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entitled 'Treaty of Guadalupe Hidalgo: Findings and Possible Options
Regarding Longstanding Community Land Grant Claims in New Mexico' which
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Report to Congressional Requesters:
United States General Accounting Office:
GAO:
June 2004:
Treaty of Guadalupe Hidalgo:
Findings and Possible Options Regarding Longstanding Community Land
Grant Claims in New Mexico:
GAO-04-59:
Contents:
Letter:
Executive Summary:
Purpose of This Report:
Historical Background:
Results in Brief and Principal Findings:
Congress Directed Implementation of the Treaty of Guadalupe Hidalgo's
Property Provisions in New Mexico through Two Successive Procedures:
Heirs Are Concerned That the United States Did Not Properly Protect
Land Grants during the Confirmation Process, but the Process Complied
with All U.S. Laws:
Heirs and others Are Concerned that the United States Did Not Protect
Community Land Grants After the Confirmation Process, but the United
States Was Not Obligated to Protect Non-Pueblo Indian Land Grants after
Confirmation:
Concluding Observations and Possible Congressional Options in Response
to Remaining Community Land Grant Concerns:
Chapter 1: Introduction--Historical Background and the Current
Controversy:
Overview:
New Mexico during the Spanish Period, 1598-1821:
New Mexico during the Mexican Period, 1821-1848:
The United States' Westward Expansion and Manifest Destiny:
Texas Independence and Statehood and the Resulting Boundary Disputes
between the United States and México:
The Mexican-American War:
The Treaty of Guadalupe Hidalgo (1848):
The Gadsden Purchase Treaty (1853):
Organization of the New U.S. Territory and Procedures to Resolve Land
Grant Claims:
Factors Contributing to Different Mexican and U.S. Systems of Land
Ownership:
The California Commission Legislation (1851 Act):
The New Mexico Surveyor General Legislation (1854 Act):
The Court of Private Land Claims Legislation (1891 Act):
Land Grant Issues in New Mexico Today:
Objectives, Scope, and Methodology of This Report:
GAO's First Report:
GAO's Second Report:
Summary:
Chapter 2: Congress Directed Implementation of the Treaty of Guadalupe
Hidalgo's Property Provisions in New Mexico through Two Successive
Procedures:
Overview:
The Surveyor General of New Mexico Investigated Claims from 1854 to
1891:
The Surveyor General Was Assigned Responsibility to Investigate Land
Claims in 1854:
The Investigation and Recommendation Process Followed by the Surveyor
General:
Early Criticism of the Land Grant Confirmation Process under the
Surveyor General:
Congressional Confirmations Ended after Controversy over the Size of
Large-Acreage Grants (the Tameling Case):
The Surveyor General's Investigation of Land Grant Claims Became More
Rigorous in 1885:
Repeated Attempts to Reform the Land Grant Confirmation Process Were
Finally Successful:
The Court of Private Land Claims Adjudicated Claims from 1891 to 1904:
The CPLC Legislation Established Specific Requirements for Land Grant
Adjudication:
The Scope of the CPLC's Equity Authority Was Unclear:
The Land Grant Confirmation Process As Implemented by the CPLC:
The Federal Government Awarded Small-Holding Claims within Rejected
Land Grants:
The Percentage of Acreage Awarded during the Two Confirmation Processes
Is Substantially Higher Than Commonly Reported:
Summary:
Chapter 3: Heirs and Others Are Concerned That the United States Did
Not Protect Community Land Grants during the Confirmation Process, but
the Process Complied with All U.S. Laws:
Overview:
Land Grant Heirs and Others Have Concerns about the Results of the
Confirmation Procedures for Community Land Grants:
Acreage and Patenting Issues Regarding the 105 Confirmed Community Land
Grants:
Issues Regarding the 49 Wholly Rejected Community Land Grants:
Studies Have Focused on Three Core Reasons for Rejected Acreage:
The Courts Restricted Seven Confirmed Grants to Their Individual
Allotments (the Sandoval Case):
The CPLC Rejected Grants Made by Unauthorized Officials (the Cambuston
and Vigil Cases):
The CPLC Rejected Grants That Relied on Copies Made by Unauthorized
Officials (the Hayes Case):
Land Grant Heirs and Others Have Additional Concerns about the Fairness
and Equity of the Confirmation Procedures Followed for Evaluating
Community Land Grant Claims:
Perceived Fairness and Due Process Issues with the Surveyor General
Procedures:
Perceived Equity Issues with the CPLC Process:
Any Conflict between the Confirmation Statutes and the Treaty Would
Have to Be Resolved under International Law or by Additional
Congressional Action:
Summary:
Chapter 4: Heirs and Others Are Concerned That the United States Did
Not Protect Community Land Grants after the Confirmation Process, but
the United States Was Not Obligated to Protect Non-Pueblo Indian Lands
Grants after Confirmation:
Overview:
Heirs Claim That the United States Had a Fiduciary Duty to Protect
Confirmed Land Grants:
Heirs Transferred Some Community Lands to Private Ownership:
Private Arrangements with Attorneys Resulted in Loss of Community
Lands:
Partitioning Suits Led to Breakup of Common Lands:
Property Taxes and Subsequent Foreclosures Led to Loss of Land
Ownership:
The Treaty of Guadalupe Hidalgo Provided No Special Protections for
Community Land Grants After Confirmation:
The U.S. Government Currently Has a Fiduciary Duty to Protect Pueblo
Indian Lands:
Summary:
Chapter 5: Concluding Observations and Possible Congressional Options
in Response to Remaining Community Land Grant Concerns:
Overview:
Potential Considerations in Determining Whether Any Additional Action
May Be Appropriate:
Possible Congressional Options for Response to Remaining Concerns:
Summary:
Appendix I: Confirmation of Land Grants under the Louisiana Purchase
and Florida Treaties:
The Louisiana Purchase Treaty:
The Florida Treaty:
Appendix II: Articles VIII, IX, and Deleted Article X of the Treaty of
Guadalupe Hidalgo:
Appendix III: Excerpts from the Protocol of Querétaro:
Appendix IV: Excerpts from the Treaty Regarding the Gadsden Purchase:
Appendix V: Excerpts from the 1851 Act to Confirm California Land
Grants:
Appendix VI: Excerpts from the 1854 Act Establishing the Office of the
Surveyor General of New Mexico:
Appendix VII: Excerpts from the 1891 Act Establishing the Court of
Private Land Claims:
Appendix VIII: Organizations and Individuals Contacted for GAO's
Reports:
Appendix IX: Instructions Issued by Interior to the Surveyor General of
New Mexico as Required by the 1854 Act:
Appendix X: Data on the 295 Spanish and Mexican Land Grants in New
Mexico:
Appendix XI: Results of Evaluations of Claims for Land Grants in New
Mexico:
Appendix XII: Current Land Ownership within Originally Claimed Grant
Boundaries:
Appendix XIII: Contacts and Staff Acknowledgements:
Tables:
Table 1: Establishment of Surveyors General for the Southwestern United
States:
Table 2: Surveyors General of New Mexico, 1854-1925:
Table 3: Spanish and Mexican Land Grants in New Mexico:
Table 4: Overview of the Results of the Surveyor General Land Grant
Confirmation Process of Spanish and Mexican Land Grants in New Mexico,
1854-1891:
Table 5: Grants Recommended for Rejection in Original Decisions by the
Surveyor General of New Mexico, 1854-1891:
Table 6: Statutes Confirming Spanish and Mexican Land Grants in New
Mexico, 1854-1891:
Table 7: Time Line of Key Events for the Maxwell and Sangre de Cristo
Land Grants:
Table 8: Mexican Land Grants Confirmed by Congress in Excess of 11
Square Leagues per Person in New Mexico, 1854-1891:
Table 9: Results of Surveyor General Julian's Supplemental Reports,
1885-1889:
Table 10: Spanish and Mexican Land Grants in New Mexico for Which Claims
Were Filed with the CPLC, 1891-1904:
Table 11: Number of New Mexico Grants for Which Claims Were Filed and
Ultimately Decided on Their Merits by the CPLC:
Table 12: Number of Grants in New Mexico Confirmed or Rejected by the
CPLC, 1891-1904:
Table 13: CPLC Decisions Reversed by the U.S. Supreme Court:
Table 14: Acreage Awarded for Spanish and Mexican Community and
Individual Land Grants during the Surveyor General and the CPLC Land
Grant Confirmation Processes in New Mexico with and without Adjustments
(Subtractions) by GAO:
Table 15: Summary of Adjusted Acreage Claimed in the CPLC's 1904 Report:
Table 16: Percentage of Acreage Awarded for Community and Individual
Spanish and Mexican Land Grants in New Mexico, As Adjusted by GAO:
Table 17: Percentage of Spanish and Mexican Land Grants Confirmed in New
Mexico, with and without Adjustments for Claims Not Pursued:
Table 18: Results for the 105 Community Land Grants in New Mexico
Confirmed in Part or Whole:
Table 19: Community Land Grants with Boundary Disputes Adjudicated by
the CPLC, 1891-1904:
Table 20: Results for the 49 Wholly Rejected Community Land Grants in
New Mexico:
Table 21: Community Land Grants That Claimants Failed to Pursue and
Possible Explanations for This Failure:
Table 22: Community Land Grants Rejected for a Variety of Legal Reasons
Unrelated to Authority of Granting Official or Grant-Copying Official:
Table 23: Community Land Grants Restricted to Their Individual
Allotments:
Table 24: Decisions by the CPLC for Seven Community Land Grants That
Were Ultimately Restricted to Their Individual Allotments:
Table 25: Community Land Grants Made during the Mexican Period That Were
Rejected by the CPLC Because the Granting Official Lacked Authority to
Make Land Grants under Mexican Law:
Table 26: Community Land Grants Adjudicated by CPLC That Involved
Disputes over Copies of Grant Documents:
Table 27: Non-Indian Community Land Grants with Originally Confirmed
Acreage and Currently Held Acreage:
Table 28: Payments to Settle Land Claims for Pueblo Grants in New
Mexico, as of October 2002:
Table 29: Comparison of Acreage Confirmed to Spanish Land Grants for the
Pueblos with Their Current Acreage, as of December 31, 2000:
Table 30: Community Land Grants in New Mexico Confirmed in Full:
Table 31: Community Land Grants in New Mexico Confirmed in Part:
Table 32: Rejected Community Land Grants in New Mexico:
Figures:
Figure 1: San Felipe Pueblo, New Mexico, c. 1880:
Figure 2: Town of Las Vegas, New Mexico, c.1890:
Figure 3: Generalized Depiction of U.S. Expansion:
Figure 4: U.S. Land Acquisitions from México, 1845-1853:
Figure 5: Provisions of 1854 Act Regarding Spanish and Mexican Claims:
Figure 6: Statements by Surveyors General of New Mexico and
Commissioners of the General Land Office Regarding the Surveyor General
Land Grant Confirmation Process:
Figure 7: The CPLC, 1891:
Figure 8: Sandía Mountain Range behind the Pueblo of Sandía, New Mexico,
c.1880:
Figure 9: Current Land Ownership Within the Original Claimed Boundaries
of the Cañón de Chama Land Grant:
Figure 10: Current Land Ownership Within the Original Claimed Boundaries
of the San Miguel del Vado Land Grant:
Figure 11: Current Land Ownership Within the Original Claimed Boundaries
of the Petaca Land Grant:
Figure 12: Current Land Ownership within the Originally Claimed
Boundaries of the Cieneguilla Land Grant:
Figure 13: Current Land Ownership within the Originally Claimed
Boundaries of the San Antonio del Río Colorado Land Grant:
Figure 14: Current Land Ownership within the Originally Claimed
Boundaries of the Gotera, Maragua, and Cañada de San Francisco Land
Grants:
Abbreviations:
BLM: Bureau of Land Management:
CPLC: Court of Private Land Claims:
SGR: Surveyor General Report:
United States General Accounting Office:
Washington, DC 20548:
B-302565:
June 4, 2004:
The Honorable Jeff Bingaman:
The Honorable Pete V. Domenici:
United States Senate:
The Honorable Tom Udall:
United States House of Representatives:
In response to your request, this report: (1) describes the
confirmation procedures by which the United States implemented the
property protection provisions of the 1848 Treaty of Guadalupe Hidalgo
with respect to community land grants located in New Mexico, and the
results produced by those procedures; (2) identifies and assesses
concerns regarding these procedures as they pertain to the government's
confirmation of these grants from 1854 to 1904; (3) identifies and
assesses concerns regarding acreage transferred voluntarily or
involuntarily after the confirmation procedures were completed; and (4)
identifies possible options that Congress may wish to consider in
response to remaining community land grant concerns.
As arranged with your offices, this report is being issued in English
and Spanish versions (GAO-04-59 and GAO-04-60, respectively). We will
distribute copies in both languages in New Mexico and provide copies
upon request. We also plan to send copies to the other members of the
New Mexico delegation in the House of Representatives.
If you or your staffs have any questions about this report, please
contact me at (202) 512-5400. Key contributors to this report are
listed in appendix XIII.
Signed by:
Susan D. Sawtelle:
Associate General Counsel:
[End of section]
Executive Summary:
Purpose of This Report:
Whether the United States has fulfilled its obligations under the 1848
Treaty of Guadalupe Hidalgo, with respect to property rights held by
traditional communities in New Mexico, has been a source of continuing
controversy for over a century. The controversy has created a sense of
distrust and bitterness among various communities and has led to
confrontations with federal, state, and local authorities. Under the
Treaty, which ended the Mexican-American War, the United States
obtained vast territories in what is now the U.S. Southwest, from
California to New Mexico. Much of this land was subject to pre-existing
land grants to individuals, groups, and communities made by Spain and
México from the 17th to the mid-19th centuries, and the Treaty provided
for U.S. recognition and protection of the property rights created by
these grants. Today, land grant heirs and legal scholars contend that
the United States failed to fulfill its treaty obligations regarding
community land grants within New Mexico. This contention is based in
part on a belief that the percentage of community land-grant acreage
recognized by the U.S. government in New Mexico was significantly lower
than the percentage recognized in California, and a view that
confirmation procedures followed in New Mexico were unfair and
inequitable compared with the different procedures established for
California. The effect of this alleged failure to implement the treaty
properly, heirs contend, is that the United States either
inappropriately acquired millions of acres of land for the public
domain or else confirmed acreage to the wrong parties. According to
some heirs, the resulting loss of land to grantees threatens the
economic stability of small Mexican-American farms and the farmers'
rural lifestyle.
In September 2001, GAO issued its first report on these issues,
entitled Treaty of Guadalupe Hidalgo: Definition and List of Community
Land Grants in New Mexico (GAO-01-951, Sept. 10, 2001).[Footnote 1]
Using a broad definition of "community land grant"--as any grant
setting aside common lands for the use of an entire community--GAO
identified 154 community land grants out of a total of 295 grants made
by Spain and México for lands within New Mexico. In this second and
final report, GAO discusses how the community land grants were
addressed by the courts and other entities and how Congress may wish to
respond to continuing concerns about them. Specifically, this report:
(1) describes the confirmation procedures by which the United States
implemented the property protection provisions of the Treaty with
respect to New Mexico community land grants and the results produced by
those procedures; (2) identifies and assesses concerns regarding these
procedures as they pertain to the government's confirmation of these
grants from 1854 to 1904; (3) identifies and assesses concerns
regarding acreage transferred voluntarily or involuntarily after the
confirmation procedures were completed; and (4) outlines possible
options that Congress may wish to consider in response to remaining
community land grant concerns.
As detailed in detail in chapter 1 and appendix VIII of this report, we
conducted substantial research and analysis in the preparation of these
two reports. We also widely distributed an exposure draft of our first
report, in response to which we received over 200 oral and written
comments. We contacted and interviewed numerous land grant heirs,
scholars, researchers, historians, advocates, and organizations
familiar with implementation of the property protection provisions of
the Treaty, as well as New Mexico county and state government officials
and U.S. government officials from several agencies. We reviewed
archival documentation describing the procedures established and
followed by the Surveyor General of New Mexico and the Court of Private
Land Claims, and evaluated numerous studies, books, law review
articles, treatises, and other materials. We researched the legislation
creating the Surveyor General and the Department of the Interior's
subsequent instructions to the Surveyor General, and the legislation
creating the Court of Private Land Claims. We obtained and examined all
of the community land grant adjudicative decisions and reports from the
Surveyor General of New Mexico, the Court of Private Land Claims, and
the U.S. Supreme Court, and we researched pertinent provisions of the
U.S. Constitution and other federal laws and federal court decisions.
We conducted our review for this second report from September 2001
through May 2004 in accordance with generally accepted government
auditing standards.
Historical Background:
From the end of the 17th century to the mid-19th century, Spain, and
later México, made land grants to individuals, groups, and towns to
promote development in the frontier lands that today constitute the
American Southwest. In New Mexico, land grants were issued to fulfill
several purposes: encourage settlement, reward patrons of the Spanish
government, and create a buffer zone between Indian tribes and the more
populated regions of its northern frontier. Spain also issued land
grants to several indigenous Indian pueblo (village) cultures that had
occupied the areas long before Spanish settlers arrived. In 1821, after
gaining its independence from Spain, México continued to adhere to the
land policies adopted by Spain. México's governance of New Mexico
lasted until 1846 and was riddled with instability and frequent
political changes in government leaders, organization, and laws.
As reflected in the literature and in popular terminology, there were
two types of Spanish and Mexican land grants made in New Mexico:
"community land grants" and "individual land grants." Community land
grants were typically organized around a central plaza, whereby each
settler received an individual allotment for a household and a tract of
land to farm, and common land was set aside as part of the grant for
use by the entire community. Spanish and Mexican law usually authorized
the local governor to make such community land grants, and the size of
each grant was a matter within the governor's discretion. Individual
land grants, as its name suggests, were made in the name of specific
individuals and usually were made by the governor as well.
Much of Spain's settlement in the northernmost provinces of the
American continent occurred with little interference, but in time,
England and France made their presence on the continent known. While
France established only a few interior settlements to facilitate trade,
England established permanent colonies along the Atlantic Coast and
increasingly migrated westward. The United States formally acquired its
independence from England in the 1783 Treaty of Paris and, with the
establishment of a federal government in 1789, the U.S. steadily
acquired more land and expanded south to Florida and west to
California. Treaties with Spain and France, for Florida and the
Louisiana Purchase, respectively, and with numerous Indian tribes,
propelled the U.S. acquisition of land and westward expansion. In 1845,
when Texas achieved statehood as the nation's 28th state, U.S.
territorial interests, including a plan to expand settlement to the
Pacific Ocean, collided with México's territorial interests. The
Mexican-American War broke out over the boundary between Texas and
México, bringing an end to a 9-year boundary dispute. Eventually, U.S.
troops occupied Santa Fe, New Mexico; proclaimed New Mexico's
annexation; and established U.S. government control over the territory.
In 1847, U.S. troops occupied Mexico City and shortly thereafter,
México surrendered. The war officially ended with the 1848 ratification
of the Treaty of Peace, Friendship, Limits and Settlement, commonly
referred to as the Treaty of Guadalupe Hidalgo.
The Treaty of Guadalupe Hidalgo forever altered the political landscape
of the North American continent. Among the Treaty's provisions were
México's cession to the United States of vast territories extending
from California to New Mexico and an agreement by the United States to
recognize and protect property rights of Mexican citizens living in the
newly acquired areas. In order to implement the Treaty's property
protection provisions in California, Congress enacted legislation (the
1851 Act) creating a commission to review and confirm grants, with
appeals authorized to federal district courts and the U.S. Supreme
Court. In determining whether to recognize and confirm a grant, the
1851 Act directed the California Commission to apply Spanish and
Mexican laws, customs, and usages, as well as equity principles, the
law of nations (international law), the provisions of the Treaty, and
decisions of the U.S. Supreme Court. The 1851 Act also directed the
Commission to apply a presumption in favor of finding a community land
grant where a city, town, or village existed at the time the Treaty was
signed. In New Mexico, by contrast, Congress established two different
and successive mechanisms for recognizing and confirming Spanish and
Mexican land grants. First, in 1854, Congress established (in the 1854
Act) the Office of the Surveyor General of New Mexico within the
Department of the Interior. The Surveyor General was charged with
investigating Spanish and Mexican land grant claims and submitting to
Congress recommendations on their acceptance or rejection. The Surveyor
General was directed to examine the claims by applying Spanish and
Mexican laws, customs, and usages, and to treat the prior existence of
a city, town, or village as clear evidence of a grant. Because of fraud
and other difficulties with this process as well as the process in
California, Congress established a second mechanism in 1891, the Court
of Private Land Claims (CPLC), to resolve new and remaining claims in
New Mexico and certain other territories and states (excluding
California, where claims already had been resolved). The criteria that
Congress established for the CPLC in determining whether a land grant
should be confirmed were more stringent than those it had established
for both the Surveyor General of New Mexico and the California
Commission. The CPLC could confirm grants only where title had been
"lawfully and regularly derived" under the laws of Spain or México.
A number of factors contributed to the background against which the New
Mexico community land grants were investigated and resolved under these
two processes. For the most part, New Mexico consisted of a sparsely
populated area of subsistence agricultural communities, and inhabitants
were unfamiliar with the English language, the U.S. legal system, and
American culture. The Mexican legal system, for example, had consisted
largely of Spanish and Mexican codes and laws that were often
interpreted according to local custom and usage, and more formal
tribunals and courts did not play the same important role in México as
they did in the United States in interpreting and deciding issues and
cases.
U.S. land tenure and ownership patterns also differed from those then
existing in New Mexico. Then as now, the U.S. system viewed the earth's
surface as an imaginary grid laid out on a piece of paper, and
cartography and surveying were used to identify physical features of a
particular parcel. The exact measurements of parcels were identified
and located on a map, land ownership was primarily in "fee simple," and
land titles were recorded in local government offices. Taken as a
whole, this system facilitated the use of land as a commodity that
could be bought and sold. By contrast, the Mexican and Spanish systems
were rooted in a rural, community-based system of land holding
prevalent in medieval Europe. That system was not based on fee simple
ownership; instead, land was viewed more in its relationship to the
community, although parcels could be sold to individuals after the land
had been used and inhabited for a certain number of years. Land was
used primarily to provide sustenance to the local population, rather
than as a commodity that could be exchanged or sold in a competitive
market. Land boundaries were defined with reference to terrestrial
landmarks or the adjoining property, and because these markers were
often difficult to locate, Spanish and Mexican land records sometimes
lacked the geographic precision of the U.S. system.
Results in Brief and Principal Findings:
Congress Directed Implementation of the Treaty of Guadalupe Hidalgo's
Property Provisions in New Mexico through Two Successive Procedures:
As noted above, over a 50-year period starting in 1854, Congress
directed implementation of the property protection provisions of the
Treaty of Guadalupe Hidalgo in New Mexico for community land grants
through two distinct and successive procedures. First, in the 1854 Act,
Congress established the Office of the Surveyor General of New Mexico
within the General Land Office of the Department of the Interior
(Interior). The Surveyor General was charged with investigating the
land grant claims and, through Interior, making recommendations to
Congress for final action. The 1854 Act directed the Surveyor General
to base his conclusions about the validity of land grant claims on the
"laws, usages, and customs" of Spain and México and on more detailed
instructions to be issued by Interior. These instructions, in turn,
directed the Surveyor General to recognize land grants "precisely as
México would have done" and to presume that the existence of a city,
town, or village at the time of the Treaty was clear evidence of a
grant. The Surveyor General investigated claims under this process from
1854 to 1891, and Congress confirmed the vast majority of grants
recommended for confirmation before the Civil War in the early 1860s.
Congressional confirmation ceased during the war and resumed thereafter
in the mid-1860s, but stopped again in the early 1870s because of
concern about allegations of fraud and corruption. These concerns
finally were addressed with the advent of a new Presidential
administration in 1885, which scrutinized the confirmation process and
appointed a new Surveyor General. The new Surveyor General reconsidered
and reversed some of his predecessor's recommendations to Congress, and
a backlog of land grant claims developed.
After several attempts at reform, Congress ultimately revised the
confirmation process in 1891 with passage of the 1891 Act. The 1891 Act
established a new entity, the Court of Private Land Claims (CPLC), to
resolve both new and remaining claims for lands in New Mexico (and
certain other territories and states). In part to prevent the type of
fraud and corruption which had characterized some of the claims filed
in New Mexico and California, Congress directed the CPLC to apply
stricter legal criteria for approval of land grants than Congress had
established for the Surveyor General of New Mexico. Under the new
criteria, the CPLC could confirm only those grants that claimants could
prove had been "lawfully and regularly derived" under Spanish or
Mexican law, and the presumption that Interior had directed the
Surveyor General to follow--to find in favor of a grant based on the
previous existence of a city, town, or village--was eliminated. Either
the claimant or the U.S. government could appeal the CPLC's decisions
directly to the U.S. Supreme Court, which could review claims de novo,
that is, without giving a presumption of correctness to the CPLC's
rulings. Like the CPLC, however, the Supreme Court was bound by the
same legal criteria in determining whether a grant should be confirmed:
title to the land must have been "lawfully and regularly derived" under
Spanish or Mexican law. The CPLC adjudicated land grant claims from
1891 through 1904. Thus over the 50-year history of the two successive
statutory land grant confirmation processes in New Mexico, the legal
standards and procedures applied in determining whether a community
land grant should be confirmed became more rigorous.
In discussing the results of these two confirmation procedures in New
Mexico, land grant scholars often have reported that only 24 percent of
the acreage claimed in New Mexico was awarded, for both community and
individual grants, in contrast to the percentage of acreage awarded in
California of 73 percent. In our judgment, the percentage of claimed
acreage that was awarded for New Mexico grants was actually 55 percent,
because the acreage that can fairly be viewed as having been claimed is
considerably smaller than that cited by land grant scholars, with the
result that a larger proportion of acreage was actually awarded. For
example, scholars include as grant lands claimed in New Mexico acreage
that was located outside of New Mexico, acreage that was covered by
claims that were withdrawn or never pursued, and acreage that was
"double-counted." We believe the acreage attributable to these factors
should be excluded from a fair assessment of the confirmation process
results.
The claims that were filed and pursued for the 154 community land
grants located in present-day New Mexico during this 50-year period
encompassed 9.38 million acres of land. The majority of these land
grants--105 grants, or over 68 percent--were confirmed, and the
majority of acreage claimed under these confirmed grants--5.96 million
acres, or 63.5 percent--were ultimately awarded, although a significant
amount (3.42 million acres, or 36.5 percent) were not awarded and
became part of the U.S. public domain available for settlement by the
general population. Some of the confirmed grants were awarded less
acreage than claimed, and grants that were wholly rejected were awarded
no acreage at all. Land grant heirs and scholars commonly refer to
acreage that was not awarded during the confirmation process as "lost"
acreage, and thus it is said that community land grants "lost" 3.42
million acres during the confirmation process. The circumstances
surrounding this perceived loss have been a concern of land grant heirs
for more than a century.
Heirs and Others Are Concerned That the United States Did Not Properly
Protect Land Grants during the Confirmation Process, but the Process
Complied with All U.S. Laws:
A number of land grant heirs, legal scholars, and other experts have
charged that activities under the two federal statutory New Mexico
community land grant confirmation procedures did not fulfill the United
States' legal obligations under the Treaty's property protection
provisions. With respect to grants that were confirmed, heirs and
others have voiced concern about whether the full amount of acreage
that they believe should have been awarded was in fact awarded, as well
as whether the acreage awarded was confirmed and patented to the
rightful owners. With respect to grants that were rejected, the heirs'
principal concern is that no acreage was awarded at all. Published
studies have identified three core reasons for rejection of claims for
New Mexico land grants, all involving decisions by the CPLC or, on
appeal, the U.S. Supreme Court: (1) that under the Supreme Court's
decision in the United States v. Sandoval case, the courts confirmed
grants but restricted them to their so-called "individual allotments,"
that is, to acreage actually occupied by the claimants; (2) that under
the Supreme Court's decisions in the United States v. Cambuston and
United States v. Vigil cases, the courts rejected grants because they
had been made by unauthorized officials; and (3) that under the Supreme
Court's decision in the Hayes v. United States case, the courts
rejected grants because they were supported solely by copies of
documents that had been made by unauthorized officials. These three
reasons resulted in rejection of claims for approximately 1.3 million
acres of land in 17 different grants. If Congress had established less
stringent standards in the 1891 Act for the CPLC to apply in evaluating
claims for the New Mexico community land grants, such as those it
established for the California Commission under the 1851 Act or the
Surveyor General of New Mexico under the 1854 Act, these results might
have been different. Congress had discretion in how it implemented the
Treaty provisions, however, so long as it did so within constitutional
and other U.S. legal limitations (which it did, as discussed below).
Thus the fact that Congress established different standards for grant
confirmation at different times did not indicate any legal violation or
shortcoming.
In addition to these concerns by heirs about how specific claims were
adjudicated, some heirs and legal scholars have contended that there
were two more general problems underlying the Surveyor General and CPLC
processes. First, with respect to the Surveyor General procedures,
heirs and scholars contend that they did not meet the "fairness"
requirements of due process of law under the U.S. Constitution. We
found that the procedures did, in fact, meet constitutional due process
requirements, as the courts at that time defined them and even under
today's standards. All potential land grant claimants were provided
with the requisite notice of the establishment of the Office of the
Surveyor General and the requirement to submit claims for any land
grant for which they sought government (congressional) confirmation.
Persons who filed claims with the Surveyor General were then given the
requisite opportunity to be heard in defense of their claimed land
grants. Even persons who disputed claims that had been filed with the
Surveyor General based on their allegedly superior Spanish or Mexican
title, but who did not themselves file a claim, had opportunity to be
heard, both during the Surveyor General process and thereafter--
including to the present day. Second, with respect to the CPLC process,
heirs and scholars assert that it did not appropriately consider
principles of equity, particularly in comparison with the Surveyor
General process, but instead applied standards that were overly
technical and "legal." We found that the CPLC did apply more stringent
standards in deciding whether to approve community land grants than the
Surveyor General had, but that these differences were the result of
differences in the authority and mandates that Congress established for
the two entities. Under the 1854 Act, the Surveyor General was directed
to look to the "laws, usages, and customs of Spain and México" in
recommending a grant for Congress' confirmation, while under the 1891
Act, the CPLC was directed to confirm only those grants that had been
"lawfully and regularly derived" under the laws of Spain, México, or
any of the Mexican states. As the U.S. Supreme Court explained in the
United States v. Sandoval case, the CPLC--and the Supreme Court in
reviewing the CPLC's decisions--was required as a matter of U.S. law to
act within the boundaries that Congress had established in deciding
whether to confirm grants under the 1891 Act. Because the 1891 Act
directed the CPLC to apply more stringent standards than the 1854 Act
had established for the Surveyor General, the Court explained in
Sandoval, claimants had to look to "the political department" of the
U.S. government--the Congress--to address any remaining concerns about
consideration of "equitable rights." Whether the 1891 Act appropriately
considered equitable rights was a policy judgment for the Congress in
1891, and it remains so today.
Finally, some scholars and legal commentators have raised questions
about whether the statutory confirmation procedures that Congress
established for New Mexico grants fulfilled the United States'
obligations under the Treaty and international law. They contend that
the substantive requirements of the statutes--the standards that
Congress set for determining when a grant would be confirmed--were
inconsistent with the terms of the Treaty and international law, and
thus even if the United States carried out the statutory requirements,
these allegedly did not satisfy all of the government's obligations.
Under established U.S. law, however, as articulated by the U.S. Supreme
Court in the Botiller v. Dominguez case and other decisions, courts are
required to comply with the terms of federal statutes that implement a
treaty such as the Treaty of Guadalupe Hidalgo that is not self-
executing. (A treaty is not self-executing if it requires implementing
legislation before becoming effective.) If an implementing statute
conflicts with the terms of the treaty, this conflict can be addressed
only as a matter of international law or by enactment of additional
legislation. In the case of the Treaty of Guadalupe Hidalgo, the
evidence indicates that the substantive requirements of the
implementing statutes were, in fact, carried out, through the Surveyor
General of New Mexico and the CPLC procedures. Thus any conflict
between the Treaty and the 1854 or 1891 Acts--which we do not suggest
exists--would have to be resolved today as a matter of international
law between the United States and México or by additional congressional
action. As agreed, we do not express an opinion on whether the United
States fulfilled its Treaty obligations as a matter of international
law. By contrast, any concerns about the specific procedures that
Congress, the Surveyor General, or the CPLC adopted cannot be addressed
under the Treaty or international law, but only under U.S. legal
requirements such as the Constitution's procedural due process
requirements, and as noted, we conclude that these requirements were
satisfied.
Notwithstanding the compliance of the two New Mexico confirmation
procedures with these statutory and constitutional requirements, we
found that the processes were inefficient and created hardships for
many grantees. For example, as the New Mexico Surveyors General
themselves reported during the first 20 years of their work, they
lacked the legal, language, and analytical skills and financial
resources to review grant claims in the most effective and efficient
manner. Moreover, delays in Surveyor General reviews and subsequent
congressional confirmations meant that some claims had to be presented
multiple times to different entities under different legal standards.
The claims process also could be burdensome after a grant was confirmed
but before specific acreage was awarded, because of the imprecision and
cost of having the lands surveyed--a cost that grantees had to bear for
a number of years. For policy or other reasons, therefore, Congress may
wish to consider whether some further action may be warranted to
address remaining concerns.
Heirs and Others Are Concerned that the United States Did Not Protect
Community Land Grants after the Confirmation Process, but the United
States Was Not Obligated to Protect Non-Pueblo Indian Land Grants after
Confirmation:
Some land grant heirs and advocates of land grant reform have expressed
concern that the United States failed to ensure continued community
ownership of common lands after the lands were awarded during the
confirmation process. They contend that the Treaty of Guadalupe Hidalgo
imposed a duty on the United States to ensure that these lands were not
subsequently lost through other means, either voluntarily or
involuntarily, and that because the United States did not take such
protective action, the United States breached this alleged "fiduciary"
duty. (A fiduciary duty is a duty to act with the highest degree of
loyalty and in the best interest of another party.) Land grant acreage
has been lost, for example, by heirs' voluntary transfers of land to
third parties, by contingency fee agreements between heirs and their
attorneys, by partitioning suits that have divided up community land
grants into individual parcels, and by tax foreclosures. Some land
grant heirs also contend that the Treaty specifically exempts their
confirmed grant lands from taxation. These issues have great practical
importance to claimants, because it appears that virtually all of the
5.3 million acres in New Mexico that were confirmed to the 84 non-
Pueblo Indian community grants has since been lost by transfer from the
original community grantees to other entities. This means claimants
have lost substantially more acreage after the confirmation process--
almost all of the 5.3 million acres that they were awarded--than they
believe they lost during the confirmation process--the 3.4 million
acres they believe they should have been awarded but were not.
We conclude that under established principles of federal, state, and
local law, the Treaty did not create a fiduciary relationship between
the United States and non-Pueblo community grantees in which the United
States was required to ensure the grantees' continued ownership of
confirmed lands, nor did it exempt lands confirmed to these grantees
from state or local property requirements, including, but not limited
to, tax liabilities. The United States does have a fiduciary
relationship with the Indian Pueblos in New Mexico and it protects
community lands that the Pueblos obtained under Spanish land grants.
But this relationship is the result of specific legislation, bringing
the Pueblos under the same general protections afforded to other Indian
tribes, rather than the result of obligations created under the Treaty.
Thus the U.S. did not violate any fiduciary duty to non-Pueblo
community grantees.
Concluding Observations and Possible Congressional Options in Response
to Remaining Community Land Grant Concerns:
As detailed in this report, grantees and their heirs have expressed
concern for more than a century--particularly since the end of the New
Mexico land grant confirmation process in the early 1900s--that the
United States did not address community land grant claims in a fair and
equitable manner. As part of our report, we were asked to outline
possible options that Congress may wish to consider in response to
remaining concerns. 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 are compelling policy or other
reasons for taking additional action. For example, Congress may
disagree with the Supreme Court's Sandoval decision and determine that
it should be "legislatively overruled," addressing grants adversely
affected by that decision or taking other action. Congress, in its
judgment, also may find that other aspects of the New Mexico
confirmation process, such as the inefficiency and hardship it caused
for many grantees, provide a sufficient basis to support further steps
on behalf of claimants. Based on all of these factors, we have
identified a range of five possible options that Congress may wish to
consider, ranging from taking no additional action at this time to
making payment to claimants' heirs or other entities or transferring
federal land to communities. We do not express an opinion as to which,
if any, of these options might be preferable, and Congress may wish to
consider additional options beyond those offered here. The last four
options are not necessarily mutually exclusive and could be used in
some combination. The five possible options are:
Option 1: Consider taking no additional action at this time because the
majority of community land grants were confirmed, the majority of
acreage claimed was awarded, and the confirmation processes were
conducted in accordance with U.S. law.
Option 2: Consider acknowledging that the land grant confirmation
process could have been more efficient and less burdensome and imposed
fewer hardships on claimants.
Option 3: Consider establishing a commission or other body to reexamine
specific community land grant claims that were rejected or not
confirmed for the full acreage claimed.
Option 4: Consider transferring federal land to communities that did
not receive all of the acreage originally claimed for their community
land grants.
Option 5: Consider making financial payments to claimants' heirs or
other entities for the non-use of land originally claimed but not
awarded.
As agreed, in the course of our discussions with land grant descendants
in New Mexico, we solicited their views on how they would prefer to
have their concerns addressed. Most indicated that they would prefer to
have a combination of the final two options--transfer of land and
financial payment.
[End of section]
Chapter 1: Introduction--Historical Background and the Current
Controversy:
Overview:
From the late 1600s until 1846, Spain, and later México, made a total
of 295 grants of land within what today are the boundaries of New
Mexico. These grants were made to individuals, groups, and towns in
order to promote development in the frontier lands that now constitute
the American Southwest. Of these 295 grants, 141 were made to
individuals, and the remaining 154 were made to communities, including
23 grants made by Spain to indigenous Indian pueblos (villages) in
recognition of the communal lands that the Pueblo people had held and
used long before the Spanish settlers arrived. The principal difference
between a community land grant and an individual grant was that the
common lands of a community land grant were held in perpetuity and
could not be sold. Both types of land grants fulfilled several
purposes: they encouraged settlement, rewarded patrons of the Spanish
government, and created a buffer zone between Indian tribes and the
more populated regions.
As Spain and later México encouraged settlement along the northern
frontier, England established colonies that began at the Atlantic Coast
and extended westward. The United States, after establishing a federal
government in 1789, steadily acquired land and promoted expansion south
to Florida, west to California, and north to Oregon. The relative ease
with which the United States acquired the Louisiana Purchase (by 1803
treaty with France) and Florida territories (by 1819 treaty with
Spain), among other areas, propelled U.S. acquisition of land and
westward expansion. In 1845, when Texas achieved statehood as the
nation's 28th state, U.S. territorial interests, including plans to
expand settlement to the Pacific Ocean, collided with México's
territorial interests. The Mexican-American War broke out shortly
thereafter, over the location of the boundary between Texas and México,
culminating a 9-year dispute. Eventually, U.S. troops occupied Santa
Fe, proclaimed the annexation of New Mexico, and established U.S.
government control over the territory. In 1847, U.S. troops occupied
Mexico City, and México soon surrendered. The war officially ended with
the 1848 ratification of the Treaty of Peace, Friendship, Limits, and
Settlement, commonly referred to as the Treaty of Guadalupe Hidalgo.
The Treaty of Guadalupe Hidalgo forever altered the political landscape
of the North American continent. Among the Treaty's provisions was
México's cession to the United States, for $15 million, of vast
territories in the southwest from California to Texas. The United
States also agreed under the Treaty to recognize and protect Mexicans'
ownership of property within the ceded territory and to admit Mexican
citizens living in the ceded territory as U.S. citizens if they wished.
