, about 1,900 Kumiai in Mexico hold laser visas. Letters from both appropriate Indigenous community leaders in Mexico and the affiliated U.S. tribal government are typically used to identify specific Indigenous persons and their residence in Mexico. Such letters also state the specific purpose(s) of the person’s visit to the U.S., thus allowing for the waiving of economic solvency requirements.
Indigenous ceremonial or cultural event participants from Mexico may also apply for temporary, non-renewable border crossing permits that have shorter validity periods of a few days to several weeks. These permits are granted in a process similar to the processing of U.S. Citizenship and Immigration Services (USCIS) humanitarian parole program permits. This program allows non-U.S. citizens to temporarily enter the U.S. for an “urgent humanitarian reason,” such as to receive emergency medical care or to see a dying relative, or because temporary entry by the individual into the U.S. will provide significant benefit to the public. In addition to the application for the border crossing permit and an affidavit of support with documentation supporting the applicant’s temporary entry into the U.S., parole entries must be approved by a CBP official on a case-by-case basis at the port of entry. Letters from the appropriate Indigenous community and tribal officials are used in the border crossing permit application process as the individual’s proof of identification as well as documentation for the affidavit of support to cross the border. Such letters are typically referred to as letters of invitation. The CBP-derived language and documentation requirement seem to draw from the documentation requirement language in place for the J1 Exchange Visa, a visa which allows foreign visitors temporary stays in the U.S. for educational and cultural exchange. Unlike J1 visa approvals, however, approval of “paroled” entries into the U.S. for Indigenous cultural reasons remains at the discretion of CBP officials at the time of entry. Letters of invitation to Mexican Indigenous community members applying for a border crossing permit should be written by a tribal official or otherwise certified as coming from a U.S. tribal nation and should:
establish the member’s membership in, or cultural affiliation with a U.S. tribal nation in the U.S.-Mexico border region;
certify that the individual resides in Mexico, if the applicant cannot produce other evidence of residence;
confirm that the community member will be provided for in the United States during their visit, if not in possession of sufficient funds for the proposed visit; and
state the reasons for the applicant’s stay in the United States
When possible, a member of the U.S. host tribal nation should escort or meet a Mexican citizen Indigenous community member at the port of entry. Although there is no official set of guidelines for the border crossing permit application process, it is advisable that both the Mexican citizen Indigenous community member applying for the permit and a U.S. host tribal nation member have a physical copy of the letter(s) of invitation. Border officials may also sometimes request photo identification for the applicant. If the Indigenous community member does not have a photo identification card, it is advisable for the host tribal nation to create some form of photo identification for the individual. The Pascua Yaqui Tribe, for example, creates photo identification cards similar to their tribal identification cards for Mexican citizen Yaqui individuals who frequently visit their communities in the United States. Although a member of the U.S. host tribal nation may be present to escort or greet an Indigenous community member who is applying for a border crossing permit, U.S. host tribal nation members are not allowed to accompany the applicant during the application interview and paperwork process. For this reason, it is also advised that the applicant have details such as physical address of where they will stay and phone contact information in the United States on hand during the application process. When asked for the reasons for their visit to the U.S., Indigenous community members from Mexico applying for a temporary border crossing permit should only list the reasons stated in the letter of invitation. Expressed desire for recreational travel or desire to someday work in the United States, for example, may be misinterpreted by border officials and result in a denial of the permit. If proficiency in Spanish may be an issue for the applicant, the U.S. tribal host nation should consider consulting with port of entry officials to see if it would be possible to have a translator for the applicant’s Indigenous language present during the application process. Phone contact information for a tribal official who can be contacted and consulted by a border official during the permit application process is also advisable in case issues arise. To begin a border crossing permit application process, a U.S. host tribal nation should consult with the Tribal Liaison for their CBP sector and CBP officials at the port of entry where the application process will take place.
