BORDERLANDS

In late November, two men knocked on the door of Dr. Eloisa Tamez’s office at the University of Texas at Brownsville and Texas Southmost College, and asked for permission to survey her property in El Calaboz, a rural community that shadows the Rio Grande 10 miles west of Brownsville.

The men, from the U.S. Army Corps of Engineers and U.S. Customs and Border Protection, had previously informed Tamez, 72, that her land was on the path of the proposed border wall. Now they wanted consent to enter, survey and store equipment on her property for 12 months.

All they needed, they told her, was a signature. She refused to sign.

“I will protect this land just like my ancestors did,” she said.

The proposed site of the border wall would leave the majority of her land on the south side of the barrier.

Since 1784, Tamez’s family has occupied the same tract of land in El Calaboz, which has changed only marginally since its establishment as fertile ranchland. During those nearly 230 years, unexpected visits from land surveyors have become something of a historical inevitability.

The stretch of land in El Calaboz — which was established by the San Pedro de Carricitos Land Grant from the King of Spain — was surveyed and adjudicated by Spain in the 1780s, by Mexico in the 1820s, and by the United States in the 1850s.

Each generation of El Calaboz’s landowners showed visiting politicians their deeds to the property, pointed out the thriving crops and the ease with which they used the river to irrigate their land.

The land survived each inspection, and was maintained under the discretion of three countries in a 70-year period.

But Tamez now worries that the land will be irreparably divided by the border wall. After she told a U.S. Customs and Border Protection representative that she wouldn’t consent to the conditions of the land surveyors, he replied simply.

“Have you heard of eminent domain?” he asked, referring to the process by which government agencies can buy land from owners who don’t want to sell.

Tamez nodded. She thought about the generations of her ancestors who had farmed the land.

“My heart won’t allow me to accept it,” she said.

On Friday, Secretary of Homeland Security Michael Chertoff announced that landowners along the U.S.-Mexico border have 30 days to consent to the demands of federal surveyors or they will be taken to court.

According to Mike Friel, a spokesperson for U.S. Customs and Border Protection, more landowners in South Texas will be affected by the wall’s construction than anywhere else along the border.

Tamez, the director of UTB-TSC’s nursing department, still walks the length of the levee after work. She watches as the sun disappears behind the brush that marks Mexico’s northern tip, stepping aside to allow room for passing border patrol trucks.

To the south of the levee is the snaking Rio Grande — no more than a narrow vein as it hugs the periphery of El Calaboz.

To the north is the Esparza cemetery, where generations of her ancestors — including Pedro Villarreal, the original recipient of the San Pedro de Carricitos land grant — are interred, their gravesites nearly blanketed with flower petals.

Tamez walks the white sandstone path between these two sites. She has not given up hope, yet.

History is the reason for Tamez’s attachment to the land. And that same history might hand her a viable legal argument to prevent the border wall’s intrusion.

Ties to the Land

In 1784, a Spanish Viceroy gave 12,700 acres of land along the Rio Grande, including El Calaboz, to Pedro Villarreal to establish a ranching operation and maintain Spanish influence along the river.

“The settlers were initially instructed to occupy the land to prevent foreign interlopers — namely a strong British army,” said Armando Alonzo, a professor of history at Texas A & M University and author of “Tejano Legacy: Rancheros and Settlers in South Texas, 1734-1900.” “And if they didn’t show improvements on the land, it would revert back to the King of Spain,”

Although the ranchland of El Calaboz was established by Spanish settlers in the late 18th century, the grant was not made official until 1833. Because Mexico had declared its independence in 1821, swallowing the ranchland established by the Spanish, Villarreal’s descendents required approval from the state of Tamaulipas as well as Mexico’s central government, both of which it received.

The San Pedro de Carricitos grantees worked their land peacefully for more than a decade after receiving Mexican recognition. But in 1846, the Treaty of Guadalupe Hidalgo, which marked the end of the Mexican American War, transferred the territories north of the Rio Grande and south of the Nueces River from Mexico to the United States.

There were no guarantees that Spanish and Mexican land grants would be recognized by the United States. In 1852, when American legislators toured the Rio Grande Valley, many of the descendents of land grantees lost their property.

“Even though they had clear ties to the land, they still had to prove it with surveys and adjudication” said Professor Alonzo. Many descendents did not have sufficient records to substantiate their claims.

In El Calaboz, Pedro Esparza — a descendent of Pedro Villarreal — let officials survey his land and presented the necessary paperwork. In February 1852, he received a letter from the Bourland and Miller Commission stating that the San Pedro de Carricitos grant would be recognized.

For Esparza, this meant not only that he could keep his family’s property, but that the San Pedro de Carricitos land would be protected by Article XIII of the Treaty of Guadalupe Hidalgo. The article states, “Territories previously belonging to Mexico, and which remain for the future within the limits of the United States, as defined by the present treaty…shall be inviolably respected.”

This inviolable respect, the treaty made clear, would extend to recognized land grants on the northern bank of the Rio Grande.

In subsequent decades, thanks to the region’s natural grassland and access to the river for irrigation, ranching and farming became profitable livelihoods for the settlers’ descendents.