Today, 300 years after the first Spanish land grants were made in New
Mexico and 150 years after the signing of the Treaty of Guadalupe
Hidalgo, conflicts persist over New Mexico community land grants. Many
heirs of those who claimed to own community lands at the time the
Treaty was ratified assert that the United States did not fulfill its
treaty obligations. The effect of this alleged failure, heirs contend,
is that the United States either inappropriately acquired millions of
acres of land for the public domain or else confirmed acreage to the
incorrect parties. To assist the Congress in deciding whether any
additional measures may be appropriate in response to these continuing
concerns, and if so, what measures Congress may wish to consider, GAO
was asked to study a number of issues. The results of this study are
set forth in our first report on these issues in September 2001, and in
this second and final report.
New Mexico during the Spanish Period, 1598-1821:
The arrival of Columbus on the North American continent in 1492
heralded the beginning of a Spanish campaign of exploration, conquest,
and settlement. In 1513, Ponce de Leon led an expedition into Florida.
Six years later, Hernando Cortés conquered the Aztec empire in central
México. To help govern his rapidly expanding colonial empire, the King
of Spain established a Council of the Indies in 1524, creating the
vice-royalty of New Spain, and later the vice-royalties of Peru, Buenos
Aires, and New Granada, and appointed a viceroy to govern each region.
The viceroy of New Spain governed from the new capital city of Mexico
City and appointed a general commander to govern locally in each of the
vice-royalty's 10 provinces, including New Mexico and California.
Initially, the laws governing the empire came from Spain's Las Siete
Partidas. A revised compendium of laws--known as the Nueva Recopilación
de Las Leyes de España--replaced them in 1567, with another compendium
following in 1680--the Recopilación de las Leyes de los Reynos de las
Indias--and another in 1805--the Novissima Recopilación de las Leyes de
España.
Spanish exploration of New Mexico and the greater southwest began in
earnest with the 1540 expedition of Francisco Vasquez de Coronado,
whose search for gold and silver led to encounters with native tribes
of the region. Coronado encountered Indian tribes who lived in
villages, or pueblos (as referred to by the Spanish explorers), which
had been occupied for centuries. (The term pueblo was also used to
refer to the Indians living in these communities; these persons were
referred to as Pueblo Indians or Pueblos.) The pueblo settlements were
long-established communal villages that were sustained by an agrarian
economy.
Significant Spanish settlement in New Mexico began in 1598 with the
arrival of an expedition led by Juan De Oñate. Oñate came as New
Mexico's first provincial governor, and his office assumed all civil
and military authority in New Mexico. The governor had authority to do
all that was necessary to assure the proper functioning of the
provincial government, including supervising the founding of
settlements and maintaining the official files of documents that later
formed the archives of Santa Fe. Historically, the files of colonial
governors and those of the cabildo (the provincial council) became the
central repository for all official documents, including the
registration of land titles and conveyances. In 1609, Santa Fe became
the provincial capital.
From 1610 to 1680, many settlers and others, such as Franciscan
missionaries, migrated to New Mexico. The settlers came to farm and
raise livestock, and they established towns and small communities. The
missionaries came to convert the Indians living in the province, and
they founded missions to teach the Indians Christianity and the Spanish
culture and language. In an effort to encourage Spanish settlement and
collect tribute, Spain awarded an encomienda to deserving subjects.
Under the encomienda system, a Spanish settler obtained the right to
collect an annual tribute from each head of family. The encomendero was
obligated to defend the province, give religious instruction to the
natives, and collect tribute from them.
The encomienda system, which relied on the labor and conversion of the
Indians, bred deep resentment. The Pueblo people soon developed a
common hatred for the encomienda and the suppression of Pueblo
religious practices by missionaries. In 1680, the Pueblos revolted and
within 11 days, all Spaniards living in New Mexico had fled to the El
Paso area. The Spaniards finally returned to New Mexico in 1693, and
found that part of the official archives--which had served as the
central repository of land grant documentation, along with privately
held documents that had not been taken by the Spaniards in the
evacuation of Santa Fe--had been among the revolt's casualties. As a
result, a good part of the official documentation regarding ownership
of land within New Mexico at that time was lost.
A decree of 1684 appointing Don Domingo Jironza Petriz de Cruzate as
Governor and Captain General of New Mexico specifically authorized the
issuance of land grants in New Mexico. As in other provinces, Governor
Cruzate was assisted by alcaldes mayores, or mayors, who served
multiple functions, including investigating new petitions for land
grants and placing grantees in possession. Alcaldes also served as
justices of the peace, probate judges, sheriffs, tax collectors, and
captains of the militia.
From the late 1600s until 1821, Spain made land grants to individuals,
groups, towns, and pueblos. These grants served several purposes: to
encourage settlement and colonial industries, to reward patrons of the
Spanish government, and to create a buffer zone between hostile Indian
tribes and more populated regions. Grants that were awarded to towns
and other group settlements in New Mexico were modeled on similar
communities created in Spain. In Spain, the King typically granted
lands adjacent to small towns to the community, for common use by all
town residents. Each settler received, in addition to use of common
lands, private lots for a home and farming and stock raising. Although
neither Spanish law nor Spanish land grant documents used the term
"community land grant," many grants referred to lands set aside for
general communal use or for specific communal purposes such as hunting,
grazing, wood gathering, and watering. As a result, scholars, the land
grant literature, and popular terminology have commonly used the phrase
"community land grants" to denote grants that set aside common lands
for the use of the entire community, and we have adopted this term for
our reports. The principal difference between a community land grant
and an individual grant was that the common lands of a community land
grant were held in perpetuity and could not be sold or otherwise
alienated, while an individual grant could be transferred. Spain also
declared itself guardian of the pueblo communities, issuing grants to
these settlements in recognition of their communal nature. The Pueblo
of San Felipe, shown in figure 1, is an example of a pueblo community
that was awarded such a land grant.
Figure 1: San Felipe Pueblo, New Mexico, c. 1880:
[See PDF for image]
[End of figure]
The procedure for obtaining a grant of land from the New Mexico
provincial governor typically involved several steps. First,
prospective landowners submitted a written petition to the governor
describing the requested area and asserting that it was vacant. The
governor then, usually writing in the margin of the petition itself,
directed the alcalde mayor with jurisdiction over the land to develop a
sketch map of the proposed grant area, noting the distance from
neighboring settlements or pueblos and reporting on whether there were
other parties making claims adverse to the petition. Depending on the
information provided by the petitioner and the alcalde mayor, a title
of possession would be prepared by the governor and delivered by the
alcalde mayor to the petitioner. The alcalde mayor then submitted a
second report of these proceedings, called "the juridical act," to
document the delivery of possession. After 4 years of continuous
possession by the petitioner, the grant became final. The petition,
alcalde mayor reports, title of possession, and grant were then
assembled into a single official package called the expediente. The
expediente for a community land grant was rarely complete because many
claimants preferred to keep records in their private possession. In
addition, many original grant records were simply lost.
New Mexico during the Mexican Period, 1821-1848:
In 1821, México (including the province of New Mexico) secured its
independence from Spain with the signing of the Treaty of Cordova.
Augustine Iturbide was subsequently elected Emperor of México and a
national council was established, although a revolution ousted Iturbide
after a year. The first 25 years of Mexican sovereignty were riddled
with instability and frequent changes in political leaders,
organization, and laws. Only one Mexican president served a full term
in office during this period. The changes in governments generally
brought with them changes in laws; for example, each government
typically repealed and nullified the laws of its predecessors. Thus,
although the Treaty of Cordova had initially adopted existing Spanish
law for the Mexican nation, the legal requirements changed repeatedly.
This continually changing legal regime made it difficult to ascertain
which official was authorized to make land grants at any given time. A
1681 Spanish law had given such authority only to the provincial
governor, but in 1813, Spanish law extended grant-issuing authority to
a provincial diputación (legislative body). In 1823, the Mexican
Colonization Law of Iturbide authorized ayuntamientos (town councils)
to grant lands, but regulations issued in 1828 to implement an 1824
Mexican Colonization Law returned all grant-making authority to the
governor.[Footnote 2] Later, the Mexican government passed still more
legislation concerning land grants. The enactment of these various laws
also created uncertainties about whether earlier laws had been
repealed. As the U.S. Supreme Court later described this situation in
Ely's Administrator v. United States, 171 U.S. 220, 223 (1898):
Few cases presented to this court are more perplexing that those
involving Mexican grants. The changes in the governing power as well as
in the form of government were so frequent, there is so much
indefiniteness and lack of precision in the language of the statutes
and ordinances, and the modes of procedure were in so many respects
different from those to which we are accustomed, that it is quite
difficult to determine whether an alleged grant was made by officers
who, at the time, were authorized to act for the government, and was
consummated according to the forms of procedure then recognized as
essential.
Meanwhile, in the early 1800s, pioneers from the United States had
begun arriving in New Mexico. In 1807, a U.S. expedition led by
Lieutenant Zebulon M. Pike was intercepted by Spanish troops, arrested,
and escorted south to Chihuahua, México. Pike and his men were released
near San Antonio, Texas. By the 1820s, commerce had developed along the
Santa Fe Trail, extending from Independence, Missouri, west to Santa
Fe. In New Mexico, officials issued land grants to individuals and
communities in an effort to accommodate the expanding population. For
example, in 1835, México issued a community grant to the Town of Las
Vegas. (See figure 2.) México identified the Governor of New Mexico as
the political chief, and the territorial diputación (later the asamblea
departmental) served as the governor's collective principal advisor.
Larger towns in New Mexico had ayuntamientos. In 1837, the prefectura
(jurisdiction) system, in which a prefect administered a geographical
area and reported directly to the governor, subsumed the ayuntamientos
system of administration. As of 1844, New Mexico had three prefecturas:
Rio Arriba in the north, Santa Fe in central New Mexico, and Rio Abajo
in the south.
Figure 2: Town of Las Vegas, New Mexico, c.1890:
[See PDF for image]
[End of figure]
All told, from the end of the 17th century to the mid-19th century,
Spain and México made a total of 295 land grants--141 grants to
individuals and 154 grants to communities, including 23 grants to
Indian pueblos. The Indian pueblos and most of the land grants were
located in northern New Mexico. The community land grants usually
contained sufficient land and water resources to facilitate settlement
and establish communities. The pueblo grants allowed the settled Indian
tribes to continue to sustain their communities through agriculture and
animal husbandry, both of which required land. México continued to
recognize the communal nature of Pueblo settlements of land and
considered the residents to be Mexican citizens. Water being an
important commodity in an otherwise arid landscape, most pueblo
communities had been founded along the Rio Grande and its tributaries.
The United States' Westward Expansion and Manifest Destiny:
After the establishment of the U.S. government in 1789, the United
States steadily acquired land and promoted settlement and expansion
south to Florida and west to California. The relative ease with which
the United States acquired the Louisiana Purchase and Florida
territories, among other areas, helped to propel additional U.S. land
acquisition, settlement, and expansion farther west. In 1845, John L.
O'Sullivan, editor of United States Magazine and Democratic Review,
coined the phrase "manifest destiny" to describe what had become a
national movement to promote expansion and "civilize" persons
encountered along the way. In the years since, some land grant heirs
have contended that this Manifest Destiny ideology contributed to a
form of racism and arrogance detrimental to Mexicans living in the New
Mexico territory. According to O'Sullivan, the claim to new territory
was by the right of [America's] manifest destiny to overspread and to
possess the whole of the continent which Providence has given us for
the development of the great experiment of liberty and federative self-
government entrusted to us. It is a right such as that of the tree to
the space of air and earth suitable for the full expansion of its
principle and destiny of growth.[Footnote 3]
O'Sullivan called on Americans to resist any foreign power that
attempted to thwart "the fulfillment of our manifest destiny to
overspread the continent allotted by Providence for the free
development of our yearly multiplying millions." O'Sullivan further
argued that such providential favor gave Americans the right to bring
the benefits of democracy to what he considered more backward peoples,
meaning Mexicans and Indians, and if necessary, to do so by force.
Americans initially set their sights on establishing just a two-ocean
boundary. By 1900, however, U.S. territorial expansion had spread
beyond North American borders to non-contiguous areas, such as Alaska,
Hawaii, the Philippines and Puerto Rico. While most U.S. citizens
celebrated their self-proclaimed manifest destiny, Indian tribes,
Mexicans, and Europeans with claims in the Western Hemisphere did not.
For them, the overwhelming public support for expansion could only be
interpreted as a promise of conflict. Historians have surmised that a
growing concern about the future of the U.S. economy might have been
behind the manifest destiny ideology. In that vein, economic
uncertainties may have led politicians to assert that a new direction
was needed and that the nation's prosperity depended on a vast
expansion of trade with Asia. Figure 3 depicts the expansion of the
United States as it acquired land from France, England, and Spain.
Figure 3: Generalized Depiction of U.S. Expansion:
[See PDF for image]
[End of figure]
Texas Independence and Statehood and the Resulting Boundary Disputes
between the United States and México:
Persistent disputes between the Mexican and U.S. governments over the
Texas boundary led to deterioration of the nations' relationship. Spain
had laid claim to Texas in 1519 with the expedition of Alonso Alvarez
de Pineda, and in 1690, established it as a separate Spanish province
with undefined boundaries. When México gained its independence from
Spain in 1821, there were several Spanish settlements in Texas
including Laredo, Nacogdoches, La Bahia, and San Antonio. Meanwhile, in
1820, Moses Austin, and later his son Stephen Austin, had petitioned
Spain for permission to found and promote a colony in Texas. Spain
approved the petition, and the colony proved to be successful and
prosperous. In 1824, México combined Texas and Coahuila as a new
department and, under its new colonization laws that offered liberal
land grants, invited more immigrants to Texas. The influx of immigrants
increased the population of Texas from 3,000 in 1821 to over 38,000 in
1836.
Concerned by the growth of an immigrant population, in 1830, México
barred further immigration from the United States. In 1835, Mexican
General Antonio Lopez de Santa Anna established himself as dictator of
México. After México refused to grant Texans' request for independence
and made efforts to reduce the size of the Texas militia, a convention
of Texas delegates declared independence from Mexican control. Santa
Anna responded with armed intervention. Texans suffered an initial
defeat at the Alamo, but won decisively at the battle of San Jacinto.
In 1836, the Republic of Texas claimed independence from México, and in
1845, Congress passed a resolution inviting Texas to join the Union as
a state. On December 29, 1845, Texas became the 28th state. Figure 4
shows the area claimed by both the Republic of Texas and México at the
time Texas became a state.
Figure 4: U.S. Land Acquisitions from México, 1845-1853:
[See PDF for image]
[End of figure]
The Mexican-American War:
The beginnings of the Mexican-American War occurred on April 5, 1846,
when U.S. General Zachary Taylor was ordered to occupy the area in
dispute between Texas and México. President James K. Polk believed that
the disputed area belonged to the United States, and on May 13, 1846,
he declared that a state of war existed between the two countries.
Brigadier General Stephen Watts Kearny led the U.S. Army of the West
out of Fort Leavenworth, Kansas, for the conquest of New Mexico and
California. In August 1846, as General Kearny's troops arrived in Santa
Fe, the Acting Governor of New Mexico, Juan Bautista Vigil y Alarid,
officially surrendered New Mexico to the United States.
In September 1846, General Kearny issued a collection of laws, known as
the "Kearny Code," to govern the territory of New Mexico under military
rule. At the same time, General Kearny issued a "Bill of Rights,"
modeled closely on the protections contained in the U.S. Constitution.
Based partly on the laws of México, Texas, and Missouri, the Kearny
Code provided for the establishment of a government led by an appointed
governor and supported by a court system, which included the
appointment of alcaldes to resolve minor legal matters. The Kearny Code
also established the Office of Registrar of Lands to record all papers
and documents in the new territory "concerning lands and tenements"
issued by the Spanish and Mexican governments and located in the
archives of the former Mexican government in Santa Fe. Any person
claiming lands in New Mexico under a Spanish or Mexican land grant
could file a notice with the Registrar, stating the nature and extent
of the claim and including the grant to be recorded, the deed of
conveyance, an order of survey, or other written evidence of the claim.
The claimant could provide any official authorized to administer oaths
with evidence indicating the nature and extent of the claim; how much
land had been planted and inhabited; the chain of title; and whether a
grant document still existed and, if not, why or how it had been lost
or destroyed. If a claimant failed to provide written evidence of the
claim or statement under oath within 5 years from January 1, 1847, such
claim would be void. As discussed below, Congress enacted other
legislation starting in the 1850s that superseded the Kearny Code.
Meanwhile, shortly after war broke out in 1846, the military had moved
into California. On January 10, 1847, General Kearny and Commodore
Robert E. Stockton captured Los Angeles. In 1848, the discovery of gold
in California precipitated one of the largest and most unforeseen
population shifts in history. Hundreds of thousands of people from all
over the world poured into California, laying claim to lands already
occupied by Mexicans. Overwhelmed, U.S. military governors in
California took steps to protect Mexican ownership of land until the
establishment of a U.S. tribunal to confirm land titles. In the
interim, claimants were advised to have their lands surveyed by a
qualified surveyor.
The Treaty of Guadalupe Hidalgo (1848):
In August 1847, after the U.S. Army occupied Mexico City, Mexican
General Santa Anna agreed to enter into negotiations for a peace
treaty. President Polk appointed Nicholas P. Trist to negotiate the
treaty with México, and provided him with specific instructions and a
copy of a proposed treaty. Then, as now, international law generally
required a successor sovereign to recognize the property rights of a
former sovereign's citizens to the same extent provided under the laws
and practices of the prior sovereign.[Footnote 4] The proposed treaty
between Mexico and the United States contained no provision explicitly
addressing the recognition of Spanish and Mexican land grants, but
Trist's instructions specified that if the subject of grants was raised
during negotiations, a clause modeled on the 1803 treaty between the
U.S. and France governing the Louisiana Purchase could be included.
Article III of that treaty provided that the "inhabitants of the
acquired territory shall be incorporated into the United States and
admitted as soon as possible, according to the federal Constitution, to
the enjoyment of all the rights, advantages, and immunities of American
citizens. In the meantime, they shall be maintained and protected in
their liberty, property and religion."[Footnote 5]
The Mexican government was concerned that the proposed U.S. treaty did
not provide sufficient protection for the property and other rights of
its citizens who now resided in American territory. The instructions
given to the Mexican negotiators directed them to seek various
protections for these interests, specifically, achievement of statehood
or territorial status for the area being transferred; preservation of
property and other rights of Mexicans who became U.S. citizens and
continued to reside in the acquired lands, as well as the rights of
Mexicans residing outside such lands; immediate U.S. citizenship for
inhabitants of the acquired lands; recognition of the validity and
effect of land concessions; and protection of the property of the
Catholic Church and maintenance of relations between Catholics residing
in the United States and their ecclesiastic authorities in México.
Trist's initial efforts to negotiate a treaty were unsuccessful, and
President Polk recalled him from México. Trist disobeyed the
President's order, however, and over the next several months, he
negotiated a draft treaty that was based partly on a Mexican version
that had contained many of the aims of the Mexican negotiators. For
example, Article VIII of Trist's draft protected the property of former
Mexican citizens who chose to reside in the new U.S. territory,
allowing them to sell their property and leave the territory without
paying taxes on the proceeds. Article VIII also provided protections
for the property of Mexicans not residing in the territory and gave
persons remaining in the territory a year in which to designate whether
they wished to become U.S. citizens or remain expatriated Mexican
citizens living in the United States. If no designation was made, all
Mexicans living within the ceded territory would automatically become
citizens of the United States.
Article IX of Trist's draft treaty, similar to Article III of the
Louisiana Purchase Treaty, provided that persons who elected to become
American citizens under Article VIII would become citizens of the
United States as soon as possible and enjoy all of the rights and
benefits of citizenship. In the meantime, the draft stated, "their
liberty, property, and civil rights shall be maintained and protected."
Article X of Trist's draft made specific reference to Mexican land
grants and stated that grants made by either the Mexican government or
other competent authorities would be respected to the same extent as if
the acquired territories had remained under Mexican rule. In addition,
grantees of lands in Texas who had not been able to satisfy all of the
conditions of their grants, because of the conflicts between México and
Texas, were to be provided additional time to fulfill these conditions.
A similar opportunity was provided with respect to grants located in
the other areas ceded to the United States under the Treaty, including
New Mexico and California. These two provisions pertaining to
incomplete grants were based on language in the United States' 1819
treaty with Spain for the purchase of Florida.[Footnote 6]
Although Trist exceeded his authority in continuing to negotiate with
México, President Polk accepted most of Trist's draft as substantially
consistent with the original proposal that the President had given him.
President Polk did not accept Article X, however, which addressed
Mexican land grants, and he sent the treaty to the U.S. Senate for
approval with a recommendation that it reject Article X.[Footnote 7]
President Polk was concerned about Article X because he believed it
would reopen the question of ownership of lands in Texas, which had
been considered settled once Texas became independent from México in
1836. The Senate, which also believed Trist had exceeded his authority,
approved Article VIII, amended Article IX, and rejected Article
X.[Footnote 8]
As approved, Article VIII provided, among other things, that:
In the said territories, property of every kind, now belonging to
Mexicans not established there, shall be inviolably respected. The
present owners, the heirs of these, and all Mexicans who may hereafter
acquire said property by contract, shall enjoy with respect to it
guaranties equally ample as if the same belonged to citizens of the
United States.
Regarding Article IX, as specified in President Polk's original
negotiating instructions, the Senate substituted a provision based on
Article III of the Louisiana Purchase Treaty and Articles V and VI of
the Florida Purchase Treaty. Amended Article IX assured that persons
who did not preserve their Mexican citizenship would, at the proper
time--when the respective territories were admitted as U.S. states--
become citizens of the United States and enjoy all of the rights of
U.S. citizenship under the U.S. Constitution. Until then, such persons
would "be maintained and protected in the free enjoyment of their
liberty and property, and secured in the free exercise of their
religion without restriction." Article IX also was modified to make
clear that it was Congress, rather than the President, that decided
when the inhabitants of a territory were to be made citizens of the
United States. For persons living in the New Mexico Territory, this
interim status would last 62 years, until New Mexico and Arizona
achieved statehood in 1912. Persons living in California were able to
become U.S. citizens much earlier, because California became a state in
1850.
With these revisions--and with provision, among other things, for
payment by the United States to México of $15 million and assumption by
the United States of over $3.2 million in claims against
México[Footnote 9]--the Senate approved the Treaty, the President
ratified it, and it was sent it back to México for
ratification.[Footnote 10] Unsure whether México would ratify the
Treaty as amended, the United States sent two commissioners to México
to explain the revisions the United States had made. The commissioners
delivered an explanatory note to the Mexican foreign minister from U.S.
Secretary of State Buchanan; the note specifically addressed the
language in Article IX, which designated Congress as the branch of the
U.S. government that would decide when a territory would be
incorporated into the United States. The note stated that "it cannot be
doubted" that Congress "will always exercise the power as soon as the
condition of the inhabitants of any acquired territory may render it
proper. . . Congress will never lend a deaf ear to the people anxious
to enjoy the privilege of self-government. Their application to become
a State of the Union will be granted the moment it can be done
safely."[Footnote 11] In explaining the deletion of Article X,
Secretary Buchanan stated that it would be unauthorized and unjust for
the United States to disturb the title to lands in Texas by allowing
unfulfilled grant conditions to be completed. Similarly, the Secretary
explained that it would be unfair to revive dead titles to land in this
manner in upper California and New Mexico. He stated that Articles VIII
and IX secured property of every kind belonging to Mexicans, whether
held under Mexican grants or otherwise.
Based on the recommendation of the Mexican president, both houses of
the Mexican Congress approved the Treaty as amended by the United
States. The U.S. commissioners then held conferences with their Mexican
counterparts to discuss the meaning of these amendments. At the
conferences, the Mexicans presented a draft protocol, known as the
Protocol of Querétaro, summarizing what they believed were the
explanations of the revisions.[Footnote 12] The Mexican Minister of
Foreign Affairs stated that with these explanations, the Mexican
government would proceed to ratify the treaty as modified by the United
States. Two of the Protocol's three provisions related to land grants.
The first provision explained the revisions to Article IX and the
substitution of language based on the Louisiana Purchase Treaty, and
contained all of the privileges and guarantees that the inhabitants of
the ceded territories would have enjoyed under Article IX as it had
originally been drafted by Mr. Trist. The second Protocol provision
related to the striking of Article X by the United States. The Protocol
explained that this was not intended to annul land grants and that
Mexican grants preserve "the legal value which they may possess and the
grantees may cause their legitimate titles to be acknowledged before
the American tribunals." Legitimate titles to every kind of property in
California and New Mexico, both real and personal property, that were
acquired prior to the commencement of the Mexican-American War in 1846
were to be considered legitimate titles under Mexican law, the Protocol
stated.
When the Mexican Congress raised no objections to the Protocol,
México's president proceeded to submit all of the instruments of
ratification of the Treaty, including the Protocol, to the U.S.
commissioners. However, the Protocol had not been included in the
ratification documents submitted by the United States to México (it had
not yet been drafted), nor did President Polk include the Protocol in
the U.S. documents concerning ratification when he sought funds from
Congress to implement the Treaty. Some members of Congress questioned
the significance of the Protocol and asked whether it modified the
Treaty. The administration's position was that the Protocol was not
part of the Treaty and that its contents in no way modified the Treaty.
México, on the other hand, considered the Protocol to be an essential
part of the Treaty and a principal reason that it was ratified. In an
exchange of notes between one of the U.S. commissioners, Nathan
Clifford, and México's new ambassador to Washington, Mr. Clifford set
out three matters on which both countries, in Mr. Clifford's view, had
agreed: (1) the Protocol was not an addition to the Treaty; (2) it did
not change or modify the Treaty; but (3) the Protocol was a correct
interpretation of the treaty. Mr. Clifford's third point led to his
recall, and the United States informed México that Mr. Clifford's
statement did not represent the position of the United States. México
continued to maintain that the Protocol was a correct interpretation of
the Treaty, and these conflicting interpretations have continued to the
present day. Under U.S. law, therefore, Articles VIII and IX of the
Treaty, but not deleted Article X, set forth the property protections
given to Mexicans in the newly acquired territories. Article VIII is
the Treaty's primary source of property protection and Article IX
provides similar protections in the interim period before statehood was
granted to the territories.
The Gadsden Purchase Treaty (1853):
Following negotiation of the Treaty of Guadalupe Hidalgo, lower-ranking
Mexican and U.S. officials reached a compromise on where to draw the
boundary dividing the two countries, which the Treaty had left
unresolved. The U.S. government rejected this compromise for several
reasons. First, engineers had advised that the most direct and
practicable route for the Southern transcontinental railroad extending
from El Paso to California would be south of the compromise boundary.
Second, the United States wanted to be released from the obligations
under Article XI of the Treaty to prevent Indian raids on Mexican
settlements on the U.S. side of the border. Third, the United States
wanted to have more assurance of its rights of transit across the
Isthmus of Tehuantepec, which significantly shortened sea voyages
between the Atlantic and Pacific Oceans. The discovery of gold in
California made this shortcut all the more pressing.
In an effort to resolve these problems, the United States and México
entered into a new treaty in 1853. Under this treaty, popularly known
as the Gadsden Purchase Treaty (named after the U.S. negotiator, James
Gadsden),[Footnote 13] the United States purchased about 29 million
acres of land from México for an additional $10 million. Articles V and
VI of the Gadsden Purchase Treaty specifically addressed land grants
that had been made within this area and Article V made the property
protection provisions of the Treaty of Guadalupe Hidalgo applicable to
this additional purchased land. Unlike the Treaty of Guadalupe
Hidalgo's property provisions, however, Article VI of the Gadsden
Treaty provided that Mexican grants would be considered valid only if
the land conveyed had been identified and "located" and the grant had
been recorded in the Mexican archives.[Footnote 14]
Organization of the New U.S. Territory and Procedures to Resolve Land
Grant Claims:
After ratification of the Treaty of Guadalupe Hidalgo, the U.S.
government decided to allow existing local governments to stay in
operation until Congress could establish territorial governments in the
newly acquired lands. Under the Compromise of 1850--a series of
congressional acts passed during August and September 1850--Congress
provided, among other things, for the federal purchase from Texas of
the area east of the Rio Grande, which was included as part of the New
Mexico Territory. Congress also provided for the creation of the
Territories of Utah and New Mexico and the admission of California into
the Union as the 31st state.
In 1851, Congress passed the first legislation implementing the
property protection provisions of the Treaty of Guadalupe Hidalgo,
addressing Spanish and Mexican grants in California. Congress focused
on California's land grants first because it wanted to encourage
settlement of U.S. public domain land there. Since the late 1700s, the
U.S. government had made federal lands available for ownership by
settlers, a policy that first necessitated identification of which
lands belonged to the United States. The need to accomplish this became
more urgent in California when gold was discovered there in 1848--the
same year that the Treaty of Guadalupe Hidalgo was signed--and throngs
of people poured into the territory hoping to make their fortunes. By
September 9, 1850, when California was admitted to the Union, it had a
population of about 92,600 people, and on March 3, 1851, Congress
enacted the 1851 Act.[Footnote 15] The 1851 Act, discussed in more
detail below, implemented the property protection provisions of the
Treaty in California by creating a three-person commission to evaluate
Spanish and Mexican land grant claims in the state. The process also
had the effect of identifying which lands were part of the U.S. public
domain because all lands acquired under the Treaty that were not
covered by the land grants became part of the public domain.
By comparison, the need to resolve U.S. land ownership and land grant
claims in New Mexico--with a smaller population and fewer natural
resources than California--was seen as less pressing, and was addressed
by Congress three years later in 1854. That year, Congress enacted the
1854 Act, the first of two principal statutes addressing land grants in
the Territory of New Mexico.[Footnote 16] The 1854 Act, also discussed
later in this chapter and in chapter 2, created the Office of the
Surveyor General of New Mexico. In addition to the routine task of
surveying newly acquired territory, as did his fellow Surveyor General
in California,[Footnote 17] the Surveyor General of New Mexico was
charged by the 1854 Act with the considerable responsibility of
evaluating private land grant claims and recommending whether Congress
should confirm the grants.
Factors Contributing to Different Mexican and U.S. Systems of Land
Ownership:
The United States' acquisition and settlement of New Mexico in the mid-
1800s brought together two distinct societies that differed in
language, government administration, legal systems, and land settlement
patterns. For the most part, New Mexico consisted of a sparsely
populated area of Spanish-speaking subsistence agricultural
communities. Except in a few larger settlements like Santa Fe,
residents were unfamiliar with the English language and American
customs. The New Mexican legal system, which consisted of Spanish and
Mexican codes and laws, largely relied on custom-based law in resolving
conflicts. Because few individuals with legal training lived in New
Mexico, local officials, such as the alcalde mayor, often acted as
informal judges in resolving community disputes through conciliation
and compromise. By contrast, the U.S. legal system introduced into the
Territory of New Mexico allowed individuals to resolve certain types of
disputes through a formal trial of issues before a judge, sometimes
with a jury present and with an opportunity to cross-examine witnesses.
Although this system embodied the individual-centered values
characteristic of U.S. society, it differed to some extent from the
community-centered values prevalent in New Mexico before its U.S.
acquisition.
U.S. land tenure and ownership patterns also differed from those in New
Mexico. The U.S. land tenure system was based on viewing the earth's
surface as an imaginary grid laid out on a piece of paper. Cartography
and surveying were used to identify the physical features of a
particular parcel. The exact measurements of parcels were then
identified and located on a map. Land ownership was primarily in "fee
simple," which is the broadest property right allowed by English and
U.S. law. Land titles were recorded in local government offices, which
facilitated the use of land as a commodity that could be bought or
sold. By contrast, the Spanish and Mexican system was rooted in a rural
community-based system of landholding that had been prevalent in
medieval Europe. The land tenure system was not based on fee simple
ownership but was viewed more in its relationship to the community,
although individual parcels might be sold after the land had been used
and lived on for a certain number of years. Land was primarily used to
sustain a local population rather than as a commodity to be bartered or
sold in a competitive market. Land boundaries were defined with
reference to terrestrial landmarks on adjoining property, and no
standard method for measuring land was employed. At times, these
terrestrial markers were difficult to locate. Spanish and Mexican land
records also lacked the geographic precision of the U.S. system, and
frequently, land transfers were not recorded in local archives, making
ownership difficult to ascertain.
The California Commission Legislation (1851 Act):
In July 1848, the U.S. Senate Committee on Public Lands approved a bill
providing for a three-member commission and a surveyor general to
investigate and report to Congress within 2 years on all private land
claims in California. When the bill was considered in 1849, Senator
Thomas Hart Benton offered a substitute bill, which authorized the
filing of claims with a recorder of land titles. All claims filed would
be automatically recognized unless the U.S. Attorney challenged the
validity of the grant in U.S. district court, with the court's decision
being final for grants valued at less than $5,000. Senator Benton
believed that this procedure was necessary if the United States was to
honor its pledge under Article VIII of the Treaty to "inviolably
respect" Spanish and Mexican land grants. Neither of these bills passed
the Senate, and no further legislation was introduced until after
California became a state in September 1850.
Meanwhile, in order to gather concrete information about land grants in
California for congressional consideration, Congress commissioned a
military officer, Captain William Halleck, to collect information,
including data from the archives of the former Mexican governor and the
laws and regulations governing grants of public lands and mission
properties in California. Captain Halleck completed his report, and
President Fillmore forwarded it to Congress. At the same time, the
Secretary of the Interior appointed Senator Benton's son-in-law,
William Jones, to examine records in the archives in California and, if
time permitted, in Mexico City and New Mexico, regarding the character
and extent of land grant titles in the California acreage acquired by
the United States. Mr. Jones was to prepare detailed information about
each grant, including its date and area, the name of the original
grantee, the granting official, and the date of approval by the
territorial legislature. Mr. Jones was also asked to separate bona fide
grants from those he considered questionable and to study mission lands
and Indian titles. President Fillmore transmitted Jones' report to
Congress in 1850.
Captain Halleck's report concluded that most of the titles to lands
claimed in California, granted both by Spain and México, were in doubt.
He therefore urged that land grants be subject to the scrutiny of a
trial process, which would examine the grants' validity in accordance
with Mexican law. Halleck pointed out that many of the grants had
indefinite boundaries, contained double the acreage authorized for the
grant, and had not been approved or submitted to the territorial
legislature as required by Mexican law. He found that remaining mission
lands had been the property of México and became part of the U.S.
public domain after the Treaty. Halleck urged that a procedure be
established to ensure the prompt and final settlement of land claims in
the new state.
By contrast, Mr. Jones found that Mexican and Spanish grants in
California had "mostly perfect titles." While conceding that many
grants failed to strictly adhere to Mexican procedures, Jones noted
that prior to U.S. possession, California had been in an undeveloped
state and legal formalities were largely disregarded. With the
acquiescence of the highest Mexican authorities, custom supplanted
written law. Jones recommended that a survey be made of the grants and
that titles be swiftly confirmed upon completion of the surveys. Jones
believed that there should be a presumption of validity for Mexican
grants and that the government should oppose only those grants which it
had reason to believe were invalid.
Senators used the Jones and Halleck reports to support rival bills
concerning California land titles. After California became a state,
Senator Benton reintroduced his proposed legislation for the
registration of land titles, with appeal rights to federal district
court. Senators Gwin and Freemont sponsored an alternative bill,
creating a three-member commission to evaluate the validity of land
grant titles, with a U.S. representative to be present at commission
meetings and appeals from commission decisions to be allowed to federal
district court and the U.S. Supreme Court. Senator Gwin generally
wanted the commission to be similar to that created for resolution of
land claims within the Louisiana Purchase, but Senator Benton, who
believed that having a U.S. agent present at commission meetings would
amount to a de facto confiscation of Mexican land titles, noted that
there had been no U.S. agent present at the Louisiana Purchase
commission hearings.
Ultimately, the Gwin-Freemont bill passed the Senate, followed by the
House (with no recorded debate), and the bill was enacted as the 1851
Act. As noted above, the 1851 Act established a three-person commission
whose members were appointed by the President with the advice and
consent of the Senate. The statute directed "each and every person
claiming lands in California by virtue of any right or title derived
from the Spanish or Mexican government" to submit a claim for such
lands to the Commission within 2 years of the statute's enactment.
Failure to submit a claim by this time would result in the lands being
"deemed, held, and considered as part of the public domain of the
United States..." The Commissioners were to meet "at such times and
places as the President of the United States shall direct" and were
required to "give due and public notice" of their sessions, although
the statute did not specify how this notice was to be given. A
presidentially appointed U.S. Agent, "learned in the law, and skilled
in the Spanish and English languages," was to be present at all
Commission meetings in order to "superintend the interests of the
United States." The Act also directed this U.S. Agent to "collect
testimony in behalf of the United States" and to attend any depositions
conducted by a claimant.
The Commissioners were authorized to administer oaths to witnesses and
to examine the witnesses themselves, and testimony before the
Commission was to be transcribed in writing. The Commissioners also
were to appoint a Commission Secretary to act as an interpreter,
maintain records of the proceedings, and, at the request of the U.S.
Agent, the local U.S. Attorney, or any claimant, issue subpoenas for
attendance of witnesses before the Commission or an individual
Commissioner. Although the Commission process nominally involved
representatives from two sides--the claimant and the U.S. government--
the Supreme Court later recognized that the Commission was "an
administrative body, not a court" and characterized the Commission's
proceedings as "not adversary."[Footnote 18] Either the claimant or the
United States (by the local U.S. Attorney) could appeal the
Commission's decision to U.S. district court, and the court could
consider both the evidence presented to the Commission as well as new
evidence. Either party could then appeal the district court's decision
to the U.S. Supreme Court.
The 1851 Act directed both the Commission and the courts, in deciding
on the validity of a claim, to apply the legal standards contained in
the following sources: the terms of the Treaty of Guadalupe Hidalgo,
"the law of nations" (international law), "the laws, usages, and
customs of the government from which the claim [was] derived" (Spain or
México), "the principles of equity,"[Footnote 19] and, "so far as they
are applicable," U.S. Supreme Court decisions. In addition, the Act
provided that if a claimant "duly proved" that a city, town, or village
had been in existence as of July 1846, this proof was to be considered
prima facie (presumptive) evidence of a grant to the town to which the
grant had been made.[Footnote 20] As noted, any lands for which claims
were rejected by the Commission or the courts, or for which claims were
not filed before the 2-year statutory deadline, were deemed to be part
of the U.S. public domain available for distribution to settlers. For
claims that were confirmed, the grant had to be surveyed by the
Surveyor General of California and the survey submitted to the Interior
Department's General Land Office, which then issued a "patent" to the
claimant.
The 1851 Act provided for challenges by third parties to land grant
ownership in at least two different points in the land grant
confirmation process. Thus there was to be recourse for communities or
individuals who believed that they had superior title to grants being
evaluated by the Commission. First, Section 13 of the Act specified
that after a grant was confirmed but before a patent was issued, a
third party could file suit in federal district court. The court would
decide which of the two claimants held title, and in the meantime, the
court could issue an injunction temporarily halting issuance of the
patent. Second, Section 15 of the Act specified that ownership
decisions by either the Commission or the reviewing courts were binding
only on the United States and claimants who had appeared before the
Commission: "the final decrees rendered by the said commissioners, or
by the District or Supreme Court of the United States, or any patent to
be issued under this act, shall be conclusive between the United States
and the said claimants only, and shall not affect the interests of
third persons."[Footnote 21] Originally, the courts interpreted Section
15 to mean that the Commission's decisions were only binding on persons
with "imperfect" (incomplete) grants who had filed a claim with the
Commission.[Footnote 22] The decisions were not believed to be binding
on persons with perfect grants, because it was thought that the 1851
Act did not require such persons to file claims with the Commission in
order to confirm title to their land.[Footnote 23] In Botiller v.