Due to the complications that may arise in the process of securing border crossing permits, the option to secure B1/B2 “Border Crossing Card” laser visas for Mexican Indigenous persons who frequently visit Indigenous relatives in the U.S. for social, cultural and ceremonial purposes is useful to Indigenous nations that seek to strengthen cross-border connections. Border Crossing Cards are only issued to residents and citizens of Mexico and allow a limited travel range in the U.S.-Mexico border region (within 25 miles of border in California and Texas, 55 miles of border in New Mexico, and 75 miles of border in Arizona).
Title 8 U.S. Code § 1357 gives CBP officers significant powers to interrogate, search, seize, and arrest individuals without warrant at the U.S.-Mexico border. Although Indigenous border crossings often proceed without complications, both Mexican and U.S. citizen Indigenous individuals have reported experiencing harassment, detainments of up to several hours, and denials of entry when crossing into the United States from Mexico. U.S. citizen Indigenous community members accompanying Mexican Indigenous community members can be accused of and detained for attempted smuggling of unauthorized/undocumented persons into the U.S. The recommendations above should help avoid problems that can arise during a border crossing, but individuals crossing the border should be prepared to contact appropriate tribal officials and others (such as supportive Congressional representatives) who can provide support if problems should arise.
In the American Indian Law Alliance’s handbook Border Crossing Rights between the United States and Canada for Aboriginal People, the Law Alliance observes that the amount of documentation needed for an aboriginal person to cross with the rights recognized under the Jay Treaty will depend on the officer processing an entry at the port of entry, and also notes that their research shows that less documentation may be needed if the individual crossing looks “Indian.” On the U.S.-Mexico border, however, physical features stereotypically associated with Indigenous peoples such as brown skin and black hair are also stereotypically associated with the general Mexican population. As on the Canada-U.S. border, the officer’s handling of an Indigenous person’s border crossing will depend on that officer’s previous experience in handling Indigenous border crossings, any cultural training that officer may have received for such crossings, and unfortunately, any racial or ethnic prejudices the officer may hold. To further verify that a person crossing the U.S.-Mexico border is Indigenous, officers have sometimes made inappropriate requests such as asking the person to speak their Indigenous language or, if the person is a traditional singer or dancer, asking the person to sing or dance although the officer is not necessarily educated on the individual’s Indigenous language or traditions. Given the amount of discretionary power given to CBP officers in border areas, Indigenous individuals refusing such requests may experience delays or denials to cross. However, Indigenous persons are not obligated to answer such questions if they are not comfortable doing so. If a CBP officer asks a question that you find culturally inappropriate, you are advised to calmly answer, “I do not feel comfortable answering that question for cultural reasons,” and offer to provide any additional documentation that you may have but have not yet shared with the officer and/or suggest that the officer contact tribal nation officials or others who can further verify your identity and reasons for entering the United States.
There are also no official CBP procedures in place for the search and handling of Indigenous objects such as ceremonial items. If crossing the border with items that must be handled according to a specific cultural protocol, it is advisable to communicate with the tribal representative(s) and CBP officials involved with a planned border crossing to help make CBP officers who will process the entry aware of the culturally appropriate ways of interacting with the item(s).
Again, CBP officers have great latitude in what they may ask or do in the interest of U.S. border enforcement. However, CBP has expressed a commitment to making CBP officers aware of and sensitive to Indigenous cultural and religious traditions. CBP also has personnel in the CBP Office of Internal Affairs trained to investigate allegations of misconduct and discrimination. If you have complaints or concerns about an experience with CBP officers at the border, a complaint should be submitted online through https://help.cbp.gov/app/forms/complaint.
Complaints and concerns should also be reported to appropriate tribal nation officials and the CBP tribal liaison and congressional representatives. Tribal nations and CBP tribal liaisons may be able to assist in communicating your concerns to CBP officers and may also take your concerns into account in future cultural training for CBP officers. Cultural education training for CBP officers is often initiated and led by tribal nations. Both the Kumeyaay and the Pascua Yaqui nations, for example, have worked with border officials to ensure this type of cultural education training.
