May 23, 2014
by Julian Aguilar
EL CALABOZ, Texas — Eloisa Tamez remembers the exact day five years ago when she said it took the federal government just 24 hours to seize and plow through a parcel of land that had been in her Lipan Apache family for generations.
Following two years of courtroom battles with the U.S. Department of Homeland Security, the agency got the go-ahead in 2009 to extend its controversial border fence across her land. Since then, roughly 75 percent of her formerly three-acre lot has been behind a steel barrier, land that's now the property of the federal government.
Tamez isn’t alone in her opposition to the fence, which was erected to stop undocumented immigrants, human smugglers and drug traffickers from breaching the U.S. border. But her family's allegations that the fence discriminates against Native American tribes with land along the border has added a complicated new layer to the debate.
In partnership with the Human Rights Clinic at the University of Texas School of Law, Tamez and other Lipan Apaches are seeking relief from the United Nations Committee on the Elimination of Racial Discrimination. They allege that the fence has “blocked access to sacred sites and deprives the Lipan Apache of their First Amendment right to express their religious freedoms at certain traditional ceremonies," according to a news release issued when the clinic submitted its report to the U.N. in February. (That report is a supplement to earlier reports the Lipan Apaches and the UT law clinic have submitted to federal and U.N. officials.)
A spokesman for the U.S. Customs and Border Protection’s Rio Grande Valley sector, whose jurisdiction includes El Calaboz in Cameron County, did not respond to a request for comment on the report. The agency would only say that it usually does not comment on pending legal issues.
The federal government has argued that the fence, combined with technology and manpower, is essential to border security. And some border residents have lauded its arrival, saying their land was overrun with trespassers before its construction.
But other border residents, immigrants, environmentalists and human rights groups have not seen the fence in such a positive light. They argue that it sends the wrong message to the U.S.'s southern neighbor and is a waste of resources that hasn’t stopped the flow of illegal migration.
Tamez, who was compensated about $58,000 for her land, said she took the federal money in protest, and used it to fund scholarships for nursing students at the University of Texas at Brownsville.
“I am not going to personally use the money that the government has given me due to this injustice; I want it to live forever in my parents' name,” she said. “They are the ones who worked hard on this land to give us a life.”
Margo Tamez, Eloisa’s daughter and a professor of indigenous studies at the University of British Columbia, said the Lipan Apaches never surrendered their land to the federal government and, under current treaty obligations, still have a right to craft their own cultural, educational and governmental practices. Without access to all of their land, she said, those rights are curtailed, hindering the tribe's ability to maintain its culture.
“The indigenous people such as the Lipan Apaches are vulnerable and threatened,” she said. “They have already been subject to assimilation.”
The latest report filed with U.N. officials argues that seizure of Native American land requires consent, and that there is legal precedent for it.
“Indigenous communities have a right to be previously consulted in deciding any measures that affect their territory,” the report states.
The Tamez family wants the border wall to come down, an unlikely scenario.
But Ariel Dulitzky, the director of UT Law's Human Rights Clinic, said other positive outcomes are possible, including financial compensation for the Lipan Apaches or at least a recommendation for more consultation with affected populations in the future.
“The [U.N.] could recommend that the U.S. adopt a measure to take into consideration the rights of the Lipan Apaches — for instance, how the Border Patrol carries out activities in the Lipan Apache areas,” he said.
Dulitzky said he expects a response this summer. The timing could be crucial as the government considers further expanding the border fence. If the U.S. Congress passes immigration reform, it is likely that border security triggers will be included in the legislation. Several Republican lawmakers have said additional fencing is a key element to heightening security.
“New legislation is expected to double and triple the border wall fencing and presence of border patrol agents,” the report states. “If the [U.S. government] is not held to account for the legacy of colonization and the border wall’s discriminatory effects, critical traditional knowledge will be lost.”