Robert Browman

Dr. Eloisa Garcia Tamez’s family has lived just north of the Rio Grande, in what is now South Texas, since the King of Spain granted the land to her ancestors over 250 years ago. On a scorching, bone-dry desert day last August, Tamez, 73, received a call at work from two men from the United States government who threatened to take it away.

The men were from United States Customs and Border Protection, and they were the first to inform Tamez, who is the director of the graduate nursing program at the University of Texas at Brownsville, that the government planned to build a border fence through her property. They told her she needed to give federal officials permission to access her property so they could conduct a land survey.

When Tamez requested more information and told them she would not agree to anything over the phone, she says they took a more aggressive approach in an effort to incite fear as a means to get their way. She says they asked her, “Have you heard of eminent domain? If you don’t let us onto your property we will go to the courts and take it from you.”

These initial phone calls may have worked with some of the other landowners who live along the border in the mostly rural area of El Calaboz, Texas, but it backfired with Tamez. According to the latest available Census Bureau information, approximately 98% of the population of the area is of hispanic heritage, and 41% live below the national poverty line.

“They are counting on people being scared, they are counting on people just going ahead and going along with them,” she said. “They know we have no resources, we are being put at a disadvantage. They think they can do whatever they want with us, and that is pretty scary.”

Tamez decided to fight the government and stand against what she feels is unjust treatment. She told the federal government they could not access her land.

The Secure Fence Act of 2006, which was enacted on October 26, 2006, calls for more than 700 miles of fence to be built along the nearly 2000 miles of border between the United States and Mexico. The effort, which financial analysts estimate could cost in excess of $50 billion, has been controversial. Both critics and supporters of the fence point to segments of fence already erected in California and Arizona to support their arguments.

Opponents claim that since the fence will only cover a portion of the border, it will do little to curtail illegal crossings, and the physical structure of the fence creates new challenges.

James Harrington, director of the Texas Civil Rights Project, says, “It is more difficult for them to patrol the border because you have people right on the other side of the wall that they can’t see. They are going to need to be on the Mexican side of that wall all the time, whereas before they had greater range in tracking and looking for people as they were crossing.”

Proponents, such as Shannon McGauley, president of the Texas Minutemen Project, say it will provide a much needed obstacle to slow the flow of illegal immigration and drugs across the border. “The fence works pretty effectively in San Diego, it works pretty effectively in El Paso, we are going to need the fence,” McGauley says.

The US Border Patrol agrees. They say the number of people caught while trying to cross the border has dropped from an average of 600,000 during the 1990’s to 153,000 in 2007.

But even a staunch anti-immigration advocate such as McGauley takes issue with the government’s plan for the fence in South Texas and the way private landowners are being treated. He says the decision to build the fence on the north side of the Rio Grande River levee creates a potentially dangerous situation for Border Patrol agents and needlessly infringes on the property rights of landowners such as Dr. Tamez.

McGauley says if he were a landowner presented with the governments plan he would resist as well. “I would come up with two plans. One to fight them completely, and two to come to a middle ground,” he says.

Tamez agrees. “If we were being asked to give up our land for something sensible, perhaps we would be inclined to be more cooperative,” she says.

Fighting the government’s immigration policy is not her mission, however, nor is she just fighting for herself and her own land. She says she is also fighting for her neighbors, most who are also indigenous to the area and whose families have owned their property for centuries. Many are too poor, or too fearful, to take on the federal government.

“When I think about how my father and my grandfather worked that land to carve out a living for us, it not is easy to give up even a small portion of what is left,” she said. “Some people are being completely relocated from the area, taken away from their land completely, and they cry themselves to sleep. They come to me and say we want you to fight. We can’t do it, but you can do it for us.”

As the government promised in their first phone call to her, they sued Tamez to gain access to her land, along with 50 other property owners in Texas. Tamez subsequently countersued.

US District Judge Andrew Hanen ordered the government to first try to negotiate the price of temporary access with the landowners, and on March 7, 2008, in a 32-page ruling, he gave them two weeks to prove they had made a legitimate effort to negotiate with Tamez. “Dr. Tamez correctly asserts that negotiations are a prerequisite to the exercise of power of eminent domain,” Hanen wrote.

Less than a week later, the federal government offered Tamez $100 for six month’s access to her property so they could survey the land. Once again, she refused.

In mid-April, Judge Hanen ruled that this failed negotiation was a sufficient effort by the government and he denied Tamez’s motion to dismiss the condemnation lawsuit. “This is certainly a case where the parties are unable to agree on a reasonable price,” he wrote. Tamez was ordered to give the government access to her land.

During the subsequent survey, the government determined they would give Tamez $13,500 for the land needed to build the fence, but they have so far refused to disclose the formula employed to determine that figure. Tamez says she doesn’t know if they took into account the land which will be on the other side of the fence once it is built, which she says will largely be worthless, and which combined with the area the fence will be on, accounts for three-fourths of her current three acres.

Still, she feels luckier than some of her neighbors. “One of them said that the government offered him $5,900 for his home, a brick home, a home that is all paid for,” she said.

Recent home sales reports of the area show single family homes on less than an acre selling for more than $40,000. Homes currently on the market nearby are listed for sale between $45,000 and $80,000.

Tamez’s fight isn’t over. In February, she filed a lawsuit, and others have joined it, against Secretary of Homeland Security Michael Chertoff, which claims, among other things, the Department of Homeland Security acted unlawfully by misinforming property owners of their rights and failing to offer equal protection for those involved.

The judge has yet to certify that case. Tamez, the other residents in South Texas, and the government await the next round of legal wrangling.

The delay caused by litigation, however, is welcome by some. “Whichever administration comes into power in January will probably stop or slow down the wall, so the Bush administration is moving as fast as it can it get it done,” civil rights attorney James Harrington says. “There hasn’t really been any effective legal hook to stop the government, and the best that has happened so far is that it has been slowed down.”

Still, government officials say their original goal is within reach. “It was something that was anticipated,” Supervisory Border Patrol Agent Jason Ciliberti says of the lawsuits. “Our goal is to have 370 miles of total fencing on the border by end of calendar year 2008.”

Tamez, who served 17 years in the army and worked as a nurse in Department of Veterans Affairs hospitals for 27 years, considers herself a strong patriot. “I may come across as being against the government, but I am not. What I am for is the respect and compliance with the constitution,” she says. “If government officials refuse to follow constitutional law, then I, as an American citizen, want to call it to their attention. It is an American given right to speak up when that happens, because that is the essence of a democracy.”

A year of fighting has not weakened her resolve to exercise those rights, or to fight for her land. “I would go out there with my mother when she would prepare lunch for my father and we would walk out there to make sure he had something to eat. The land is mine in my heart,” Tamez says. “I am not going to allow myself to erase that heritage, it is all I have to hang on to.”