Dominguez, 130 U.S. 238 (1889), however, the U.S. Supreme Court ruled
that even persons with perfect grants had to file claims with the
Commission by the 1851 Act's 2-year deadline. The practical effect of
the Botiller ruling was that the Commission's decisions became binding
on all parties, despite the fact that the literal terms of Section 15
seemed to indicate otherwise.[Footnote 24]
The first several decades of U.S. Supreme Court decisions reviewing
appeals from the California Commission were quite liberal in approving
land grant claims, and on occasion, the Court even dispensed with
conditions essential for valid title under Mexican law.[Footnote 25] In
the Court's view, the United States had an affirmative duty under the
Treaty to establish the validity of grants. Thus instead of being a
"contentious litigant" before the Commission, the United States was to
be motivated by pursuit of information to enable it to carry out its
obligation to recognize authentic titles.[Footnote 26] In 1889,
however, after nearly 40 years of liberal awards in California, the
Supreme Court began to apply greater scrutiny in evaluating land grant
claims. In the Botiller case noted above--which one commentator has
described as "mark[ing] the decline of judicial activism for the
protection of Spanish and Mexican land grants"[Footnote 27]--the U.S.
Supreme Court reversed the California Supreme Court and declared that
the 1851 Act required claims for all grants, perfect and imperfect, to
be submitted within the statute's 2-year deadline. The Botiller Court
explained that the Treaty of Guadalupe Hidalgo could be implemented in
the United States only through congressional action, and for claims in
California, this meant that if the terms of the 1851 Act conflicted
with the terms of the Treaty, the statute governed.[Footnote 28] Also
at about this time, as discussed in chapter 2, Congress came to believe
that a number of fraudulent claims had been approved in both California
and New Mexico. These and other concerns eventually led to creation of
a special land court, the Court of Private Land Claims (discussed
below), which Congress directed to apply stricter legal standards in
evaluating Spanish and Mexican land grant claims in New Mexico and
several other territories and states.
The New Mexico Surveyor General Legislation (1854 Act):
As noted above, on July 22, 1854, Congress enacted the 1854 Act, the
first of the two principal statutes implementing the property
protection provisions of the Treaty of Guadalupe Hidalgo with respect
to land grants in New Mexico. The 1854 Act, discussed in greater detail
in chapter 2, established the Office of the Surveyor General of New
Mexico, responsible for surveying the New Mexico Territory. In
addition, Congress directed the Surveyor General to investigate Spanish
and Mexican land grant claims in the territory and to recommend,
through the Secretary of the Interior, congressional approval or
rejection of the claims. The 1854 Act also created the Office of the
Surveyor General for the Kansas and Nebraska territories and by 1863,
Congress had established such offices in each of the new territories or
states. (See table 1.) The Office of the Surveyor General of New Mexico
opened in Santa Fe on December 28, 1854, as part of the Department of
the Interior's General Land Office,[Footnote 29] and from 1854 through
1925, there were 16 permanent Surveyors General of New Mexico. (See
table 2.)
Table 1: Establishment of Surveyors General for the Southwestern United
States:
Name of state or territory: California;
Year territory established: [A];
Year state admitted: 1850;
Year Office of Surveyor General established: 1851.
Name of state or territory: New Mexico;
Year territory established: 1850;
Year state admitted: 1912;
Year Office of Surveyor General established: 1854.
Name of state or territory: Utah;
Year territory established: 1850;
Year state admitted: 1896;
Year Office of Surveyor General established: 1855[B].
Name of state or territory: Colorado;
Year territory established: 1861;
Year state admitted: 1876;
Year Office of Surveyor General established: 1861.
Name of state or territory: Nevada;
Year territory established: 1861;
Year state admitted: 1864;
Year Office of Surveyor General established: 1861[C].
Name of state or territory: Arizona;
Year territory established: 1863;
Year state admitted: 1912;
Year Office of Surveyor General established: 1863[D].
Source: GAO analysis.
[A] California was admitted directly as a state in 1850.
[B] The Office of the Surveyor General of Utah was originally opened in
Salt Lake City, Utah, on July 27, 1855, but the Office was closed by
the Act of March 14, 1862. From 1862 to 1868 when the Office reopened,
Utah was under the Surveyor General of Colorado.
[C] The Office of the Surveyor General of Nevada was originally opened
in Carson City, Nevada, on June 22, 1861, but the Office was closed by
the Act of March 14, 1862. From 1862 to 1866 when the Office reopened,
Nevada was under the Surveyor General of California.
[D] The Office of the Surveyor General of Arizona was originally
established by the Act of February 24, 1863, and the Office opened in
Tucson, Arizona, on January 25, 1864. However, the Office was closed on
July 4, 1864, and from July 1864 to March 1867, the Arizona Territory
was under the Surveyor General of New Mexico. From March 1867 to 1870,
when the Office was reopened, the Arizona Territory was under the
Surveyor General of California.
[End of table]
Table 2: Surveyors General of New Mexico, 1854-1925:
Name: William Pelham;
Appointment or date of commission: Aug. 1, 1854.
Name: Alexander P. Wilbar;
Appointment or date of commission: June 21, 1860.
Name: John A. Clark;
Appointment or date of commission: July 26, 1861.
Name: Benjamin C. Cutler;
Appointment or date of commission: July 29, 1868.
Name: T. Rush Spencer;
Appointment or date of commission: Apr. 15, 1869.
Name: James K. Proudfit;
Appointment or date of commission: July 23, 1872.
Name: Henry M. Atkinson;
Appointment or date of commission: Feb. 10, 1876.
Name: Clarence Pullen;
Appointment or date of commission: July 9, 1884.
Name: George Washington Julian;
Appointment or date of commission: June 1, 1885.
Name: Edward F. Hobart;
Appointment or date of commission: Aug. 3, 1889.
Name: Charles F. Easley;
Appointment or date of commission: June 28, 1893.
Name: Quinby Vance;
Appointment or date of commission: July 26, 1897.
Name: Morgan O. Llewellyn;
Appointment or date of commission: Jan. 20, 1902.
Name: John W. March;
Appointment or date of commission: Jan. 13, 1908.
Name: Lucius Dills;
Appointment or date of commission: Mar. 20, 1914.
Name: Manuel A. Sanchez;
Appointment or date of commission: Apr. 7, 1922.
Source: C. Albert White, A History of the Rectangular Survey System
(Washington, D.C.: U.S. Government Printing Office, 1983).
[End of table]
The Surveyor General of New Mexico was the first U.S. Surveyor General
assigned the responsibility of investigating Spanish and Mexican land
grant claims in addition to his usual surveying duties. As originally
established in 1850, the New Mexico Territory stretched from Texas to
California and included part of what is now southern Colorado and the
southern tip of Nevada. As the Territory changed shape, however, and
other Offices of Surveyor General were established throughout the West,
the responsibility to investigate claims was shared by several
surveyors general. The size and shape of the New Mexico Territory
changed with the formation of the Colorado and Arizona Territories in
1861 and 1863, respectively. The Surveyor General of Colorado was
assigned the responsibility of investigating Spanish and Mexican land
grant claims in the Colorado Territory when it was established in
1861,[Footnote 30] and the Surveyor General of Arizona was assigned the
responsibility of investigating claims in the Arizona Territory in 1863
and again in 1870.[Footnote 31] The Surveyors General of New Mexico,
Colorado, and Arizona continued to investigate Spanish and Mexican land
grant claims until Congress established the Court of Private Land
Claims in 1891.
The Court of Private Land Claims Legislation (1891 Act):
On March 3, 1891, Congress enacted the 1891 Act, the second principal
statute implementing the property protection provisions of the Treaty
of Guadalupe Hidalgo with respect to land grants in New
Mexico.[Footnote 32] The 1891 Act, also discussed in greater detail in
chapter 2, superseded the 1854 Act that had been in effect for 37
years. The 1891 Act created the Court of Private Land Claims (CPLC) to
address land grant claims in the Territories of New Mexico, Arizona,
and Utah and the States of Nevada, Colorado, and Wyoming. The CPLC was
the first federal court especially created by Congress to address land
grant claims. Federal courts previously had played a role in evaluating
land grant claims in other areas of the country: in the 1851 Act,
Congress had authorized federal courts of general jurisdiction to hear
appeals of administrative rulings by the California Commission, and
Congress previously had directed the federal courts to address claims
for European-issued land grants under the Louisiana Purchase and the
acquisition of Florida.[Footnote 33] Bills creating a special land
court had been introduced previously, but were never enacted. By the
early 1890s, however, the predominant view in Congress, in the face of
fraudulent land grants that Congress believed had been approved in both
California and New Mexico, was that a special land court was needed to
evaluate land grant claims and that this court should apply more
carefully circumscribed legal standards.
Land Grant Issues in New Mexico Today:
Today, 300 years after Spain made its first land grants in New Mexico
and more than 150 years after the Treaty of Guadalupe Hidalgo was
signed, concerns and bitterness over the United States' implementation
of the Treaty still linger. Deeply rooted convictions and conflicting
views of land grant heirs, land grant boards of directors, advocacy
organizations, legal and academic experts, and the New Mexico State
Attorney General's Treaty of Guadalupe Hidalgo Land Grant Task Force,
among others, have focused on the land grant disputes in recent years.
At the core of the most wide-ranging complaints about implementation of
the Treaty lies the allegation that the U.S. government did not protect
individuals' or communities' ownership to the same extent that these
lands would have been recognized and protected under the laws and
practices of México. As an example of this perceived disparity,
scholars and land grant heirs often point to the treatment given the
Tierra Amarilla land grant, and they also allege that the Surveyor
General of New Mexico failed to comply with U.S. Constitutional
requirements of "due process of law" during his investigation of this
grant.[Footnote 34] As a result of these alleged shortcomings, heirs
contend, Congress in 1881 incorrectly patented almost 600,000 acres to
an individual instead of to the Tierra Amarilla community. Issues
associated with the Tierra Amarilla community's perceived loss of land
to private individuals still create a sense of bitterness and an
atmosphere of general distrust about the federal government, as
reflected in a 1967 confrontation between land grant heirs, their
advocates, and state and federal authorities at a courthouse in the
town of Tierra Amarilla, New Mexico.[Footnote 35]
In addition to these core complaints, there are collateral issues
regarding land grants in New Mexico that are beyond the scope of this
report. For example, land grant heirs and their advocates consistently
express concern that racial prejudice contributed to shortcomings in
the land grant adjudication process and the results of this process.
These groups have asserted that the ideology of Manifest Destiny
promoted a form of racism and arrogance to the detriment of Mexicans
and former Mexicans living in New Mexico territory. Others have claimed
that the U.S. government tolerated the ambitions of unscrupulous
individuals who exploited the land grant situation, manipulated public
land laws, and confused Mexicans unfamiliar with the new U.S. legal
system in order to enrich themselves and acquire land.
Land grant heirs and their advocates today have launched a campaign to
encourage the U.S. Congress to resolve concerns pertaining to their
long-standing community land grant claims in New Mexico. One land grant
advocacy group has proposed that some form of government "restitution"
of land grants be made and "compensation" provided to heirs for their
perceived loss of lands. Another group is attempting to organize land
grant communities in New Mexico so that they can achieve recognition
and redress for their unresolved concerns. To assist the Congress in
deciding whether it may wish to take any additional measures in
response to these concerns, and if so, what types of measures it may
wish to consider, Senators Jeff Bingaman and Pete Domenici asked us to
study a number of issues, and Representative Tom Udall joined in this
request.
Objectives, Scope, and Methodology of This Report:
To respond to the request by Senators Bingaman and Domenici and
Representative Udall, we agreed to review how the United States
implemented the Treaty's property protection provisions with respect to
community land grants in New Mexico and to identify and evaluate the
concerns that have been raised about this implementation process. We
agreed to answer these questions in two reports.
GAO's First Report:
On September 10, 2001, we issued our first report on community land
grants in New Mexico in English and Spanish.[Footnote 36] The first
report defined the concept of community land grants, identified three
types of grants that met this definition, and listed the grants for
which we found evidence supporting their identification in each
category. We limited our review to community land grants made by Spain
or México from the late 1600s to 1846 that were partially or wholly
situated within the current borders of the State of New Mexico and
subject to the Treaty of Guadalupe Hidalgo. We also included grants
that México made in the portion of New Mexico affected by the 1853
Gadsden Purchase, because those grants also were subject to the Treaty.
To define "community land grants," we reviewed land grant documents
filed with the U.S. government; Spanish colonial, Mexican, and current
New Mexico state laws; federal, state, and territorial court cases; and
the land grant literature. In our analysis, we found that the land
grant documents did not use the specific term "community land grants,"
nor did Spanish and Mexican laws use this term. We did find, however,
that some grants referred to lands set aside for general communal use
(ejidos) or for specific purposes, including hunting (caza), pasture
(pastos), wood gathering (leña), and watering (abrevederos). Scholars,
the land grant literature, and popular terminology also commonly use
the phrase "community land grants" to denote land grants that set aside
common lands for the use of the entire community, and we adopted this
broad definition in determining which Spanish and Mexican land grants
could be identified as community land grants.
Using this broad definition, we identified three categories of
community land grants. The first type of grant was a grant in which
common lands formed part of the original grant. A grant was included in
this category if it met one of the three following criteria:
* The grant document declared that part of the land was made available
for communal use, using such terms as "common lands" or "pasturage and
water use"; or:
* The grant was made for the purpose of establishing a town or other
new settlement. Spanish laws and customs concerning territories in the
New World provided that new settlements, cities, and towns would
include common lands; or:
* The grant was issued to 10 or more settlers. Spanish law governing
settlement in the New World stated that 10 or more married persons
could obtain a land grant if they agreed to form a settlement
indicating that a grant would contain common lands.
The second category of community land grant we identified were grants
for which a person or persons had reported the existence of common
lands in their grant. No specific existing grant document supported
this assertion; claimants stated that the original documentation had
been lost or destroyed. Nevertheless, common lands were mentioned in
other documents filed with the Office of the Surveyor General of New
Mexico or the CPLC. This category also included private grants that set
aside land for the common use of settlers.
The third category of community land grant we identified encompassed
grants made by Spain to the indigenous pueblo cultures in New Mexico to
protect communal land that they had used and held for centuries before
the Spanish settlers arrived. Spain and México recognized the Pueblo's
communal settlements.
Using these criteria, we identified a total of 154 community land
grants, or approximately 52 percent of the total of 295 land grants
made by Spain and México within New Mexico. Table 3 identifies the
number of Spanish and Mexican land grants by type of category.
Table 3: Spanish and Mexican Land Grants in New Mexico:
Grant type: Community land grants: Original documentation community
grants;
Explanation: Community land grants identified through original grant
documentation;
Total number of land grants in New Mexico: 78.
Grant type: Community land grants: Self-identified community grants;
Explanation: Grants identified by heirs, scholars or others as having
common lands but lacking documentation;
Total number of land grants in New Mexico: 53.
Grant type: Community land grants: Pueblo community grants;
Explanation: Grants made by Spain to indigenous pueblo communities;
Total number of land grants in New Mexico: 23.
Subtotal for community land grants;
Total number of land grants in New Mexico: 154.
Grant type: Individual land grants;
Explanation: Grants made to individuals;
Total number of land grants in New Mexico: 141.
Total;
Total number of land grants in New Mexico: 295.
Source: GAO analysis.
[End of table]
GAO's Second Report:
In this second and final report, we agreed to: (1) describe the
confirmation procedures by which the United States implemented the
property protection provisions of the Treaty with respect to New Mexico
community land grants and the results produced by those procedures; (2)
identify and assess concerns regarding these procedures as they pertain
to the government's confirmation of these grants from 1854 to 1904; (3)
identify and assess concerns regarding acreage transferred voluntarily
or involuntarily after the confirmation procedures were completed; and
(4) outline possible options that Congress may wish to consider in
response to remaining community land grant concerns. As agreed, GAO
does not express an opinion on whether the United States fulfilled its
obligations under the Treaty as a matter of international law.
To determine how the United States implemented the property protection
provisions of the Treaty, we reviewed archival documentation describing
the procedures established and followed by the Surveyor General of New
Mexico and the CPLC, as well as numerous books and articles. We also
interviewed officials from local, state, and federal agencies and
academic experts and historians who were familiar with the
implementation of the property protection provisions of the treaty.
(Appendix VIII of this report is a complete list of all of the
individuals, groups and agencies we contacted.) We examined the
legislation creating the Surveyor General and the Department of the
Interior's subsequent instructions to the Surveyor General, and the
legislation creating the CPLC. We obtained and examined all of the
community land grant adjudicative decisions and reports from the
Surveyor General of New Mexico, the CPLC, and the U.S. Supreme Court.
We determined the number of grants that were confirmed and awarded at
least some acreage and the number of grants that were rejected in
total. We also calculated a revised figure for the percentage of
acreage approved in New Mexico during the confirmation process, by
excluding from our analysis acreage associated with factors we judged
inappropriate or misleading, namely: (1) acreage for grants located
primarily outside New Mexico; (2) acreage for which claims were filed
but never pursued (for example, because the land already had been
confirmed to another grant or a court already had rejected similar
claims as unsupported); (3) acreage sought under claims for which the
courts found they had no jurisdiction; (4) acreage that was double-
counted because more than one claimant sought the same land; and (5)
grants that appeared to be fully confirmed but where the original
amount claimed had been inadvertently overestimated. Furthermore, we
identified and reviewed existing studies and published reports,
articles and books on the workings of the Surveyor General of New
Mexico and the CPLC and compared them with similar activities in
California, under the Treaty of Guadalupe Hidalgo, and in Louisiana and
Florida, under the Louisiana Purchase and Florida purchase treaties. We
also reviewed federal and state cases, including U.S. Supreme Court
cases, concerning the confirmation of grants in California and, under
the Louisiana Purchase and Florida treaties, in those locations.
To identify and assess the concerns regarding the implementation of the
Treaty as it pertains to the confirmation of community land grants in
New Mexico, we interviewed officials from the New Mexico Land Grant
Forum, the New Mexico Attorney General's Treaty of Guadalupe Hidalgo
Land Grant Task Force, the All Indian Pueblo Council, various land
grant boards of trustees, and community land grant heirs throughout New
Mexico. We identified the reasons why some acreage claimed by community
land grant heirs had been rejected by the Surveyor General of New
Mexico, the CPLC, and the U.S. Supreme Court. In particular, for each
of the 154 community land grants, we documented the rationale behind
the rejection or reduction in size of grants or, when the information
was available, why claimants had failed to pursue their cases, and then
developed categories of grants based on these reasons. We also
identified and reviewed existing studies, articles, and published
reports on the results and criticisms of the Surveyor General and the
CPLC processes, including materials criticizing outcomes for specific
grants as well as materials critical of the overall procedures. To
determine whether the procedures established to implement the Treaty's
property protection provisions regarding New Mexico land grants were in
compliance with applicable U.S. laws and requirements, including the
U.S. Constitution, we examined the Treaty provisions, decisions by the
federal courts, legal treatises, and the literature.
To identify and assess the concerns regarding acreage lost after the
confirmation process, we interviewed land grant legal scholars, land
grant heirs, and land grant organizations. We obtained and reviewed
studies, and articles that contained information on the various ways in
which community land grants lost ownership of much of their land. We
attempted to contact representatives of each of the 84 non-Indian
community land grants that were confirmed and received some acreage to
determine how much land they currently controlled. After an extensive
search, we reached representatives for 37 of the grants, and were
advised by members of the New Mexico Land Grant Forum that the best
estimate of current acreage held by the remaining 47 grants was zero.
To determine whether the United States had a fiduciary duty under the
Treaty to protect land grant heirs and land grant property from
governmental and private actions, we examined the Treaty's property
protection provisions, decisions by the federal and New Mexico state
courts, legal treatises, and the literature.
Finally, to determine what options Congress may wish to consider if it
decides that some sort of additional action may be appropriate in
response to continuing concerns, we interviewed local, state, and
federal officials, scholars in the land grant area, and land grant
heirs. During these interviews, we asked land grant heirs and others to
identify specific actions that they believed would resolve their
concerns. We also identified and reviewed prior congressional actions
designed to resolve land disputes unrelated to the Treaty of Guadalupe
Hidalgo, as well as prior congressional bills and hearings addressing
land grant disputes under the Treaty. As detailed in chapter 5, in the
non-Guadalupe Hidalgo context, congressional actions have ranged from
issuance of an apology to creation of government commissions authorized
to make financial payments or award federal land; in the Guadalupe
Hidalgo context, bills have been introduced starting in 1971 and as
recently as 2001 (H.R. 1823, the Guadalupe-Hidalgo Treaty Land Claims
Act of 2001, sponsored by Representative Tom Udall) to create a
commission to evaluate and address individual claims or categories of
claims.
We conducted our work on this second report from September 2001 through
May 2004 in accordance with generally accepted government auditing
standards.
Summary:
In summary, under the 1848 Treaty of Guadalupe Hidalgo, México ceded
vast territories to the United States, from California to Texas. The
United States agreed in the Treaty to recognize and protect Mexicans'
ownership of property within the ceded territory that had previously
been obtained under community and individual land grants from Spain and
México. The manner in which the United States implemented these Treaty
obligations has been the subject of debate and conflict for more than a
century, and GAO was asked to study a number of issues to assist the
Congress in deciding whether any additional measures may be appropriate
in response to continuing concerns. The results of this study are set
forth in our first report on these issues in September 2001 and in this
second and final report.
[End of section]
Chapter 2: Congress Directed Implementation of the Treaty of Guadalupe
Hidalgo's Property Provisions in New Mexico through Two Successive
Procedures:
Overview:
Over a 50-year period starting in 1854, Congress directed
implementation of the property protection provisions of the Treaty of
Guadalupe Hidalgo in New Mexico for community land grants through two
distinct and successive procedures. First, in the 1854 Act, Congress
established the Office of the Surveyor General of New Mexico within the
General Land Office of the Department of the Interior (Interior). The
Surveyor General was charged with investigating the land grant claims
and, through Interior, making recommendations to Congress for final
action. The 1854 Act directed the Surveyor General to base his
conclusions about the validity of land grant claims on the "laws,
usages, and customs" of Spain and México and on more detailed
instructions to be issued by Interior. These instructions, in turn,
directed the Surveyor General to recognize land grants "precisely as
México would have done" and to presume that the existence of a city,
town, or village at the time of the Treaty was clear evidence of a
grant. The Surveyor General investigated claims under this process from
1854 to 1891, and Congress confirmed the vast majority of grants
recommended for confirmation before the Civil War in the early 1860s.
Congressional confirmation ceased during the war and resumed thereafter
in the mid-1860s, but stopped again in the early 1870s because of
concern about allegations of fraud and corruption. These concerns
finally were addressed with the advent of a new Presidential
administration in 1885, which scrutinized the confirmation process and
appointed a new Surveyor General. The new Surveyor General reconsidered
and reversed some of his predecessor's recommendations to Congress, and
a backlog of land grant claims developed.
After several attempts at reform, Congress ultimately revised the
confirmation process in 1891 with passage of the 1891 Act. The 1891 Act
established a new entity, the Court of Private Land Claims (CPLC), to
adjudicate both new and remaining claims for lands in New Mexico (and
certain other territories and states). In part to prevent the type of
fraud and corruption which had characterized some of the claims filed
in New Mexico and California, Congress directed the CPLC to apply a
stricter legal standard for approval of land grants than Congress had
established for the Surveyor General of New Mexico. Under the new
standard, the CPLC could confirm only those grants that claimants could
prove had been "lawfully and regularly derived" under Spanish or
Mexican law, and the presumption that Interior had directed the
Surveyor General to follow--to find in favor of a grant based on the
previous existence of a city, town, or village--was eliminated. Either
the claimant or the U.S. government could appeal the CPLC's decisions
directly to the U.S. Supreme Court, which could review claims de novo,
that is, without giving a presumption of correctness to the CPLC's
rulings. Like the CPLC, however, the Supreme Court was bound by the
same legal standard that a claim must have been "lawfully and regularly
derived" under Spanish or Mexican law. The CPLC adjudicated land grant
claims from 1891 through 1904. Thus over the 50-year history of the two
successive statutory land grant confirmation processes in New Mexico,
the legal standards and procedures applied in determining whether a
community land grant should be confirmed became more rigorous.
In discussing the results of these two confirmation procedures in New
Mexico, land grant scholars often have reported that only 24 percent of
the acreage claimed in New Mexico was awarded, for both community and
individual grants, in contrast to the percentage of acreage awarded in
California of 73 percent. In our judgment, the percentage of claimed
acreage that was awarded for New Mexico grants was actually 55 percent,
because the acreage that can fairly be viewed as having been "claimed"
is considerably smaller than that cited by land grant scholars, with
the result that a larger proportion of acreage was actually awarded.
For example, scholars include as grant lands claimed in New Mexico
acreage that was located outside of New Mexico, acreage that was
covered by claims that were withdrawn or never pursued, and acreage
that was "double-counted." We believe the acreage attributable to these
factors should be excluded from a fair assessment of the confirmation
process results.
The claims that were filed and pursued for the 154 community land
grants located in present-day New Mexico during this 50-year period
encompassed 9.38 million acres of land. The majority of these land
grants--105 grants, or over 68 percent--were confirmed, and the
majority of acreage claimed under these confirmed grants--5.96 million
acres, or 63.5 percent--were ultimately awarded, although a significant
amount (3.42 million acres, or 36.5 percent) were not awarded and
became part of the U.S. public domain available for settlement by the
general population. Some of the confirmed grants were awarded less
acreage than claimed, and grants that were wholly rejected were awarded
no acreage at all. Land grant heirs and scholars commonly refer to
acreage that was not awarded during the confirmation process as "lost"
acreage, and thus it is said that community land grants "lost" 3.42
million acres during the confirmation process. The circumstances
surrounding this perceived loss have been a concern of land grant heirs
for more than a century.
The Surveyor General of New Mexico Investigated Claims from 1854 to
1891:
As noted in chapter 1, Congress began implementation of the Treaty of
Guadalupe Hidalgo in New Mexico by enactment of the 1854 Act on July
22, 1854, creating the Office of the Surveyor General of New Mexico
within Interior's General Land Office. The Surveyor General was
assigned surveying responsibilities similar to those of other
territorial and state surveyors general.[Footnote 37] In addition,
Congress assigned to the Surveyor General of New Mexico the
considerable responsibility of investigating and making
recommendations on the validity of Spanish and Mexican land grant
claims. Ascertaining the validity of these claims was important to the
United States both to fulfill its obligations under the Treaty and to
identify which lands were deemed to be public lands of the United
States (namely, the lands remaining after the land grant claims had
been resolved) so they could be made available for settlement by the
general population.
The Surveyor General of New Mexico processed land grant claims from
1854 to 1891.[Footnote 38] During this 37-year period, claims were
filed with respect to 208 of the 295 Spanish and Mexican land grants
that had been made within New Mexico. Of these 208 grants, the Surveyor
General recommended 181 grants for final action; Congress confirmed 67
of these grants. Congress confirmed most of these before the Civil War
in the 1860s, at which point grant confirmation ceased. Congressional
confirmation resumed after the war in the mid-1860s, but stopped again
in the early 1870s because of concern over allegations of fraud and
corruption in land speculation, as exemplified by the confirmation of
several very large grants. These concerns were finally addressed with
the advent of a new Presidential administration in 1885, which
scrutinized the process and appointed a new Surveyor General. The new
Surveyor General reconsidered and reversed some of his predecessor's
recommendations to Congress.
The Surveyor General Was Assigned Responsibility to Investigate Land
Claims in 1854:
Three years after Congress created the Commission process to resolve
land grant claims in California in the 1851 Act, it enacted the 1854
Act, giving the Surveyor General of New Mexico the responsibility of
evaluating land grant claims asserted on lands located within the
recently created New Mexico Territory. Section 8 of the 1854 Act (see
figure 5) directed the Surveyor General to evaluate, in accordance with
instructions to be issued by Interior, all claims to property in New
Mexico arising under Spanish and Mexican land grants based on the
"laws, usages, and customs" of Spain and México. To carry out these
responsibilities, the 1854 Act explicitly authorized the Surveyor
General--as the 1851 Act had authorized the Commission or its
Secretary--to "issue notices, summon witnesses, administer oaths, and
do and perform all other necessary acts" to investigate land grant
claims. In contrast to the 1851 Act, however, which set a 2-year
deadline for filing of land grant claims, the 1854 Act contained no
filing deadline.[Footnote 39] Once the Surveyor General obtained the
pertinent information, the 1854 Act directed him to make
recommendations to Congress, through Interior, on the "validity or
invalidity" of each claim. Congress would then confirm bona fide grants
and in the meantime, all claimed lands were to be protected from sale
or other disposal.[Footnote 40] The United States nevertheless
considered all land in the New Mexico territory to be part of the
public domain unless proven otherwise. This contrasted with treatment
of lands making up the Louisiana Purchase and Florida, where only the
land that had belonged to the sovereign was treated as part of the
United States public domain.
Figure 5: Provisions of 1854 Act Regarding Spanish and Mexican Claims:
"Sec. 8. And be it further enacted, That it shall be the duty of the
Surveyor-General, under such instructions as may be given by the
Secretary of the Interior, to ascertain the origin, nature, character,
and extent of all claims to lands under the laws, usages, and customs
of Spain and Mexico; and, for this purpose, may issue notices, summon
witnesses, administer oaths, and do and perform all other necessary
acts in the premises. He shall make a full report on all such claims as
originated before the cession of the territory to the United States by
the treaty of Guadalupe Hidalgo, of eighteen hundred and forty-eight,
denoting the various grades of title, with his decision as to the
validity or invalidity of each of the same under the laws, usages, and
customs of the country before its cession to the United States; and
shall also make a report in regard to all pueblos existing in the
Territory, showing the extent and locality of each, stating the number
of inhabitants in the said pueblos, respectively, and the nature of
their titles to the land. Such report to be made according to the form
which may be prescribed by the Secretary of the Interior; which report
shall be laid before Congress for such action thereon as may be deemed
just and proper, with a view to confirm bona fide grants, and give full
effect to the treaty of eighteen hundred and forty-eight between the
United States and Mexico; and until the final action of Congress on
such claims, all lands covered thereby shall be reserved from sale or
other disposal by the government, and shall not be subject to the
donations granted by the previous provisions of this act.".
Source: 10 Stat. at 309.
[End of figure]
As directed, a month after enactment of the 1854 Act, Interior issued
comprehensive additional instructions to the Surveyor General of New
Mexico detailing how he was to investigate land grant claims.
Generally, Interior directed the Surveyor General to recognize all
private and Indian pueblo titles "precisely as Mexico would have done
had the sovereignty not changed. We are bound to recognize all titles
as she would have done--to go that far, and no further." Specifically,
in addition to being authorized by the statute to summon witnesses and
administer oaths, Interior's instructions directed the Surveyor General
to perform the following "necessary acts": [Footnote 41]
* Become acquainted with the land system of Spain, by examining the
laws of Spain; its ordinances, decrees, and regulations; and
congressional acts and U.S. Supreme Court decisions that had addressed
Spanish land grants in other parts of the United States.
* Obtain, organize, and analyze all documents from the territorial
archives related to Spanish and Mexican land grants.
* Give public notice, in both English and Spanish, in the newspaper
with the largest circulation in the Santa Fe area and in any other
areas in which the Surveyor General held sessions (which were to be
"such places and periods as public convenience may suggest"), of the
Surveyor General's "readiness to receive notices and testimony in
support of the land claims" under the Treaty of Guadalupe Hidalgo.
* Require a written submission from each claimant detailing: (1) the
name of the present claimant; (2) the name of the original claimant;
(3) the nature of the claim--whether "perfect" or "imperfect";[Footnote
42] (4) the date the grant was made; (5) the authority from which the
original title was derived; (6) the quantity of land claimed; (7) the
location, notice, and extent of any conflicting claims; (8) a showing
of a transfer of right from the original grantee to the present
claimant; and (9) a plat of survey, if conducted, or other evidence
showing the precise location and extent of the tract claimed.
* Treat the existence of a city, town, or village at the time the
United States took possession as prima facie (presumptive) evidence of
a grant. (This same presumption had been included in the 1851 Act
directing adjudication of Spanish and Mexican land grant claims in
California.) Specifically, Interior's instructions provided:
In the case of any town lot, farm lot, or pasture lots, held under a
grant from any corporation or town to which lands may be granted for
the establishment of a town, by the Spanish or Mexican government, or
the lawful authorities thereof, or in the case of any city, town, or
village lot, which city, town, or village existed at the time
possession was taken of New Mexico by the authorities of the United
States, the claim to the same may be presented by the corporate
authorities; or where the land on which the said city, town, or
village, was originally granted to an individual, the claim may be
presented by or in the name of such an individual; and the fact being
proved to you of the existence of such city, town, or village at the
period when the United States took possession, may be considered by you
as prima facie evidence of a grant to such corporation, or to the
individuals under whom the lot-holders claim; and where any city, town,
or village shall be in existence at the passage of the act of 22d July,
1854, the claims for the land embraced within the limits of the same
may be made and proved up before you by the corporate authority of the
said city, town, or village. Such is the principle sanctioned by the
act of 3rd March, 1851, for the adjudication of Spanish and Mexican
claims in California; and I think its application and adoption proper
in regard to claims in New Mexico. (Emphasis added.)
* Guard against fraudulent claims. Interior's instructions warned
against accepting grants that had been backdated in order to appear
valid and directed the Surveyor General to require submission of
original title papers, authenticated copies, or a satisfactory
explanation of how title papers had been lost.
* List the Spanish and Mexican officials who had been authorized to
issue land grants, and describe the extent of their authority, from the
time of the earliest Spanish settlement of the territory until the
United States acquired the territory.
* Identify all the Indian pueblos existing in the Territory, showing
the extent and locality of each, stating the number of inhabitants
living there, and stating the nature of the residents' titles to the
land.
On the basis of the foregoing requirements, the Surveyor General was to
prepare a report summarizing his findings on the validity or invalidity
of each claim, and submit the report to Interior's General Land Office
in Washington, D.C. After reviewing the reports, the General Land
Office was to forward them to the Secretary of the Interior for
submission to Congress for final action.
The Investigation and Recommendation Process Followed by the Surveyor
General:
In accordance with the 1854 Act and Interior's instructions, the
Surveyor General published the requisite newspaper notice, in English
and Spanish, announcing his readiness to receive land grant claims and
supporting testimony.[Footnote 43] In response to these notices, the
Surveyor General ultimately received claims involving 208 of the 295
Spanish and Mexican community and individual land grants located
partially or entirely in New Mexico.[Footnote 44] (See table 4.) The
Surveyor General found that a number of the claim submissions filed
were incomplete, meaning that they did not contain all of the required
documents or information necessary to begin an investigation. The
Surveyor General's annual report for 1885, for example, identified six
pending claims for which no supporting documents had been filed, and
his 1890 annual report identified 14 incomplete claims.
Table 4: Overview of the Results of the Surveyor General Land Grant
Confirmation Process of Spanish and Mexican Land Grants in New Mexico,
1854-1891:
Grant type: Community land grants: Original documentation community
grants;
Total number of land grants in New Mexico: 78;
Number of grants for which claims were filed with the Surveyor General:
68;
Number of grants reported on by the Surveyor General: 57;
Number of grants confirmed by Congress: 21.
Grant type: Community land grants: Self-identified community grants;
Total number of land grants in New Mexico: 53;
Number of grants for which claims were filed with the Surveyor General:
39;
Number of grants reported on by the Surveyor General: 32;
Number of grants confirmed by Congress: 9.
Grant type: Community land grants: Pueblo community grants;
Total number of land grants in New Mexico: 23;
Number of grants for which claims were filed with the Surveyor General:
23;
Number of grants reported on by the Surveyor General: 22;
Number of grants confirmed by Congress: 18.
Subtotal;
Total number of land grants in New Mexico: 154;
Number of grants for which claims were filed with the Surveyor General:
130;
Number of grants reported on by the Surveyor General: 111;
Number of grants confirmed by Congress: 48.
Grant type: Individual grants;
Total number of land grants in New Mexico: 141;
Number of grants for which claims were filed with the Surveyor General:
78;
Number of grants reported on by the Surveyor General: 70;
Number of grants confirmed by Congress: 19.
Total;
Total number of land grants in New Mexico: 295;
Number of grants for which claims were filed with the Surveyor General:
208;
Number of grants reported on by the Surveyor General: 181;
Number of grants confirmed by Congress: 67.
Source: GAO analysis.
[End of table]
To investigate a grant's validity, nature and extent, the Surveyor
General looked in part to documents in the territory's archives
relating to Spanish and Mexican land grants.[Footnote 45] In addition,
the Surveyor General relied on documents contained in claimants'
submissions and on claimants' testimony. The vast majority of claimants
were represented by legal counsel in their dealings with the Surveyor
General, and either counsel or the claimants themselves sometimes
called additional witnesses to give supporting testimony. The evidence
also indicates that there was cross-examination of witnesses in some of
the proceedings, in at least 20 different instances, either by counsel
for a party who disputed the claim, by an attorney for the United
States, or by the Surveyor General or his staff.[Footnote 46]
Today, as discussed in more detail in chapter 3, some scholars assert
that this 1800s process lacked some of the elements of constitutional
"due process of law," which they contend would have meant providing
actual notice to all persons who might have had a potential interest in
a grant. These scholars also assert that due process required giving
such potentially interested persons an opportunity to cross-examine
witnesses testifying in support of a claim. Several Surveyors General
and Commissioners of Interior's General Land Office also were critical
of the Surveyor General process, as discussed later in this chapter.
However, as discussed in chapter 3, we conclude that the Surveyor
General process complied with the fundamental requirements of
procedural due process as those requirements were defined by the courts
at that time, and even under today's legal standards.
Over the course of the Office of Surveyor General's 37-year activity,
the Office reported on a total of 181 grants,[Footnote 47] 159 of which
were addressed before the confirmation process became more rigorous in
1885 following the fraud and corruption controversy and confirmation of
a number of large-acreage grants (discussed later in this chapter).
Virtually all of the Surveyor General's reports before 1885 (151, or 95
percent) recommended approval of the grant, while only 8 recommended
rejection. (See table 5.) From 1885 to 1891, after a new Surveyor
General was appointed, many of the previous Surveyor General decisions
were reviewed and "reversed" through supplemental reports, and initial
reports were prepared for the remaining 22 grants. Of these 22 grants,
15 (68.2 percent) were recommended for approval and 7 were recommended
for rejection.
Table 5: Grants Recommended for Rejection in Original Decisions by the
Surveyor General of New Mexico, 1854-1891:
Recommendations for rejection, 1854-1884[B]:
Grant name: Jornado del Muerto;
Report number: 26;
Grant type[A]: I;
Reason(s) for recommending rejection: Conditions of grant not met.
Grant name: Galisteo (Town of);
Report number: 60;
Grant type[A]: C;
Reason(s) for recommending rejection:
(1) Insufficient proof of a grant;
(2) Copy of grant documents made by official not authorized to make
copies.
Grant name: Ojo del Apache;
Report number: 72;
Grant type[A]: I;
Reason(s) for recommending rejection: Official not authorized to make
grant.
Grant name: San Cristóbal;
Report number: 110;
Grant type[A]: OI;
Reason(s) for recommending rejection:
(1) Grant not recorded in archives;
(2) Conditions of grant not met;
(3) Official not authorized to make grant.
Grant name: Orejas del Llano de los Aguajes;
Report number: 117;
Grant type[A]: I;
Reason(s) for recommending rejection: Forgery.
Grant name: José Domínguez;
Report number: 120;
Grant type[A]: I;
Reason(s) for recommending rejection: Insufficient proof of a grant.
Grant name: Bartolomé Baca;
Report number: 126;
Grant type[A]: I;
Reason(s) for recommending rejection: Pasture license; not a grant.
Grant name: Sebastián De Vargas[C];
Report number: 137;
Grant type[A]: I;
Reason(s) for recommending rejection: Insufficient proof of a grant.
