Wednesday, January 9, 2008

Texas Landowners’ Objection to Access for Border Fence

Very interesting development in the struggle over the border wall in Texas. -Dra. Valenzuela

>Telephone: (213) 388-8693 ext. 310
>Facsimile: (213) 386-9484
>January 7, 2008
>Via facsimile and certified mail
>Secretary Michael Chertoff
>Department of Homeland Security
>3801 Nebraska Ave. NW
>Washington, D.C. 20528
>Gus Coldebella
>General Counsel
>Department of Homeland Security
>3801 Nebraska Ave. NW
>Washington, D.C. 20528
>Re: Texas Landowners’ Objection to Access for Border Fence
>Dear Secretary Chertoff:
>This office represents Dr. Eloisa García Tamez, a private land-owner in
>south Texas who has not and will not sign DHS’s “Right-of-Entry for Survey
>and Assessment.” Despite the Department’s express threat to sue Dr.
>García Tamez pursuant to its powers of eminent domain if she refuses, Dr.
>García Tamez will not allow her ancestral property to be surveyed for the
>erection of the highly controversial security border wall. Along with
>other property owners, as well as other Nde’ and Basque-Ibero American
>citizens adversely impacted by DHS’s ultimatum and intended actions, Dr.
>García Tamez will pursue all available legal avenues under domestic and
>international laws to protect her right to the full and uninterrupted
>enjoyment and use of her property. Dr. García Tamez’s resolve reflects a
>national network of entities, both political and civic, individuals and
>organizations, that supports the land rights of indigenous peoples and
>resolutely opposes the building of the militarized border wall.
>Dr. García Tamez has registered her concern over DHS’s treatment of her
>and her neighboring landowners with the United Nations Committee for the
>Elimination of Racial Discrimination. We also intend to request that the
>International Indian Treaty Council intervene in this matter on her behalf
>and on behalf of similarly impacted members of the Lipan Apache people and
>Basque descent peoples in the Lower Rio Grande region, who are protected
>as indigenous groups of the Americas (Lipan Apache) and of Europe (Basque)
>in international customary law according to the United Nations Declaration
>on the Rights of Indigenous Peoples (the “UN Declaration”). As you are
>undoubtedly aware, the UN Declaration provides that the indigenous peoples
>living along the United States-Mexico border are entitled to the
>“enforcement of treaties, agreements and other constructive arrangements
>concluded with” the United States (Article 37) and, inter alia, are
>protected against forced removal from their traditional lands (Article
>10); have the right to “maintain, protect, and have access in privacy to
>their religious and cultural sites” (Article 12); have the right to “own,
>use, develop and control” the land that they have traditionally possessed
>or occupied and must be consulted with respect to proposed development of
>the property (Articles 26, 32); have the right to “a fair, independent,
>impartial, open and transparent process” with respect to their property
>rights, including the right of redress (Articles 27, 28); and are
>protected against the militarization of their traditional homelands
>(Article 30). See also, Articles 29, 31, 36, 37, 38.
>Dr. García Tamez holds title to her inherited property, located in Cameron
>County Texas on the northern shores of the Rio Grande River, pursuant to
>the San Pedro de Carricitos Land Grant, of the Nuevo Santander region of
>South Texas, established by Spain in 1743. She is a descendent of both
>Nde’ (Apache), as well as the Basque-Ibero indigenous peoples sent to the
>region to serve as laborers in the settlement of Nuevo Santander colony.
>She is indigenous to and a member of the Lipan Apache ancestors. These
>ancestors were the native people of the Lower Rio Grande valley and
>Tamaulipas, the Mexican state to the south of her lands which is named for
>the derivative of the indigenous phrase “Ta ma ho lipam” or “the place
>where the Lipan pray.”
>Dr. García Tamez has a distinguished and demonstrated commitment of
>service and advocacy to this country: She is a retired Lt. Colonel of the
>Army National Guard and retired Chief Nurse of the United States Veterans
>Administration. At the age of 16 she led a rebellion against inferior and
>segregated education for indigenous children and went on to become one of
>the first indigenous women to earn a doctorate degree from the University
>of Texas, Austin.
>In light of the U.S. Government’s violent obstruction of the title holder
>indigenous peoples from their lands in the 1930’s, resulting in the
>division of those lands by the present-day levee—including those lands now
>belonging to Dr. García Tamez—and the government’s ongoing denial of
>access to the ancestral, pastoral indigenous lands now found on both sides
>of that structure, Dr. García Tamez has attempted to discuss her
>legitimate concerns regarding any further encroachment upon her property
>rights directly with federal officials, including Border Patrol Officers,
>and the Army Corps of Engineers officers. To her dismay, she has met only
>with intimidation, harassment and ultimatums and has been instructed and
>given formal notice that she has “no choice” but to sign the enclosed
>waiver that has been presented to her. She has been warned in
>conversation with U.S. personnel that if she fails to sign, her name would
>be included in a list of “refusers” against whom legal action will be
>We are deeply concerned by the treatment of Indigenous citizens along the
>Texas/Mexico border at the hands of DHS, U.S. Border Patrol, and the Corp.
>of Army Engineers. Additionally, we find it alarming that the waiver Dr.
>García Tamez is being pressured to sign does not guarantee her payment for
>use of Indigenous lands nor for property damages that may occur during
>the proposed survey and assessment. Further, it does not provide any
>assurance that the government will relinquish private property or
>Indigenous lands back to the rightful owners after the surveying has been
>completed. Nevertheless, a resolution of these ambiguities will not in
>and of itself resolve the multitude of affronts to Indigenous lands and
>culture that are presented by the proposed wall and accompanying
>militarization of the border.
>With DHS’ express threat of eminent domain bearing down on numerous
>American citizen Indigenous peoples, we note that neither the waiver nor
>the government’s express threat of eminent domain take into account the
>recently enacted Section 564 of the Homeland Security section of the
>Omnibus Appropriations Bill, which strikes provisions of the earlier
>Secure Fence Act and expressly requires DHS to consult with property
>owners like Dr. García Tamez in order “to minimize the impact on the
>environment, culture, commerce, and quality of life" in areas considered
>for construction of the border fence. We also particularly note that
>section of the new act withholding funding pending “an analysis by the
>Secretary for each segment, defined as no more than 15 miles, of fencing
>or tactical infrastructure, of the selected approach compared to other,
>alternative means of achieving operational control; such analysis should
>include cost, level of operational control, possible unintended effects on
>communities, and other factors critical to the decision making process . .
>.” Furthermore, we believe that the new statutory provisions invalidate
>the Draft Environmental Impact Statement for fence construction published
>on the Department’s behalf on November 16, 2007, pending completion of the
>required local consultations and other requirements as outlined in the
>Omnibus Bill.
>While Dr. García Tamez looks forward to those future consultations
>mandated by the Omnibus Bill, this office, in conjunction with the South
>Texas Civil Rights Project, demands on her behalf that all direct oral and
>written communications with her cease, that future attempts to communicate
>with her be directed to the undersigned as her attorney, and that
>absolutely no attempt be made by any Government official to access her
>property without notice to this office sufficient to allow our seeking
>judicial intervention.
>Peter Schey
>President and Executive Director
>Center for Human Rights and
>Constitutional Law

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