For additional information on legal rights and advice for all when interacting with Border Patrol, see the ACLU Know Your Rights document in List of Useful Contacts and Online Resources.
While Indigenous peoples transected by the U.S.-Mexico border do not have the support of treaties regarding border crossing rights as do many peoples transected by the Canada-U.S. border with the Jay Treaty, it is nevertheless possible for border peoples on the U.S.-Mexico border to secure border crossing rights through legislation. The Kickapoo serve as a historical example of this possibility for other Indigenous nations divided by the U.S.-Mexico border. Although the Jay Treaty does not directly apply to the Kickapoo, who are named in the treaty, Congress drew on the language of section 289 of the Jay Treaty to essentially extend Jay Treaty rights to “freely pass and repass the borders of the United States and to live and work in the United States” to Kickapoo community members, regardless of country of origin. With sufficient public and political support, similar legislation could be passed to secure border crossing rights for other U.S.-Mexico border Indigenous nations.
Despite the large discretionary power that has been given to CBP in heightened efforts to enforce the borders of the United States, including the waiving of AIRFA for border barrier construction, the language of the Real I.D. Act does not sanction the waiving of AIRFA or other laws in the treatment of Native persons or spiritual items when moving across or near the U.S.-Mexico border. U.S. tribal nations whose religious freedoms are impacted by a lack of official procedures for handling Indigenous persons and cultural objects at the border might consider joint legal action to establish procedures that will better ensure these freedoms.
The Alianza Indígena Sin Fronteras has advocated for the development of comprehensive legislation that would address Indigenous border crossing rights at both the Canada-U.S. and U.S.-Mexico borders, and has envisioned summits that would include both tribal government leaders and grassroots community leaders of Indigenous nations on these borders to discuss perspectives on border policy and goals for policy development. The 2019 Tribal Border Summit in Tucson, Arizona organized by the Pascua Yaqui Tribe, the Tohono O’odham Nation, and the National Congress of American Indians appears to build toward this vision. The Indigenous Alliance Without Borders has also advocated for the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) by U.S. tribal governments on the U.S.-Mexico border to help build a common reference for Indigenous border crossing rights. Although no U.S. court has ever recognized the moral force of international human rights law regarding Indigenous rights, potential still exists for the implementation of language in the UNDRIP and other international rights instruments in the development of new domestic laws and public policies. Courts in Australia and Brazil, and the national legislature of Japan, have drawn from international rights documents in determining certain rights of Indigenous peoples within these nations.
List of Border Patrol (CBP) Sectors
U.S. Department of Homeland Security Contact for CBP State, Local, Tribal Liaison
(202) 325-0775, phone
Bonnie Arellano, CBP Tucson Sector Tribal Liaison
U.S. Customs and Border Protection
Assistant Director of Field Operations, Border Security
Tucson Field Office
4760 N. Oracle Rd., #316
Tucson, AZ 85705
(520) 407-2355 phone
(520) 407-2350 fax
U.S Department of Homeland Security Tribal Resource Guide
CBP Presentation on WHTI and Enhanced Tribal Card Initiative atnitribes.org/sites/default/files/Enhanced%20Tribal%20Card%20(ETC)%20Initiative%20.pdf
CBP Description of WHTI and Required Documents for Entry into the U.S.
CBP Trusted Traveler Programs Information and Application Website
Tribal Homeland Security Grant Program (THSGP) Webpage
FEMA Non-Disaster Preparedness Grants Page, Notices of THSGP Funding Opportunities
Pascua Yaqui Tribe Enhanced Tribal Identification Program
Pascua Yaqui Tribe Enhanced Tribal Card Consulting Services
CBP Complaint/Concern Submission Page
American Civil Liberties Union (ACLU) of Arizona
(602) 650-1854 phone
ACLU Know Your Rights with Border Patrol Reference Sheet
ACLU Border Litigation Project, ACLU of San Diego and Imperial Counties
Native American Rights Fund
Boulder, CO 80302-6296
(303) 447-8760 phone
(303) 443-7776 fax