Recommendations for rejection, 1885-1891:
Grant name: Domingo Valdez;
Report number: 141;
Grant type[A]: I;
Reason(s) for recommending rejection: Insufficient proof of a grant.
Grant name: Ocate;
Report number: 143;
Grant type[A]: I;
Reason(s) for recommending rejection: Conditions of grant not met.
Grant name: San Antonio de las Huertas;
Report number: 144;
Grant type[A]: C;
Reason(s) for recommending rejection: Insufficient proof of a grant.
Grant name: Guadalupita;
Report number: 152;
Grant type[A]: OI;
Reason(s) for recommending rejection: Official not authorized to make
grant.
Grant name: Las Lagunitas;
Report number: 154;
Grant type[A]: OI;
Reason(s) for recommending rejection: Insufficient proof of a grant.
Grant name: José García;
Report number: 160;
Grant type[A]: I;
Reason(s) for recommending rejection: Insufficient proof of a grant.
Grant name: Nuestra Señora del los Dolores Mine;
Report number: 162;
Grant type[A]: I;
Reason(s) for recommending rejection: Mining license; not a grant.
Source: GAO analysis.
Note: Congress acted on only one of these recommendations for
rejection. Section 5 of the Act of June 12, 1860 allowed the claimants
of the Jornado del Muerto grant to take their claim to the Supreme
Court of the Territory of New Mexico. The decision by the New Mexico
Supreme Court was appealed to the U.S. Supreme Court, which ultimately
rejected the claim in United States v. Vigil, 80 U.S. 449 (1871)
(discussed in chapter 3). The claimants for the other grants were free
to submit their claims to the CPLC because Congress did not act on
them. The claimants for the San Cristóbal grant, the José Domínguez
grant, and the Las Lagunitas grant did not submit their claims to the
CPLC.
[A] "C" refers to community land grants identified through original
grant documentation. "OI" refers to grants identified by grant heirs,
scholars, or others as having common lands but lacking supporting grant
documentation. "I" refers to grants made to individuals.
[B] The Surveyor General originally recommended approval of the Uña del
Gato individual land grant in 1874. That decision was reviewed and
reversed in 1879. In the 1879 decision, Surveyor General Atkinson
determined that the grant documents were forgeries and that the claim
was a fraud. Congress did not act on this claim, and it was not
submitted to the CPLC.
[C] This was the only grant that originally was recommended for
rejection but later was recommended for approval in a supplemental
report. Additional documentation was submitted in support of the claim,
and in the 1886 supplemental report for the grant, Surveyor General
Julian recommended that Congress confirm it.
[End of table]
In evaluating the validity of community land grant claims, the Surveyor
General followed Interior's instruction to presume that the existence
of a city, town, or village at the time of the Treaty was prima facie
evidence of a grant. Prior to 1885, the Surveyor General almost always
recommended that Congress approve the grants, and most of the small
number of recommendations for rejection involved individual land grants
rather than community grants. Although the Surveyor General originally
recommended that five community land grants be rejected, not all the
community land grants, as GAO has defined that term for purposes of our
reports, were evidenced by the existence of a city, town, or
village.[Footnote 48] The direct effect of this presumption in favor of
towns is illustrated by a comparison of the Surveyor General's
recommendations for the Ojo del Apache individual land grant and the
San Antonio del Río Colorado community land grant. As shown in table 5,
Surveyor General Proudfit recommended that the Ojo del Apache grant be
rejected because it was made by a justice of the peace who, under
Mexican law, was not authorized to issue land grants. In support of his
decision, Surveyor General Proudfit cited United States v. Cambuston,
61 U.S. 59 (1857), an 1857 U.S. Supreme Court decision that had
rejected a California land grant claim because it was made by a person
unauthorized under Mexican law.[Footnote 49] Shortly after this
recommendation to reject, Surveyor General Proudfit recommended
approval of the San Antonio del Río Colorado grant, even though it also
had been made by a justice of the peace. As noted in the Surveyor
General's January 1874 report, the justice of the peace made the grant
to over 30 families, who then established a village. The Surveyor
General relied on this additional fact, and the presumption in favor of
cities, towns, and villages, in stating that it did not matter "whether
all original proceedings were regular or not."
From 1854 to 1891, by enactment of a series of seven confirmation
statutes, Congress confirmed 67 of the land grants that the Surveyor
General had forwarded, through Interior, for final action. (See table
6.) Congress did not confirm all of the grants that the Surveyor
General had recommended, nor did it award all of the acreage claimed
for those grants it did confirm. The first confirmation statute,
enacted in December 1858, confirmed 22 grants, including 17 Indian
pueblo grants. By June 21, 1860, Congress had acted on all of the
Surveyor General's recommendations pending before it. The Civil War
brought the congressional confirmation process to a standstill in the
early 1860s. Congressional confirmations resumed after the war, as
reflected in table 6, but as discussed below, they quickly became
embroiled in controversy over the size of several large-acreage grants.
Similar to the provisions of the 1851 Act for grants in California, all
of these confirmation statutes for New Mexico land grants specified
that they only resolved the title that the United States had as against
the claimant, and did not bar others from later asserting that they had
title superior to that of the original claimant.[Footnote 50] Unlike
the 1851 Act, however, the courts upheld this limitation on the effect
of the New Mexico confirmation statutes, thus enabling later challenges
to community land grant ownership.[Footnote 51]
Table 6: Statutes Confirming Spanish and Mexican Land Grants in New
Mexico, 1854-1891:
Confirmation act: Act of Dec. 22, 1858;
Citation: 11 Stat. 374;
Community land grants confirmed: 22;
Individual land grants confirmed: 0;
Total number of land grants confirmed: 22.
Confirmation act: Act of June 21, 1860;
Citation: 12 Stat. 71;
Community land grants confirmed: 23;
Individual land grants confirmed: 13;
Total number of land grants confirmed: 36[A].
Confirmation act: Act of Mar. 1, 1861;
Citation: 12 Stat. 887;
Community land grants confirmed: 0;
Individual land grants confirmed: 1;
Total number of land grants confirmed: 1.
Confirmation act: Act of June 12, 1866;
Citation: 14 Stat. 588;
Community land grants confirmed: 0;
Individual land grants confirmed: 1;
Total number of land grants confirmed: 1.
Confirmation act: Act of Feb. 9, 1869;
Citation: 15 Stat. 438;
Community land grants confirmed: 1;
Individual land grants confirmed: 0;
Total number of land grants confirmed: 1.
Confirmation act: Act of Mar. 3, 1869;
Citation: 15 Stat. 342;
Community land grants confirmed: 1;
Individual land grants confirmed: 4;
Total number of land grants confirmed: 5.
Confirmation act: Act of Jan. 28, 1879;
Citation: 20 Stat. 592;
Community land grants confirmed: 1;
Individual land grants confirmed: 0;
Total number of land grants confirmed: 1.
Total;
Community land grants confirmed: 48;
Individual land grants confirmed: 19;
Total number of land grants confirmed: 67.
Source: GAO analysis.
Note: There were three additional confirmation statutes from 1854 to
1891: (1) the Act of July 1, 1870, which confirmed the Gervacio Nolan
land grant in Colorado (16 Stat. 646); (2) the Act of June 6, 1878,
which approved a grant located in New Mexico made by Texas for Benjamin
E. Edwards (20 Stat. 537); and (3) the Act of Oct. 1, 1888, which
approved a grant located in New Mexico made by Texas for Henry Volcker
(25 Stat. 1194). Furthermore, Congress retroactively confirmed the
Pueblo of Zuñí land grant in 1931 (46 Stat. 1509). The Zuñí land grant
was located entirely within the Pueblo's reservation established by
executive order in 1877, as modified in 1883, 1885, and 1917.
[A] The Act of June 21, 1860, covered a total of 38 land grants. The
act confirmed the Las Animas land grant located entirely in the State
of Colorado. The New Mexico Territory as originally created in 1850
included part of what is now southern Colorado. The Colorado Territory
was not created until 1861. The act also covered the Jornado del Muerto
individual land grant. In 1859, Surveyor General Pelham recommended
that Congress reject this grant because the claimants had failed to
meet the conditions of the grant. In the Act of June 21, 1860, however,
instead of rejecting the claim outright, Congress allowed the claimants
to plead their case before the Supreme Court of the Territory of New
Mexico. Ultimately, the U.S. Supreme Court rejected the claim in United
States v. Vigil, 80 U.S. 449 (1871).
[End of table]
The surveying of land grants by the Surveyor General's Office generally
occurred only after Congress had confirmed a grant, and was a
controversial process. The purpose of a survey was to determine the
exact location and size of the grant, but the process was open to abuse
because of the vague boundary descriptions used in the original grant
documents and the fact that some of the land grants were over 100 years
old. In some cases, no documentation of grant boundaries existed; in
other cases, the boundary descriptions were vague; and in still other
cases, the boundary descriptions conflicted with the narrative
descriptions regarding the amount of land granted. Such problems led
Surveyors General to rely on claimants themselves to help identify the
grant boundaries, a situation that gave rise to a number of potential
conflicts of interests. First, it was generally in the claimant's
interest to try to get as much land approved as possible. Second,
because the Surveyor General relied on contract surveyors who were paid
by the mile, it was in the contract surveyors' interest to make surveys
as large as possible. It was not uncommon for grants to be surveyed
multiple times, as claimants and the Surveyor General tried to reach
agreement on the grant boundaries. For cities, towns, and villages that
lacked finite boundary descriptions, the Surveyor General used a
default size of 4 square leagues, or 17,361.11 acres, based on an
interpretation of Spanish and Mexican law. For example, nine pueblos
were approved for grants for about 4 square leagues each. Similarly,
the Surveyor General approved land grant claims for the towns of
Albuquerque and Santa Fe for 4 square leagues each.
Third, there was controversy involving which party bore the expense of
conducting the survey. The U.S. government paid for surveys from 1854
until mid-1862. In May and June 1862, partly in an effort to conserve
funds for the Civil War, Congress enacted two statutes requiring
claimants to pay the full cost of surveying their land grants.[Footnote
52] Claimants bore full survey costs until the second law was repealed
in March 1875.[Footnote 53] However, Congress enacted a similar
requirement about a year later, in July 1876, and claimants were once
again required to pay the full survey cost.[Footnote 54]
Once the survey had been approved and paid for, a "patent" could be
issued, provided that the relevant confirmation statute had directed
such issuance. The patent was a document signed by the President of the
United States, conveying all of the rights and interests that the
United States might have in a Spanish or Mexican land grant. Just as
the congressional confirmation statutes were equivalent only to a
quitclaim deed from the United States and did not convey fee simple
title, the patents also did not eliminate any superior rights to the
grant that other persons might have. Such third parties were entitled,
according to the terms of the patents, to challenge ownership of the
grant land in a separate court action.
Early Criticism of the Land Grant Confirmation Process under the
Surveyor General:
Among the most vocal critics of the decision to assign the task of
reviewing Spanish and Mexican land grant claims to the Office of the
Surveyor General of New Mexico were the Surveyors General themselves.
The first Surveyor General, William Pelham, who served for almost 6
years, was overwhelmed with the prospect of reviewing more than 250
years of Spanish and Mexican land grant records in addition to his
other duties as Surveyor General. Similarly, Surveyor General Pelham
and seven of his successors believed that determining the validity of
Spanish and Mexican land grants was a "quasi-judicial" (court-like)
task that would be best performed by someone with legal training. The
Surveyors General therefore strongly advocated that Congress either
enact legislation to establish a commission, similar to the one it had
established in California, or direct that a court adjudicate the land
grant claims. In 1858, 4 years after Congress had assigned the grant
evaluation task to the Surveyor General, a bill was introduced to
transfer this responsibility to such a commission,[Footnote 55] but the
bill was never enacted and wholesale reform of the land grant
confirmation process was not attempted again until the late 1870s.
Another concern that the early New Mexico Surveyors General had about
their own process was that the interests of the United States were not
being adequately represented. In contrast to the confirmation process
in California, where a U.S. Agent was required to be present in order
to "superintend" the government's interest in every case, and even
though the U.S. had a potential interest in every grant in New Mexico
because any rejected grant land was deemed public land of the United
States, the U.S. was not required to be separately represented in the
Surveyor General process. The Surveyors General believed that at a
minimum, an attorney representing the United States should be involved
in the process to present the government's case and to refute, as
appropriate, legal arguments presented by a claimant's attorney.
In addition to these broad concerns with the process, the early
Surveyors General expressed a number of more technical concerns. Noting
that the 1854 Act did not specify any deadline for the filing of
claims, the Surveyors General recommended that Congress amend the act
to create such a deadline. The delay in filing and adjudicating the
claims had made it extremely difficult to distinguish between public
and private lands in the New Mexico Territory. Surveyor General Pelham,
the first Surveyor General, lamented this fact in his first annual
report, noting that only 20 claims had been filed during the Office's
first 9 months of operation. He noted that by not specifying a filing
deadline, Congress had failed to secure the object for which the
Surveyor General process was intended, namely, the prompt resolution of
land grant claims. Several of Surveyor General Pelham's successors
commented on additional reasons that might have contributed to this
limited number of filings, such as the expenses involved in filing and
pursuing a claim (attorney fees, costs of producing witnesses, and
surveying costs).
Some of the Surveyors General themselves were concerned about the
burden of survey costs, which as noted above, Congress directed in 1862
should be paid by the claimants. Both claimants and some of the
Surveyors General maintained that such a requirement violated the
Treaty of Guadalupe Hidalgo, and claimants generally refused to pay for
surveying, choosing instead to rely on the respective congressional
confirmation statute as proof of title. In his 1874 annual report,
Surveyor General Proudfit reported that only six claimants had paid to
have their grants surveyed in the previous 12 years.
The annual reports of the Surveyors General consistently echoed the
call for a new confirmation process based on all of these difficulties,
as shown in figure 6:
Figure 6: Statements by Surveyors General of New Mexico and
Commissioners of the General Land Office Regarding the Surveyor General
Land Grant Confirmation Process:
"The difficulties and expense to which parties filing claims in this
office are subjected will account for the limited number which has been
filed; and I respectfully recommend further legislation on the subject,
as the present law has utterly failed to secure the object for which it
was intended.”
William Pelham, Surveyor General, 1855;
"Under the act of Congress approved June 2, 1862, the claimant, in
addition to the expense of establishing his claim by proof, is required
to pay the whole cost of survey...amounting, with the other expenses,
in many cases, to more than the cash value of the land claimed.”
John A. Clark, Surveyor General, 1862;
"The law now in force, requiring the surveyor general 'to ascertain the
origin, nature, character, and extent of all claims to land under the
laws, usages, and customs of Spain and Mexico,'...after thirteen years'
experience, has failed utterly to accomplish the purposes intended by
it. Great injustice is liable to be done, as well to claimants as to
the government, by this anomalous manner of determining the rights of
parties. The surveyor general is not permitted to incur any expense in
calling witnesses, no notice is required to be given to any party in
interest by publication or otherwise, and, as a consequence, almost all
investigations have been ex parte. ...The government in these
confirmations may not have done any injustice to individuals, or parted
with the title to any lands which properly belonged to it, but its
liability to do so under the circumstances is manifest. I have,
therefore, again to urge that Congress will make provision for the
better security of the rights of individuals and of government in the
settlement of these claims.”
John A. Clark, Surveyor General, 1867;
"I have not unduly magnified the importance to the government and the
people of the Territory of an early settlement of these claims. The
tide of emigration is setting strongly in this direction. Controversies
are constantly arising between new settlers and claimants under these
unadjusted titles. Thus immigration is discouraged, the progress of
settlement checked, and the development of the resources of the
Territory delayed.”
John A. Clark, Surveyor General, 1868;
"I have become convinced that a new law ought to be enacted by Congress
in the matter of these grants from former governments. The act of July
22, 1854, under which they have so far been adjudicated, is very crude
and defective...it is quite possible that some grants have thus been
confirmed that would not have passed the scrutiny of a special
commission of legal ability, provided with counsel for the Government,
means to compel attendance of witnesses, and other facilities for
preventing or disclosing fraud.”
James K. Proudfit, Surveyor General, 1873;
"However able, competent, and valuable a surveyor-general may be as an
executive officer, or to conduct the usual business arising in surveyor-
general's office, he may, and probably will, lack the technical legal
knowledge which will enable him to cope successfully with voluminous
title papers, complicated by the sophistry of skillful attorneys.”
S.S. Burdett, Commissioner, General Land Office, 1875;
"The experience of the past fully demonstrates that after these claims
have been reported to Congress, as required by the aforesaid act of
1854, Congress is loth to take them up and confirm them without more
definite knowledge regarding their genuineness, extent, and location;
which it is impossible to have under the present defective system.”
J.A. Williamson, Commissioner, General Land Office, 1876.
Source: U.S. Department of the Interior.
[End of figure]
Congressional Confirmations Ended after Controversy over the Size of
Large-Acreage Grants (the Tameling Case):
Although congressional confirmations of Surveyor General-recommended
land grants resumed after the Civil War, Congress again stopped
confirming land grants--this time, permanently--after controversy
erupted over the confirmation of several large land grants and the U.S.
Supreme Court upheld these confirmations by its 1876 decision in
Tameling v. United States Freehold & Emigration Co., 93 U.S. 644
(1876).[Footnote 56] In two earlier Supreme Court decisions (in 1855
and 1859) involving land grant claims in California, the Court had
declared that under Mexican law, Mexican governors had only been
authorized to grant a maximum of 11 square leagues (about 48,800 acres
or 74 square miles) to any one individual.[Footnote 57] Yet because the
Surveyor General of New Mexico was not originally authorized to survey
land grant claims until after Congress confirmed them, the area of many
land grant claims that the Surveyor General recommended for approval,
and Congress confirmed, had never been measured. As a consequence,
Congress was confirming grants in a vacuum, without knowledge of how
large the grants might be.
The Maxwell and Sangre de Cristo grants in New Mexico illustrate the
problems that this arrangement created. Each of these grants was
awarded to just two individuals, and under the Supreme Court's rulings
in the California cases, each grant should have been limited to a total
of 22 square leagues, or 97,650.96 acres (11 square leagues per person
multiplied by 2 people). Because the grants had not yet been surveyed,
however, Congress confirmed them in 1860 without knowing that they in
fact contained 1.7 million and 1 million acres, respectively.[Footnote
58] From the late 1860s to early 1870s, the Maxwell and Sangre de
Cristo claimants requested that their grants be surveyed according to
the way they had been described in the Surveyor General's reports, but
Interior rejected these requests and instead authorized surveys of only
22 square leagues for each grant (11 square leagues per claimant).
The Sangre de Cristo claimants appealed this decision and the case
ultimately culminated in the U.S. Supreme Court's Tameling decision in
1876. In Tameling, the Supreme Court upheld the Sangre de Cristo grant
for the full amount of acreage contained in the Surveyor General's
original description. The Court reasoned that although, under its
previous California-grant decisions, the authority of Mexican governors
to grant land under Mexican law had been limited to 11 square leagues
per person, Congress in its 1860 confirmation statute had independently
approved the Sangre de Cristo grant to the extent of the boundaries
described by the Surveyor General, without any size limitation. Justice
Davis stated that Congress's confirmation statute conclusively
confirmed the findings in the Surveyor's General recommendation, which
addressed both the entity that received title and the boundaries of the
grant. The original claimants were barred from challenging such
congressional confirmations.[Footnote 59] According to Justice Davis,
in its confirmation statutes, Congress "passes the title of the United
States as effectually as if it contained in terms a grant de
novo."[Footnote 60] Based on Tameling, the Surveyor General surveyed
the entire Maxwell and Sangre de Cristo grants, and the grants were
patented in 1879 and 1880, respectively, for about 1.7 million and 1
million acres. A time line of the key events surrounding these two
grants is presented in table 7.
Table 7: Time Line of Key Events for the Maxwell and Sangre de Cristo
Land Grants:
Act of July 22, 1854-Congress creates the Office of the Surveyor General of New Mexico and assigns it responsibility for investigating Spanish and Mexican land grant claims in the New Mexico Territory (10 Stat. 308-309).
Sangre de Cristo Grant: Oct. 11, 1855-Claim filed for the Sangre de
Cristo grant.
December 1855-U.S. Supreme Court rules that under Mexican law, Mexican
Governor only had authority to grant 11 square leagues to any one
individual (U.S. v. Larkin, involving appeal of a decision on a
California land grant claim).
Sangre de Cristo Grant: Dec. 30, 1856-Surveyor General recommends
approval of the Sangre de Cristo grant without knowing its size.
Maxwell grant: Feb. 23, 1857-Claim filed for the Maxwell grant.
Maxwell grant: Sept. 17, 1857-Surveyor General recommends approval of
the Maxwell grant without knowing its size.
December 1859-In another California land grant case, the U.S. Supreme
Court again rules that grants must be limited to 11 square leagues per
person based on Mexican law (U.S. v. The Widow, Heirs, and Executors of
William E.P. Hartnell).
Act of June 21, 1860-Congress confirms the Maxwell and Sangre de Cristo
land grants without any limitation on their size (12 Stat. 71). The act
did not authorize the Surveyor General to survey or patent the grants.
May 30 and June 2, 1862-Congress enacts laws authorizing the surveying
of land grant claims at the claimant's expense (12 Stat. 409, 12 Stat.
410).
March 3, 1869-Congress authorizes the Surveyor General to patent
previously confirmed land grants in New Mexico (15 Stat. 342).
Maxwell grant: May 31, 1869-Claimants' request for a survey forwarded
to the Department of the Interior].
Maxwell grant: Dec. 31, 1869-Decision by the Secretary of the Interior
to limit the survey to 22 square leagues (11 square leagues per person
for 2 people) based on prior U.S. Supreme Court decisions. The
claimants do not accept the decision].
Maxwell grant: July 27, 1871-A new Secretary of the Interior confirms
the prior decision to limit the survey. The claimants do not accept
this decision.
Sangre de Cristo Grant: Oct. 30, 1872-Claimants request a survey.
Sangre de Cristo Grant: Dec. 5, 1872-Response by the Department of the
Interior to limit the survey to 22 square leagues (11 square leagues
per person for 2 people).
Sangre de Cristo Grant: Feb. 1874-Decision by the Colorado Territory
Supreme Court that Congress approved the grant without any size
limitation (Tameling v. United States Freehold Land and Emigration
Co.).
Sangre de Cristo Grant: Oct. 1876-The U.S. Supreme Court, in the
Tameling decision, affirms the Colorado court's ruling.
Maxwell grant: March 16, 1877-Based on the U.S. Supreme Court's
Tameling decision, in which the Court held that Congress is not limited
in the amount of acreage it could include in a de novo, or new, grant,
the Surveyor General is directed to survey the entire Maxwell grant.
Maxwell grant: May 19, 1879-The Maxwell grant is patented for over 1.7
million acres.
Maxwell grant: 1880s-The patent for the Maxwell grant is challenged in
the mid-1880s and is upheld by the Supreme Court, in the Maxwell Land-
Grant Case, based on the Tameling decision.[A];
Sangre de Cristo Grant: Dec. 20, 1880-The Sangre de Cristo grant is
patented for about 1 million acres.
Source: GAO analysis.
[A] See Maxwell Land-Grant Case, 121 U.S. 325, reh'g denied, 122 U.S.
365 (1887). The Supreme Court based its decision in Maxwell on the fact
that all land in excess of 11 square leagues belonged to the United
States as part of the public domain. In effect, therefore, the Supreme
Court confirmed 11 square leagues based on the amount allowed to each
grantee under Mexican law and granted an additional 1.6 million acres
of U.S. public lands.
[End of table]
The surveying and patenting of the Maxwell and Sangre de Cristo grants
for such substantial acreage caused a political uproar and gave rise to
an anti-land grant movement in northern New Mexico and southern
Colorado. Settlers within the boundaries of the two grants engaged in
open conflict with the new owners, who began taking steps to evict the
settlers as "squatters." The settlers organized and tried to fight
their evictions through the political process and the courts, but
without success. Thousands of settlers had moved onto the Maxwell grant
between the time it was made in 1841 until the time it was patented in
1879, particularly after January 1874, when the Secretary of the
Interior ordered the grant to be opened for homesteading (after the
Secretary rejected the claimants' request for a survey of the entire
grant). Similar events occurred on the Sangre de Cristo land grant. The
settlers on these two grants claimed that the government had been
defrauded out of over 2.5 million acres of land because the grants
should have been restricted to 22 square leagues each (97,650.96 acres
per grant). As shown in table 8, the Tameling decision affected three
other Mexican land grants confirmed by Congress, in addition to the
Maxwell and Sangre de Cristo land grants.
Table 8: Mexican Land Grants Confirmed by Congress in Excess of 11
Square Leagues per Person in New Mexico, 1854-1891:
Grant name: Maxwell;
Acreage limit under Mexican law: 97,650.96;
Acreage awarded: 1,714,764.94;
Excess acreage awarded: 1,617,113.98.
Grant name: Sangre de Cristo;
Acreage limit under Mexican law: 97,650.96;
Acreage awarded: 998,780.46;
Excess acreage awarded: 901,129.50.
Grant name: Pablo Montoya;
Acreage limit under Mexican law: 48,825.48;
Acreage awarded: 655,468.07;
Excess acreage awarded: 606,642.59.
Grant name: Preston Beck, Jr;
Acreage limit under Mexican law: 48,825.48;
Acreage awarded: 318,699.72;
Excess acreage awarded: 269,874.24.
Grant name: Bosque Del Apache;
Acreage limit under Mexican law: 48,825.48;
Acreage awarded: 60,117.39;
Excess acreage awarded: 11,291.91.
Total;
Acreage limit under Mexican law: 341,778.36;
Acreage awarded: 3,747,830.58;
Excess acreage awarded: 3,406,052.22.
Source: GAO analysis.
Note: All of the grants had been confirmed by the Act of June 21, 1860,
except the Pablo Montoya grant, which was confirmed by the Act of March
3, 1869.
[End of table]
In the meantime, after controversy over the Maxwell grant erupted in
late 1869, when the claimants sought to have the grant surveyed for the
entire acreage covered by the Surveyor General's description, Congress
virtually stopped confirming any additional land grants in New Mexico.
Congress had confirmed 67 grants in New Mexico and Colorado by that
time, but after the Tameling decision in 1876, it confirmed only 2
additional Spanish and Mexican land grants--one in Colorado and one in
New Mexico. Aware of the legal significance of its confirmation
decisions in the wake of Tameling, Congress confirmed the Gervacio
Nolan grant in Colorado in July 1879 for only 11 square leagues.
Congress also confirmed the Mesita de Juana López grant in New Mexico
in January 1879, the only grant approved by Congress in New Mexico
after Tameling, but the size of the grant was not affected by Tameling
because, unlike many other grants, the Mesita de Juana López grant had
been surveyed in 1877, before Congress confirmed the grant, and
Congress confirmed it at its surveyed acreage of 42,022.85
acres.[Footnote 61]
The Surveyor General's Investigation of Land Grant Claims Became More
Rigorous in 1885:
Following the controversy surrounding the size of the Maxwell and
Sangre de Cristo grants, and allegations of fraud and corruption in
claims being submitted to the Surveyor General, the Surveyor General's
investigation of land grant claims became more rigorous. The 1885
annual report for the Commissioner of Interior's General Land Office
noted that in many sections of the country, entries for public lands
had been fictitious and fraudulent. An earlier commissioner had noted
that investigations by his bureau had found "that great quantities of
valuable coal, and iron lands, forests of timber, and the available
agricultural lands in whole regions of grazing country have been
monopolized." President Grover Cleveland led a change of
administrations in Washington, D.C. in 1885, and to address these
allegations of fraud and corruption and reform the land grant
confirmation process, he appointed George Washington Julian as the new
Surveyor General of New Mexico the same year. Interior's General Land
Office instructed Surveyor General Julian to reexamine many of the land
grants that had already been favorably reported to Congress, and over
the next 4 years--from 1885 to 1889--Surveyor General Julian reviewed
many of his predecessors' recommendations for approval and "reversed"
28 of them by issuing supplemental reports. (See table 9.)
As with his predecessor's original recommendations, Surveyor General
Julian recommended approval of community land grants at a significantly
higher rate than approval of individual land grants. Surveyor General
Julian recommended approval of about half of the community land grants
under review (11 out of 21) but recommended rejection of almost all of
the individual land grants. The presumption in favor of cities, towns,
and villages that Interior had directed Surveyors General to apply was
clearly reflected in these supplemental reports. In particular, the new
Surveyor General noted that even though seven community land grants did
not satisfy all of the strict legal requirements, he nevertheless
recommended their approval as equitable claims. For example, in the
case of the town of Cieneguilla, the original Surveyor General had
found that although the claimants did not legally prove their claim,
"it would seem that a settlement was founded at Cieneguilla some
seventy or eighty years ago at least, and that the original settlers,
and those holding under them, have believed they had a grant to the
land claimed." In his supplemental report, Surveyor General Julian
approved the claim for the town of Cieneguilla land grant as an
equitable claim.
Table 9: Results of Surveyor General Julian's Supplemental Reports,
1885-1889:
Results of supplemental reports:
Recommendations for approval changed to recommendations for rejection;
Community land grants: 10;
Individual land grants: 18;
Total number of land grants: 28.
Results of supplemental reports:
Recommendations for approval changed to qualified recommendations for
approval[A];
Community land grants: 7;
Individual land grants: 0;
Total number of land grants: 7.
Results of supplemental reports:
Recommendations for approval that remained recommendations for
approval[B];
Community land grants: 4;
Individual land grants: 1;
Total number of land grants: 5.
Results of supplemental reports:
Recommendation for rejection changed to recommendation for approval;
Community land grants: 0;
Individual land grants: 1;
Total number of land grants: 1.
Results of supplemental reports:
Total;
Community land grants: 21;
Individual land grants: 20;
Total number of land grants: 41[C].
Source: GAO analysis.
[A] Surveyor General Julian determined that seven community land
grantees had no legal right to the land they were claiming but instead
had an "equitable claim."
[B] The Santo Tomás de Yturbide community land grant (SGR No. 139) is
included in this category. The original report recommended approval of
the grant. Surveyor General Julian's supplemental report, dated August
25, 1885, recommended that the grant be rejected, after which
additional supporting information was submitted. On July 1, 1886,
Surveyor General Julian noted that had this additional information been
available when he issued his supplemental decision, he would have
reached a different conclusion.
[C] Surveyor General Julian prepared a total of 43 supplemental
reports. The two supplemental reports for the Juan Bautista Valdez land
grant are consolidated in the above table, and the supplemental report
for the Gaspar Ortiz land grant is not included in the table. The Juan
Bautista Valdez community land grant had two original reports (SGR Nos.
55 and 113) and two supplemental reports. Both of the original reports
recommended approval, and both of the supplemental reports recommended
rejection. The Gaspar Ortiz individual land grant had two original
reports (SGR Nos. 31 and 87) and one supplemental report. Both of the
original reports recommended approval, and the Gaspar Ortiz land grant
(SGR No. 31) was congressionally confirmed by the Act of June 21, 1860.
Because the claim for the Gaspar Ortiz land grant in SGR No. 31 had
been congressionally confirmed, the claim in SGR No. 87 was recommended
for rejection in the supplemental report.
[End of table]
Repeated Attempts to Reform the Land Grant Confirmation Process Were
Finally Successful:
As described above, throughout the 37-year period that community land
grants in New Mexico were evaluated by the Surveyor General, numerous
pleas were made to reform the process. Overall, Congress acted on just
68 of the 181 land grants that the Surveyor General had reported; 67 of
these were confirmed, and the other was ultimately rejected by the U.S.
Supreme Court. Of the remaining 113 land grants awaiting congressional
action, the Surveyor General had recommended approval of 71 grants and
rejection of the other 42. Almost every Surveyor General of New Mexico
had recommended legislative amendments to improve the land grant claim
review process, including the establishment of a filing deadline as
Congress had enacted for land grant claims in California, in order to
compel claimants to file their claims. After Congress stopped
confirming land grants altogether in 1879 and a growing backlog of
recommendations accumulated, there was mounting pressure to find a
permanent solution. Congress was concerned about the large size of some
of the grants that had been confirmed, the speculation and fraud in
land titles that was taking place, and the reliability of information
contained in the Surveyors General reports.
Beginning in 1858, therefore, a number of bills were introduced in
Congress proposing a solution to these problems. None of these bills
was enacted, however, because the Senate and the House of
Representatives could not agree on how the problems should be
addressed. The House favored creation of a commission similar to the
one established in California, while the Senate favored adjudication of
claims in local courts. The Senators envisioned that the courts would
focus primarily on the perfection of imperfect title by curing grants
of their defects and furnishing the claimant with clean legal title. In
the words of Senator Ransom from North Carolina, land courts would be
"a court of law and a court of equity--a court expressly to consider
equitable claims and titles."[Footnote 62] In President Benjamin
Harrison's annual message to Congress in 1889, he called attention to
the fact that the unsettled state of land titles seriously hindered the
development of Arizona and New Mexico; he therefore recommended passage
of legislation for the prompt resolution of the problem. In an attempt
to break the stalemate between the Senate and House, President Harrison
reminded Congress in a message on July 1, 1890, that the United States
owed a duty to México to confirm all grants protected under the Treaty
of Guadalupe Hidalgo.[Footnote 63] Repeated attempts to reform the
process were finally successful with the establishment of the CPLC in
1891.
The Court of Private Land Claims Adjudicated Claims from 1891 to 1904:
In 1891, Congress passed the 1891 Act creating the Court of Private
Land Claims (CPLC). The CPLC was charged with addressing all unresolved
land claims in the Territories of New Mexico, Arizona, and Utah and the
States of Nevada, Colorado, and Wyoming. During its 13-year history,
the CPLC addressed claims involving 211 of the 295 Spanish and Mexican
community and individual land grants made in New Mexico.[Footnote 64]
The CPLC did not address the substantive merits of 72 of these 211 land
grants, however, either because claimants did not pursue their cases
before the CPLC or because the CPLC determined that it did not have
legal authority (jurisdiction) to hear the claims. The CPLC decided the
remaining 139 grants on their merits, and either claimants or the U.S.
government, both of whom had the right to appeal the CPLC's decisions
to the U.S. Supreme Court, appealed decisions regarding a total of 57
grants. The Supreme Court reversed the CPLC's rulings in 10 instances
and upheld the decisions for the other 47 grants. In total, the courts
(the CPLC and the Supreme Court) confirmed and awarded at least some
acreage to 84 land grants and rejected the remaining 55 grants. For
community land grants in particular, the courts confirmed 56 grants (73
percent) and rejected 21 grants (27 percent). Our review of eight
selected community grants that were rejected shows that those living
within a grant's boundaries usually were allowed to keep their
individual home lot under small-holding claims provisions in the 1891
Act, but no longer had access to the common lands.[Footnote 65]
The CPLC Legislation Established Specific Requirements for Land Grant
Adjudication:
The 1891 Act establishing the CPLC imposed specific requirements and
procedures for the CPLC to follow. Congress gave the CPLC authority to
adopt all necessary rules and regulations to carry out its operations,
but as discussed below, it authorized the CPLC to confirm only those
land grants that claimants could prove were "lawfully and regularly
derived" under the laws of Spain or México. The 1891 Act repealed
Section 8 of the 1854 Act directing the Surveyor General of New Mexico
to investigate and report on the validity of land grant claims, but the
Surveyor General remained responsible for conducting surveys of
confirmed grants. The 1891 Act also established the composition of the
CPLC--a chief justice and four associate justices--all of whom were to
be appointed by the President with the Senate's consent. The President
also was required to appoint a U.S. Attorney, confirmed by the Senate,
to represent the United States in the CPLC's proceedings. The CPLC in
turn was required to appoint a clerk, a deputy clerk, a stenographer,
and a translator fluent in both English and Spanish. Once the CPLC was
organized, it was required to publish newspaper notice of its
existence, in English and Spanish, for a period of 90 days in
Washington, D.C., and the capitals of the Territories of New Mexico and
Arizona and the State of Colorado. In addition, as necessary, the CPLC
was required to hold sessions in the states and territories over which
it had jurisdiction and to publish newspaper notice of its sessions, in
both English and Spanish, once per week for 2 weeks, in a newspaper in
the capital of the state or territory where the sessions would take
place. The second notice had to appear at least 30 days before the CPLC
was to meet.
The 1891 Act required all claimants whose grants were not complete and
"perfect" to file claims with the CPLC; those with perfect grants could
file claims but were not required to do so. Section 6 of the 1891 Act
required those with imperfect grants to submit the following
information in their petitions for the CPLC's review: (1) the nature of
the land claims; (2) the date and form of the grant; (3) the name of
the granting official; (4) the name of the claimants; (5) the quantity
of land claimed; (6) the boundaries of land claimed; (7) the location
of the grant and a map showing the location; and (8) notation of
whether the claim already had been confirmed, considered, or acted upon
by Congress or other U.S. authorities. Claims that had been acted upon
by Congress could not be reconsidered by the CPLC. The U.S. Attorney
for the CPLC was responsible for representing the interests of the
United States, principally by making appropriate challenges to claims
that were filed. The 1891 Act set a two-year deadline after the Act
became effective for filing petitions, meaning they had to be filed no
later than March 3, 1893. Failure to file within that time meant that
claims for imperfect grants would be considered abandoned and forever
barred. The Act authorized both claimants and the U.S. government to
appeal the CPLC's decisions directly to the U.S. Supreme Court within 6
months of the decision.[Footnote 66]
Under the 1891 Act, the CPLC was also required to comply with the
following requirements:
* In deciding on the validity of a claim, the act directed the CPLC to
apply the technical legal requirements of Spain, México, or any of the
Mexican states "having lawful authority to make grants of land."
Specifically, as required by "the principles of public [international]
law" and the Treaty of Guadalupe Hidalgo, Section 13 of the 1891 Act
required the CPLC to approve only claims based on "a title lawfully and
regularly derived from the Government of Spain or Mexico," or the
Mexican states, which--except for the transfer of sovereignty from
México to the United States--the claimant would have had "a lawful
right to make perfect."
* The CPLC could not confirm a grant if: (1) the lands claimed had
already been acted on and confirmed to another party by Congress or
under its authority; (2) the claim interfered with any Indian title or
right to land; or (3) any "condition...precedent or subsequent"
(conditions that had to be satisfied either before or after a grant
would become valid) were not completed within the time and in the
manner stated.
* The CPLC could not confirm an imperfect claim for more than 11 square
leagues (about 48,800 acres or 74 square miles) to any one grantee or
claimant. (This was consistent with the limits set under Mexican law on
the grants that Mexican governors could make, as discussed above.)
* The CPLC's "practice" was to be conducted as closely as possible
according to the procedures followed by U.S. courts of equity. (This
aspect of the CPLC's operations is discussed in more detail below.)
* The burden of proof was on claimants. According to the Supreme
Court's decisions in Whitney v. United States, 167 U.S. 529, 547
(1897), and United States v. Elder, 177 U.S. 104, 109 (1900), claimants
had to demonstrate by a "preponderance of the evidence" (the general
standard applied in civil cases in the United States) that their claims
were valid.
* As in the 1851 and 1854 Acts, the 1891 Act provided that decisions of
the CPLC (and, on review, the U.S. Supreme Court) were binding only on
persons making claims to the courts, and resolved the rights of those
persons only against the United States. The CPLC's and Supreme Court's
decisions did not bind third parties not involved in the court
proceedings who believed they had superior title to a land grant. Those
persons could--and in fact, have--filed subsequent actions in federal
or state court to establish their ownership interests.[Footnote 67]
Although the 1891 Act did not technically require those who held
perfect grants to file claims with the CPLC in order to confirm title
to their grants, they had the option of filing voluntarily if they
wished to have their grants confirmed and patented. A grantee with a
perfect grant might consider that CPLC confirmation would add validity
to his claim, and thus decide to file voluntarily. (In addition, the
U.S. Attorney could file a case before the CPLC contesting the title of
a grantee who claimed to hold a perfect grant. Such cases would be
decided according to "law, justice and the provisions of [the 1891
Act].") Nevertheless, there was a practical incentive for holders of
perfect grants to file claims with the CPLC. Unlike the 1854 Act
establishing the Surveyor General process and the 1851 Act establishing
the California Commission process, land claimed under the 1891 Act was
not set aside from the public domain pending conclusion of a land grant
claim case. Consequently, while a case was pending, the government
could still patent the land covered by the claim under its regular
land-grant legislation, including the homestead acts.[Footnote 68] The
only recourse a claimant had if his grant were confirmed but already
had been settled upon before being patented was to seek compensation
from the government for $1.25 an acre. While the CPLC's term was
originally set to expire on December 31, 1895, Congress extended its
existence seven times until the court ceased operation in June 1904.
