Renaissance of the Land Grant Movement by Richard J.

Griego, February 10, 2006

Captains of Industry are at best second lieutenants in New Mexico; the lands the thing!
Charles E. Minton in New Mexico: A Guide to the Colorful State by Joseph Miller

Ceremony Commemorates the Signing of the Treaty of Guadalupe Hidalgo Three hundred people crowded together in the Capitol Rotunda on February 2 in Santa Fe to commemorate the signing of the Treaty of Guadalupe Hidalgo on that date in 1848. The gathering was indicative of a newly revived land grant movement in New Mexico that bases its claims on the Treaty, which concluded the war between the United States and Mexico. It was a war that proved to be unpopular with many Americans, including Henry David Thoreau who wrote Civil Disobedience, a famous essay in opposition to the War. Nevertheless, expansionist President James Polk used a contrived military incident on disputed territory and the ideology of Manifest Destiny to wage war on a disorganized and vulnerable Mexico and to dispossess that nation of half of its national territory, including New Mexico.

Relevant

Provisions

of

the

Treaty

Land grant advocates are pressing for redress of grievances dealing with the loss of millions of acres of land that, it is claimed were unjustly taken. The Treaty of Guadalupe Hidalgo contained three articles that are relevant to these claims. Article 8 states: property of every kind now belonging to Mexicans shall be inviolably respected. Article 9 protects Mexicans in the free enjoyment of their liberty and property.
Crowd in Roundhouse at Treaty Commemoration

Finally, Article 10 states: All grants of land made by the Mexican government or by the competent authorities, in territories previously appertaining to Mexico, and remaining for the future within the limits of the United States, shall be respected as valid, to the same extent that the same grants would be valid, if the said territories had remained within the limits of Mexico. Article 10 was deleted from the final treaty, however, the subsequent Protocol of Quertaro, which contributed additional commentary on the Treaty, reinstated land grant rights: These grants, notwithstanding the suppression of Article 10 of the Treaty, preserve the legal value which they may possess. In practice the Protocol was ignored and this cleared the way for the expropriation of New Mexican land grants. In order to understand the loss of lands by nuevomexicanos it is useful to review the patterns of settlement under the Spanish colonial and Mexican governments. Spanish/Mexican Land Settlements American settlement of lands was almost exclusively on a fee simple basis, which is private ownership of real estate whereby the owner has the right to control, use and transfer the property at will. For New Mexico and the rest of the Southwest, the governments of Spain and Mexico distributed land through land grants, which often entailed communal ownership of land. In New Mexico the process began in 1692 under Diego de Vargas, the re-colonizer of New Mexico after the 1680 Pueblo Revolt. De Vargas declared all land grants that had been given before him to be null

and void since he was of the opinion that his re-conquest began a new era. The new land grants given by de Vargas were governed by the legal codes of La Recopilacin de las Leyes de los Reinos de las Indias (1681). Explicit principles stipulated that Native American rights were to be respected and they were to be treated humanely, although there were many violations of these codes. There were three kinds of land grants (mercedes):

1) Pueblo Grants: these were lands granted to the Pueblo Indian communities to protect communal lands that the Pueblos had used and held for centuries before the arrival of the Spanish. 2) Individual or Private Grants: lands were given to individuals or small groups of individuals as a reward for their service; the lands were for the private use of the grantees and their families and the lands could be sold. 3) Community Grants: these were grants of land made to communities of people (from 10 to 100 individuals). The largest portion of the land, the ejido, was held communally by the people. The ejido was used in common by grantees for grazing, cutting timber, gathering firewood, hunting, fishing and watering. The ejido could not be sold nor divided. Aside from this, plots within the land grant were given to individuals: a plot (solar de casa) for dwelling, a plot (suerte) for a garden and plots (caballeras) for growing crops like wheat or corn. These became individual property after a specified amount of time (4 years typically) during which the individual lived on the land and cultivated it. Diego de Vargas Sometimes, an individual grant would evolve into a quasi-community grant over time when the original grantee would allow settlers to move in and settlers would be given individual plots, plus right of usage of the ejido. The Atrisco land grant seems to be of this type. Atrisco originally was an individual grant given in 1692 by Governor de Vargas to Fernando Durn y Chaves for his service to the Crown (see page 9,-10, Don Fernando Durn y Chaves Land and Legacy, by J.P. Snchez, National Park Service, 1998). This is the oldest grant in New Mexico. Over the years other people gained an interest in the Atrisco grant via purchase, kinship, marriage and invitation to settle. Thus, the individual grant evolved into a community grant with the passage of time and events. Land grants were authorized by the Governor, who in turn would turn over to an alcalde (mayor) or other government official (e.g., a notary) the task of seeing to it that the proposed land grant was vacant, not claimed by anyone else and whether the land had enough resources to sustain the grantees. Once this was done, a formal ceremony for possessing the land was held. Community land grants are more common in Northern New Mexico (i.e., Rio Arriba, the area north of La Bajada, which is near Cochiti Pueblo) and Southern Colorado, while individual grants were largely restricted to the Rio Abajo (south of La Bajada). There were often disputes over land due to vaguely defined boundaries. Also, there were disagreements over genealogies and land titles. Sometimes land documents were lost and new

