El Pasoans may be surprised to learn that there exists a clause on their home titles that limits their home ownership rights. It has nothing to do with bank mortgages or even taxes and everything to do with how America was conquered by outsiders.
It is generally accepted that landownership is conveyed from one party to another through a title. Most homeowners have a title to their homes which gives them authority over their land and their home. That title allows the owner to sell, hold, transfer or use the homestead as collateral for a loan. For most Americans, the home is their largest investment. Other than taxes, once the mortgage is paid off, the home is supposed to be owned by the individuals on the title.
Not so in El Paso.
The Tigua Indian Clause
If you own property in El Paso, Texas and you look closely at your title, you are likely to find the following clause in it:
“The claim is one for return of possession from third parties of all lands contained within the Ysleta, Senecu, Socorro and Ascarate Grants in El Paso County, Texas (based on aboriginal title and specific Spanish and Mexican Grants); as well as the balance of El Paso County and all of Hudspeth, Culberson, Jeff Davis, Brewster and Presidio Counties, Texas (based on aboriginal title); and for damages for trespass and unlawful occupation and use.”
It basically mans that the Tigua Indians (Ysleta del Sur Pueblo) have placed a land claim on your home.
After the Tiguas abandoned their ancestral land, Gran Quivera, because of their diminished populations due to slavery and disease, the Tiguas resettled near what is now El Paso, Texas. As far back as 1751, their land ownership was recognized by the Spanish crown. When the land came under Mexican control, the Tigua land was recognized by the Mexican government. In 1848, when Texas revolted away from México, the Tigua land was taken away by the newly established Texas government.
Texas gave the Tigua land to settlers.
Aboriginal Right of Occupancy
Aboriginal right of occupancy is a legal concept invented to deal with land title in the New World where the ownership of land was a new concept to the inhabitants of the land. Basically, the idea of land ownership was brought to the New World by the Conquistadores and the others who followed. The indigenous populations did not own land as the Europeans did.
The discovery doctrine created a new legal concept where aboriginal title was recognized. It meant that “occupancy” conveyed land to a landholder. The aboriginal title presumably let Native Americans own the land that they occupied but it limited their right to convey it to others. This doctrine of occupancy land ownership was new, previously unused in Anglo-American laws.
The discovery doctrine was used by the Catholic Church during the Crusades as part of its “natural law” to take control of the Holy Land. It is the Church’s natural law doctrine that gave Portugal, under the authority of the Pope, the exclusive right to colonize Africa. The same doctrine gave Spain the right to colonize North America.
The discovery doctrine has been characterized as a “racist, colonizing rule of law.” It was used by Europeans to justify their ethnic and religious superiority over cultures they occupied in the New World. 
The law, in essence, denied the indigenous populations just compensation for the land they occupied it also allowed the government to seize the land.
Discovery law became the law of the land when the Supreme Court ruled that American Indians did not own land. The Supreme Court ruled in Johnson v. McIntosh that because the federal government “controls” the land, the Native Americans have only the “right of occupancy” but hold no title to the land. This decision has become known as the Marshall Trilogy and includes to other cases in 1831 and 1832.
The Tiguas Are Litigating Today
Some readers may be tempted to believe that the land ownership of their land is settled, after all they have title to their land, notwithstanding the Tigua clause. Others may believe that the debate is old and moot.
However, the Tiguas have not given up their quest to recover the land they argue belongs to them.
They have filed several lawsuits. One such lawsuit was recently this year.
On May 22, 2017, the Tiguas filed a lawsuit demanding that the City of El Paso relinquish 111.73 acres of land.  The City responded on December 5, 2017 demanding a declaratory judgment affirming that the City of El Paso owns the land. The City also claimed sovereign immunity.
Among the arguments made by the Tigua Indians claiming ownership of the land are the Spanish grants, the Mexican government recognition of their land ownership and the Treaty of Guadalupe Hidalgo that ended the Mexican-American War.
The treaty, among other promises, recognized the land titles that the Mexican government had recognized.
District Judge David Guaderrama issued his final order on the case on January 15, 2020.
What readers should note about the judge’s dismissal order is that the lawsuit was dismissed solely on issues of jurisdiction. Federal courts are generally limited to ruling on issues of the Constitution. The Tiguas failed to convince the judge that the court had jurisdiction over the land dispute because it can be resolved at the state level and the treaty does not convey a federal right to land ownership.
More important is that the court refused to give the City of El Paso its declaratory judgement giving the City a clear title to the land. The court, by dismissing the lawsuit “without prejudice” gives the Tribe the opportunity to again challenge the City’s land ownership based on the Treaty of Guadalupe Hidalgo.
Are The Tiguas Going To Foreclose On Your Home?
The Tigua clause on most titles acknowledges that the Tigua Indians are asserting their rights to the land that the title gives the homeowner. The affidavit that led to the title clause was filed in 1993 in response to the State of Texas shutting down the Tribe’s gaming industry. The land clause is an attempt to pressure the State of Texas into allowing gaming to return at the Tigua reservation.
The Tiguas have been unable to sue Texas because Texas claims sovereign immunity. Unable to sue directly, the Tiguas have now been attempting to get the federal courts to act. One way to do so is to make it more difficult for homeowners to have a clear title to their homes.
The clause is leverage for the Tiguas to force Texas to allow gaming in the Tigua Casino.
Author’s note: This article is the start of an ongoing series that we will be delving deeper into in upcoming articles about colonialism – what it is, how it impacts border politics and why immigration is central to the topic.
- Robert A. Williams, Jr., “The American Indian In Western Legal Thought: The Discourses of Conquest,” 1990.
- Ysleta del Sur Pueblo v. City of El Paso, (EP-17-CV-00162-DCG), May 22, 2017.
Categories: border politics