The "lawfully and regularly derived" legal standard that Congress
established for the CPLC to apply in evaluating claims was more
stringent than the legal standard it had established for either the
Surveyor General of New Mexico or the California Commission. As
discussed above, the Surveyor General was to apply the "laws, usages,
and customs" of Spain or México in evaluating the validity of a claim,
as well as the presumption in favor of community grants where the
existence of a town or other settlement could be demonstrated.
Similarly, the California Commission was to apply the same two
requirements, as well as "the principles of equity," the provisions of
the Treaty, decisions of the Supreme Court, and the law of nations
(international law).
The Scope of the CPLC's Equity Authority Was Unclear:
Whether and to what extent Congress authorized the CPLC to consider
substantive principles of "equity" in evaluating claims, in addition to
considering strictly "legal" principles, was unclear. The 1851 Act
creating the California Commission had explicitly authorized the
Commission and reviewing courts to consider equity principles in
assessing grant claims, and in some cases, grants based solely on
equitable rights were confirmed.[Footnote 69] The 1891 Act creating the
CPLC, by contrast, only stated that the court's proceedings must be
conducted as nearly as possible "according to the practice of the
courts of equity of the United States," rather than stating that the
court should apply the substantive rules of the courts of
equity.[Footnote 70] Nevertheless, in one sense, the substantive role
that Congress assigned to the CPLC might be considered equitable in
nature: the court was to make "imperfect" grants "perfect" by reviewing
materials submitted by the claimant to determine whether the grant
could be considered "lawfully and regularly derived." Yet the 1891 Act
limited this authority to cases in which the claimant could show that
he would have had the "lawful"--not equitable--right to make the grant
perfect if the land had remained under Mexican rule. The juxtaposition
of these two provisions in the 1891 Act raises the question of how the
CPLC's substantive authority to confirm only "legal" title was to be
exercised according to the procedural "practice" of the courts of
equity.
The rulings of the Supreme Court do not provide a straightforward
answer to this question. In Cessna v. United States, 169 U.S. 165, 188
(1898), the Court ruled that the CPLC did not have substantive equity
authority. Shortly after the Cessna decision, however, in Ely's
Administrator v. United States, 171 U.S. 220 (1898), the Court ruled
that the CPLC could employ its equity power to broaden the evidence
introduced to establish legal title to a grant.[Footnote 71] Similarly,
even before the Ely's Administrator case, the Supreme Court had ruled
that under the 1891 Act, oral evidence (versus documentary evidence)
could be used to prove that a grant was "legally and regularly derived"
when records were not available.[Footnote 72]
The Supreme Court spoke most clearly on this issue, however, in United
States v. Sandoval, 167 U.S. 278 (1897), discussed in more detail later
in this chapter and in chapter 3. The Court concluded in Sandoval that
the 1891 Act did not authorize the CPLC to confirm land grants based
solely on a claimant's equitable rights. In rejecting the claim for
common lands within the San Miguel del Vado grant because none of the
claimants had legal title to those lands, the Sandoval Court explained
that in light of the restrictions in the 1891 Act, "[i]t is for the
political department"--that is, for Congress, rather than the courts--
"to deal with the equitable rights involved."[Footnote 73]
The Land Grant Confirmation Process As Implemented by the CPLC:
The CPLC conducted its work for the six covered territories and states
in two geographical districts: the New Mexico District and the Arizona
District. The CPLC first met in Santa Fe on December 1, 1891, and first
met in Tucson a year later, on December 6, 1892. As the original five-
member court, President Benjamin Harrison appointed Joseph R. Reed as
Chief Justice and Thomas C. Fuller, William M. Murray, Wilbur F. Stone,
and Henry C. Sluss as Associate Justices.[Footnote 74] (See figure 7.)
The President also appointed Matthew G. Reynolds to serve as the U.S.
Attorney representing the government in the CPLC's proceedings.
Figure 7: The CPLC, 1891:
[See PDF for image]
[End of figure]
By the end of its first year of operations in 1891, the CPLC had
completed its organization by appointing a clerk, a translator, and a
stenographer, and had published three newspaper notices announcing its
existence. In addition, by 1892, 3,000 circulars in Spanish had been
distributed throughout the territory, and an equal number in English,
to provide notice of the establishment of the CPLC.[Footnote 75] From
1891 to 1904, claims were filed with the CPLC involving 211 of the 295
Spanish and Mexican community and individual land grants located
partially or entirely in New Mexico.[Footnote 76] (See table 10.)
Nearly 60 percent of the claims involved land grants for which claims
had previously been filed with the Surveyor General of New Mexico.
Table 10: Spanish and Mexican Land Grants in New Mexico for Which
Claims Were Filed with the CPLC, 1891-1904:
Grant type: Community land grants: Original documentation community
grants;
Number of grants with claims refiled from the Surveyor General: 45;
Number of grants for which new claims were filed: 10;
Total number of grants for which claims were filed with CPLC: 55;
Total number of land grants in New Mexico: 78.
Grant type: Community land grants: Self-identified community grants;
Number of grants with claims refiled from the Surveyor General: 25;
Number of grants for which new claims were filed: 13;
Total number of grants for which claims were filed with CPLC: 38;
Total number of land grants in New Mexico: 53.
Grant type: Community land grants: Pueblo community grants;
Number of grants with claims refiled from the Surveyor General: 3;
Number of grants for which new claims were filed: 0;
Total number of grants for which claims were filed with CPLC: 3;
Total number of land grants in New Mexico: 23.
Subtotal;
Number of grants with claims refiled from the Surveyor General: 73;
Number of grants for which new claims were filed: 23;
Total number of grants for which claims were filed with CPLC: 96;
Total number of land grants in New Mexico: 154.
Grant type: Individual grants;
Number of grants with claims refiled from the Surveyor General: 52;
Number of grants for which new claims were filed: 63;
Total number of grants for which claims were filed with CPLC: 115;
Total number of land grants in New Mexico: 141.
Total;
Number of grants with claims refiled from the Surveyor General: 125[A];
Number of grants for which new claims were filed: 86[B];
Total number of grants for which claims were filed with CPLC: 211;
Total number of land grants in New Mexico: 295.
Source: GAO analysis.
[A] Claims involving 17 of the 208 Spanish and Mexican grants filed
with the Surveyor General of New Mexico were not re-filed with the
CPLC. Congress had not acted on 140 of those grants, and the claims re-
filed with the CPLC involved 123 of the 140 grants, as well as 2 grants
in New Mexico that Congress had already acted on.
[B] The majority of these new claims were withdrawn when the claims
came to trial. Only 12 of the 86 land grants for which new claims were
filed with the CPLC were ultimately confirmed.
[End of table]
The vast majority--almost 75 percent--of the new claims filed with the
CPLC for grants in New Mexico involved individual grants rather than
community grants. A substantial proportion of all of the New Mexico-
based claims were filed immediately before the 2-year deadline. Over 40
percent of the claims filed with the CPLC's New Mexico District, for
example, were filed in the final 3 days preceding the March 3, 1893
deadline. It appears that a number of these claims were filed
"protectively," simply to meet the statutory filing deadline. As
discussed below, many claimants never developed or pursued their
claims: 11 claims were filed covering a total of 2.7 million acres,
from as far away as California, but were never pursued.
In contrast to the Surveyor General process, which had placed most of
the investigation workload on the Surveyor General and his staff (and
which resulted in recommendations of approval for most of the land
grants), the CPLC process assigned considerable responsibility to the
U.S. Attorney's Office for the CPLC to gather and evaluate vast amounts
of testimony and evidence. The result was that the CPLC was able to
analyze land grant claims more thoroughly than the Surveyor General, at
least with respect to the interests of the United States. When a claim
was filed with the CPLC, the U.S. Attorney evaluated the petition to
determine whether it presented a proper case against the United States.
Among other things, the U.S. Attorney determined whether the documents
filed were genuine and correctly translated, and whether the boundaries
and locations of the claim were properly located and stated.[Footnote
77] The U.S. Attorney gathered evidence by researching materials in the
archives, identifying and questioning witnesses, and issuing subpoenas
and taking depositions. Spanish and Mexican law was researched to
determine whether the land grant had been "lawfully and regularly
derived."[Footnote 78] The U.S. Attorney sometimes searched out other
parties affected by a claim in order to include them in the case. When
a claim came to trial, the U.S. Attorney or an Assistant U.S. Attorney
presented the government's case and the claimant's attorney presented
the claimant's case. Both sides were able to examine and cross-examine
witnesses, object to inadmissible evidence, and make any necessary
motions.
Many cases that the CPLC ultimately rejected were not rejected on their
merits, but because claimants later decided not to pursue their claims.
When cases came to trial, for example, claimants often announced to the
CPLC that they no longer wished to pursue their claims, at which point
the CPLC rejected them. In addition, the CPLC rejected claims because
the CPLC determined that they were outside the jurisdiction that
Congress had established for the court in the 1891 Act. For example,
the 1891 Act did not authorize the CPLC to hear claims for grants to
the extent that they conflicted or overlapped with other grants already
confirmed by Congress. For this reason, the court rejected claims for
the Rancho el Rito individual grant, the Cañón de San Diego community
grant, and the Las Animas grant in Colorado, all of which Congress had
addressed. All told, about 34 percent of the 211 New Mexico-based
claims that came before the CPLC (72 claims) were rejected for these
procedural reasons. (See table 11.)
Table 11: Number of New Mexico Grants for Which Claims Were Filed and
Ultimately Decided on Their Merits by the CPLC:
Grant type: Community land grants: Original documentation community
grants;
Total number of grants for which claims were filed with the CPLC: 55;
Number of grants that were not pursued or that had jurisdictional
questions: 8;
Total number of grants decided on the merits by the CPLC: 47.
Grant type: Community land grants: Self-identified community grants;
Total number of grants for which claims were filed with the CPLC: 38;
Number of grants that were not pursued or that had jurisdictional
questions: 11;
Total number of grants decided on the merits by the CPLC: 27.
Grant type: Community land grants: Pueblo community grants;
Total number of grants for which claims were filed with the CPLC: 3;
Number of grants that were not pursued or that had jurisdictional
questions: 0;
Total number of grants decided on the merits by the CPLC: 3.
Subtotal;
Total number of grants for which claims were filed with the CPLC: 96;
Number of grants that were not pursued or that had jurisdictional
questions: 19;
Total number of grants decided on the merits by the CPLC: 77.
Grant type: Individual grants;
Total number of grants for which claims were filed with the CPLC: 115;
Number of grants that were not pursued or that had jurisdictional
questions: 53;
Total number of grants decided on the merits by the CPLC: 62.
Total;
Total number of grants for which claims were filed with the CPLC: 211;
Number of grants that were not pursued or that had jurisdictional
questions: 72;
Total number of grants decided on the merits by the CPLC: 139.
Source: GAO analysis.
[End of table]
For the claims involving the remaining 139 New Mexico-based land
grants, the CPLC reached a decision based on the facts of each case.
Ultimately, the CPLC confirmed and awarded at least some acreage to 84
grants (about 60 percent) of the 139 grants on which it ruled. (See
table 12.) A number of the confirmed grants received less acreage than
claimed because of boundary disputes, conflicts with previously
confirmed grants, and certain other legal reasons including the 1891
Act's requirement to restrict certain grants to 11 square leagues. The
CPLC rejected the remaining 55 grants (or about 40 percent) for a
variety of reasons, including that the grants had been made by
officials without authority to make a grant, that the claimants failed
to comply with the conditions of the grant, and that there was
insufficient evidence of a grant's existence. Overall, for the 77 New
Mexico community land grants for which decisions were made, the CPLC
confirmed 56 grants (73 percent) and rejected 21 grants (27 percent).
Table 12: Number of Grants in New Mexico Confirmed or Rejected by the
CPLC, 1891-1904:
Grant type: Community land grants: Original documentation community
grants;
Number of grants that were confirmed and awarded some acreage: 34[A];
Number of grants that were rejected and awarded no acreage: 13;
Total number of grants decided on the merits of the claim by the CPLC:
47.
Grant type: Community land grants: Self-identified community grants;
Number of grants that were confirmed and awarded some acreage: 20;
Number of grants that were rejected and awarded no acreage: 7;
Total number of grants decided on the merits of the claim by the CPLC:
27.
Grant type: Community land grants: Pueblo community grants;
Number of grants that were confirmed and awarded some acreage: 2;
Number of grants that were rejected and awarded no acreage: 1;
Total number of grants decided on the merits of the claim by the CPLC:
3.
Subtotal;
Number of grants that were confirmed and awarded some acreage: 56;
Number of grants that were rejected and awarded no acreage: 21;
Total number of grants decided on the merits of the claim by the CPLC:
77.
Grant type: Individual grants;
Number of grants that were confirmed and awarded some acreage: 28;
Number of grants that were rejected and awarded no acreage: 34;
Total number of grants decided on the merits of the claim by the CPLC:
62.
Total;
Number of grants that were confirmed and awarded some acreage: 84[A];
Number of grants that were rejected and awarded no acreage: 55;
Total number of grants decided on the merits of the claim by the CPLC:
139.
Source: GAO analysis.
Note: The data presented in this table are based on the final result
for each land grant, including actions by the U.S. Supreme Court and
Congress.
[A] This figure includes the towns of Albuquerque and Santa Fé
community land grants. Both grants were approved by the CPLC, then
rejected by the U.S. Supreme Court, then confirmed by Congress through
legislation in 1901 (31 Stat. 796) and 1900 (31 Stat. 71),
respectively.
[End of table]
Both claimants and the U.S. government had a right to appeal the CPLC's
decisions to the U.S. Supreme Court. Although the Supreme Court
reviewed the CPLC's decisions de novo in evaluating the law and facts-
-that is, by applying its own judgment without deference to the CPLC's
decision--the Supreme Court was bound by the same "lawfully and
regularly derived" standard and other conditions in the 1891 Act as the
CPLC. Decisions involving 57 land grants were appealed to the U.S.
Supreme Court: claimants appealed decisions involving 34 of the grants,
the U.S. government appealed decisions involving 22 grants, and both
sides appealed one grant. The Supreme Court reversed the CPLC's
decision on 10 of these 57 grants and upheld the decisions on the
remaining 47 grants. In two instances--regarding the Santa Fé and the
Town of Albuquerque grants--Congress later decided to confirm the
grants after the Supreme Court had rejected them, in effect making
grants de novo from the government's own land. (See table 13.)
Table 13: CPLC Decisions Reversed by the U.S. Supreme Court:
Decisions appealed only by the U.S. government:
Grant name: Santa Fé[A];
Citation: U.S. v. Santa Fe, 165 U.S. 675 (1897);
CPLC original decision: Confirmed;
4 square leagues;
Decision on appeal to the U.S. Supreme Court: Rejected;
insufficient proof of a grant.
Grant name: San Miguel del Vado;
Citation: U.S. v. Sandoval, 167 U.S. 278 (1897);
CPLC original decision: Confirmed;
Decision on appeal to the U.S. Supreme Court: Confirmed;
restricted to individual allotments.
Grant name: Albuquerque (Town of)[A];
Citation: U.S. v. City of Albuquerque, 171 U.S. 685 (1898);
CPLC original decision: Confirmed;
4 square leagues;
Decision on appeal to the U.S. Supreme Court: Rejected;
insufficient proof of a grant.
Grant name: Cuyamungué;
Citation: U.S. v. Conway, 175 U.S. 60 (1899);
CPLC original decision: Confirmed;
Decision on appeal to the U.S. Supreme Court: Confirmed;
to the extent not in conflict with Indian Pueblos.
Grant name: Petaca;
Citation: U.S. v. Peña, 175 U.S. 500 (1899);
CPLC original decision: Confirmed;
restricted to 11 square leagues;
Decision on appeal to the U.S. Supreme Court: Confirmed;
restricted to individual allotments.
Grant name: Sierra Mosca;
Citation: U.S. v. Ortiz, 176 U.S. 422 (1900);
CPLC original decision: Confirmed;
restricted to 11 square leagues;
Decision on appeal to the U.S. Supreme Court: Rejected;
genuineness of grant questioned.
Grant name: Cebolla;
Citation: U.S. v. Elder, 177 U.S. 104 (1900);
CPLC original decision: Confirmed;
boundary dispute;
Decision on appeal to the U.S. Supreme Court: Rejected;
insufficient proof of a grant.
Grant name: Baltazar Baca;
Citation: U.S. v. Baca, 184 U.S. 653 (1902);
CPLC original decision: Confirmed;
Decision on appeal to the U.S. Supreme Court: Rejected;
contained within previously congressionally confirmed grants.
Decisions appealed only by the claimants:
Grant name: Cañada de Cochití;
Citation: U.S. v. Whitney, 167 U.S. 529 (1897);
CPLC original decision: Confirmed;
boundary dispute;
Decision on appeal to the U.S. Supreme Court: Confirmed;
enlarged boundary.
Decisions appealed by both the U.S. government and the claimants:
Grant name: Bartolomé Baca;
Citation: Bergere v. U.S., 168 U.S. 66 (1897);
CPLC original decision: Confirmed;
restricted to 11 square leagues;
Decision on appeal to the U.S. Supreme Court: Rejected;
grant not lawfully and regularly derived.
Source: GAO analysis.
[A] As noted in table 12, while the U.S. Supreme Court rejected the
grants for the towns of Albuquerque and Santa Fé, Congress later
decided to confirm both grants.
[End of table]
The U.S. Supreme Court's reversal of the CPLC's confirmation of the San
Miguel del Vado land grant, in the United States v. Sandoval case noted
above, deserves close attention and is discussed in detail in chapter
3. In brief, the Court ruled that the grant's common lands belonged to
the sovereign--México and then the United States--rather than to the
community, thereby deeming over 300,000 acres of land claimed by the
community to be public lands of the United States following signing of
the Treaty of Guadalupe Hidalgo.
After the CPLC confirmed a land grant, the Surveyor General of New
Mexico surveyed the grant in accordance with the CPLC's decree of
confirmation. Half of the survey costs were to be borne by the
claimant. As required by Section 10 of the 1891 Act, when the survey
was completed, the Surveyor General issued a public notice in the local
newspaper of the survey results and requested any comments within 90
days. If objections were filed, the CPLC had to decide whether the
survey should be approved or rejected. The CPLC also had to examine the
survey to determine whether it had been executed in accordance with the
decree of confirmation. If the CPLC did not approve the survey, a new
survey was ordered, and the surveying process would start again.
The CPLC rejected a large number of surveys at least in part, but the
Surveyor General of New Mexico believed that most of the responsibility
for these rejections lay in the CPLC's vague and indefinite
descriptions of the confirmed lands, which made it extremely difficult
to survey the lands accurately.[Footnote 79] Once the survey was
completed and approved, the Commissioner of the Department of the
Interior's General Land Office issued a patent to the claimants. As
noted above, the 1891 Act provided that the patent only established
title as between the claimant and the United States. Third parties who
believed they had superior title could still file suit in another
forum, such as in territorial or federal courts, to establish their
interest.
Today, some scholars assert that the CPLC process was improper because
it did not give appropriate consideration to principles of equity. One
commentator has stated that the CPLC defined its equitable powers so
narrowly that it refused to recognize grants that México would have
considered valid before the 1846 cession of territory to the United
States.[Footnote 80] As discussed in chapter 3, however, the CPLC and
the U.S. Supreme Court acted within the limitations that Congress
established in the 1891 Act--to confirm only grants supported by strict
legal title, not equitable title. Those criteria were stricter than the
legal standards Congress had set for the Surveyor General of New Mexico
and for the California Commission, but this was a policy choice within
Congress' prerogative. Notwithstanding this legal compliance, the CPLC
process, like the Surveyor General process, was burdensome and created
hardships for at least some grantees, and Congress may wish to
consider, as a matter of policy, whether additional measures may be
appropriate to address remaining concerns.
The Federal Government Awarded Small-Holding Claims within Rejected
Land Grants:
For grants that the CPLC or the U.S. Supreme Court rejected, claimants
or anyone living on the grant had the option of acquiring title to
their individual tracts as a "small-holding" land claim. Sections 16
through 18 of the 1891 Act authorized small-holding claims of up to 160
acres of land per person. Under these provisions, claimants originally
had 2 years from March 3, 1891, to file an application with the
Surveyor General of New Mexico, seeking a patent for up to 160 acres of
land where the claimant, his ancestors, grantors, or their lawful
successors in title or possession had been in "actual continuous
adverse possession" for 20 years.[Footnote 81] The filing deadline for
small-holding claims was ultimately extended for 14 years until March
4, 1917, possibly to account for the fact that claimants were waiting
for final adjudication of their Spanish and Mexican land grant
claims.[Footnote 82] Today, Interior's Bureau of Land Management (the
successor to the General Land Office which housed the Surveyors
General) estimates that about 73,000 acres of land were awarded on the
basis of small-holding claims. Although the exact acreage of these
claims is unknown, we reviewed eight selected community land grants
that had been rejected and found that small-holding claims were awarded
in every case. For example, within the Embudo community land grant that
was rejected for 25,000 acres, residents of the grant were able to
obtain over 900 acres of land as small-holding land claims.
The Percentage of Acreage Awarded during the Two Confirmation Processes
Is Substantially Higher Than Commonly Reported:
In discussing the results of the Surveyor General and CPLC processes in
New Mexico, land grant scholars have often reported that only 24
percent of the acreage claimed for community and individual land grants
in New Mexico was awarded.[Footnote 83] Scholars then compare this 24
percent figure for New Mexico to 73 percent of claimed acreage approved
in California, with the disparity allegedly demonstrating that the land
grant confirmation process in New Mexico must have been improper in
some way. As discussed below, however, in GAO's judgment, the many
differences between the situations in California and New Mexico,
including differences in the confirmation procedures and other factors,
make these mathematical comparisons inappropriate. Moreover, the more
accurate figure for community and individual land grant acreage awarded
in New Mexico, in our judgment, was actually 55 percent,[Footnote 84]
not 24 percent, and the more accurate figure for the number of
community and individual grants confirmed was actually 73 percent, not
52 percent. In addition, of the community grants in New Mexico, we
found that 83 percent of the grants claimed were confirmed rather than
68 percent, and 64 percent of the acreage claimed was awarded, rather
than 44 percent. Table 14 summarizes the acreage commonly reported as
confirmed for community and individual grants in New Mexico during the
Surveyor General period (about 9.4 million acres, from almost 12
million acres claimed) and the CPLC period (over 1.9 million acres,
from almost 35 million acres claimed), as well as our adjusted figures
for the acreages claimed and confirmed under each process.
Table 14: Acreage Awarded for Spanish and Mexican Community and
Individual Land Grants during the Surveyor General and the CPLC Land
Grant Confirmation Processes in New Mexico with and without Adjustments
(Subtractions) by GAO:
Confirmation process: Surveyor General;
Total acreage commonly reported as claimed: 11,993,307.91;
Total acreage commonly reported as confirmed: 9,446,108.16;
Percentage of acreage commonly reported as confirmed: 78.8;
Total adjusted acreage claimed: 9,915,634.69;
Total adjusted acreage confirmed: 7,915,634.69;
Adjusted percentage of acreage confirmed: 80.1.
Confirmation process: Court of Private Land Claims;
Total acreage commonly reported as claimed: 34,653,340.62;
Total acreage commonly reported as confirmed: 1,934,986.39;
Percentage of acreage commonly reported as confirmed: 5.6;
Total adjusted acreage claimed: 7,997,756.21;
Total adjusted acreage confirmed: 1,961,789.17;
Adjusted percentage of acreage confirmed: 19.9.
Total;
Total acreage commonly reported as claimed: 46,646,648.53;
Total acreage commonly reported as confirmed: 11,381,094.55;
Percentage of acreage commonly reported as confirmed: 24.4;
Total adjusted acreage claimed: 17,913,390.9;
Total adjusted acreage confirmed: 9,877,423.86;
Adjusted percentage of acreage confirmed: 55.1.
Source: GAO analysis.
Note: The data presented in this table are based on the final results
for each land grant, including actions by the U.S. Supreme Court and
Congress.
[End of table]
The 24-percent figure cited by scholars for acreage awarded in New
Mexico was, in our judgment, calculated incorrectly. It compares
acreage awarded (the "numerator") to acreage claimed (the
"denominator"), but the latter includes acreage that should be excluded
for a number of reasons from an assessment of the confirmation
processes. The effect of this error is that it indicates a lower rate
of confirmed acreage than actually occurred. First, acreage claimed
outside New Mexico was included in the calculation. Two large grants
falling in this category were the Los Conejos grant in Colorado and the
"Peralta (2)" grant in Arizona; combined, these grants accounted for
almost 15 million acres. (See table 15.) Second, the acreage claimed
included claims that were filed but never pursued. The CPLC's final
report, issued in 1904, shows 68 grants, accounting for 4.9 million
acres, as rejected acreage, but our analysis shows that claims for
these 68 grants were dismissed by the CPLC "without prejudice" (meaning
that they could be re-filed) or were dismissed because claimants failed
to pursue their claims in the first instance. Third, the acreage
claimed included four grants totaling 4.7 million acres that the CPLC
was not authorized to adjudicate because a claim for those grants had
previously been acted on and decided by Congress. Fourth, the claimed
acreage included 20 claims for grants that were "double counted."
Multiple petitioners filed claims for the same area of land, and the
CPLC rejected grants for which land had already been confirmed. As a
result, the rejected acreage for these grants--1.8 million acres--was
counted twice: once when it was confirmed and a second time when it was
rejected with respect to a second claimant. Fifth, although the 1904
CPLC report indicates that claims for another 300,000 acres were
rejected, our analysis shows that these grants were actually fully
confirmed. Excluding the acreage associated with all of the foregoing
factors, the acreage awarded in New Mexico for community and individual
grants increases from 24 to 55 percent of the acreage claimed. (See
table 16.)
Table 15: Summary of Adjusted Acreage Claimed in the CPLC's 1904
Report:
Basis for GAO adjustment: Grants located primarily in other states;
Acreage adjustment (subtraction): -14,967,456.
Basis for GAO adjustment: Grants which claimants failed to pursue;
Acreage adjustment (subtraction): -4,919,763.
Basis for GAO adjustment: Grants with jurisdictional questions;
Acreage adjustment (subtraction): -4,682,726.
Basis for GAO adjustment: Grants that were double counted;
Acreage adjustment (subtraction): -1,777,722.
Basis for GAO adjustment: Grants that were fully confirmed;
Acreage adjustment (subtraction): -307,917.
Basis for GAO adjustment: Total;
Acreage adjustment (subtraction): - 26,655,584.
Source: GAO analysis.
[End of table]
Table 16: Percentage of Acreage Awarded for Community and Individual
Spanish and Mexican Land Grants in New Mexico, As Adjusted by GAO:
Type of grant: Community land grants: Original documentation community
grants;
Adjusted acreage claimed: 6,545,194.53;
Adjusted acreage confirmed: 4,083,720.98;
Percentage of acreage awarded: 62.4%.
Type of grant: Community land grants: Self-identified community grants;
Adjusted acreage claimed: 1,782,434.15;
Adjusted acreage confirmed: 1,273,245.93;
Percentage of acreage awarded: 71.4%.
Type of grant: Community land grants: Pueblo community grants;
Adjusted acreage claimed: 1,051,725.50;
Adjusted acreage confirmed: 602,035.03;
Percentage of acreage awarded: 57.2%.
Subtotal;
Adjusted acreage claimed: 9,379,354.18;
Adjusted acreage confirmed: 5,959,001.95;
Percentage of acreage awarded: 63.5%.
Type of grant: Individual land grants;
Adjusted acreage claimed: 8,534,036.72;
Adjusted acreage confirmed: 3,918,421.91;
Percentage of acreage awarded: 45.9%.
Total;
Adjusted acreage claimed: 17,913,390.90;
Adjusted acreage confirmed: 9,877,423.85;
Percentage of acreage awarded: 55.1.
Source: GAO analysis.
Note: Numbers may not add up because of rounding.
[End of table]
Our adjusted figure of 55 percent of acreage approved in New Mexico, as
well as the commonly cited 24 percent figure, is lower than the grant
acreage approved in California of 73 percent. These figures, however,
do not lend themselves to an easy comparison. The processes that
Congress and Interior established for confirming land grant claims in
California and New Mexico were different in several important respects
and were implemented under different circumstances. As discussed in
chapter 1, California's statehood and the state's population boom
during the Gold Rush made settlement of land issues a priority for the
U.S. government. As a result, Congress quickly established the three-
member Commission to evaluate and resolve land grant claims, so that it
could identify the remaining U.S. public domain land and make it
available for settlement. Furthermore, although the California
Commission process yielded high rates of confirmation, there were also
many allegations of fraud and abuse regarding the claims filed and
approved there. By comparison, for the Territory of New Mexico,
Congress established the Surveyor General and the CPLC processes, and
most of the land grants that these tribunals addressed were different
from those in California. For example, once pueblos and presidios
(forts) were established in California, Spanish and Mexican officials
made grants of lands there, known as "rancho grants," to encourage
agriculture and industry. These rancho grants, which comprised most of
the land grants in California, were similar in size and were generally
limited to a maximum of 11 square leagues. The land grants in New
Mexico, by contrast, ranged in size and type. They included individual
grants, grants to 10 or more settlers, and grants to pueblos, towns, or
other settlements.
In addition, also as discussed in chapter 1, the first 40 years of
grant decisions made by the California Commission and the reviewing
courts were considered to be very liberal, with grants being approved
even though they did not always meet the legal standards Congress had
established in the 1851 Act. Indeed, it was largely the concerns about
some of the decisions by the California Commission (and later the
Surveyor General of New Mexico) that led to creation of the CPLC and
its more rigorous substantive and procedural standards.
For similar reasons, our analysis shows that similar corrections are
warranted when calculating the confirmation rate for numbers of grants
(rather than amount of acreage) claimed in New Mexico. During the 50-
year confirmation period in New Mexico, Congress and the CPLC confirmed
152 (52 percent) of the 295 land grants. However, these 295 grants
included 86 grants where claimants failed to pursue their claims or
where the CPLC dismissed the claims with permission to refile.
Excluding these 86 grants, the overall confirmation rate for land
grants in New Mexico, both community and individual grants, increases
from 52 to 73 percent. (See table 17.) With respect to community land
grants only, our analysis shows that Congress and the CPLC confirmed
105 of the 154 community land grants in New Mexico, for a 68 percent
confirmation rate. Excluding the 27 land grants where claimants failed
to pursue their claims, the confirmation rate increases from 68 to 83
percent.
Table 17: Percentage of Spanish and Mexican Land Grants Confirmed in
New Mexico, with and without Adjustments for Claims Not Pursued:
Grant type: Community land grants;
Total number of confirmed grants: 105;
Unadjusted total number of grants: 154;
Unadjusted confirmation rate in percents: 68%;
Number of grants that claimants failed to pursue: 27;
Adjusted total number of grants: 127;
Adjusted confirmation rate in percents: 83%.
Grant type: Individual land grants;
Total number of confirmed grants: 47;
Unadjusted total number of grants: 141;
Unadjusted confirmation rate in percents: 33%;
Number of grants that claimants failed to pursue: 59;
Adjusted total number of grants: 82;
Adjusted confirmation rate in percents: 57%.
Total;
Total number of confirmed grants: 152;
Unadjusted total number of grants: 295;
Unadjusted confirmation rate in percents: 52%;
Number of grants that claimants failed to pursue: 86[A];
Adjusted total number of grants: 209;
Adjusted confirmation rate in percents: 73%.
Source: GAO analysis.
[A] This number includes claims involving 16 land grants that were
filed with the Surveyor General, not acted on by Congress, and not re-
filed with the CPLC, and one grant that was not filed with the Surveyor
General or the CPLC. For the remaining 69 grants, claimants filed their
petitions with the CPLC, but then did not pursue the claim.
[End of table]
Summary:
In summary, the New Mexico community land grant claims that were filed
and pursued during the 50-year confirmation period encompassed 9.38
million acres of land in present-day New Mexico. The majority of the
acreage claimed (5.96 million acres, or 63.5 percent) was awarded to
confirmed community land grants, but a significant amount (3.42 million
acres, or 36.5 percent) was not awarded and became part of the U.S.
public domain, available for settlement by the general population. Some
of the confirmed grants were awarded less acreage than claimed, and
rejected grants were not awarded any acreage at all. The circumstances
underlying this perceived loss of 3.42 million acres during the
confirmation process have been a concern of land grant heirs for more
than a century.
[End of section]
Chapter 3: Heirs and Others Are Concerned That the United States Did
Not Protect Community Land Grants during the Confirmation Process, but
the Process Complied with All U.S. Laws:
Overview:
A number of land grant heirs, legal scholars, and other experts have
charged that activities under the two federal statutory New Mexico
community land grant confirmation procedures did not fulfill the United
States' legal obligations under the Treaty's property protection
provisions. Of the 154 community grants in New Mexico, 105 grants--over
68 percent--were confirmed at least in part and the remaining 49
grants--about 32 percent--were wholly rejected. With respect to the
confirmed grants, heirs and others have voiced concern about whether
the full amount of acreage that they believe should have been awarded
was in fact awarded, as well as whether the acreage awarded was
confirmed and patented to the rightful owners. With respect to the
rejected grants, the heirs' principal concern is that no acreage was
awarded at all. Published studies have identified three core reasons
for rejection of claims for New Mexico land grants, all involving
decisions by the Court of Private Land Claims (CPLC) or, on appeal, the
U.S. Supreme Court: (1) that under the Supreme Court's decision in the
United States v. Sandoval case, the courts confirmed grants but
restricted them to their so-called "individual allotments" that is, to
acreage actually occupied by the claimants; (2) that under the Supreme
Court's decisions in the United States v. Cambuston and United States
v. Vigil cases, the courts rejected grants because they had been made
by unauthorized officials; and (3) that under the Supreme Court's
decision in the Hayes v. United States case, the courts rejected grants
because they were supported solely by copies of documents that had been
made by unauthorized officials. These three reasons resulted in
rejection of claims for approximately 1.3 million acres of land in 17
different grants. If Congress had established less stringent standards
in the 1891 Act for the CPLC to apply in evaluating claims for the New
Mexico community land grants, such as those it established for the
California Commission under the 1851 Act or the Surveyor General of New
Mexico under the 1854 Act, these results might have been different.
Congress had discretion in how it implemented the Treaty provisions,
however, so long as it did so within constitutional and other U.S.
legal limitations (which it did, as discussed below). Thus the fact
that Congress established different standards for grant confirmation at
different times does not reflect any legal violation or shortcoming.
In addition to these concerns about how specific claims were
adjudicated, some heirs and legal scholars have contended that there
were two more general problems underlying the Surveyor General and
Court of Private Land Claims processes. First, with respect to the
Surveyor General procedures, heirs and scholars contend that they did
not meet the "fairness" requirements of due process of law under the
U.S. Constitution. We found that the procedures did, in fact, meet
constitutional due process requirements, as the courts at that time
defined them and even under today's standards. All potential land grant
claimants were provided with the requisite notice of the establishment
of the Office of the Surveyor General and the requirement to submit
claims for any land grant for which they sought government
(congressional) confirmation. Persons who filed claims with the
Surveyor General were then given the requisite opportunity to be heard
in defense of their claimed land grants. Even persons who disputed
claims that had been filed with the Surveyor General based on their
allegedly superior Spanish or Mexican title, but who did not themselves
file a claim, had opportunity to be heard, both during the Surveyor
General process and thereafter--including to the present day. Second,
with respect to the CPLC process, heirs and scholars assert that it did
not appropriately consider principles of equity, particularly in
comparison to the Surveyor General process, but instead applied
standards that were overly technical and "legal." We found that the
CPLC did apply more stringent standards in deciding whether to approve
community land grants than the Surveyor General had, but that these
differences resulted from differences in the authority and mandates
that Congress established for the two entities. Under the 1854 Act, the
Surveyor General was directed to look to the "laws, usages, and customs
of Spain and México" in recommending a grant for Congress'
confirmation, while under the 1891 Act, the CPLC was directed to
confirm only those grants which had been "lawfully and regularly
derived" under the laws of Spain, México, or any of the Mexican states.
As the U.S. Supreme Court explained in the United States v. Sandoval
case, the CPLC--and the Supreme Court in reviewing the CPLC's
decisions--was required as a matter of U.S. law to act within the
boundaries that Congress had established in confirming grants under the
1891 Act. Because the 1891 Act directed the CPLC to apply more
stringent standards than the 1854 Act had established for the Surveyor
General, the Court explained in Sandoval, claimants had to look to "the
political department" of the U.S. government--the Congress--to address
any remaining concerns about consideration of "equitable rights."
Whether the 1891 Act appropriately considered equitable rights was a
policy judgment for the Congress in 1891, and it remains so today.
Finally, some scholars and legal commentators have raised questions
about whether the statutory confirmation procedures that Congress
established for New Mexico grants fulfilled the United States'
obligations under the Treaty and international law. They contend that
the substantive requirements of the statutes--the standards that
Congress set for determining when a grant would be confirmed--were
inconsistent with the terms of the Treaty and international law, and
thus even if the United States carried out the statutory requirements,
these allegedly did not satisfy all of the government's obligations.
Under established U.S. law, however, as articulated by the U.S. Supreme
Court in the Botiller v. Dominguez case and other decisions, courts are
required to comply with the terms of federal statutes that implement a
treaty such as the Treaty of Guadalupe Hidalgo that is not self-
executing. (A treaty is not self-executing if it requires implementing
legislation before becoming effective.) If an implementing statute
conflicts with the terms of the treaty, it is an issue to be resolved
as a matter of international law or by enactment of additional
legislation. In the case of the Treaty of Guadalupe Hidalgo, the
evidence indicates that the substantive requirements of the
implementing statutes were, in fact, carried out, through the Surveyor
General of New Mexico and the CPLC procedures. Thus any conflict
between the Treaty and the 1854 or 1891 Acts--which we do not suggest
exists--would have to be resolved today as a matter of international
law between the United States and México or by additional congressional
action. As agreed, we do not express an opinion on whether the United
States fulfilled its Treaty obligations as a matter of international
law. By contrast, any concerns about the specific procedures that
Congress, the Surveyor General, or the CPLC adopted cannot be addressed
under the Treaty or international law but only under U.S. legal
requirements such as the Constitution's procedural due process
requirements, and as noted, we conclude that these requirements were
satisfied.
Notwithstanding the compliance of the two New Mexico confirmation
procedures with these statutory and constitutional requirements, we
found that the processes were inefficient and created hardships for
many grantees. For example, as the New Mexico Surveyors General
themselves reported during the first 20 years of their work, they
lacked the legal, language, and analytical skills and financial
resources to review grant claims in the most effective and efficient
manner. Moreover, delays in Surveyor General reviews and subsequent
congressional confirmations meant that some claims had to be presented
multiple times to different entities under different legal standards.
The claims process also could be burdensome after a grant was confirmed
but before specific acreage was awarded, because of the imprecision and
cost of having the lands surveyed--a cost that grantees had to bear for
a number of years. For policy or other reasons, therefore, Congress may
wish to consider whether further action may be warranted to address
remaining concerns.