documents had to be notarized as a basis for future legal ownership. Nevertheless, the Spanish Colonial land tenure system was a viable one for nuevomexicanos and Pueblo Indians during its time. It should be noted that Pueblo Indian land claims have often been legitimized by Spanish colonial land grant documents. For example, Sandia Pueblo recently claimed that their lands extended to the summit of the Sandia Mountains, while the Federal Government said that Pueblo lands ended at the foothills of the Sandias. In 2001 the Pueblo won the right of usage for the claimed land and a say in development of the land. This victory was based largely on Spanish documents that supported Sandia Pueblos claims. Also, in December 2000 President Clinton signed a bill giving Santo Domingo Pueblo $23 million and 4,557 acres of land the tribe claimed under grants given in the Spanish period. The Mexican Period: 1821-1846 In 1821 Mxico gained its independence from Spain and New Mexico became a part of the nationstate of Mexico. The Treaty of Crdova recognized all Native Americans as citizens of Mexico. Genzaros especially welcomed this new policy. Genzaros were full-blooded and detribalized Indians who became Hispanicized by learning Spanish and becoming Catholics (and often intermarrying with Hispanos). Often genzaros were treated as second class citizens, but with the Mexican policy they became full-fledged citizens along with their Hispano neighbors. During this period then the term genzaro was officially dropped. The Mexican government encouraged colonization of its northern frontier by anyone who would swear allegiance to the Mexican government, become a Roman Catholic and bring in new settlers. This policy applied to foreigners also, causing consternation among many nuevomexicanos, although the foreigners were usually married to a Mexican woman or were in partnership with a Mexican. Governor Manuel Armijo granted 16,500,000 acres by himself. Among these was a grant given to Guadalupe Miranda and Charles Beaubien, a French Canadian married to Mara Paula Lobato. This grant was east of the Sangre de Cristo mountains along the Canadian and Cimarron rivers. Gervasio Nolan, another French Canadian, along with two Mexican partners received from Armijo lands neighboring the Beaubien-Miranda grant. Then Narciso Beaubien, Charles son, and Stephen Louis Lee, who was married to the sister of Charles Beaubiens wife, received the Sangre de Cristo land grant in the San Luis Valley. Armijos policy of granting land to foreigners was opposed by Antonio Jos Martnez, the famous priest from Taos. It turned out the Armijo himself had a onefourth interest in the Beaubien-Miranda grant and Charles Bent, an Anglo American from Taos, was also a partner in this grant. These governmental land policies did attract people. New Mexicos population shot up from 42,000 people in 1821 to 65,000 in 1848. Those land grants that had been conveyed during the Spanish colonial period were not affected by the Mexican colonization efforts and their administration carried on as before. The American Conquest, 1848 A new flag, a new government, new laws, and a new language came to the people of New Mexico with the American conquest of half of Mexicos national territory. The war between Mexico and the United States was concluded by the Treaty of Guadalupe Hidalgo of 1848. The U.S. made citizens of Mexicans who chose to stay in the newly conquered territory. Some 1600 New Mexicans did decide to leave and went to the El Paso area and to the Mesilla Valley in what was then Northern Chihuahua much of the area was later included in the Gadsden Purchase. Guarantees provided by the Treaty to the newly acquired Mexican citizens often were not enforced. In particular, land grant rights were violated and huge losses of land were suffered by nuevomexicanos through a variety of means, including taxes, fraud, corruption, and other extralegal means as we shall see. The Office of the Surveyor General, 1854 There were no explicit means for executing the provisions of the Treaty of Guadalupe Hidalgo, so Congress enacted legislation ostensibly to carry out its intent. In this regard, in 1854 the Office of the Surveyor General was established in New Mexico and William Pelham was selected to ascertain

