By Joyce Hanson
Law360 (February 20, 2025, 6:14 PM EST) — A Texas federal judge has ordered the U.S. government to say whether it still wants to intervene in a land dispute between the Ysleta Del Sur Pueblo tribe and the city of El Paso now that Donald Trump is president.
U.S. District Judge David C. Guaderrama’s Tuesday order directed the federal government to submit a letter brief addressing its earlier motion for leave to intervene in the Ysleta Del Sur Pueblo’s lawsuit against El Paso, which accuses the city of trespassing on the tribe’s aboriginal lands and seeks a court declaration that the tribe owns approximately 155 acres of land parcels in El Paso.
Judge Guaderrama noted that since the federal government lodged its August 2023 bid to intervene in the suit, Trump was inaugurated as the 47th president of the United States, and Pamela Bondi was sworn in as U.S. attorney general.
Further, the judge said, the U.S. Department of Justice has ordered its Environment and Natural Resources Division, which filed the government’s motion for leave to intervene, to pause some of its ongoing litigation.
“Given the possible influence of these changes on this litigation, this court directs the United States to submit a letter brief setting forth whether the United States still wishes to intervene,” Judge Guaderrama stated. “The United States’ letter brief is due no later than March 14.”
The judge also noted that he had not yet ruled on the motion to intervene because of his “unusually heavy” criminal and civil caseload.
The motion to intervene, which was filed under former President Joe Biden’s administration and is opposed by El Paso, says the federal government favored the Ysleta del Sur Pueblo in the suit to assert ownership over the 155.6 acres of land in El Paso.
According to the federal government at the time, it is obligated to protect the tribe’s right to occupy the lands. The U.S. says the Pueblo’s suit implicates the federal government’s role as a trustee to the tribe and as an enforcer of the federal Indian Non-Intercourse Act, one of the causes of action under which the tribe is suing El Paso.
The tribe’s August 2023 amended complaint accuses the Texas city of violating the act and other federal laws by occupying the contested property — now largely used as the Blackie Chesher public park — even though Congress never extinguished the tribe’s title to it.
Indeed, the federal government says in its proposed intervenor complaint, it never authorized or consented to non-Native Americans usurping the Ysleta del Sur Pueblo’s aboriginal property.
“The city is in possession of the subject lands,” the U.S. says. “The right of occupancy and possession of Ysleta del Sur to the subject lands has not been extinguished in accord with the laws of the United States.”
On March 19, 2024, El Paso filed an opposition brief against the bid to intervene, saying the federal government is trying to force Ysleta Independent School District to exchange land with the tribe for a promise that it won’t file aboriginal rights’ claims in the area.
According to the brief, on March 18, 2024, counsel for the city discovered that the Ysleta del Sur Pueblo demanded that the school district cease and desist from selling any real property to which the tribe has claimed aboriginal title.
The tribe, the brief says, demanded a meeting with the city’s third-largest school district and invited attorneys with the Justice Department and the U.S. Department of the Interior to attend.
The city says it has requested a copy of the cease and desist letter.
In addition, the city claims, the tribe demanded that the school district, which has about 60 campuses, give it certain tracts of land, and in exchange, the Ysleta del Sur Pueblo would not make claims to other real estate the district owns in trust for its constituents and voters.
“In other words, for the price transfer of some lands in which the people of Ysleta have an interest, the school district can buy protection against baseless but expensive litigation and an unwarranted clouding of title,” the city argues in its brief.
The Ysleta del Sur Pueblo in April 2023 renewed its complaint against El Paso, asserting a host of federal law violations, including federal common law trespass, the Indian Non-Intercourse Act and a federal statute allowing civil actions for “deprivation of rights.”
The tribe claims it has for centuries used the disputed property for economic, religious and traditional cultural purposes, but since 1936, El Paso has taken unlawful possession of the land “pursuant to an unlawful title arising from the fraudulent attempts by non-Indians to privatize YDSP’s communal and inalienable aboriginal Indian and Spanish land grant titles.”
Representatives for the tribe, the city and the federal government did not immediately respond Wednesday to requests for comment.
The tribe is represented by Kelli J. Keegan and Tierra Marks of Barnhouse Keegan Solimon & West LLP, and Thomas E. Luebben of the Law Offices of Thomas E. Luebben PC.
The federal government is represented by the U.S. Department of Justice’s Environment and Natural Resources Division.
The city of El Paso is represented by Mark C. Walker of Walker Dispute Solutions PLLC.
The case is Ysleta Del Sur Pueblo v. City of El Paso, case number 3:23-cv-00132, in the U.S. District Court for the Western District of Texas.