Land Grant Heirs and Others Have Concerns about the Results of the
Confirmation Procedures for Community Land Grants:
Land grant heirs, legal scholars, and other experts have expressed
concern both about the procedures that Congress established for
assessing claims to community land grants in New Mexico and the results
of these confirmation procedures. Of the 154 community land grants in
New Mexico, 105 grants--over 68 percent--were confirmed at least in
part and the remaining 49 grants--about 32 percent--were wholly
rejected. With respect to the 105 partially confirmed grants, two
principal issues have been raised: (1) whether the full amount of
acreage that land grant heirs and others believe should have been
awarded was in fact awarded; and (2) whether the acreage was awarded
and patented to the rightful owners. For the remaining 49 community
land grants, the principal issue is that they were rejected in their
entirety and thus the claimants received no acreage at all. These
issues and the reasons underlying them are discussed in detail below.
Acreage and Patenting Issues Regarding the 105 Confirmed Community Land
Grants:
Although each land grant in New Mexico has its own unique history and
concerns, table 18 summarizes the overall results of the confirmation
processes for the 105 community land grants that were at least
partially confirmed.[Footnote 85] As table 18 indicates, these results
fell into eight basic categories.
Table 18: Results for the 105 Community Land Grants in New Mexico
Confirmed in Part or Whole:
Surveyor General confirmation process, 1854-1891:
Results for community land grants confirmed in part or whole: Grants
confirmed by Congress;
Original documentation community grants: 21;
Self-identified community grants: 9;
Pueblo community grants: 18;
Total: 48[A].
CPLC process, 1891-1904:
Results for community land grants confirmed in part or whole: Grants
that appear to have been awarded complete acreage to the extent
possible[B];
Original documentation community grants: 11;
Self-identified community grants: 8;
Pueblo community grants: 0;
Total: 19.
Results for community land grants confirmed in part or whole: Grants
with boundary disputes;
Original documentation community grants: 6;
Self-identified community grants: 6;
Pueblo community grants: 2;
Total: 14.
Results for community land grants confirmed in part or whole: Grants
awarded complete acreage;
Original documentation community grants: 8;
Self-identified community grants: 4;
Pueblo community grants: 0;
Total: 12.
Results for community land grants confirmed in part or whole: Grants
restricted to individual allotments only;
Original documentation community grants: 7;
Self-identified community grants: 0;
Pueblo community grants: 0;
Total: 7.
Results for community land grants confirmed in part or whole: Grants
confirmed by special congressional action[C];
Original documentation community grants: 2;
Self-identified community grants: 0;
Pueblo community grants: 0;
Total: 2.
Results for community land grants confirmed in part or whole: Grants
restricted to 11 square leagues[D];
Original documentation community grants: 0;
Self- identified community grants: 2;
Pueblo community grants: 0;
Total: 2.
Results for community land grants confirmed in part or whole: Subtotal
for the CPLC;
Original documentation community grants: 34;
Self-identified community grants: 20;
Pueblo community grants: 2;
Total: 56.
Results for community land grants confirmed in part or whole: Pueblo of
Zuñí (confirmed by Congress in 1931)[E];
Original documentation community grants: 0;
Self-identified community grants: 0;
Pueblo community grants: 1;
Total: 1.
Total;
Original documentation community grants: 55;
Self-identified community grants: 29;
Pueblo community grants: 21;
Total: 105.
Source: GAO analysis.
[A] All 48 grants except the John Scolly grant were confirmed without
any size limitation. There was a dispute over whether the John Scolly
grant was 5 square leagues or 5 leagues square, which would equal 25
square leagues. In confirming the grant, Congress restricted the size
of the grant to 5 square leagues.
[B] This category includes: (1) grants that appear to have been awarded
complete acreage even though the CPLC's 1904 Annual Report lists some
"rejected" acreage for these grants, and (2) grants that were awarded
complete acreage to the extent possible. Upon filing a claim with the
CPLC, claimants were required to estimate the size of their claim. Some
of these estimates were too low and others were too high. In those
cases where the claimed acreage estimate was lower than the actual
acreage awarded, the acreage claimed figure was ultimately increased to
match the actual acreage awarded, as reflected in the CPLC's 1904
Annual Report. Thus no grant is shown to have received more acreage
than was claimed. For example, the CPLC's 1892 Annual Report lists the
claimed acreage for the Doña Ana Bend Colony community land grant as
19,323.57 acres. This estimated claimed acreage was based on a survey
approved by the Surveyor General of New Mexico in 1879. In the CPLC's
1904 Annual Report, however, the claimed acreage was increased to
35,399.017 acres to match the actual acreage awarded--35,399.017 acres
claimed, 35,399.017 acres awarded, zero acres rejected.
In contrast, when the reverse happened, and the estimates were too
high, it appears that corresponding changes were not always made to
match the estimated claimed acreage with the actual acreage awarded.
Therefore, the CPLC's 1904 Annual Report lists some grants with
"rejected" acreage even though it appears that the claimants received
all of the land within the grant boundaries. For example, the CPLC's
1892 Annual Report lists the Cristóbal de la Serna community land grant
with an estimated claimed acreage of 30,000 acres and an estimated
approved acreage of 30,000 acres. Although the Surveyor General had
recommended approval of this grant, it had not been surveyed prior to
being filed with the CPLC. The Surveyor General reported the claimed
acreage as only 20,000 acres. After the grant was confirmed by the CPLC
and surveyed by the Surveyor General, the actual acreage was determined
to be 22,232.57 acres. In the CPLC's 1904 Annual Report, the Cristóbal
de la Serna grant is listed as 30,000 acres claimed, 22,232.57 acres
awarded, and 7,767.43 acres rejected. This grant appears to have been
awarded all the land being claimed. We were unable to determine a
reason for the "rejected" acreage other than that the estimated acreage
differed from the actual acreage. The second major group of grants in
this category is grants that partially overlapped existing
congressionally confirmed land grants. It appears that the CPLC
approved grants in this category for all acreage claimed and not in
conflict with the congressionally confirmed grants.
[C] The grants for the towns of Albuquerque and Santa Fé were approved
by the CPLC, then rejected by the U.S. Supreme Court, and finally
confirmed by Congress through legislation in 1901 (31 Stat. 796) and
1900 (31 Stat. 71), respectively.
[D] The CPLC restricted two land grants--Chaca Mesa (CPLC No. 34) and
Antonio Baca (CPLC No. 70)--to 11 square leagues. In three other cases-
-Bartolomé Baca (CPLC No. 58), Sierra Mosca (CPLC No. 87), and Petaca
(CPLC No. 99, No. 153, and No. 233)--the CPLC confirmed the grants but
restricted them to 11 square leagues or about 48,825 acres. The United
States appealed three of these five cases to the U.S. Supreme Court,
where two grants were rejected--Bartlomé Baca (see 168 U.S. 66 (1897))
and Sierra Mosca (see 176 U.S. 422 (1900))--and the other grant,
Petaca, was restricted to its individual allotments (see 175 U.S. 500
(1899)). The CPLC restricted the two remaining grants--Chaca Mesa and
Antonio Baca--to 11 square leagues, and these decisions were not
appealed.
[E] The reservation for the Pueblo of Zuñí was established by Executive
Order in 1877, and was modified in 1883, 1885, and 1917. In 1931,
Congress retroactively confirmed the Pueblo of Zuñí land grant for 4
square leagues, to be located within their existing reservation.
[End of table]
Heirs Are Concerned about Several Issues Affecting the Acreage Awarded
for Confirmed Land Grants:
Heirs contend that three sets of issues adversely affected the acreage
awarded for confirmed land grants in New Mexico: (1) inaccuracy of land
surveys; (2) boundary disputes; and (3) legal rulings. With respect to
land survey issues, heirs contend that imprecise surveying techniques
inappropriately reduced the acreage awarded for some of the 105
confirmed community land grants.[Footnote 86] Surveying disputes exist
for the Town of Tomé grant, the Pueblo of Sandía grant, and the Los
Trigos grant, for example, all of which Congress confirmed without
imposing any size limitations. The heirs for the Town of Tomé grant
contend that the survey for their land grant should have reflected an
additional 100,000 acres. Similarly, the Pueblo of Sandía claims that
because of an incorrect survey of their grant--they contend that the
survey should have, but did not, extend to the crest of the Sandía
mountains (see figure 8)--10,000 acres of their grant were not awarded.
The Los Trigos grant was surveyed three times--in 1860, 1877, and 1893-
-each time resulting in a different acreage figure.[Footnote 87]
Although the original claimants for the Los Trigos grant did not have a
specific estimate of the size of the grant when they filed their claim,
the heirs today claim that they lost land through the surveying
process.
Figure 8: Sandía Mountain Range behind the Pueblo of Sandía, New
Mexico, c.1880:
[See PDF for image]
[End of figure]
With respect to boundary disputes, these sometimes arose during the
adjudication of a grant, even before the grant was approved and
surveyed. (See table 19.) In these cases, the CPLC heard testimony and
ruled on the boundary dispute as part of its decision on the grant. For
example, the CPLC found the grant papers for the Cañada de Santa Clara
grant to be genuine but disputed the area of the claim. The claimants
and the government disagreed on the location of the western boundary
and the width of the grant from north to south. In its decision, the
court held that the grant papers limited the grant to the area claimed
by the government and confirmed the grant to that extent.
Table 19: Community Land Grants with Boundary Disputes Adjudicated by
the CPLC, 1891-1904:
Grant name: Bartolomé Sanchez;
CPLC docket number(s): 264;
Claimed acreage: 10,000.00;
Awarded acreage: 4,469.83;
Difference (acres): 5,530.17.
Grant name: Bernalillo (Town of);
CPLC docket number(s): 146, 208, 217, 258;
Claimed acreage: 11,674.37;
Awarded acreage: 3,404.67;
Difference (acres): 8,269.70.
Grant name: Canada de Santa Clara;
CPLC docket number(s): 17;
Claimed acreage: 90,000.00;
Awarded acreage: 490.62;
Difference (acres): 89,509.38.
Grant name: Francisco de Anaya Almazan;
CPLC docket number(s): 214, 243;
Claimed acreage: 45,244.00;
Awarded acreage: 3,202.79;
Difference (acres): 42,041.21.
Grant name: Juan Bautista Valdez;
CPLC docket number(s): 179;
Claimed acreage: 60,000.00;
Awarded acreage: 1,468.57;
Difference (acres): 58,531.43.
Grant name: Ojo Caliente;
CPLC docket number(s): 88, 94;
Claimed acreage: 40,000.00;
Awarded acreage: 2,244.98;
Difference (acres): 37,755.02.
Grant name: Ojo de San José;
CPLC docket number(s): 130, 182, 259;
Claimed acreage: 30,000.00;
Awarded acreage: 4,336.91;
Difference (acres): 25,663.09.
Grant name: Plaza Colorado;
CPLC docket number(s): 2;
Claimed acreage: 19,200.00;
Awarded acreage: 7,577.92;
Difference (acres): 11,622.08.
Grant name: Pueblo of Laguna;
CPLC docket number(s): 133;
Claimed acreage: 101,510.00;
Awarded acreage: 17,328.91;
Difference (acres): 84,181.09.
Grant name: Ranchito;
CPLC docket number(s): 157;
Claimed acreage: 87,360.00;
Awarded acreage: 4,945.24;
Difference (acres): 82,414.76.
Grant name: Refugio Civil Colony;
CPLC docket number(s): 150, 193;
Claimed acreage: 26,000.00;
Awarded acreage: 11,524.30;
Difference (acres): 14,475.70.
Grant name: San Antonio de las Huertas;
CPLC docket number(s): 90, 269;
Claimed acreage: 130,000.00;
Awarded acreage: 4,763.85;
Difference (acres): 125,236.15.
Grant name: San Clemente;
CPLC docket number(s): 64;
Claimed acreage: 95,000.00;
Awarded acreage: 37,099.29;
Difference (acres): 57,900.71.
Grant name: Santa Rosa de Cubero;
CPLC docket number(s): 267;
Claimed acreage: 5,000.00;
Awarded acreage: 1,945.50;
Difference (acres): 3,054.50.
Total: 14 grants;
Claimed acreage: 750,988.37;
Awarded acreage: 104,803.38;
Difference (acres): 646,184.99.
Source: GAO analysis.
[End of table]
Finally, with respect to the impact of the courts, several legal
decisions resulted in restrictions on the acreage awarded for some of
the confirmed community land grants. For example, the CPLC and the U.S.
Supreme Court ruled that certain community grants should be limited to
their so-called "individual allotments," that is, to acreage actually
occupied by the claimants. In imposing this limitation in its 1897
United States v. Sandoval decision, 167 U.S. 278 (1897), the U.S.
Supreme Court explained that the common lands within the grant had been
owned not by the community but by the prior government sovereign--
México. Consequently, when the Treaty of Guadalupe Hidalgo was signed,
these lands transferred from the prior sovereign to the new sovereign-
-the United States--and became part of the U.S. public domain. Seven
land grants were restricted to their individual allotments for this
reason, resulting in the loss of about 1 million acres of land claimed.
Sandoval and the six CPLC decisions reaching this same result are
discussed in more detail later in this chapter.
Heirs Also Are Concerned about Whether Acreage Awarded Was Confirmed
and Patented to the Rightful Owners:
Heirs and others also have raised concerns about whether the grants
that were confirmed were in fact confirmed and patented to their
rightful owners. Heirs contend that some of the grants that were
confirmed and patented as individual grants should instead have been
confirmed and patented as community grants. An illustration of this
concern is the Tierra Amarilla grant in northern New Mexico. This land
was granted in 1832 to "Manuel Martinez, together with eight male
children, and others who may voluntarily desire to accompany him." In
August 1856, Francisco Martinez, one of the sons of Manuel Martinez,
filed a claim with the Surveyor General of New Mexico. The Surveyor
General investigated the claim and in September 1856 recommended that
it be approved to the present claimant--Francisco Martinez. The
Martinez family and others had been unable to establish a permanent
settlement on the grant because of the presence of hostile Indians.
Congress confirmed the grant on June 21, 1860, as an individual grant,
but Francisco Martinez then established the grant as a community land
grant, giving out individual lots to settlers with access to common
lands. The Martinez family later sold the common lands, and a dispute
arose between the settlers of the Tierra Amarilla grant and the
purchasers of the common land, resulting in the settlers losing their
rights to use the common land. Today, the settlers' heirs claim that
the U.S. government should have approved and patented the Tierra
Amarilla land grant as a community grant rather than as an individual
grant.
Some of these challenges to confirmed individual grants, as well as
challenges to confirmed community grants, have been turned back by the
courts without reaching the merits of the claims. Where the grants had
been evaluated under the Surveyor General process and subsequently
confirmed by Congress, the courts found that they lacked legal
authority to review Congress' previous confirmation decisions. Only
Congress itself, the courts ruled, could rectify any perceived errors
by enacting additional legislation. The U.S. Supreme Court established
this basic precedent in its 1876 decision in Tameling v. U.S. Freehold
& Emigration Co., 93 U.S. 644 (1876), where the Court affirmed the
right of a claimant who held ownership through the 1860 confirmation
act to evict settlers living on 160 acres located within the boundaries
of the confirmed Sangre de Cristo grant. As discussed in chapter 2, the
original grant was made to two individuals but was issued for an area
far larger than the 11 square leagues per individual permitted under
Mexican law. Thus the New Mexico Surveyor General arguably should not
have recommended approval of the grant for this size and Congress
arguably should not have confirmed it at this size. Nevertheless, the
Tameling Court ruled that "[t]he final action on each claim reserved to
Congress, is, of course, conclusive, and therefore not subject to
review in this or any other forum." Tameling, 93 U.S. at 662.
The Tameling Court explained that it was Congress' right and obligation
to establish the procedures by which the property protection provisions
of the Treaty of Guadalupe Hidalgo would be implemented: "[t]he duty of
providing the mode of securing [property rights] and fulfilling the
obligations which the treaty of cession imposed, was within the
appropriate province of the political department of the government
[Congress]." Id. at 661. Because the procedure that Congress had
established for the specific grant under review in Tameling was the New
Mexico Surveyor General/congressional confirmation process created by
the 1854 Act--which resulted in decisions that could not be appealed to
any court, rather than, for example, the Commission process used in
California resulting in decisions that could be appealed to the courts-
-the Supreme Court found that it was bound by the confirmation decision
that Congress had made in the 1860 statute. This decision had the
effect of a "grant de novo" by the United States, the Court explained,
conveying to the grantee whatever title the United States held to the
property with the same effect as a patent. Id. at 663.[Footnote 88] The
same reasoning and results of Tameling were followed in four other
court decisions, involving disputes over the Tierra Amarilla grant and
three other grants.[Footnote 89] Each of these decisions addressed the
issue of whether Congress had confirmed the grant to the correct party.
It is important to note that Tameling and these other court decisions
addressed only the question of which entity, as between the United
States and the claimants, was entitled to land under the same Spanish
or Mexican land grant. With the Tierra Amarilla grant, for example, the
question was whether the grant was a community grant or an individual
grant and thus today belongs to the town or to individuals. This is
different from the situation addressed by the 1851 and 1891 Acts and
the confirmation statutes issued under the 1854 Act, all of which
provided that confirmation decisions made under those authorities were
binding on the United States and claimants under the grant at issue,
but were not binding on persons claiming they had superior rights under
a different grant or a different aspect of Spanish or Mexican
law.[Footnote 90] Thus, for example, although Congress confirmed the
Tecolote land grant in 1858 in its first confirmation statute passed
pursuant to the 1854 Act, and a patent was subsequently issued to the
town for over 48,000 acres, several heirs have filed suit against the
grant in New Mexico state court in the case of Montoya v. Tecolote Land
Grant, alleging among other things that they have superior title under
Mexican law. Because Congress' 1858 confirmation statute provided that
it conveyed only the title held by the United States and did not affect
the title of any other person, the heirs have asserted--based in part
on a grant by the Mexican government in 1825 and a Mexican
administrative decision in 1838 (the Repartimiento of 1838)--that their
ancestors received superior title to a portion of the grant. As of the
date of this report, the Tecolote Land Grant has agreed that the heirs
have superior title to some of the acreage in dispute,[Footnote 91] and
the court has ruled that the heirs have superior title to other acreage
in dispute.[Footnote 92]
Issues Regarding the 49 Wholly Rejected Community Land Grants:
Heirs have raised concerns about the remaining 49 New Mexico community
land grants that were wholly rejected by the government. The grants
were rejected for a variety of reasons, most commonly that claimants
failed to file or to pursue their claims. In table 20, we have grouped
the results for the 49 wholly rejected community land grants into four
categories based on the reason for rejection. As table 20 shows, 27 of
the 49 rejected grants, or 55 percent, were rejected for reasons
unrelated to the merits of the claim, either because claimants failed
to pursue their claims or because the CPLC had no authority to
adjudicate an already congressionally-confirmed claim.
Table 20: Results for the 49 Wholly Rejected Community Land Grants in
New Mexico:
Results for wholly rejected community land grants: Grants for which
claimants failed to pursue and grants dismissed by the CPLC because the
court had no authority to adjudicate already congressionally-confirmed
land grants;
Original documentation community grants: 9;
Self- identified community grants: 17;
Pueblo community grants: 1;
Total: 27.
Results for wholly rejected community land grants: Grants rejected for
a variety of legal reasons other than those relating to unauthorized
officials or unauthorized copies;
Original documentation community grants: 7;
Self-identified community grants: 3;
Pueblo community grants: 1;
Total: 11.
Results for wholly rejected community land grants: Grants rejected
because they were made by unauthorized Mexican officials;
Original documentation community grants: 6;
Self-identified community grants: 2;
Pueblo community grants: 0;
Total: 8.
Results for wholly rejected community land grants: Grants rejected
because the claimants relied solely on copies of grant documents that
were made by unauthorized officials;
Original documentation community grants: 1;
Self-identified community grants: 2;
Pueblo community grants: 0;
Total: 3.
Total;
Original documentation community grants: 23;
Self-identified community grants: 24;
Pueblo community grants: 2;
Total: 49.
Source: GAO analysis.
[End of table]
CPLC reports and other documents we reviewed did not always detail why
claimants failed to pursue their claims before the CPLC. In some
instances, it appears that claimants withdrew their claims after
learning that Congress or the CPLC had already confirmed the land under
another grant, or that the CPLC had previously rejected similar claims.
For example, lands claimed in the José Ignacio Alarí, Angostura de
Pecos, and Bartolomé Trujillo grants were located within other grants
that Congress had already confirmed and thus claims for these lands
fell outside the court's jurisdiction. In addition, some heirs told us
that claimants might not have pursued their claims because they lacked
the necessary funds or did not speak English and did not fully
understand the workings of the CPLC. Table 21 lists the 27 community
land grants for which claims were not pursued, as well as possible
reasons why they were not pursued.
Table 21: Community Land Grants That Claimants Failed to Pursue and
Possible Explanations for This Failure:
Original documentation community land grants:
Grant name: Angostura del Pecos;
CPLC docket number(s): [A];
Possible explanation for failure to pursue: Located within the Town of
Antón Chico and Preston Beck Jr., land grants.
Grant name: Bartolomé Trujillo;
CPLC docket number(s): 257, 263;
Possible explanation for failure to pursue: Located within the Juan
José Lovato land grant.
Grant name: Cadillal;
CPLC docket number(s): [A];
Possible explanation for failure to pursue: Located within the Domingo
Fernández land grant.
Grant name: Chaperito (Town of);
CPLC docket number(s): [A];
Possible explanation for failure to pursue: Located within the Antonio
Ortiz land grant.
Grant name: Los Manuelitas;
CPLC docket number(s): 242;
Possible explanation for failure to pursue: Located within the Town of
Las Vegas and Town of Mora land grants.
Grant name: Mesita Blanca;
CPLC docket number(s): 159;
Possible explanation for failure to pursue: Grant made by an
unauthorized Mexican official.
Grant name: Pueblo of Quemado;
CPLC docket number(s): 171, 212;
Possible explanation for failure to pursue: U.S. Supreme Court had
rejected similar awards to the Town of Albuquerque (171 U.S. 685
(1898)) and Santa Fé (165 U.S. 675 (1897)).
Grant name: Santo Toribio;
CPLC docket number(s): 256;
Possible explanation for failure to pursue: Conflict with the Ojo de
San José land grant.
Grant name: Vallecito (de San Antonio);
CPLC docket number(s): 141;
Possible explanation for failure to pursue: Located predominantly
within the Juan José Lovato land grant.
Self-identified community land grants:
Grant name: Antonio de Salazar;
CPLC docket number(s): 235;
Possible explanation for failure to pursue: Conflict with the Bartolomé
Sánchez, Juan José Lovato, Pueblo of San Juan, and Pueblo of Santa
Clara land grants.
Grant name: Arkansas;
CPLC docket number(s): [A];
Possible explanation for failure to pursue: Conflicts with Maxwell
Grant rejected by Colorado Federal Circuit Court (41 F. 275 (Colo. Cir.
Ct. 1889)) and the U.S. Supreme Court (139 U.S. 569 (1891)).
Grant name: Arquito;
CPLC docket number(s): 145;
Possible explanation for failure to pursue: Grant made by an
unauthorized Mexican official.
Grant name: Candelarios (Town of);
CPLC docket number(s): [A];
Possible explanation for failure to pursue: Unknown.
Grant name: El Rito (Town of);
CPLC docket number(s): 224;
Possible explanation for failure to pursue: Unknown.
Grant name: Guadalupita;
CPLC docket number(s): 131;
Possible explanation for failure to pursue: Grant made by an
unauthorized Mexican official and ¾ of the grant conflicts with the
Town of Mora land grant.
Grant name: Hacienda del Álamo;
CPLC docket number(s): 155;
Possible explanation for failure to pursue: Unknown.
Grant name: José Ignacio Alarí;
CPLC docket number(s): 227;
Possible explanation for failure to pursue: Located within Ojo
Caliente land grant.
Grant name: José Trujillo;
CPLC docket number(s): 115, 268;
Possible explanation for failure to pursue: Conflict with Pueblo of
Pojoaque, Pueblo of San Ildefonso, and Pueblo of Santa Clara land
grants.
Grant name: Juan de Ulibarrí;
CPLC docket number(s): 253;
Possible explanation for failure to pursue: Grant revoked and land
regranted as part of the Bartolomé Sánchez land grant.
Grant name: Las Lagunitas;
CPLC docket number(s): [A];
Possible explanation for failure to pursue: Recommend for rejection by
Surveyor General because of insufficient proof of grant.
Grant name: Montoya;
CPLC docket number(s): [B];
Possible explanation for failure to pursue: No claim filed with
Surveyor General or CPLC.
Grant name: Ojito de Galisteo;
CPLC docket number(s): 164;
Possible explanation for failure to pursue: U.S. government claimed
that the grant documents were forgeries.
Grant name: Río del Oso;
CPLC docket number(s): 177;
Possible explanation for failure to pursue: Located within the Juan
José Lovato land grant.
Grant name: San Cristóbal;
CPLC docket number(s): [A];
Possible explanation for failure to pursue: Recommended for rejection
by the Surveyor General because grant not recorded in the archives;
conditions of the grant were not met;
and official not authorized to make grant.
Grant name: Santa Rita del Cobre;
CPLC docket number(s): [A];
Possible explanation for failure to pursue: Mining claim, not a land
grant.
Grant name: Tacubaya;
CPLC docket number(s): 239;
Possible explanation for failure to pursue: Located within the Domingo
Fernández land grant.
Pueblo community land grants:
Grant name: Pueblo of San Cristóbal;
CPLC docket number(s): [A];
Possible explanation for failure to pursue: Extinct Pueblo.
Total: 27 grants.
Source: GAO analysis.
[A] Claims for this grant were filed only with the Surveyor General of
New Mexico, not with the CPLC.
[B] No claims were filed for this grant, either with the Surveyor
General of New Mexico or the CPLC.
[End of table]
The CPLC and the U.S. Supreme Court rejected 11 additional community
land grants for a variety of legal reasons. For example, as table 22
shows, claims were rejected because the grants were located outside New
Mexico, because the grants lacked sufficient proof, and because the
claims pertained to a pasturing license rather than a land grant.
Table 22: Community Land Grants Rejected for a Variety of Legal Reasons
Unrelated to Authority of Granting Official or Grant-Copying Official:
Original documentation community land grants:
Grant name: Barranca;
CPLC docket number(s): 97, 265;
Acreage: 25,000;
Reasons for rejection: Grant revoked by Mexican Governor.
Grant name: Cebolla;
CPLC docket number(s): 108;
Acreage: 17,159;
Reasons for rejection: Rejected by the U.S. Supreme Court because of
insufficient proof of a grant (United States v. Elder, 177 U.S. 104
(1900)).
Grant name: Gervacio Nolan;
CPLC docket number(s): 46;
Acreage: 575,968;
Reasons for rejection: Claim barred under the Act of July 1, 1870 (16
Stat. 646) that awarded Gervacio Nolan 11 square leagues of land in
Colorado.
Grant name: Los Conejos;
CPLC docket number(s): 109;
Acreage: [A];
Reasons for rejection: Conditions of the grant were not met and
official had no authority to re-grant or validate the claim.
Grant name: Rancho de Ysleta;
CPLC docket number(s): 33;
Acreage: [B];
Reasons for rejection: Located in Texas.
Grant name: San Joaquín del Nacimiento;
CPLC docket number(s): 144, 203, 213, 252;
Acreage: 131,000;
Reasons for rejection: Grant revoked by the Spanish Government and
official had no authority to re-grant the land.
Grant name: Vallecito de Lovato (Town of);
CPLC docket number(s): 142, 204, 236;
Acreage: 114,000;
Reasons for rejection: Insufficient proof of a grant;
CPLC decision affirmed by U.S. Supreme Court (Peabody v. United States,
175 U.S. 546 (1899)).
Self-identified community land grants:
Grant name: Heath;
CPLC docket number(s): 59;
Acreage: 108,000;
Reasons for rejection: Grant revoked by Mexican Government and re-
granted to other parties;
CPLC decision affirmed by U.S. Supreme Court (Cessna v. United States,
169 U.S. 165 (1898)).
Grant name: Real de Dolores del Oro (Town of);
CPLC docket number(s): 111;
Acreage: 17,361;
Reasons for rejection: Insufficient proof of a grant;
located within the Ortiz Mine land grant;
CPLC decision affirmed by U.S. Supreme Court (Real de Dolores del Oro
v. United States, 175 U.S. 71 (1899)).
Grant name: Río Tesuque (Town of);
CPLC docket number(s): 123, 215;
Acreage: 7,300;
Reasons for rejection: Insufficient proof of a grant.
Pueblo community land grants:
Grant name: Pueblos of Zía, Jémez, & Santa Ana;
CPLC docket number(s): 50;
Acreage: 276,000;
Reasons for rejection: Claim for pasture license, not a land grant;
affirmed by U.S. Supreme Court (Pueblo of Zía v. United States, 168
U.S. 198 (1897)).
Total: 11 grants.
Source: GAO analysis.
[A] The claimed acreage was 2.5 million acres, and was located
primarily in Colorado. We did not include this claimed acreage in our
analysis of acreage awarded and rejected for New Mexico.
[B] The claimed acreage was about 67,000 acres and was located in
Texas. We did not include this claimed acreage in our analysis of
acreage awarded and rejected for New Mexico.
[End of table]
The final two reasons why grants were rejected are, according to land
grant heirs and scholars, of particular concern. The CPLC rejected
eight community land grants after determining that the Mexican
officials who made them were not authorized to do so, and rejected two
community land grants because the claimants relied solely on copies of
grant documents that were made by officials who were not authorized to
make such copies. These two categories of rejected grants, together
with confirmed grants restricted to their individual allotments under
the Supreme Court's Sandoval decision, are discussed in more detail
below.
Studies Have Focused on Three Core Reasons for Rejected Acreage:
Several published studies have focused on three of the reasons noted
above as core reasons why New Mexico community land grant claims were
either restricted in acreage or wholly rejected.[Footnote 93] All of
these reasons are reflected in decisions by the CPLC or, on appeal, the
U.S. Supreme Court. We found that collectively, these reasons resulted
in rejection of claims for about 1.3 million acres of land in 17
different grants. As discussed below, the three reasons were: (1)
restriction of confirmed grants to their individual allotments
(affecting 7 grants and approximately 1.1 million acres); (2) rejection
of grants because they were made by unauthorized officials (affecting 8
grants and approximately 93,000 acres); and (3) rejection of grants
because the claims for them were based solely on copies of documents
made by unauthorized officials (affecting 2 grants and approximately
69,000 acres). The Surveyor General of New Mexico had recommended
confirmation of most of these grants, but when Congress did not act on
the Surveyor General's recommendations, the claims were presented again
to the CPLC. If Congress had established a less stringent standard for
the CPLC--similar, for example, to the mandate it established for the
Surveyor General of New Mexico or the California Commission--the
results for these grants might have been different. As the U.S. Supreme
Court recognized in the Sandoval case in 1897, however, Congress
limited the authority of the CPLC to confirming only those grants that
had been "lawfully and regularly derived" under Spanish or Mexican law.
It placed the issue of dealing with any "equitable rights" claimants
might have in the lands with the "political department"--the U.S.
Congress. See Sandoval, 167 U.S. at 298.
The Courts Restricted Seven Confirmed Grants to Their Individual
Allotments (the Sandoval Case):
Collectively, the CPLC and the U.S. Supreme Court restricted 7 of the
105 confirmed community land grants to their individual allotments. As
a result, the claimants for these seven grants did not acquire
approximately 1.1 million acres of land to which they believed they
were entitled. (See table 23.) The issue before the courts was whether
the community or the prior sovereign--México--had owned the common
lands within the boundaries of a community land grant. As noted above,
in 1897, the U.S. Supreme Court resolved this issue in the Sandoval
case by concluding that México, the former sovereign, not the
community, had owned the common lands. The Court held that these lands
(in the particular Sandoval case, the common lands within the San
Miguel del Vado grant) passed to the new sovereign--the United States-
-when the United States assumed control of the territory under the
Treaty of Guadalupe Hidalgo, and became part of the U.S. public domain.
Land grant heirs, scholars, and legal experts do not agree with this
decision because, as discussed below, they believe it reflects an
inaccurate application of Spanish and Mexican law.
Table 23: Community Land Grants Restricted to Their Individual
Allotments:
Grant name: Cañón de Carnue;
CPLC docket number(s): 74;
Claimed acreage: 90,000.00;
Awarded acreage: 2,000.59;
Difference (acres): 87,999.41.
Grant name: Cañón de Chama;
CPLC docket number(s): 107;
Claimed acreage: 472,737.00;
Awarded acreage: 1,422.62;
Difference (acres): 471,314.38.
Grant name: Don Fernando de Taos[A];
CPLC docket number(s): 54;
Claimed acreage: 1,889.00;
Awarded acreage: 1,817.24;
Difference (acres): 71.76.
Grant name: Galisteo (Town of);
CPLC docket number(s): 149;
Claimed acreage: 22,000.00;
Awarded acreage: 260.79;
Difference (acres): 21,739.21.
Grant name: Petaca;
CPLC docket number(s): 99,153, 233;
Claimed acreage: 186,977.00;
Awarded acreage: 1,392.10;
Difference (acres): 185,584.90.
Grant name: San Miguel del Vado;
CPLC docket number(s): 25, 60, 198;
Claimed acreage: 315,300.00;
Awarded acreage: 5,024.30;
Difference (acres): 310,275.70.
Grant name: Santa Cruz;
CPLC docket number(s): 181, 194;
Claimed acreage: 48,000.00;
Awarded acreage: 4,567.60;
Difference (acres): 43,432.40.
Grant name: Total: 7 grants;
Claimed acreage: 1,136,903.00;
Awarded acreage: 16,485.24;
Difference (acres): 1,120,417.76.
Source: GAO analysis.
[A] In the CPLC's 1897 Annual Report, the Don Fernando de Taos land
grant was listed with an estimated claimed acreage of 38,400 acres, an
estimated approved acreage of 1,000 acres, and an estimated rejected
acreage of 37,400 acres. The grant was confirmed by the CPLC on October
5, 1897. The acreage figures presented in table 23 are from the CPLC's
1904 Annual Report.
[End of table]
Claims involving all seven of these grants originally had been filed
with the Surveyor General of New Mexico. The Surveyor General
investigated and reported on six of the grants (all except the Santa
Cruz grant) and of these six grants, the Surveyor General recommended
five for confirmation by Congress and one--the Town of Galisteo grant-
-for rejection. Surveyor General Spencer reported that the Galisteo
grant was "destitute of legitimate origin and foundation and had no
legal existence." In 1886, Surveyor General Julian reexamined three of
the original five positive recommendations and issued supplemental
reports for all three: the Cañón de Chama grant, the Petaca grant, and
the San Miguel del Vado grant. In each case, Surveyor General Julian
found that the preliminary surveys had been incorrect and had grossly
extended the true grant boundaries. While Surveyor General Julian still
recommended that the three grants be approved by Congress, he stated
that they should be restricted to the land actually occupied by the
inhabitants (i.e., restricted to their individual allotments) and
should not exceed 4 square leagues. Congress did not act on the
Surveyor General's recommendations for any of the six grants, and
claims involving all seven grants were later presented again to the
CPLC.
The San Miguel del Vado land grant was the first of these seven grants
adjudicated by the CPLC. In April 1894, the CPLC confirmed the grant in
its entirety for over 315,000 acres. The U.S. government appealed the
CPLC's decision to the U.S. Supreme Court, arguing that the United
States had title to these lands. Five months later, in September 1894,
while the United States' appeal was pending before the Supreme Court,
the CPLC issued decisions for the Cañón de Carnue grant, the Cañón de
Chama grant, and the Town of Galisteo grant. (See table 24.) In
contrast to its earlier ruling on the San Miguel del Vado grant, the
CPLC agreed with the U.S. government's argument as to these three
additional grants and ruled that title to the common lands belonged to
the sovereign. The CPLC therefore restricted the grants to their
individual allotments and claimants for the Cañón de Chama grant
appealed the CPLC's decision to the U.S. Supreme Court, where the
government's appeal of the CPLC's Miguel del Vado grant decision was
pending.
The Petaca land grant was the fifth of these seven grants adjudicated
by the CPLC. The court confirmed the grant in September 1896 but
restricted it to 11 square leagues. The U.S. government appealed the
ruling to the Supreme Court on the grounds that the grant should have
been restricted to the land covered by 36 individual allotments.
Lastly, the CPLC restricted the remaining two grants--the Don Fernando
de Taos and Santa Cruz land grants--to their individual allotments in
1897 and 1899, respectively.
Table 24: Decisions by the CPLC for Seven Community Land Grants That
Were Ultimately Restricted to Their Individual Allotments:
Grants decided by the CPLC prior to the 1897 U.S. Supreme Court
Sandoval decision:
Grant name: San Miguel del Vado[A];
CPLC docket number(s): 25, 60, 198;
Date of decision: Apr. 26, 1894;
CPLC decision: Confirmed; awarded complete acreage.
Grant name: Cañón de Carnue;
CPLC docket number(s): 74;
Date of decision: Sept. 29, 1894;
CPLC decision: Confirmed; restricted to individual allotments.
Grant name: Cañón de Chama[B];
CPLC docket number(s): 107;
Date of decision: Sept. 29, 1894;
CPLC decision: Confirmed; restricted to individual allotments.
Grant name: Galisteo (Town of);
CPLC docket number(s): 54;
Date of decision: Sept. 29, 1894;
CPLC decision: Confirmed; restricted to individual allotments.
Grant name: Petaca[C];
CPLC docket number(s): 99, 153, 233;
Date of decision: Sept. 5, 1896;
CPLC decision: Confirmed; not to exceed 11 square leagues.
Grants decided by the CPLC after the 1897 U.S. Supreme Court Sandoval
decision:
Grant name: Don Fernando de Taos;
CPLC docket number(s): 149;
Date of decision: Oct. 5, 1897;
CPLC decision: Confirmed; restricted to individual allotments.
Grant name: Santa Cruz;
CPLC docket number(s): 181,194;
Date of decision: Sept. 5, 1899;
CPLC decision: Confirmed; restricted to individual allotments.
Source: GAO analysis.
[A] The U.S. Supreme Court in Sandoval reversed the CPLC's decision and
ruled that only land allotted to individual settlers could be
confirmed.
[B] On the same day it decided Sandoval, the U.S. Supreme Court
affirmed the CPLC's decision to restrict the grant to individual
allotments in Río Arriba Land & Cattle Co. v. United States, 167 U.S.
298 (1897).
[C] In United States v. Peña, 175 U.S. 500 (1899), the U.S. Supreme
Court reversed the CPLC's ruling and confirmed the grant to include
only individual allotments.
[End of table]
The first of these Supreme Court appeals to be decided was the San
Miguel del Vado grant case, which the Court ruled on in 1897 in
Sandoval. The Court reversed the CPLC's decision, which had confirmed
the entire grant for over 315,000 acres, and instead approved only
about 5,000 acres in individual lots. Relying on its recent decision in
the United States v. Santa Fe case, 167 U.S. 278 (1897), where the
Court had concluded that under both Spanish and Mexican rule, ownership
of town lands in New Mexico had remained in the sovereign (Spain and
then México), the Sandoval Court concluded that common lands within the
San Miguel del Vado grant likewise had passed to the new sovereign--the
United States--under the Treaty of Guadalupe Hidalgo. As a result, the
Court confirmed only the non-"common" lands within the grant, that is,
lands that had been allotted to individual settlers. Although the
claimants argued that their "equitable rights"[Footnote 94] in the
common lands should have been recognized and confirmed, the Court found
that it had no legal authority to make such recognition. The Court
explained that under the 1891 Act creating the CPLC, Congress had
restricted the authority of the CPLC (and thus the Supreme Court when
reviewing decisions of the CPLC) to confirming land in which claimants
had strict legal title: "At the date of the treaty of Guadalupe
Hidalgo," the Court declared, "neither these settlers nor this town
could have demanded the legal title to such lands of the former
government, and the Court of Private Land Claims was not empowered to
pass the title to either." Sandoval, 167 U.S. at 298. The effect of
this congressional limitation, the Court explained, is that it was "for
the political department"--Congress--"to deal with the equitable rights
involved with this case." Id.