the origin, nature, character and extent of all claims. Shortly thereafter a group of lawyers, judges, politicians, businessmen and members of the press formed a network called the Santa Fe Ring which was dedicated to land manipulations and the transfer of lands, especially land grants, into the hands of Ring members. Land grant heirs were required to pay for surveys necessary to adjudicate land titles, thereby placing a substantial burden on heirs, many of whom were subsistence farmers or herders with few funds. Heirs were forced to sell lands in order to pay for surveys and for lawyers to present their claims in court. Common lands were not supposed to be sold and alienated from the rest of a land grant. In 1877 the Partition Statute was passed by the Territorial Legislature. According to this law, a court was able to require a communally owned land grant to be divided among it owners or sold in order to pay for attorneys and other legal fees, when requested by only one of the owners. Since lawyers often worked on contingency in represented land grant heirs, they usually were paid in land amounting to one-fourth to one-third of the ejido. Once a lawyer was part owner of the land grant, the lawyer could then apply under the Partition Statute to be able to sell his portion of the land. Three Surveyors General (T. Rush Spencer, 1869-1874), James K. Proudfit (1872-1876) and Henry M. Atkinson (1876-1884) were themselves involved in land speculations, which constituted a conflict of interest. They furthered the interests of land speculators at the expense of settlers. Lawyer and Santa Fe Ring member Thomas B. Catron was the king of the land grant robber barons; he owned at one time 2 million acres of land obtained from land grants; at the time he was on of the largest land owners in the U.S.

According to historian Victor Westphal (The Public Domain in New Mexico, 18541891, UNM Press, 1965; p. 51) under the auspices of the Surveyor General only 22 of 212 claims were patented and 8 were rejected outright. This left nearly 35 million acres of land with consequent unsettled titles. In 1885 Gov. Edmund G. Ross of NM declared: Many years ago a few sharp shrewd Americans came here and discovered a number of Mexican and Spanish grants purchased them at nominal prices learned the Spanish language ingratiated themselves into favor with the Mexican people, and proceed to enlarge the grants they had purchased, and to manufacture at will, titles to still others, and to secure therefore Congressional recognition. T. B. Catron, Land Grant Robber Baron The Court of Private Land Claims, 1891-1904 Due to continued fraud and theft, the U.S. government established the Court of Private Land Claims in 1891 to adjudicate land grant titles and the Court operated until 1904. Under the Court things only got worse. The burden of proof for a claim to their historical land grants was upon the land grant heirs. The Court required proof of existence of a bona fide grant document, that the granting official had authority to award the grant, that all necessary steps and procedures for validation of the grant had been fulfilled. Furthermore, in the court case U.S. vs. Sandoval in 1897 the U.S. government claimed that common lands had belonged to Spain and Mexico (which was not true, because they were owned by the grantees) and that therefore they now belonged to the U.S. As a result, large acreages were incorporated into national forests. Today, the federal government and state government own more than half of New Mexicos land, with the Forest Service controlling one-