“The Tejanos’ historical attachment to the land is not a myth. They worked this land. They lived on this land,” said Professor Alonzo. “It makes sense, then, that the wall would make them angry.”

The result of more than two centuries along the border, he said, is a “psycho-historical attachment to the land,” grounded in both history and emotion.

“What does it mean to build this wall?” asks Professor Alonzo. “It means Americans don’t understand their own history.”

Old Treaty, New Implications

But now, residents of El Calaboz might be able to use their connection to the land and recognition under the Treaty of Guadalupe Hidalgo as leverage in court.

“Theoretically, they could use the claim of ‘vested rights’ to argue that the Treaty of Guadalupe Hidalgo still applies to the land,” said Galen Greaser, translator of the Spanish Collection at the Texas General Land Office. “This would remind legislators that there might have been a different set of legal circumstances at the time, and that those circumstances need to be acknowledged.”

Litigators referred to the treaty in a 2000 trial that secured an estimated $50 million in royalties for the mineral rights to South Padre Island for more than 300 descendants of Juan José Ballí, nephew of Padre Nicolas Ballí, after whom the island was named.

“The provisions of the Treaty of Guadalupe Hidalgo protected their property rights after the Mexican American War, and they still protect them today,” said James Anaya, professor of human rights law and policy at the University of Arizona Rogers College of Law.

Anaya claims that while the treaty provides a viable legal argument within domestic law, the members of El Calaboz might find support internationally as well.

“There is a strong policy to make accommodations when people’s cultures and property interests are being affected,” Anaya said. “Because the land grant has never been revoked, the United Nations’ conception of basic property rights could be embraced here.”

But both Greaser and Anaya acknowledge that the American judicial system has not always looked favorably on historical claims to disputed land. Many attorneys object to the use of grants in land disputes.

“A disruptive influence would result from trying to apply the history of these titles,” said Jorge Rangel, a Corpus Christi lawyer who has litigated in cases involving the descendents of land grantees.

Plans proceeds, concerns grow

In September, U.S. Customs and Border Protection released the first map of the proposed border wall, which will trace the levee along the Rio Grande. But the map, they say, might not reflect the trajectory that the wall eventually takes.

“The current map reflects an operational assessment by the Border Patrol,” said Mike Friel. “We are working toward a dialogue with landowners as we make final decisions.”

Friel says that the wall’s planners are currently balancing a need for dialogue with a “sense of urgency.”

“Our commitment is to have 370 miles of the barrier built by the end of 2008,” he said.

So far, 150 miles of the barrier have been constructed along the border.

In August, residents of El Calaboz were first contacted by authorities who informed them that their properties would be affected by the wall.

Since then, they’ve met at local churches and in the homes of community members, and they have hedged their complaints in terms of both sentimental and financial concerns.

“They told us they will pay fair market value for the land where the wall will be built,” said Idalia Benavidez, a descendent of Spanish land grantees who still lives on a part of the original San Pedro de Carricitos tract.

But if the wall is built to the north of the levee — as officials have told landowners it will be — fair market value will not satisfy Benavidez, 76, and her husband, Jose, 80.

“We have four cows that we keep on the south side of the levee,” she said, “and Jose tends to them a few times every day. He takes pride in taking care of the cows.”

Jose, who is almost completely deaf, walks slowly over the levee with cattle feed and buckets. Idalia tells him to stop making the trip to the cows.

“What do you want me to do?” he responds. “Sit down and watch TV for the rest of my life?”

If the wall is constructed along the proposed route, it will run between Benavidez’s house and the family’s pasture. To feed his cows, Jose will have to drive to a checkpoint three miles away from his home and then cut back another three miles along the levee to reach his land.

“It’s more than pride,” said Idalia Benavidez. “Raising and selling those cows is how we pay our taxes.”

A symbolic refusal

Anger and attachment have taken different forms in El Calaboz. Although Eloisa Tamez refused to consent to surveyors from the U.S. Army Corps of Engineers, many of her neighbors signed the forms, despite their opposition to the wall.

“It doesn’t mean they’re going to build the wall,” said Idalia Benavidez, who consented to the land survey.

But for Tamez, a refusal to the sign the agreement is a symbolic action. She explained this to Benavidez when they met at church.

“It means we’re not going to allow this,” she said, “from the very beginning.”

But according to Sen. John Cornyn, the 10 percent of landowners who have refused to sign forms of consent might not be able to keep federal surveyors off their land for much longer.

For those who do not willingly allow temporary access, he said, DHS will likely seek a court order to enter the property.

Before finishing her walk along the levee’s narrow path, Eloisa Tamez stops to point out the now-overgrown patch of land on which her father used to farm.

“I used to run through the backyard when I saw him,” she said, pointing to the stretch of land with her finger. In El Calaboz, Tamez’s reminiscence touches only the most recent layer of more than two centuries of history, linking now-dispersed families and dated political grants and treaties.

But before she finishes tracing her family’s land from the levee’s edge, Tamez pauses. Her arm runs parallel to the levee, pointing out the path along which the border wall will be built.

“All this history,” she says. “It doesn’t seem right.”