Texas Border Residents Take Homeland Security Chief to Court Over Land Seizures for Border Wall

By Jay J. Johnson-Castro, Sr.
Inside the Checkpoints: Commentary from the Rio Grande

February is not a good month for Secretary of Homeland Security, Michael Chertoff. He has just been sued by a team of legal experts headed by Peter Schey of the Los Angeles based Center for Human Rights and Constitutional Law.

A stretch of the border wall in California. Chertoff hopes to build a similar one in Texas.
Photos: D.R. 2008 Jay J. Johnson-Castro, Sr.
When Chertoff began wielding his power to build a border wall along the US-Mexico border, border residents knew it was an abuse of his power and that he was violating human rights and the Constitution. Finding someone to defend the owners of property along the border was not easy, especially when elected officials in highest offices of the respective states, California, Arizona, New Mexico and Texas, in concert with the nationally elected officials, turned their heads, covered their eyes and failed to protect the people who elected them to protect them and their property rights from such abuses of power.

It became even more difficult to level the legal playing field when the political talk show hosts in their techno towers referred to border residents, opponents of the border wall and the property owners in degrading and demeaning terms. The federal officials began stalking property owners to persuade them to grant access to their private property. They even bullied city and county officials, using every tactic in the political play-book. Things changed when Chertoff began abusing his powers against the property owners in Texas. A legal team of experienced professionals has since come together to defend and protect the human rights and constitutional rights from such abuse of power.

The law suit is filed by Peter A. Schey, Carlos Holguin and Dawn Schock of the Center of Human Rights and Constitutional Law as well as James Harrington, Abner Burnett and Corinna Spencer-Scheurick of the South Texas Civil Rights Project. The lawsuit they filed states that the “plaintiff the United States and Secretary of Homeland Security Michael Chertoff have acted in flagrant disregard of the laws of the United States” and “obviously are not authorized by the Constitution or Congress to seize land owned by cities, private property owners, and land-grant owners in violation of federal laws. Yet this is precisely what it appears that they are doing in their actions to immediately seize ownership of border properties.”

What does this mean? This means that Chertoff knowingly has abused his power over the citizens of the United States of America. Can a man legally commit such acts of aggression against US citizens? Can a man who was not elected by the people of the United States disregard the Constitution and the Congress and seize citizens’ property? One woman that this legal team is representing, Eloisa Tamez, PhD in nursing at the University of Texas, Brownsville, has stood up to Chertoff and said “NO” to a man who wields dictatorial powers over land she owns in Texas. She says, “There is no price tag. This is something I want to will to my children and to their children.” Incidentally, Chertoff has also just threatened to file suit against the University of Brownsville for its refusal to comply with his demand for access to University land where the proposed wall would cut off a major portion of the campus, including a sizeable chunk of its 18-hole golf course.

Eloisa Tamez inherited a small parcel of acreage in a small community on the Rio Grande in Texas called El Calaboz. It is a remnant of land that was granted to her ancestors by the king of Spain in the San Pedro de Carricitos Land Grant, of the Nuevo Santander region that today is known as South Texas. This land has therefore been in her family for some 265 years. Even before the land grant from Spain, Eloisa’s ancestors, who were Chiricahua and Lipan Apache, shared these lands.

What the DHS wants to do is build a two-story border wall through this land, which would destroy centuries of residential and agricultural enjoyment. As the legal team states, “The Government’s planned seizure and use of Dr. Tamez’s land, as well as the proposed border fence, would in fact have an adverse impact on the cultural and quality of life issues mentioned in the 2008 Budget Act, and on the economic value of her real property interest, or this opposition would not be presented even though the Secretary of Homeland Security is acting unlawfully.”

In its defense of her, the lawsuit says that “Secretary Chertoff has proceeded…in a manner that violates federal laws.”

While it is true that the Secure Fence Act of 2006 provided for the construction of 700 miles of border wall, that act was amended by the 2008 Appropriations Act and signed into law on December 26, 2007. The lawsuit addresses four changes that the Appropriations Act makes relative to the issue of constructing the border wall:

That it “replaces the mandate that the border fence be built in areas specifically designated by Congress with the requirement that Secretary Chertoff assess where fencing would be most effective.”
The lawsuit also emphasizes the portion of the amendment that states that the Secretary’s authority to determine location of the fence is due to expire on December 31, 2008.
Requires consultation “with the Secretary of the Interior, the Secretary of Agriculture, States, local governments, Indian tribes, and property owners… to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents near the sites at which such fencing is to be constructed.”
“Nothing… shall require the Secretary of Homeland Security to install fencing, physical barriers, roads, lighting, cameras and sensors in a particular location…”
The reality is that Chertoff does not have to build the wall on anyone’s land. The reality is that Chertoff wants to build the wall there. The reality is that Chertoff does not have the authority to build the wall on any land without consulting those affected by it. The reality is that he has never consulted with those who would be affected and whose land he is seizing.

Eloisa Tamez in December, attending a DHS “open house” to learn more about the wall.
So despite such laws, Chertoff is hell bent on building the wall before the year’s end…because that is when, under the same Appropriations Act, Chertoff looses his power over building the wall. His acts of oppression, his law suits against private property owners and the City of Eagle Pass, and the seizure of their lands shows that he is outside the law and outside the authority that has been given him.

It is a pity that sincere hardworking citizens have to fight the abusiveness of their own government in order to protect their rights. What’s worse is that they are forced to defend themselves against the very agency that was set up to protect citizens from terrorism, an agency that is causing more terror in the lives of such Americans then they’ve ever experienced before.

One such woman, Dr. Eloisa Tames, finds herself in such an abusive situation. A victim of the dictatorial powers of Chertoff, she finds herself having to go to court tomorrow to defend her small parcel of land. This honest, hardworking woman and her small 1.04-acre tract of land that has been in her family, is big enough to prove that she is not more secure under Chertoff’s homeland security, but more terrorized.

As the lawsuit well delineates, Chertoff is not mandated to build an iron curtain through Eloisa Tamez’s land that has been in her family for at least 265 years. Yet, in his rush to seize her property by the year’s end, when he looses his authority, he is forcing her to defend her land now. In his haste, the threatening legal notice that he sent her stating that she would be sued if she did not relinquish the property did not even have the property’s correct legal description.

Eloisa Tamez, along with hundreds of others, has been a victim of trauma, tyranny and…terror. No one in government has stepped up to protect Eloisa, to right the wrongs being leveled on her and her property. So much for security in her homeland! It has taken the volunteer efforts of fellow citizens and a willing team of legal experts to stand with her in her fight against a form of terrorism from which she is not otherwise being protected, a terrorism that originates from one man. The secretary of Homeland Security, Michael Chertoff! He has just been sued.

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