The Supreme Court next issued decisions concerning the Cañón de Chama
grant, in 1897 (in Río Arriba Land & Cattle Co. v. United States, 167
U.S. 298), and the Petaca grant, in 1899 (in United States v. Peña, 175
U.S. 500). Based on its reasoning in the Sandoval decision, the Court
in the Río Arriba decision (issued the same day as Sandoval) affirmed
the CPLC's decision to restrict the Cañón de Chama grant to individual
allotments. Although Congress had confirmed grants similar to the Cañón
de Chama grant as part of the Surveyor General process under the 1854
Act, the Court explained, Congress had authority under the
Constitution's Property Clause to dispose of public domain lands as it
saw fit.[Footnote 95] Because Congress had not given such authority to
the CPLC or the Supreme Court, but instead had restricted their
authority to confirming grants held by legal title, the Supreme Court
determined that it was bound to follow the limitations Congress had
established. For the same reasons, the Supreme Court in its Peña
decision reversed the CPLC's ruling on the Petaca grant, and confirmed
it to include only individual allotments to the 36 original claimants.
Sandoval and these related court decisions have generated a substantial
amount of the current controversy surrounding New Mexico land grants.
Land grant heirs regard Sandoval as the most blatant example of the
U.S. government's alleged failure to properly implement the property
protection provisions of the Treaty of Guadalupe Hidalgo. Some scholars
have argued that the Supreme Court misunderstood Spanish and Mexican
law, asserting that: (1) the town or settlement, not the sovereign,
owned the common lands under Spanish and later Mexican law;[Footnote
96] and (2) even if the town did not own the common lands, the settlers
had a permanent right to use these lands (a "usufruct") that the United
States was required to recognize under the Treaty and international
law.[Footnote 97] As noted in chapter 1 of this report, the principal
difference between a community land grant and an individual grant is
that the common lands of a community land grant were held in perpetuity
and could not be sold. Scholars note that medieval Spanish towns, for
example, which owned their common lands, served as models for Hispanic
towns or settlements in the New World. In addition, scholars refer to
the Plan of Pitic, prepared in 1789 for a town in Sonora, México, which
influenced later settlements in New Mexico and which provided for
community ownership of the common lands. Spanish settlements in New
Mexico also were influenced by the pattern of land ownership of the
Pueblos, whose lands were owned communally and where many Spanish
settlers lived in close proximity to these settlements.[Footnote 98]
Yet despite the fact that the Supreme Court in Sandoval suggested that
it might have wanted to recognize such extra-legal property rights as
"equitable rights," it acknowledged that it lacked legal authority to
do so because of the limits that Congress had placed on its
jurisdiction. Thus the Court effectively placed the issue of dealing
with any such "equitable rights" with Congress to address as a matter
of policy.
The CPLC Rejected Grants Made by Unauthorized Officials (the Cambuston
and Vigil Cases):
Eight of the 49 community land grants that were wholly rejected--
totaling about 93,000 acres--were rejected by the CPLC because they had
been made by Mexican officials unauthorized to issue such grants. (See
table 25.) Claims involving seven of these eight grants (all except the
Badito grant) had originally been filed with the Surveyor General of
New Mexico, who investigated and recommended four of the grants for
approval--Cañada de San Francisco, Gotera, Maragua, and San Antonio del
Río Colorado. Surveyor General Julian filed a supplemental report on
the San Antonio del Río Colorado grant in 1886, in which he declared
that although the claimants had no legal basis for their claim, the
claims nevertheless should be approved as "equitable claims." When
Congress did not act to confirm these grants, they were presented again
to the CPLC.
Table 25: Community Land Grants Made during the Mexican Period That
Were Rejected by the CPLC Because the Granting Official Lacked
Authority to Make Land Grants under Mexican Law:
Grant name: Badito;
CPLC docket number: 197;
Year granted: 1835;
Granting official: Alcalde;
Acres rejected: 1,350.
Grant name: Cañada de Los Mestaños;
CPLC docket number: 163;
Year granted: 1828;
Granting official: Alcalde;
Acres rejected: 16,000.
Grant name: Cañada de San Francisco;
CPLC docket number: 98;
Year granted: 1840;
Granting official: Prefect;
Acres rejected: 1,590.
Grant name: Gotera;
CPLC docket number: 83;
Year granted: 1830;
Granting official: Territorial Deputation;
Acres rejected: 1,800.
Grant name: Maragua;
CPLC docket number: 276;
Year granted: 1826;
Granting official: Territorial Deputation;
Acres rejected: 1,042.
Grant name: Río del Picurís;
CPLC docket number: 65;
Year granted: 1832;
Granting official: Territorial Deputation;
Acres rejected: 20,000.
Grant name: San Antonio del Río Colorado;
CPLC docket number: 4;
Year granted: 1841;
Granting official: Prefect;
Acres rejected: 18,955.
Grant name: San Antoñito[A];
CPLC docket number: 27;
Year granted: 1840;
Granting official: Prefect;
Acres rejected: 32,000.
Grant name: Total: 8 grants;
Acres rejected: 92,737.
Source: GAO analysis.
Note: Individual land grants made during the Mexican period, like
community land grants, were also rejected because Mexican officials
lacked authority to make them. Two of the decisions on individual land
grants were appealed to the U.S. Supreme Court. In both cases, the
Supreme Court upheld the CPLC's decisions: Hayes v. United States, 170
U.S. 637 (1898), and Chavez v. United States, 175 U.S. 552 (1899).
[A] The U.S. Supreme Court upheld the CPLC's decision in Crespin v.
United States, 168 U.S. 208 (1897).
[End of table]
In rejecting the eight grants, the CPLC relied on two earlier U.S.
Supreme Court decisions, United States v. Cambuston, 61 U.S. 59 (1857),
and United States v. Vigil, 80 U.S. 449 (1871). Cambuston was a
California land grant case in which the Supreme Court had concluded
that an 1824 Mexican statute and its 1828 implementing regulations had
authorized only Mexican governors to make land grants, and then only in
strict compliance with the terms and conditions of the statute and
regulations. In ruling that a claim should have been rejected because
these terms and conditions had not been met, the Supreme Court
declared:
The question here is not whether the fact of the habitual grant of
lands by Mexican Governors...to settlers, and, also, whether the
customary mode and manner adopted in making grants, do not furnish
presumptive evidence both of the existence of the power and of a
compliance with the forms of law in the execution? We agree, that the
affirmative of these questions has frequently been determined by this
court, in cases involving Spanish titles...But no such presumptions
are necessary or admissible in respect to Mexican titles granted since
the act of...1824, and the regulations of...1828. Authority to
make the grants is there expressly conferred on the Governors, as well
as the terms and conditions prescribed, upon which they shall be made.
The court must look to these laws for both the power to make the grant,
and for the mode and manner of its exercise; and they are to be
substantially complied with, except so far as modified by the usages
and customs of the Government under which the titles are derived, the
principles of equity, and the decision of this court.[Footnote 99]
Similarly, in the Vigil case, the Supreme Court noted that under the
1824 statute and the 1828 regulations, only the Mexican governor had
authority to make settlement grants and not the Departmental
Assembly.[Footnote 100] Because the eight grants presented to the CPLC
had not been made by authorized officials in compliance with the 1824
statute and 1828 regulations, the court rejected them.
Although Cambuston and Vigil had been in effect during the Surveyor
General of New Mexico period (1854-1891), they had limited practical
effect during that time. Community grants which were not made in
accordance with the 1824 statute or 1828 regulations could nevertheless
be approved under the 1854 Act's requirement that claims be decided in
accordance with Spanish and Mexican "laws, usages, and customs,"
because under Interior's directive to the Surveyor General, this
statutory standard included the presumption in favor of cities, towns
and villages. Two years after Cambuston, for example, in 1859, Surveyor
General Pelham approved claims for the Town of Torreón and the Town of
Tejón grants, even though the grants had been made by unauthorized
officials, because they qualified for the presumption in favor of
towns.[Footnote 101] Once the 1891 Act establishing the CPLC went into
effect, however, allowing approval of grants only if claimants could
prove they were "lawfully and regularly derived" under Spanish or
Mexican law--with no presumption in favor of cities, towns, and
villages--the rule in Cambuston and Vigil had a much greater effect on
grants that had not been made by authorized officials. The outcome for
these eight grants might have been different if Congress had
established a statutory presumption for cities, towns, and villages in
cases before the CPLC, as it had in the 1851 Act for cases before the
California Commission. In addition, the outcome for the four grants
recommended for approval by the Surveyor General might have been
different if Congress had acted to confirm the grants prior to creation
of the CPLC.
The CPLC Rejected Grants That Relied on Copies Made by Unauthorized
Officials (the Hayes Case):
The CPLC rejected two community land grants, totaling about 69,000
acres, solely because the claimants relied only on copies of grant
documents that were made by officials who lacked authority to make
copies of grant documents. The two grants were the Town of Cieneguilla
grant (43,961 acres) and the Embudo grant (25,000 acres).[Footnote 102]
Claims involving both grants had originally been filed with the
Surveyor General, but the Surveyor General investigated and reported
only on the Town of Cieneguilla land grant. In 1872, Surveyor General
Rush Spencer reported that although the only supporting documents for
this grant were unauthorized copies, he nevertheless recommended that
the grant be approved. The Surveyor General noted that the Town of
Cieneguilla was known to be one of the oldest settlements in New Mexico
and had been in existence for at least 51 years prior to U.S.
acquisition of the New Mexico territory. Surveyor General Julian issued
a supplemental report on the Town of Cieneguilla land grant in 1886,
noting that while the claimants did not have a legal basis for their
claim, it seemed "fair to justify the existence of an equitable title"
based on the presumption in favor of towns. Congress did not act on
these recommendations, and claims for both the Cieneguilla and Embudo
grants were filed again with the CPLC.
The CPLC assessed claims supported by copies of grant documents on the
basis of the totality of the evidence presented. Although the U.S.
government routinely objected to the admission of copies rather than
original documents in court proceedings, in at least three cases,
concerning the La Majada, Black Mesa, and the Town of Bernalillo
grants, the CPLC had overruled the government's objections and allowed
copies to be introduced as part of the evidence. (See table 26.) For
the La Majada grant, there had been original corroborating evidence in
the archival documents assembled by the Surveyor General. For the Black
Mesa grant, the CPLC accepted a copy of grant documents made by a
Mexican judge. For the Town of Bernalillo grant, the CPLC accepted
copies of grant documents made by an alcalde.[Footnote 103]
Table 26: Community Land Grants Adjudicated by the CPLC That Involved
Disputes over Copies of Grant Documents:
Grant name: La Majada;
CPLC docket number(s): 89;
Year granted: 1695;
Year decided by CPLC: 1894;
Final result: Confirmed;
awarded complete acreage.
Grant name: Black Mesa;
CPLC docket number(s): 56;
Year granted: 1743;
Year decided by CPLC: 1894;
Final result: Confirmed;
appears to have been awarded complete acreage.
Grant name: Cieneguilla (Town of);
CPLC docket number(s): 84;
Year granted: 1795;
Year decided by CPLC: 1896;
Final result: Rejected based on unauthorized copies.
Grant name: Bernalillo (Town of);
CPLC docket number(s): 146, 208, 217, 258;
Year granted: 1708;
Year decided by CPLC: 1897;
Final result: Confirmed;
awarded partial acreage due to boundary issue.
Grant name: Sanguijuela;
CPLC docket number(s): 170;
Year granted: 1843;
Year decided by CPLC: 1898;
Final result: Rejected for copy-related and other reasons.
Grant name: Embudo;
CPLC docket number(s): 173;
Year granted: 1725;
Year decided by CPLC: 1898;
Final result: Rejected based on unauthorized copies.
Source: GAO analysis.
[End of table]
For the Town of Cieneguilla grant, however, the CPLC rejected the grant
because "no law or usage" gave the Secretary of the Town Council of
Taos authority to make copies of grant documents. Similarly, two years
later, the CPLC rejected the Sanguijuela and Embudo grants. The court
ruled that the supporting documents for the Sanguijuela grant were
deficient in a number of respects including copy-related reasons;
moreover, the court lacked jurisdiction because the grant was wholly
contained within the Town of Las Vegas land grant already confirmed by
Congress.
The Embudo land grant is the most controversial of the grants rejected
for copy-related reasons. As in the Bernalillo grant case, the Embudo
copies were made by an unauthorized alcalde. Unlike the Bernalillo
grant, however, which the CPLC had approved on June 2, 1897, the CPLC
rejected the Embudo grant on July 15, 1898 by a 3-2 vote. The CPLC
relied on the U.S. Supreme Court's decision in Hayes v. United States,
170 U.S. 637 (1898), issued just seven weeks before the CPLC's
decision, in which the Supreme Court had rejected an individual grant
made by an unauthorized official based on the 1891 Act's requirement
that the CPLC confirm only grants that had been "lawfully and regularly
derived."[Footnote 104] Writing for the majority of the CPLC, Justice
Murray stated, "[w]e know from an examination of many claims in this
territory under Spanish grants that it was a common practice for
alcaldes to make copies of grant papers at the request of parties whose
grants were torn or otherwise mutilated." Nevertheless, Justice Murray
ruled that "alcaldes were not the legal custodians of grants of land,
and had no power or authority conferred on them by law to perpetuate
evidence of title of land by making copies of grants, nor is there any
law making copies evidence of title...We have no power to assume
that the alcalde had lawful authority to perpetuate evidence to land by
making copies of grants..."[Footnote 105] Chief Justice Reed and
Justice Stone dissented from the CPLC's majority opinion. Chief Justice
Reed believed the court should have confirmed the Embudo grant as it
had the Bernalillo grant because the same type of evidence was
presented in both cases.
The "copy issue" is a practical illustration of how the 1891 Act
establishing the jurisdiction of the CPLC was more stringent than the
1854 Act and supplemental Interior directives establishing the
jurisdiction of the Surveyor General of New Mexico. In his supplemental
report on the Cieneguilla grant, Surveyor General Julian had recognized
that the claim suffered from "legal" problems, but he went on to
approve it as an equitable claim based on the presumption in favor of
towns. By the time the CPLC rejected the Cieneguilla and Embudo grants,
both towns had been in existence for over 100 years, meaning that they
likely would have been approved under the presumption in favor of
towns. Congress had changed the statutory standard, however, and the
CPLC was not authorized to apply such a presumption.
Land Grant Heirs and Others Have Additional Concerns about the Fairness
and Equity of the Confirmation Procedures Followed for Evaluating
Community Land Grant Claims:
Some land grant heirs and legal scholars contend that the Surveyor
General confirmation procedures established by the 1854 Act did not
satisfy requirements of fundamental fairness as required by the due
process provisions of the U.S. Constitution. Heirs also contend that
the CPLC confirmation procedures created by the 1891 Act did not
properly reflect principles of equity. Based on the legal requirements
of the time, however, and even under modern-day legal standards, we
conclude that both procedures satisfied applicable legal
requirements.[Footnote 106]
Perceived Fairness and Due Process Issues with the Surveyor General
Procedures:
Some heirs and scholars contend that the Surveyor General process did
not comply with the Constitution's requirements of due process of law.
They focus on two alleged constitutional deficiencies: (1) that actual
notice of the process was not provided to all individuals who might
have a potential interest in a land grant; and (2) that an opportunity
was not provided to such individuals to cross-examine persons who had
filed evidence in support of a land grant claim.[Footnote 107] We are
aware of no reported cases in which a court has addressed the
constitutionality of the Surveyor General procedures. Based on the
legal requirements at the time, however, and even under today's legal
standards, we conclude that the process satisfied constitutional due
process requirements.
The Fifth Amendment to the U.S. Constitution, ratified in 1791 as part
of the Constitution's Bill of Rights, requires that when the federal
government deprives any person of "life, liberty, or property," it must
do so through "due process of law." The Fourteenth Amendment, ratified
in 1868, imposes the same requirement on state governments. The
specific procedures required by the Fifth and Fourteenth Amendments--
what "process" is "due"--have evolved over time and vary depending upon
the particular circumstances of each case.[Footnote 108] The U.S.
Supreme Court issued its first decision discussing what constituted due
process under the Fifth Amendment in 1856,[Footnote 109] and it has
been clear since that time that due process does not necessarily
require a formal court proceeding.[Footnote 110] Rather, as the Supreme
Court explained in 1877, where there is notice that a property interest
is at stake and opportunity for a proceeding that is "appropriate to
the nature of the case, the judgment in such proceedings can not be
said to deprive the owner of his property without due process of law,
however obnoxious it may be to other objections."[Footnote 111] As the
Supreme Court commented in the early 1900s, "[t]he fundamental
requisite of due process of law is the opportunity to be
heard."[Footnote 112]
As time has progressed, the Supreme Court has clarified that the
opportunity to be heard must be afforded "at a meaningful time and in a
meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
Accordingly, there must be both "notice and an opportunity to be
heard." See, e.g., Dusenbery v. United States, 534 U.S. 161, 167
(2002). As discussed below, we conclude that the Surveyor General of
New Mexico procedures met both of these fundamental due process
requirements as the courts defined them at the time and even today.
Adequacy of Notice Provided to Land Grant Claimants:
At the time of the Surveyor General process in the 1800s, the type of
notice required even for a formal court proceeding depended largely on
whether the court's jurisdiction was deemed to be "in rem," "quasi in
rem," or "in personam."[Footnote 113] If a proceeding were in rem or
quasi in rem--the latter including the Surveyor General/congressional
confirmation process in New Mexico--then "constructive" notice could
suffice. Constructive notice could be given by publication in a
newspaper, for example, particularly if the category of potentially
covered persons was described in the notice.[Footnote 114] On the other
hand, if a proceeding was in personam, then additional notice--for
example, personal notice directed to the specific individuals involved-
-might be required.[Footnote 115]
By the mid-1900s, the Supreme Court had moved away from this in rem/in
personam distinction. As the Court noted in Walker v. City of
Hutchinson, 352 U.S. 112, 115 (1956), it is impossible to set up a
"rigid formula as to the kind of notice that must be given, [and the]
notice required will vary with circumstances and conditions." Instead,
the Court declared that due process simply requires "notice reasonably
calculated, under all circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity to present
their objections." Mullane v. Central Hanover B. & T. Co., 339 U.S.
306, 314 (1950). Notice by publication is constitutionally sufficient,
the Court ruled in Mullane, "where it is not reasonably possible or
practicable to give more adequate warning," such as "in the case of
persons missing or unknown" or those "whose interests are either
conjectural or future." Id. at 317. By contrast, additional notice
beyond publication is required when the specific names and addresses of
interested parties are known. In determining what level of notice is
required, the Mullane Court also considered the nature of the
proceeding, the effort necessary to identify interested parties and
their addresses, the costs associated with such identification, and
whether the notice given was likely to reach the parties interested in
the proceeding.[Footnote 116]
Today, even in the high-technology world of 21st century
communications, due process does not require personal notice to all
individuals with a potential interest in property that their interest
may be in jeopardy. Rather, the Supreme Court has continued to focus on
the overall reasonableness of notice in light of the circumstances. As
the Court recently confirmed in Dusenbery, above, "the Due Process
Clause does not require...heroic efforts by the Government...."
534 U.S. at 170.[Footnote 117] Rather, the standard is that the
government's efforts need only be reasonably calculated to apprise a
party of the pendency of the action; "'the criterion is not the
possibility of conceivable injury but the just and reasonable character
of the requirements....'" Id. at 170-71, quoting Mullane, 339 U.S.
at 315.
Based on the foregoing, we conclude that the notice provided to
potential claimants under the Surveyor General of New Mexico procedures
satisfied due process. As a threshold matter, it is arguable that due
process requirements did not even apply to the Surveyor General
process. The Supreme Court has ruled that due process does not apply
where a person's property or liberty interests may merely be affected-
-but not deprived--by the government. Proceedings before government
entities that are not empowered to determine legal rights, for example,
cannot actually deprive a person of life, liberty or property. In
Hannah v. Larche, 363 U.S. 420 (1960), for instance, the Supreme Court
held that due process did not apply to persons whose reputations (in
which they had a property and liberty interest) might be harmed by a
U.S. Civil Rights Commission investigation. The Court reasoned that the
Commission was engaged only in fact-finding and was not authorized to
adjudicate liability, issue orders, or "make any determinations
depriving anyone of life, liberty or property....[T]he Commission
does not and cannot take any affirmative action which will affect an
individual's legal rights. The only purpose of its existence is to find
facts which may subsequently be used as the basis for legislative or
executive action." Id. at 441. In Jenkins v. McKeithen, 395 U.S. 411
(1969), by contrast, the Court distinguished Hannah v. Larche and ruled
that a person being investigated by a state commission whose findings
allegedly had the practical effect of adjudicative determinations was
entitled to due process rights, even though the commission could not
officially make such determinations.
The Surveyor General, like the Civil Rights Commission in Hannah v.
Larche, had no authority to make legally binding determinations of
ownership. He acted as an investigator and fact-finder and applied
principles of Spanish and Mexican law to formulate recommendations to
Congress. Thus, as in Hannah, "[t]he only purpose of [the Surveyor
General's] existence [was] to find facts which may subsequently be used
as the basis for legislative...action." On the other hand, the
recommendations of the Surveyor General, like the findings of the state
commission in the Supreme Court's more recent Jenkins v. McKeithen
decision, arguably had the practical effect of official determinations.
Although Congress did not adopt all of the Surveyor General's
recommendations, as noted in chapter 2, at the least, they carried
substantial weight in Congress' decision whether or not to confirm a
given grant.
Even assuming that due process requirements applied to the Surveyor
General process, however, the newspaper notice that was provided to all
potential land grant claimants afforded the requisite constitutional
notice, namely, reasonable notice under the circumstances of the
establishment of the Office of the Surveyor General of New Mexico and
the requirement to submit a claim for any land grant for which
governmental (congressional) confirmation was sought. As discussed
above, under the legal standards of the 1800s, newspaper notice, not
actual notice to all potential claimants, was sufficient in quasi in
rem proceedings such as the Surveyor General process. As detailed in
chapter 2, at the least, the Surveyor General gave the newspaper notice
required by Interior's instructions, in both Spanish and English, to
all persons who might have an interest in a community land grant. The
newspaper notice, which was published repeatedly, stated that claims
should be filed with the Office of the Surveyor General and specified
what information and testimony would be required to validate a claim.
Whether or not these notices were published throughout New Mexico or
only in Santa Fe, all potentially interested persons were provided with
the identical notice and the evidence suggests it reached its intended
audience: claims involving 130 of the 154 community land grants in New
Mexico, and 208 of the 295 total land grants, were filed with the
Surveyor General.[Footnote 118] As in the Huling and Broderick's Will
cases discussed above (footnote 114), the fact that some potential
claimants may not actually have seen the newspaper notice does not mean
it was constitutionally deficient. Moreover, the evidence suggests that
potential claimants may have seen the newspaper notice but delayed in
responding to it because the notice did not specify any filing
deadline.[Footnote 119]
Even under modern-day due process standards, we conclude that the
Surveyor General's newspaper notice was sufficient because it was
reasonably calculated under the circumstances to apprise interested
parties of the pendency of the Surveyor General process. Neither the
Surveyor General nor any other government official at the time knew or
could reasonably ascertain the names and addresses of all persons with
a potential interest in one or more of the 295 land grants within New
Mexico. In addition, the interests of these persons was conjectural--
virtually all residents had a potential interest, but whether they
actually had an interest cognizable under the terms of the 1854 Act was
unknown; determining this was the very purpose of the Surveyor General
proceeding. In addition, even if the names and addresses of potential
claimants had been known, millions of acres of land were at issue, and
there was no practical method in the latter 1800s for personally
contacting all persons living in this vast area.[Footnote 120] Unlike
today, there was no direct mail delivery, no telephone system, and of
course no Internet or electronic mail system. Newspapers were one of
the most common means of communicating information to the public,
particularly in rural areas.[Footnote 121] While in theory it may have
been possible, at great effort and expense, to scour the countryside to
identify potential claimants, as the Supreme Court explained in
Dusenbery, "the Due Process clause does not require...heroic
efforts by the Government."
The conclusion that the Surveyor General's newspaper notice was
reasonable under the circumstances is supported by the fact that the
Surveyor General process was not a land grant claimant's only
opportunity to establish title. As discussed in chapter 2, the 1854 Act
provided that persons who held superior title under Spanish or Mexican
law to a confirmed grant but did not file a claim for the grant with
the Surveyor General could--and still can today, as evidenced by the
Montoya v. Tecolote Land Grant lawsuit described earlier in this
chapter--bring a subsequent court action challenging these
congressionally confirmed decisions. This lack of finality means that
potential claimants effectively had two opportunities to press their
claim--either with the Surveyor General or in state court--and thus due
process did not require that they receive actual, personal notice of
the Surveyor General process. See Mullane, above, 339 U.S. at 314 ("An
elementary and fundamental requirement of due process in any proceeding
which is to be accorded finality is notice...[and an] opportunity
to present their objections") (emphasis added).
Some have suggested that the Surveyor General's newspaper notice was
constitutionally deficient. The basis of this contention appears to be
a belief that potential claimants were entitled to both an initial
actual notice advising them of the Surveyor General process and then a
second actual notice advising them that a claim had been filed
regarding a particular land grant. Due process does not require notice
of all subsequent steps in a proceeding once initial notice has been
provided, however. Rather, persons who receive adequate initial notice
and do not join a proceeding are deemed to be non-parties entitled to
no special notice and presumed to be capable of asserting and
protecting their specific rights.[Footnote 122] Although some scholars
compare the Surveyor General process unfavorably to what they
characterize as the "relatively fair judicial system employed in
California," the California process was identical in this regard--it
also did not require actual notice to all potential claimants. The 1851
Act establishing the California Commission required only that "due and
public notice" be given of the Commission's sessions (emphasis added),
as the Supreme Court confirmed in United States v. O'Donnell, 303 U.S.
501, 516 (1938) (1851 Act "required no notice to be given to any third
party"). Nor did the Commission's regulations require notice to
potential adverse claimants after a claim had been filed for a
particular grant. The regulations required only that the Commission
give "due notice" to the original claimant and the U.S. Agent when the
Commission was going to take testimony on the claim. See Organization,
Acts and Regulations of the U.S. Land Commissioners for California (San
Francisco: 1852), p. 5. Finally, regardless of what notice was
technically required in California, we are aware of no evidence that
actual notice was in fact provided to all persons with a potential
interest in a particular California land grant once a claim had been
filed. In sum, while the Surveyor General's newspaper notice may or may
not have provided actual notice to every potential claimant, it
provided constitutionally adequate notice under the
circumstances.[Footnote 123]
Adequacy of Opportunity to Be Heard Provided to Land Grant Claimants:
Another constitutional shortcoming of the Surveyor General process,
according to some scholars, was the purported absence of an opportunity
for persons with potential land grant claims to cross-examine those who
had submitted claims to the Surveyor General. The contention is that
the Surveyor General process was a one-sided "ex parte" proceeding
without the needed scrutiny that allegedly only cross-examination could
provide. As discussed below, however, due process does not necessarily
require an opportunity to conduct cross-examination; it requires an
opportunity to be heard. The Surveyor General process afforded the
requisite opportunity to be heard to the relevant parties at the
relevant points in the process. Moreover, claimants with superior title
under Spanish or Mexican law still have this opportunity today.
Just as the notice required by due process varies from case to case, so
does the type of "hearing" that must be made available. As the Supreme
Court underscored in Goss v. Lopez, 419 U.S. 565, 579 (1975), a person
deprived of a protected interest "must [only] be given some kind of
notice and afforded some kind of hearing." (Emphasis in original.) At
the time of the Surveyor General of New Mexico confirmation process in
the 1800s, the law was not well settled regarding which particular
procedures were constitutionally required in which types of civil cases
after notice had been provided.[Footnote 124] As discussed above,
however, it was clear at that time that due process did not always
require a formal trial-type hearing and this remains the law today.
See, e.g., Matthews v. Harney County, Oregon, 819 F.2d 889, 892 (9th
Cir. 1987) (due process "need not be a full adversarial hearing")
(emphasis added). Under modern law, whether a right to cross-examine is
constitutionally mandated depends on the particular facts of each case.
In the Hannah v. Larche case above, for example, the Supreme Court
denied cross-examination rights to the person who was the subject of
negative testimony before the Civil Rights Commission, in part because
the Commission was not authorized to take action depriving the person
of his property or liberty rights.[Footnote 125] The Court also was
influenced by the need to ensure a smooth administrative process and
the fact that it would be highly disruptive if outside parties were
allowed to intervene and cross-examine each other. This result is
consistent with the factors that courts balance today in determining
whether particular hearing procedures are required, namely: (1) the
private interest that will be affected by the official action; (2) the
risk of an erroneous deprivation of that interest through the
procedures used and the probable value of the additional safeguards;
and (3) the government's interest in not providing the safeguard,
including the financial and administrative burdens it would impose.
Mathews v. Eldridge, above, 424 U.S. at 334-35.
Based on the foregoing, we conclude the Surveyor General process
provided a reasonable opportunity to be heard under the circumstances,
including appropriate "cross-examination" rights. As discussed in
chapter 2, the Surveyor General process served a discrete and limited
purpose: to determine who owned a tract of land as between a particular
claimant and the United States (a quasi in rem case), not who owned the
land as between all parties (an in rem case).[Footnote 126] The only
party directly adverse to the claimant--and the party that the claimant
might have the right to cross-examine--was the United States. While the
evidence does not indicate that claimants literally cross-examined U.S.
representatives, the vast majority of claimants were represented by
legal counsel and had an opportunity in the course of presenting their
claim to address deficiencies in their documentation or other
supporting evidence identified by the Surveyor General. The claimant
therefore had some opportunity to "cross-examine" the United States,
either through the Surveyor General's questions or more directly in
cases in which a U.S representative appeared.[Footnote 127] This degree
of cross-examination was appropriate even under the present-day Mathews
v. Eldridge balancing test, because the additional value that formal
cross-examination of the United States likely would have provided would
have been outweighed by the financial and administrative burden it
would have imposed.
As to whether persons who were not already before the Surveyor General-
-namely, parties with potential adverse interests who did not
themselves file a claim--were constitutionally entitled to appear and
conduct cross-examination in an ongoing proceeding, as some scholars
contend, we conclude they were not. Those persons received identical
notice of the Surveyor General process as persons who filed claims, and
they would have had the same cross-examination rights as claimants if
they had filed claims as well. Where, as in the case of the Surveyor
General procedure, constitutionally required notice is given, due
process does not afford a right of cross-examination to persons who do
not respond to the notice by filing a claim or taking other required
action. Assertions that the Surveyor General process was an
unconstitutional ex parte proceeding as to such non-filers are contrary
to decisions like Hannah v. Larche, above, where cross-examination was
denied to persons allegedly harmed by testimony being given before a
government investigatory body. As the Court explained in Hannah,
allowing outside parties to intervene and confront witnesses "would
make a shambles of the investigation and stifle the agency in its
gathering of facts." Hannah, 363 U.S. at 444. While the Surveyor
General process was less complex than modern-day agency investigations,
allowing additional parties to participate would have added to
government's financial and administrative burdens, without assuring a
more accurate result on the only question facing the Surveyor General:
whether the primary claimant had title superior to the United States,
not to all other parties. Surveyor General Clark recognized that it was
the government that was at risk in his 1867 Annual Report, observing
that "[g]reat injustice is liable to be done, as well to claimants as
to the government, by this anomalous manner of determining the rights
of the parties." (See chapter 2, fig. 6 (emphasis added).)
Indeed, third parties with potential competing community land grant
claims were in a better position than the parties denied cross-
examination rights in Hannah. While the Hannah parties had no
alternative means to ensure that their position was heard, the would-be
land grant claimants had several. First and most directly, they could
have filed their own claims before the Surveyor General, just as the
original claimants had done. Second, even though adverse parties did
not have a constitutional right to intervene and cross-examine
claimants in ongoing cases, claimants' written submissions to the
Surveyor General were required to identify any known adverse claimants.
As noted in chapter 2 (footnote 46), adverse claimants did in fact
appear and conduct cross-examination of principal claimants in some
cases, and principal claimants also were cross-examined by the U.S.
representative or the Surveyor General himself in a number of
instances. Third, even after a land grant had been confirmed as between
the principal claimant and the United States, a party claiming title
superior to the claimant under Spanish or Mexican law could file a
subsequent lawsuit in state court, as heirs have done in the current
Montoya v. Tecolote Land Grant case. Even today, providing this type of
opportunity--having a hearing after, rather than before, a property
right may be deprived--satisfies due process where there is an
overriding government need to act.[Footnote 128] In the 1800s, courts
gave even more deference to the government's need to advance an
important public interest in determining whether ex parte seizure of
property was constitutional. See United States v. James Daniel Good
Real Property, 510 U.S. 43, 59-60 (1993) (summarizing 1856-1889 cases
allowing ex parte seizures based on what the Supreme Court called
"executive urgency"). Because third-party claimants with superior title
could (and still can) assert their rights through a subsequent lawsuit,
any "pre-hearing deprivation" of property that may have occurred during
the Surveyor General process may be justified by the government's need
in the late 1800s to resolve ownership of lands in the southwest in
order to promote settlement. Moreover, as noted, this would be the
third opportunity that such adverse claimants have had to be heard.
Finally, scholars have pointed to differences in cross-examination
practices between the Surveyor General and California Commission
processes as evidence that the Surveyor General process was
unconstitutional. Yet a procedure does not violate due process simply
because another procedure provides additional rights.[Footnote 129]
Congress and other governmental bodies often provide rights beyond the
minimum required, and in the California Commission process, persons who
had filed a claim were allowed to submit a request to intervene and
conduct cross-examination in another case where the land they claimed
was at issue.[Footnote 130] There is no evidence, however, that the
Commission believed this procedure was constitutionally required, and
the fact that the Commission reserved the right to deny such requests
indicates it did not. Moreover, in the Commission's explanation of why,
by a 2-1 divided vote, it adopted this intervention/cross-examination
process, all three Commissioners stressed that the Commission was not
carrying out a judicial function--where cross-examination might
sometimes be required--but rather a political function.[Footnote 131]
The non-judicial, non-adversarial nature of the California Commission's
proceedings was discussed at length by the Supreme Court in the United
States v. O'Donnell case, discussed in chapter 1 (footnotes 18 and 24).
The O'Donnell Court rejected the argument that one of the Commission's
confirmation determinations should be stricken because it was not the
result of the Commission's allegedly "vigorous" process. O'Donnell, 303
U.S. at 523. To the contrary, the Supreme Court explained, the
Commission's process was not intended to be vigorous or adversarial:
[T]he Government owed no duty to the [adverse claimant] to contest the
[principal] claim [because]...the proceeding before the Board was
not adversary....The Board was an administrative body, created . .
. 'to ascertain and settle the private Land Claims in the State of
California,' by proceedings which were not required to be
controversial. It was begun without notice to any other party. While
the attendance by the 'agent' of the United States was required in
order that he might 'superintend the interests of the United States,'
it did not appear in the role of litigant. ...The Board was an
administrative body, not a court. ...Since the [1851 Act] did not
require adversary proceedings, the validity of its administrative
determination was unaffected by their absence.
Id. at 523-24. Implicit in the Supreme Court's approval of the
California confirmation procedure was the fact that due process does
not require adversarial procedures, for nowhere in the Court's
extensive discussion of the California procedures does the Court even
mention possible due process concerns.[Footnote 132] In sum, the
Surveyor General process in New Mexico provided the constitutionally
required opportunity to be heard.
Perceived Equity Issues with the CPLC Process:
Some heirs and scholars contend that the CPLC process was "inequitable"
because the court was allowed under the 1891 Act to confirm only those
grants which had been "lawfully and regularly derived" under Spanish or
Mexican law. Particularly in comparison with the Surveyor General
process--under which equitable rights could be considered if they were
recognized under the "laws, usages, and customs of Spain and México,"
or in the context of the presumption that existence of a town at the
time of the Treaty was clear evidence of a grant--some heirs and
scholars believe the CPLC process was overly technical and "legal."
Although these perceived differences between the Surveyor General and
CPLC processes were real, they reflect permissible differences created
by the Congress. Congress gave different legal authority and different
mandates to the two entities, with the CPLC process reflecting an
evolution in Congress' judgment regarding what procedures were
appropriate following its experience with the California and Surveyor
General processes during the previous 40 years. Based on this
experience, Congress decided to create more stringent standards for the
CPLC to apply in deciding whether to approve community land grants, and
the CPLC had no choice but to comply with these limits. As the Supreme
Court noted in its 1897 Sandoval decision, the limitation on the CPLC's
authority (and on the authority of the Supreme Court itself in
reviewing appeals of CPLC decisions) meant land grant claims could not
be approved based only on "equitable title" or lesser rights such as
"usufruct" rights to use the land. Although the Court suggested it
would like to have been able to consider equitable grounds in
determining ownership, it recognized that the statute did not allow
this and that it was "for the political department"--Congress--"to deal
with the equitable rights involved" in community land grants. Sandoval,
167 U.S. at 298. As discussed below, so long as the procedures that the
CPLC and reviewing courts followed complied with due process--and there
is no suggestion they did not--it was within Congress' discretion to
decide the procedures by which the United States would implement its
property protection obligations under the Treaty. Thus whether the
statutory scope of the CPLC's jurisdiction was an appropriate one was a
policy judgment for the Congress in 1891, and it remains so today.
Any Conflict between the Confirmation Statutes and the Treaty Would
Have to Be Resolved under International Law or by Additional
Congressional Action:
Finally, in addition to concerns about whether particular decisions
under the 1854 Act and 1891 Act confirmation processes were
appropriate, and whether the processes were fair and equitable under
the U.S. Constitution and other law, land grant heirs and others have
expressed concern that the substantive provisions of the statutes
themselves--establishing the standards under which land grants would be
confirmed--were inconsistent with the Treaty's property protection
provisions, or at least with the international law doctrine that
successor sovereigns should protect property rights of persons living
in newly acquired areas according to the law of the former sovereign.
As discussed above, heirs and scholars contend that the Surveyor
General and CPLC processes did not adequately ensure that property
rights would be protected to the same extent that they would have been
under Spanish and Mexican law and custom. The CPLC process in
particular is seen as problematic because the standard that the CPLC
was directed to apply--approval only of those grants that had been
"lawfully and regularly derived" under Spanish or Mexican law--did not
allow courts to recognize lesser interests such as equitable title
which may have been recognized by prior sovereigns.
These concerns can only be addressed today by additional congressional
action or as a matter of international law, however. As noted in
chapter 1, the Treaty of Guadalupe Hidalgo was not a self-executing
treaty, and thus it required implementing congressional action in order
to take effect in the United States. Although treaties and federal
statutes generally have equivalent status under the U.S. Constitution
(along with the Constitution itself, both are considered "supreme" over
state law under Article VI, clause 2 of the Constitution), under U.S.
law, a court must apply and follow later-enacted legislation even if it
conflicts with a treaty's provisions.[Footnote 133] The Supreme Court
applied this rule in the Treaty of Guadalupe Hidalgo context in
Botiller v. Dominguez, 130 U.S. 238 (1889), in which it concluded that
the 1851 Act's 2-year deadline for filing claims in California applied
to all grants (both perfect and imperfect) despite the fact that the
Treaty itself contained no deadline. Even if the 2-year deadline had
conflicted with the Treaty, however, the Court declared, that would be
"a matter in which the court is bound to follow the statutory
enactments of its own government" and thus "no title to land in
California, dependent upon Spanish or Mexican grants can be of any
validity which has not been submitted to and confirmed by the board
provided for that purpose in the act of 1851...." Id. at 247, 256.