third of the land. Usually scholars maintain that only 6% of land grant claims were approved by the Court of Private Land Claims by the time it ceased in 1904 (2 million acres out of 35 million claimed). However, a GAO Report (see below) of 2004 on land grants states that the true figure is 24% by ignoring 15 million acres of lands in Colorado and Arizona (the GEO report focuses only on New Mexico). According to studies I have seen, it is claimed that nuevomexicanos lost 2 million acres of private lands and 1.7 million acres of communal lands. In any case, a lot of land was lost via a variety of means, including taxation, which some scholars say was also against the provisions of the Treaty of Guadalupe Hidalgo, because under Spanish/Mexican policies land grants were taxed very little or not at all. GAO Report, June 2004 A Whitewash In June 2004 the General Accounting Office issued a report The Treaty of Guadalupe Hidalgo Findings and Possible Options Regarding Long Standing Community Land Grant Claims in New Mexico. The GAO essentially affirmed the authority and work of both the Surveyor General and the Court of Private Land Claims and said that everything was legally done and that the Treaty of Guadalupe Hidalgo had been superseded by the statutes underlying the Surveyor General and the Court of Private Land Claims. The GAO states that any conflict between these statutes and the Treaty provisions must be resolved in favor of the statutes. One can easily conclude that the Treaty itself, rather than the Surveyor General and Court of Private Land Claims statutes, defines the obligation to which the federal government must conform, especially in view of the fraud and other irregularities that led to massive land loss on the part of nuevomexicanos. Both the Surveyor General and Court of Private Land Claims acts failed to mandate the necessity to give adequate notice of proceedings. Many land grant claimants were completely excluded from the adjudication process. The legal burden was placed on the claimants; they were forced to prove legitimacy of their claims. But, they had little money and spoke only Spanish and were not informed about the U.S. legal system. Historian Malcolm Ebright says the government had the resources to research the finely spun technicalities of Anglo jurisprudence to defeat legitimate claims. The U.S. vs. Sandoval decision by which the U.S. said that common lands belonged to Spanish and Mexican governments and therefore they now belong to the U.S. government is wrong. These lands were severed from the public domain under Spanish and Mexican law, custom and usage. Many errors were made in surveys, usually resulting in reduced acreage for land grant claimants. The GAO report asserts that the government bore no responsibility for protecting community land grants once they were adjudicated. As a result, many grants were unjustly lost in part or in entirety due to taxation and partitioning. The government should have insisted that community grants were to be treated as municipal property by state and county government so that they would not have been subject to taxation or partitioning. Finally, the adjudication process was tainted by an aggressive colonialist U.S. policy, fueled by assumptions of Anglo Saxon superiority and justifications embedded in notions of Manifest Destiny. U.S. law and societal attitudes are against communal ownership of land; in America the idea of private land ownership is supreme and all government actions after the acquisition of New Mexico were predicated on the desire to transfer all lands (except Indian lands) to the private sphere. The Hispanic citizens that the United States acquired as the result of war have not been fairly treated with respect to their historical land holdings. GAOs Possible Remedies The GAO report concludes its report by stating, we were asked to outline possible options that Congress may wish to consider in response to remaining concerns (on the part of land grant heirs). The possible options we have identified are based in part on our conclusion that there does not appear to be a specific legal basis for relief, because the Treaty was implemented in compliance with all applicable U.S. legal requirements. Nonetheless, Congress may determine that there is a compelling policy or other reasons for taking additional action. Thus, the GAO offers five possible remedies to land grant grievances in New Mexico.

1.

Do nothing everything was done on the up and up. 2. Acknowledge the process was unfair that is, say, were sorry but thats all. 3. Establish a commission to reexamine rejected claims or reduced claims. 4. Give federal land to claimants who received reduced judgments. 5. Make payments to claimants whose claims were rejected. The GAO states that its discussions with heirs indicate that most would prefer to have a combination of the final two options transfer of land and financial payment. Thats glaringly obvious to this observer. Renaissance of the Land Grant Movement Nuevomexicanos have never taken the loss of their lands lying down. There have been a variety of resistance movements to protest land loss. For example, from 1889 to 1891 Las Gorras Blancas (The White Caps) so named for the white hoods they wore on their raids were active in the Las Vegas area in protesting land loss and the subsequent fencing of these lands by (predominantly Anglo, but not exclusively) ranchers and farmers. Las Gorras Blancas was a secret group of Hispanos that engaged in resistance by burning barns and destroying fences that impeded access to traditional lands for grazing and wood gathering on the part of mercedarios (land grant heirs). The resistance group had a political arm, El Partido del Pueblo Unido, and was supported by a national labor organization, The Knights of Labor, and a newspaper, La Voz del Pueblo. More recently, Reies Lpez Tijerina, a tejano who was a sometime Pentecostal preacher, led La Alianza Federal de Mercedes beginning in the early 1960s in New Mexico. I myself first met Tijerina in 1963 and I joined his organization at the urging of my grandmother, although I was never very active in it. Tijerina made land claims on behalf of nuevomexicanos and based these claims on his contention that the U.S. government had violated the Treaty of Guadalupe Hidalgo. His strategy was to confront the Federal Government and force it to respond to his claims. In June 1967 the Alianza called a meeting in Coyote, a village in what Tijerina had proclaimed as the Republic of San Joaqun del Ro Chama in the Carson National Forest. Alfonso Snchez, the district attorney of Ro Arriba County tried to stop the gathering and issued arrest warrants for Tijerina and other leaders of the Alianza.

The Herrera Brothers of Las Gorras Blancas

On June 5 Tijerina and other Aliancistas raided the Tierra Amarilla courthouse in an attempt to make a citizens arrest of Snchez, who was not present there. A confrontation led to the wounding of Nick Saiz, a state police officer. Tijerina and others fled into the mountains, but they were eventually caught after an incredible dragnet which saw the National Guard and various police forces combing through villages accompanied by helicopters and army tanks. Tijerina was found innocent of charges arising from this incident, but was jailed for two years on other charges. The Alianza movement was never the same. However, Tijerina lit a fire in the hearts and minds of nuevomexicanos and others have continued the struggle in new ways, this time utilizing the legislative process. The New Mexico Land Grant Forum, headed by former Lieutenant Governor Roberto Mondragn, the Mexicano Land Education and Conservation Trust, the New Mexico Acequia Association and the Mexicano Organizing Project are examples of organizations that are carrying on the fight. These groups organized the Treaty of Guadalupe Hidalgo commemoration ceremony on February 2 in the Capitol Rotunda. An impressive array of politicos showed up to address the gathering: Governor Bill Richardson,

Attorney General Patsy Madrid, Speaker of the House Ben Lujan, Republican Senator Joe Carraro, and Democratic Representatives Miguel Garca and Debbie Rodella. Garca is Chair of the Legislatures Interim Land Grant Committee and he has said that legislators from both political parties have come to see the land grant issue as legitimate. Republicans favorably view land grant issues in the light of basic property rights, while Democrats tend to respond to their traditional base of Hispanic voters. New Mexico is indeed fortunate at this juncture to have a confluence of events and powers in putting the land grant issue back on the table for legitimate discussion and not being only the purview of a few radicals who are beating a dead horse. A variety of legislative initiatives have already been launched or are being proposed that deal with land grants in some way. For example, NM Senate Bill 142 that was passed in 2004 officially recognizes eligible land grant communities as political subdivisions, a quasi-municipal status. Up to this point, 19 land grants have this status. This means that they have access to public federal, state and local funds for economic and other development. This takes the pressure off land grant communities so that they wont have to see portions of their land (usually their only asset) in order to generate economic activity. Land grants now can have right of first refusal for purchasing former land grant lands when they come up on the auction block for back taxes. They can also do their own zoning and land use planning, but the land grant communities have to abide by open meetings laws, hold open elections and abide by the Freedom of Information Act. Land grants are now under the jurisdiction of the Inspection of Public Documents Act. This legislative session there are bills being proposed 1) for capital outlay to fund economic development projects, water and waste-water projects and community facilities, 2) establishment of a division to study Treaty of Guadalupe Hidalgo issues, 3) to allow land grants that are established as for-profit corporations (read the Atrisco Land Grant) to be allowed to reorganize as political subdivisions as the 19 other previously mentioned land grants, and 4) aid to land grants for comprehensive planning. Thus, there is a lot of new ferment around the land grant issues. Finally, there is pressure being brought to bear upon Congress to act to establish a trust fund (the New Mexico Land Grant Forum and the Mexicano Land Education and Conservation Trust are asking for $2.7 billion) to compensate land grant heirs. There are also proposals to return federal lands that were unfairly taken (recall the U.S. vs. Sandoval case). At the commemoration in the Rotunda, Governor Richardson said that land grant heirs deserve an answer as to why their lands were taken. I have a simple answer to that: Because the Americans (and their small number of Hispanic allies) could by bending the law to do their bidding and they did. Con safos.

Governor Richardson at Treaty Ceremony

Chair of Interim Land Grant Committee Representative Miguel Garca at Ceremony