Remaining disputes would be "a matter of international concern," to be
addressed as a matter of international law, the Court held; "[t]his
court...has no power to set itself up as the instrumentality for
enforcing the provisions of a treaty with a foreign nation...." Id.
at 247. The Supreme Court's subsequent rulings reviewing decisions by
the CPLC reflect this Botiller rule, recognizing that while the 1891
Act establishing the CPLC's authority may or may not be more stringent
than the Treaty, the Act has priority as a matter of U.S. law. Because
the fundamental requirements of the 1854 and 1891 Acts were in fact
carried out, as discussed above, remaining concerns based on any
conflict between the terms of the Acts and the Treaty would have to be
resolved as a matter of international law or by additional
congressional action. While we do not suggest that any such conflict
exists, as agreed, we do not express an opinion on whether the United
States fulfilled its Treaty obligations as a matter of international
law.
By contrast, any concerns about the specific confirmation procedures
that Congress adopted--for example, whether notice and a formal hearing
would be provided--cannot be addressed under the Treaty or
international law but only under U.S. law, and as noted, we conclude
that these requirements were satisfied. The United States' obligations
under the Treaty were "political," not legal, and thus the United
States had discretion as a matter of international law in the
procedures it selected for carrying out these obligations. In United
States v. O'Donnell, above, involving the California confirmation
process, the Supreme Court explained that "[t]he obligations thus
assumed by the United States [under the Treaty]...were political in
character, to be discharged in such manner and upon such terms as the
United States might deem expedient in conformity to its treaty
obligations.... While the treaty provided that the claimants under
Mexican grants might cause their titles to be acknowledged before
American tribunals, it was silent as to the mode of selection or
creation of such tribunals. The United States was left free to provide
for them in its own way." O'Donnell, 303 U.S. at 511. The same rule
applies to confirmation of land grants in New Mexico: the United States
had discretion to establish whatever procedures (within constitutional
limits) it deemed appropriate. In fact, as the O'Donnell Court
specifically recognized in discussing the California process, Congress
could have decided to resolve Spanish and Mexican land grant claims by
a combination of administrative and congressional processes--the very
combination that Congress later adopted for New Mexico in the 1854 Act.
See O'Donnell, 303 U.S. at 515 ("Even after the submission of...
claims to the [California] Board of Commissioners [the United States]
could withdraw them from decision of the Board and courts and
adjudicate them by Congressional action...[The United States had]
full latitude...in the choice of modes of disposition of those
claims...."). Thus concerns about alleged deficiencies in the
specific procedures that Congress adopted for New Mexico land grants
can be addressed today only to the extent they raise issues under U.S.
law, which we conclude they do not.
Notwithstanding this legal compliance with statutory and constitutional
requirements, the New Mexico confirmation processes were inefficient
and created hardships for many grantees, particularly compared with the
Commission process that Congress had established for California under
the 1851 Act. For policy or other reasons, therefore, Congress may wish
to consider whether any further action may be warranted to address
remaining concerns. For example, as detailed in this chapter and
chapter 2, it took over 50 years once the Treaty was ratified for the
U.S. government to complete its review of New Mexico land grant claims,
and the New Mexico Surveyors General themselves reported during their
first 20 years that they lacked the legal, language, and analytical
skills and financial resources to review grant claims in the most
effective and efficient manner. Although some claims were resolved
quickly, a significant number of claims sat idle for long periods of
time. Unfamiliarity with the English language and the American legal
system made claimants reluctant to turn over land grant documents and
often required them to hire English-speaking lawyers, sometimes
necessitating sale of part of their claimed land--for many, their
principal resource--to cover legal expenses. In addition, because of
delays in Surveyor General reviews and subsequent congressional
confirmations--caused by the intervention of the Civil War, concerns
about fraudulent claims, and other reasons--some claims had to be
presented multiple times to different entities under different legal
standards. In some instances, a single claim was subject to an original
decision by the Surveyor General of New Mexico, a supplemental decision
by a subsequent Surveyor General of New Mexico, a decision by the Court
of Private Land Claims, and on appeal, a decision by the U.S. Supreme
Court. Moreover, even after a grant was confirmed, the claims process
was burdensome because of the imprecision and cost of having the lands
surveyed, a cost that grantees had to bear for a number of years. Thus
pursuing a land grant claim could be a lengthy, arduous and expensive
task.
Summary:
In summary, land grant heirs, scholars, and commentators have raised a
number of concerns about decisions made about specific community land
grants under the two New Mexico confirmation processes and about the
nature of the processes themselves. Several published studies have
identified three core reasons why CPLC and U.S. Supreme Court decisions
restricted or completely rejected acreage for 17 of these grants that
comprised about one-third of the "lost" acreage for community land
grant in New Mexico (1.28 million acres out of 3.42 million acres). If
Congress had established less stringent standards for the CPLC to apply
in evaluating claims for these land grants, such as those it had
established for the California Commission or the Surveyor General of
New Mexico, the results for these 17 grants might have been different,
particularly if Congress had given the CPLC the same type of equity
jurisdiction it gave to the California Commission. As to the broader
concerns with the two New Mexico confirmation procedures, the evidence
indicates that the Surveyor General process complied with
constitutional due process requirements and that the CPLC process
considered equitable rights to the extent Congress deemed appropriate,
as was its prerogative. Finally, even if there were conflicts between
the substantive standards that Congress established in the Surveyor
General and CPLC processes and the requirements of the Treaty or other
international law, which we do not suggest there were, these would have
to be resolved as a matter of international law or by additional
congressional action. By contrast, any concerns about the particular
procedures that Congress, the Surveyor General, or the CPLC adopted
cannot be addressed under the Treaty or other international law but
only under U.S. legal requirements such as the Constitution's
procedural due process requirements. Notwithstanding the compliance of
the New Mexico confirmation procedures with relevant U.S. statutory and
constitutional requirements, the confirmation processes were
inefficient and created hardships for many grantees. Congress may wish
to consider whether any further action may be warranted to address
remaining concerns.
[End of section]
Chapter 4: Heirs and Others Are Concerned That the United States Did
Not Protect Community Land Grants after the Confirmation Process, but
the United States Was Not Obligated to Protect Non-Pueblo Indian Lands
Grants after Confirmation:
Overview:
Some land grant heirs and advocates of land grant reform have expressed
concern that the United States failed to ensure continued community
ownership of common lands after the lands were awarded during the
confirmation process. They contend that the Treaty of Guadalupe Hidalgo
imposed a duty on the United States to ensure that these lands were not
subsequently lost through other means, either voluntarily or
involuntarily, and that because the United States did not take such
protective action, the United States breached this alleged "fiduciary"
duty. (A fiduciary duty is a duty to act with the highest degree of
loyalty and in the best interest of another party.) Land grant acreage
has been lost, for example, by heirs' voluntary transfers of land to
third parties, by contingency fee agreements between heirs and their
attorneys, by partitioning suits that have divided up community land
grants into individual parcels, and by tax foreclosures. Some land
grant heirs also contend that the Treaty specifically exempts their
confirmed grant lands from taxation. These issues have great practical
importance to claimants, because it appears that virtually all of the
5.3 million acres in New Mexico that were confirmed to the 84 non-
Pueblo Indian community grants have since been lost by transfer from
the original community grantees to other entities. This means claimants
have lost substantially more acreage after the confirmation process--
almost all of the 5.3 million acres that they were awarded--than they
believe they lost during the confirmation process--the 3.4 million
acres they believe they should have been awarded but were not.
We conclude that under established principles of federal, state, and
local law, the Treaty did not create a fiduciary relationship between
the United States and non-Pueblo community grantees in which the United
States was required to ensure the grantees' continued ownership of
confirmed lands, nor did it exempt lands confirmed to these grantees
from state or local property requirements, including, but not limited
to, tax liabilities. The United States does have a fiduciary
relationship with the Indian Pueblos in New Mexico, and it protects
community lands that the Pueblos obtained under Spanish land grants.
But this relationship is the result of specific legislation, bringing
the Pueblos under the same general protections afforded to other Indian
tribes, rather than the result of obligations created under the Treaty.
Thus the U.S. did not violate any fiduciary duty to non-Pueblo
community grantees.
Heirs Claim That the United States Had a Fiduciary Duty to Protect
Confirmed Land Grants:
Since the late 1800s and early 1900s, when the 84 non-Pueblo Indian
community land grants were confirmed in New Mexico, it appears that
ownership of the vast majority of confirmed acreage has been lost, and
more may be at risk today. This means that claimants have lost
substantially more acreage after completion of the confirmation process
(as much as 5 million of the 5.3 million acres confirmed) than they
believe they lost during the confirmation process (the 3.4 million
acres that they believe they should have been awarded but were not, as
discussed in chapter 2). As discussed below, grantees have lost
ownership through voluntary actions of the communities themselves;
contingency fee agreements with heirs' attorneys; partitioning suits,
which have divided up community land grants into individual parcels;
and tax foreclosures. Regardless of how ownership was lost, some heirs
allege that under the Treaty of Guadalupe Hidalgo, the U.S. government
had a fiduciary duty to protect the ownership of their lands even after
the confirmation process was completed. As a result of this loss of
ownership, the originally confirmed grants now contain only a fraction
of the land that the original grantees received. For the 37 non-Indian
community land grants for which we could obtain current information,
only about 322,000 acres remain under community ownership, meaning that
about 94 percent of the original acreage confirmed for those grants has
now been transferred to others. Table 27 shows the original and
remaining acreage for these 37 grants, as well as an estimated acreage
of zero for the remaining 47 grants.[Footnote 134]
Table 27: Non-Indian Community Land Grants with Originally Confirmed
Acreage and Currently Held Acreage:
Original documentation community land grants:
Grant name: Abiquiú (Town of);
Original acreage confirmed: 16,708.16;
Current community acreage owned: 16,425.00;
Acreage difference: 283.16.
Grant name: Albuquerque (Town of);
Original acreage confirmed: 17,058.10;
Current community acreage owned: 0;
Acreage difference: 17,058.10.
Grant name: Antón Chico (Town of);
Original acreage confirmed: 383,856.10;
Current community acreage owned: 104,000.00;
Acreage difference: 279,856.10.
Grant name: Atrisco (Town of);
Original acreage confirmed: 82,728.72;
Current community acreage owned: 68,000.00;
Acreage difference: 14,728.72.
Grant name: Belén (Town of);
Original acreage confirmed: 194,663.75;
Current community acreage owned: 0;
Acreage difference: 194,663.75.
Grant name: Cañón de Carnue;
Original acreage confirmed: 2,000.59;
Current community acreage owned: 500.00;
Acreage difference: 1,500.59.
Grant name: Casa Colorado (Town of);
Original acreage confirmed: 131,779.37;
Current community acreage owned: 0;
Acreage difference: 131,779.37.
Grant name: Cebolleta (Town of);
Original acreage confirmed: 199,567.92;
Current community acreage owned: 32,000.00;
Acreage difference: 167,567.92.
Grant name: Chililí (Town of);
Original acreage confirmed: 41,481.00;
Current community acreage owned: 30,000.00;
Acreage difference: 11,481.00.
Grant name: Cubero (Town of);
Original acreage confirmed: 16,490.94;
Current community acreage owned: 13,000.00;
Acreage difference: 3,490.94.
Grant name: Don Fernando de Taos;
Original acreage confirmed: 1,817.24;
Current community acreage owned: 0;
Acreage difference: 1,817.24.
Grant name: Juan Bautista Valdez;
Original acreage confirmed: 1,468.57;
Current community acreage owned: 1,468.57;
Acreage difference: 0.
Grant name: Las Trampas (Town of);
Original acreage confirmed: 28,131.67;
Current community acreage owned: 50.00;
Acreage difference: 28,081.67.
Grant name: Las Vegas (Town of);
Original acreage confirmed: 431,653.65;
Current community acreage owned: 10,340.00;
Acreage difference: 421,313.65.
Grant name: Los Trigos;
Original acreage confirmed: 7,342.06;
Current community acreage owned: 1.00;
Acreage difference: 7,341.06.
Grant name: Manzano (Town of);
Original acreage confirmed: 17,360.24;
Current community acreage owned: 117.00;
Acreage difference: 17,243.24.
Grant name: Mora (Town of);
Original acreage confirmed: 827,621.01;
Current community acreage owned: 200.00;
Acreage difference: 827,421.01.
Grant name: Nuestra Señora del Rosario, San Fernando y Santiago;
Original acreage confirmed: 14,786.58;
Current community acreage owned: 14,786.58;
Acreage difference: 0.
Grant name: San Antonio de las Huertas;
Original acreage confirmed: 4,763.85;
Current community acreage owned: 700.00;
Acreage difference: 4,063.85.
Grant name: San Miguel del Vado;
Original acreage confirmed: 5,024.30;
Current community acreage owned: 7.00;
Acreage difference: 5,017.30.
Grant name: San Pedro;
Original acreage confirmed: 31,594.76;
Current community acreage owned: 250.00;
Acreage difference: 31,344.76.
Grant name: Santa Bárbara;
Original acreage confirmed: 30,638.28;
Current community acreage owned: 100.00;
Acreage difference: 30,538.28.
Grant name: Santa Fé;
Original acreage confirmed: 16,228.58;
Current community acreage owned: 0;
Acreage difference: 16,228.58.
Grant name: Santa Cruz;
Original acreage confirmed: 4,567.60;
Current community acreage owned: 1,000.00;
Acreage difference: 3,567.60.
Grant name: Sevilleta;
Original acreage confirmed: 261,187.90;
Current community acreage owned: 0;
Acreage difference: 261,187.90.
Grant name: Socorro (Town of);
Original acreage confirmed: 17,371.18;
Current community acreage owned: 0;
Acreage difference: 17,371.18.
Grant name: Tejón (Town of);
Original acreage confirmed: 12,801.46;
Current community acreage owned: 500;
Acreage difference: 12,301.46.
Grant name: Tierra Amarilla;
Original acreage confirmed: 594,515.55;
Current community acreage owned: 0;
Acreage difference: 594,515.55.
Grant name: Tomé (Town of);
Original acreage confirmed: 121,594.53;
Current community acreage owned: 0;
Acreage difference: 121,594.53.
Remaining 26 original documentation community land grants[A];
Original acreage confirmed: 566,917.32;
Current community acreage owned: 0;
Acreage difference: 566,917.32.
Subtotal original documentation community land grants;
Original acreage confirmed: 4,083,720.98;
Current community acreage owned: 293,445.15;
Acreage difference: 3,790,275.83.
Self-identified community land grants:
Grant name: Alameda (Town of);
Original acreage confirmed: 89,346.00;
Current community acreage owned: 0;
Acreage difference: 89,346.00.
Grant name: Bartolomé Sánchez;
Original acreage confirmed: 4,469.83;
Current community acreage owned: 2,700.00;
Acreage difference: 1,769.83.
Grant name: Cristóbal de la Serna;
Original acreage confirmed: 22,232.57;
Current community acreage owned: 20,000.00;
Acreage difference: 2,232.57.
Grant name: Francisco Montes Vigil;
Original acreage confirmed: 8,253.74;
Current community acreage owned: 0;
Acreage difference: 8,253.74.
Grant name: Mesita de Juana López;
Original acreage confirmed: 42,022.85;
Current community acreage owned: 12.00;
Acreage difference: 42,010.85.
Grant name: Santo Domingo de Cundiyó;
Original acreage confirmed: 2,137.08;
Current community acreage owned: 1,400.00;
Acreage difference: 737.08.
Grant name: Sebastián Martín;
Original acreage confirmed: 51,387.20;
Current community acreage owned: 0;
Acreage difference: 51,387.20.
Grant name: Tecolote (Town of);
Original acreage confirmed: 48,123.38;
Current community acreage owned: 4,545.00;
Acreage difference: 43,578.38.
Remaining 21 self-identified community land grants[A];
Original acreage confirmed: 1,005,273.28;
Current community acreage owned: 0;
Acreage difference: 1,005,273.28.
Subtotal self-identified community land grants;
Original acreage confirmed: 1,273,245.93;
Current community acreage owned: 28,657.00;
Acreage difference: 1,244,588.93.
Total;
Original acreage confirmed: 5,356,966.91;
Current community acreage owned: 322,102.15;
Acreage difference: 5,034,864.76.
Source: GAO analysis and data from land grant heirs.
[A] After an extensive search, we were unable to obtain any information
on 47 of the 84 land grants, and according to members from the New
Mexico Land Grant Forum, the best estimate for the current acreage
holdings of these grants is zero.
[End of table]
Heirs Transferred Some Community Lands to Private Ownership:
Some community land grants have lost acreage as a result of actions
taken directly by land grant heirs themselves. The territory, and later
the state, of New Mexico enacted laws that authorized the incorporation
of community land grants, with boards of trustees and by-laws, and
authorized these boards to transfer or sell portions of the common
lands, either to individual land grant families or to outside
interests.[Footnote 135] Currently, about 20 land grant communities are
seeking to re-acquire lands that have been lost in this manner. Land
grant families that received confirmed community land grants also sold
large amounts of this land to outside interests. In addition, feuds
within and between families to gain control of the land grants often
left families vulnerable to losing land ownership through fraud or
unfair practices because speculators were able to capitalize on the
divisiveness that resulted from the internal quarrels. For example, in
1955, some of the heirs of the Town of Tomé, a New Mexico community
land grant corporation, who owned no livestock and saw no benefit from
the grant's policy of using the common lands for grazing, voted to
transform the community land grant corporation into the Tomé Land and
Improvement Company (Tomé Land), a private corporation. In 1968, Tomé
Land sold virtually all of its common lands to a private development
company. Other heirs sued, claiming that in 1955 the Town of Tomé did
not have authority to change itself into a private stock
corporation.[Footnote 136] They did not contest the sale of common
lands to the development company, but only sought to share in the
proceeds from such sale. Reversing a lower court ruling, in 1978 the
New Mexico Supreme Court decided that the Town of Tomé was not
authorized to convert itself into a private corporation in 1955 and
directed the District Court of Valencia County "to make a determination
of all rightful heirs" to the Tomé land grant and to distribute the
proceeds of the sale accordingly.[Footnote 137]
The Town of Atrisco, New Mexico, had a similar experience. Heirs from
the Town of Atrisco approved the incorporation of the Westland
Development Company, Inc. Litigation ensued from 1970 to 1976 to
determine the stock rights of the original 225 incorporators in the new
corporation. Each incorporator was awarded 3,175 shares of stock, and
in 1979, Westland paid them the first dividend. Not all of the heirs
were pleased with this outcome, however, and in the 1970s, several
heirs formed an organization called the Atrisco Land Rights Council,
which asserted that the decision for the Westland Development Company,
Inc., to become a for-profit organization violated the spirit and the
law of the Treaty of Guadalupe Hidalgo. Today, the council is calling
for the return of the common lands, and it frequently voices its
objections at public forums when Westland (which now was 5,723
stockholders) attempts to sell or develop the lands.
Private Arrangements with Attorneys Resulted in Loss of Community
Lands:
A second reason why ownership of community land grant acreage has been
lost after it was confirmed is that grantees transferred the lands to
attorneys in payment for legal representation. Many land grant
claimants sought legal assistance in filing claims during the
confirmation process because of the legal complexities involved in the
process. Because claimants could seldom afford to pay for these legal
services in cash, attorneys' fees were commonly paid in land. If a
grant was confirmed, attorneys obtained either a percentage interest in
their clients entire commonly owned land grant or, in some cases, title
to a certain amount of land as payment for their services. Reflecting a
typical attorney-client contingency fee arrangement, grantees usually
agreed to give the attorney a one-third undivided interest in the
entire land grant if the attorney succeeded in securing confirmation of
the grant, or, if confirmation was rejected, the attorney would receive
nothing. Attorneys have also received land for legal services provided
to land grant heirs outside of the confirmation process. For example,
according to heirs of the Town of Antón Chico grant, attorneys who
represented the grant in a legal dispute with the Preston Beck Jr.
grant took possession of one-third of the 383,856-acre Antón Chico
grant, or over 100,000 acres.
Partitioning Suits Led to Breakup of Common Lands:
A third scenario in which community land grant acreage has been lost
after confirmation is as the result of "partitioning suits." These
lawsuits have resulted in the subdivision of community grants jointly
owned by "tenants-in-common" into individually owned parcels that could
more easily be used or sold.[Footnote 138] For example, if 15
individuals each owned an undivided 1/15 interest as tenants-in-common
of a 45,000-acre community land grant, one of the owners could request
a court to partition the grant into fifteen 3,000-acre parcels
(assuming each of the parcels is of equal value). After partitioning,
each individual would own 100 percent of a 3,000-acre parcel, rather
than a 1/15 undivided interest in the 45,000-acre grant.
Partitioning was not allowed in New Mexico prior to 1876, when it
became authorized under a New Mexico territorial statute.[Footnote 139]
Through this law, at the request of one of the grant's co-owners, a
court could require a jointly owned land grant to be divided among its
owners or sold to pay outstanding attorneys' and other legal fees.
According to heirs and scholars, attorneys often instigated partition
suits after they had succeeded in obtaining confirmation of a grant, to
obtain payment for fees owed under a contingency fee agreement. The
standard fee for obtaining grant confirmation of a grant ranged from a
one-fourth to a one-third undivided interest in the common land, but
because owning land in common with clients was not an attractive option
for most attorneys, the attorneys, who were then co-owners of the
grant, filed partitioning suits to force the sale of common land and
obtain cash by selling the resulting individual parcel.
Some heirs and legal experts contend that under Spanish and Mexican
law, a community land grant could not be owned by tenancy-in-common and
thereby become partitionable. Partitioning was seen as contrary to the
Spanish and Mexican systems of land tenure, under which common lands
had to remain intact so they could serve as a perpetual resource for
the community. Heirs and scholars thus contend that the U.S.
confirmation process, in allowing tenancies-in-common, created a land
tenure pattern that did not exist in New Mexico for community grants
and led to partitioning that likely would never have occurred under
Spanish or Mexican law. As one researcher has asserted, many grantees
undoubtedly were not even aware that they were tenants-in-common, and
they continued to occupy and use the land under the assumption that
they had no private interest in it.[Footnote 140] It was often the
filing of a partitioning suit that first made heirs aware of the
concept of tenancy-in-common, and it was through these suits that
grantees first learned that private entities had assumed ownership of
their common lands. In the case of the Cañón de San Diego Land Grant,
for example, the common lands were partitioned and sold, and the new
owner began to charge residents for the right to graze and gather
firewood--rights which they had previously enjoyed for free.
Property Taxes and Subsequent Foreclosures Led to Loss of Land
Ownership:
A final reason for the post-confirmation loss of ownership of community
land grant acreage has been foreclosures on the land for tax
delinquencies. Foreclosures have come about in part as the result of
original land grantees' unfamiliarity with the concept of paying annual
property taxes. According to a study commissioned by the state of New
Mexico in 1971, the direct assessment of property taxes in New Mexico
did not begin until the 1870s, at which point the grantees had to learn
quickly about taxation and the consequences of nonpayment.[Footnote
141] The payment of property taxes was difficult because grantees'
farming and ranching were subsistence and noncommercial in nature and
therefore did not produce cash income. The imposition of cash tax
liabilities on the land thus required not only revision of heirs'
understanding of taxation but also a change in their system of land use
in the entire economy. When grant owners proved unable to pay taxes on
commonly held grazing lands, county governments seized the property and
sold it at auction to pay delinquent property taxes, often for less
than the amount of the tax delinquency. The County of Taos, for
example, obtained a tax delinquency judgment from the First Judicial
District Court of New Mexico against several land grants, and offered
the grants at public auction in order to collect what was owed. The
County sold the Arroyo Hondo Land Grant at a public auction because of
delinquent taxes for 1893-95 and 1897-98.
The Sevilleta grant, the largest grant confirmed by the Court of
Private Land Claims, is another example of a grant that lost land as a
result of delinquent taxes. The grant heirs allege that the U.S.
government failed to protect the grantees by allowing the land to be
taxed and sold. The heirs contend that their ancestors' lack of fluency
in English compounded the problem because they did not understand the
legal concepts concerning taxation and because attorneys or officials
intimidated and pressured the grantees into making decisions
detrimental to their own interests. The heirs assert that it was not
until New Mexico became a state in 1912 that the Sevilleta grant
encountered difficulties, when Socorro County levied taxes on the
grant. The grant's Board of Trustees did not pay the taxes because it
assumed it did not have to, and by the mid-1920s, the grant was about
$137,000 in arrears. Socorro County then sued for nonpayment of the
taxes, and the court ruled in the county's favor. As a result, the
entire grant was sold to a private landowner in 1936, and it has since
been turned into a wildlife refuge.
The Treaty of Guadalupe Hidalgo Provided No Special Protections for
Community Land Grants After Confirmation:
Although land grant heirs and others contend that the Treaty of
Guadalupe Hidalgo obligated the United States to provide continuing
protections for community grant lands even after they were confirmed,
particularly with respect to taxation of these lands, we conclude that
under established principles of federal, state, and local law, the
Treaty did not create a fiduciary relationship, nor did it exempt
confirmed lands from state or local property requirements, including,
but not limited to, tax liabilities. In Havasupai Tribe v. United
States, 752 F. Supp. 1471 (D. Ariz. 1990), for example, the U.S.
District Court concluded that the Treaty of Guadalupe Hidalgo created
no fiduciary duty for the United States to protect Indian tribal rights
in the free exercise of religion, despite the language of Article IX of
the Treaty, which provided that Mexicans who decided to become U.S.
citizens would be "secured in the free enjoyment of their religion
without restriction." This protection applied until the New Mexico
territory became a state, after which Mexicans would enjoy the same
constitutional rights as citizens of the United States.
The court's reasoning in the Havasupai Tribe case also applies to the
question of whether the Treaty created a fiduciary duty to protect
community land grant property rights. Article IX similarly provided
that until New Mexico statehood, Mexicans (individuals) would be
"maintained and protected in the free enjoyment of their...
property," after which time, they would enjoy the same constitutional
rights as U.S. citizens.[Footnote 142] The Treaty's other provision
pertaining to property, Article VIII, stated that the rights of
Mexicans then owning property within the newly acquired territories,
and the heirs of those persons and "all Mexicans who may hereafter
acquire said property by contract," would be "inviolably respected" and
that those persons would enjoy the same guarantees with respect to
their property as the guarantees given to U.S. citizens. Thus, neither
Article VIII nor Article IX created any fiduciary duty of the United
States to protect owners of confirmed community land grant acreage in a
special manner superior to the protections afforded to other U.S.
citizens. Rather, community land grant owners were to have the same
property protections, guarantees, and responsibilities that all U.S.
citizens had, which would include the obligation to pay property taxes
and be subject to foreclosure for nonpayment, as well as being subject
to partition suits, adverse possession suits, and any other legal
mechanism potentially resulting in loss of real property
ownership.[Footnote 143] (As discussed below, the United States does
owe a fiduciary duty to protect community land grant acreage awarded to
Indian Pueblos, but this duty arises under a specific statute
applicable only to the Pueblos.)
The courts have applied this reasoning to the Treaty of Guadalupe
Hidalgo in a related context in Amaya v. Stanolind Oil & Gas Co., 158
F.2d 554, 557 (5th Cir.), cert. denied, 331 U.S. 808 (1947), a case
applying a Texas adverse possession statute to Mexican citizens' claims
to oil lands. In Stanolind Oil, the U.S. Fifth Circuit Court of Appeals
concluded that nothing in the language of the Treaty, including Article
VIII's provision to Mexicans of the same property-related guarantees as
those of U.S. citizens, suggested that the property of Mexican citizens
"would not be subject to the valid, and nondiscriminatory, property
laws of the State of Texas." Nor did the Treaty guarantee that Mexicans
"would never lose their title...by foreclosure, sales under
execution, trespasses, adverse possession, and other nongovernmental
acts." Id. at 558. This is true even where lands were fraudulently
withheld from the title holders.[Footnote 144] New Mexico courts have
likewise recognized that title to common lands and unalloted lands of
community land grants can be acquired by adverse possession.[Footnote
145] In sum, we conclude that the Treaty did not create a fiduciary
duty of the United States to ensure the continued ownership of
confirmed lands.
Nor did the Treaty specifically protect community land grants from
state or local taxation or tax foreclosure sales. Article VIII did
contain a limited, one-time immunity from property-related taxation:
Mexicans then living in territories acquired by the United States,
including New Mexico, would have no "contribution, tax, or charge
whatever" levied against them on the proceeds from sale or transfer of
lands they possessed within those territories. Heirs have argued that
Article VIII created a blanket and permanent exemption from all
taxation, past and present, of land grants. However, tax exemptions
under treaties are written in very precise language and are limited to
the circumstances specified in that language. In the case of Article
VIII, the only exemption from taxes occurred when lands were initially
sold or transferred, not when they were held in the normal course of
ownership. The Article VIII language is standard in U.S. treaties
acquiring land in the 18th and 19th centuries. Arguably interpretation
of this provision to exempt heirs who are now U.S. citizens might
constitute a preference over non-heirs violating the Equal Protection
provision of the U.S. Constitution.[Footnote 146]
Nor can any blanket property tax immunity be inferred from the general
language of Article VIII to "inviolably respect" the property rights of
Mexican property owners in New Mexico and to provide them with the same
"guaranties" afforded to U.S. citizens. In Chadwick v. Campbell, 115
F.2d 401, 405 (10th Cir. 1940), a case that considered whether, under
the Treaty of Guadalupe Hidalgo, New Mexico ad valorem taxes applied to
a community land grant, the U.S. Tenth Circuit Court of Appeals found
that there was "nothing in either provision of the treaty [Article VIII
and IX] which guarantees exemption and immunity from ad valorem taxes
regularly assessed and levied." The New Mexico Supreme Court has also
ruled that lands of a community land grant are subject to
taxation.[Footnote 147]
The U.S. Government Currently Has a Fiduciary Duty to Protect Pueblo
Indian Lands:
In contrast to land grants to non-Indians, the U.S. government
currently has a fiduciary duty, or "trust responsibility," to protect
Indian lands that the U.S. government holds in trust for the Pueblos in
New Mexico. This trust responsibility for the Pueblos was established
long after ratification of the Treaty of Guadalupe Hidalgo. Up until
New Mexico became a state in 1912, non-Indian land grants and Pueblo
land grants were generally treated in the same manner, which was
different from the manner in which the United States treated other
Indian tribes with whom it had a fiduciary relationship.[Footnote 148]
The Pueblo Indians had lived for centuries in settled agricultural
communities in river valleys, principally the Rio Grande, and were
considered Mexican citizens. They were generally treated like other
Mexican communities and were not subject to the same protections or
laws applicable to other Indian groups. Among the first land grants
confirmed by Congress were those of 17 Indian Pueblos in 1858. In 1876,
the U.S. Supreme Court ruled in United States v. Joseph, 94 U.S. 614,
619 (1876), that the Pueblo Indians were not tribal Indians within the
meaning of a statute providing a penalty for settlement on tribal
lands. The Court noted that the Pueblo Indians had superior title,
unlike other Indians, and could allow others onto their property if
they wished.
However, beginning in 1872, Congress passed legislation (the 1872 Act)
that placed the United States on a path toward a more traditional,
protective relationship with the Pueblos, like that the United States
had with other Indian tribes.[Footnote 149] The 1872 Act provided funds
for Pueblos' activities and supplied government agents to protect their
interests. In 1905, in response to a Supreme Court of New Mexico
decision upholding the taxation of Pueblo lands,[Footnote 150] Congress
exempted such property from all forms of taxation.[Footnote 151] In
1910, the New Mexico Enabling Act of 1910 broadened the definition of
"Indian" and "Indian country" to include Pueblo Indians,[Footnote 152]
subjecting Pueblo lands to the ban on the introduction of liquor into
Indian country. In 1912, the U.S. Supreme Court determined that the
ruling set out in the Joseph case--that Pueblos were not tribal
Indians--applied only to the particular statute involved in that case
and not more broadly.[Footnote 153] This 1912 decision held that
Congress had authority to pass the New Mexico Enabling Act to regulate
the activities of the Pueblos because they were "Indians." The Court
disagreed with the description of the Pueblos contained in the Joseph
case and considered Pueblos to be a dependent people, like other
Indians, in need of U.S. protection. Today, each of the Pueblos is a
federally recognized Indian tribe and receives assistance through a
variety of U.S. government programs.
As a result of the trust relationship between the U.S. government and
the Pueblos, the U.S. government has taken several steps since New
Mexico statehood to resolve outstanding Pueblo land disputes, generally
by the payment of monies or the transfer of lands.[Footnote 154] These
disputes have involved encroachments by non-Indian settlers into
confirmed Pueblo-owned Spanish-issued land grants, as well as
aboriginal land claims that extended far beyond the Spanish grants. In
the Pueblo Lands Act of 1924, Congress established the Pueblo Lands
Board to address encroachments by non-Indian settlers on Pueblo lands
and to prohibit future acquisition of Pueblo lands without federal
approval.[Footnote 155] The Pueblo Lands Board was responsible for
investigating, determining, and reporting on the status of land within
the boundaries of all land claimed by the Pueblo Indians. In 1946,
Congress established the Indian Claims Commission to address historic
aboriginal land claims. Under these two processes, many of the Pueblos
have received cash settlements as compensation for the loss of their
land and water rights; as of October 2002, the Pueblos collectively had
received over $130 million under these processes (in constant 2001
dollars) to settle their claims. (See table 28.) Some Pueblos also have
received monetary payments through the U.S. Court of Federal Claims or
congressional legislation, and the Pueblos have used some of these
payments to reacquire land as it becomes available.
Table 28: Payments to Settle Land Claims for Pueblo Grants in New
Mexico, as of October 2002:
Payment process: Pueblo Lands Board, 1927-39;
Settlement payments in constant 2001 dollars: $14,160,255.67.
Payment process: Indian Claims Commission and the U.S. Court of Federal
Claims;
Settlement payments in constant 2001 dollars: 116,757,838.44.
Payment process: Total;
Settlement payments in constant 2001 dollars: $130,918,094.11.
Source: GAO analysis and data from the Department of the Interior's
Bureau of Indian Affairs.
[End of table]
In addition, some Pueblos have received land directly through
congressional legislation.[Footnote 156] The net effect of this special
fiduciary relationship between the U.S. government and the Pueblos is
reflected in their current land holdings. Unlike the non-Indian
community land grants, most Pueblos currently have more acreage than
they had received by their original Spanish land grants. (See table
29.)
Table 29: Comparison of Acreage Confirmed to Spanish Land Grants for
the Pueblos with Their Current Acreage, as of December 31, 2000:
Grant name: Pueblo of Acoma;
Acreage confirmed: 95,791.66;
Acreage in trust as of Dec. 31, 2000: 378,262.41;
Acreage in excess of grant: 282,470.75.
Grant name: Pueblo of Cochití;
Acreage confirmed: 24,256.50;
Acreage in trust as of Dec. 31, 2000: 50,681.46;
Acreage in excess of grant: 26,424.96.
Grant name: Pueblo of Isleta;
Acreage confirmed: 110,080.31;
Acreage in trust as of Dec. 31, 2000: 301,120.92;
Acreage in excess of grant: 191,040.61.
Grant name: Pueblo of Jémez;
Acreage confirmed: 17,510.45;
Acreage in trust as of Dec. 31, 2000: 89,619.13;
Acreage in excess of grant: 72,108.68.
Grant name: Pueblo of Laguna;
Acreage confirmed: 17,328.91;
Acreage in trust as of Dec. 31, 2000: 491,387.13;
Acreage in excess of grant: 474,058.22.
Grant name: Pueblo of Nambé;
Acreage confirmed: 13,586.33;
Acreage in trust as of Dec. 31, 2000: 19,093.83;
Acreage in excess of grant: 5,507.50.
Grant name: Pueblo of Pecos[A];
Acreage confirmed: 18,763.33;
Acreage in trust as of Dec. 31, 2000: 0;
Acreage in excess of grant: - 18,763.33.
Grant name: Pueblo of Picurís;
Acreage confirmed: 17,460.69;
Acreage in trust as of Dec. 31, 2000: 15,034.49;
Acreage in excess of grant: - 2,426.20.
Grant name: Pueblo of Pojoaque;
Acreage confirmed: 13,520.38;
Acreage in trust as of Dec. 31, 2000: 12,004.20;
Acreage in excess of grant: - 1,516.18.
Grant name: Pueblo of San Felipe;
Acreage confirmed: 34,766.86;
Acreage in trust as of Dec. 31, 2000: 48,929.90;
Acreage in excess of grant: 14,163.04.
Grant name: Pueblo of San Ildefonso;
Acreage confirmed: 17,292.64;
Acreage in trust as of Dec. 31, 2000: 26,197.75[B];
Acreage in excess of grant: 8,905.11.
Grant name: Pueblo of San Juan;
Acreage confirmed: 17,544.77;
Acreage in trust as of Dec. 31, 2000: 12,236.33;
Acreage in excess of grant: - 5,308.44.
Grant name: Pueblo of Sandía;
Acreage confirmed: 24,187.29;
Acreage in trust as of Dec. 31, 2000: 22,890.28[C];
Acreage in excess of grant: - 1,297.01.
Grant name: Pueblo of Santa Ana;
Acreage confirmed: 17,360.56;
Acreage in trust as of Dec. 31, 2000: 76,982.93;
Acreage in excess of grant: 59,622.37.
Grant name: Pueblo of Santa Clara;
Acreage confirmed: 17,859.14;
Acreage in trust as of Dec. 31, 2000: 45,969.21[D];
Acreage in excess of grant: 28,110.07.
Grant name: Pueblo of Santo Domingo;
Acreage confirmed: 74,743.11;
Acreage in trust as of Dec. 31, 2000: 71,355.56;
Acreage in excess of grant: -3,387.55.
Grant name: Pueblo of Taos;
Acreage confirmed: 17,360.55;
Acreage in trust as of Dec. 31, 2000: 96,106.15;
Acreage in excess of grant: 78,745.60.
Grant name: Pueblo of Tesuque;
Acreage confirmed: 17,471.12;
Acreage in trust as of Dec. 31, 2000: 16,813.16;
Acreage in excess of grant: - 657.96.
Grant name: Pueblo of Zía;
Acreage confirmed: 17,514.63;
Acreage in trust as of Dec. 31, 2000: 121,611.19;
Acreage in excess of grant: 104,096.56.
Grant name: Pueblo of Zuñí;
Acreage confirmed: 17,635.80;
Acreage in trust as of Dec. 31, 2000: 463,270.83;
Acreage in excess of grant: 445,635.03.
Total;
Acreage confirmed: 602,035.03[E];
Acreage in trust as of Dec. 31, 2000: 2,359,566.86;
Acreage in excess of grant: 1,757,531.83.
Source: GAO analysis and data from the Department of the Interior's
Bureau of Indian Affairs.
[A] The Pueblo of Pecos was combined with the Pueblo of Jémez by the
Act of June 19, 1936 (49 Stat. 1528).
[B] This amount does not include approximately 2,000 acres of Bureau of
Land Management land placed in trust for the Pueblo of San Ildefonso by
Pub. L. No. 108-66, 117 Stat. 876 (2003).
[C] This amount does not reflect the Pueblo of Sandía's right to be
consulted with respect to use and management of lands within the Cibola
National Forest, provided by Pub. L. No. 108-7, 117 Stat. 11 (2003).
[D] This amount does not include approximately 2,484 acres of Bureau of
Land Management land placed in trust for the Pueblo of Santa Clara by
Pub. L. No. 108-66, 117 Stat. 876 (2003).
[E] This total does not include over 150,000 acres of other land grants
that were awarded to the Pueblos during the confirmation process. A few
Pueblos purchased surrounding land grants. The Pueblo of Laguna was
awarded 101,510.78 acres for five individual land grants commonly
referred to collectively as the "Laguna purchase tracts"--Rancho de
Gigante, Rancho de Paguate, Rancho de San Juan, Rancho de Santa Ana,
and Rancho el Rito. The Pueblo of Isleta was awarded 51,940.82 acres
for the Lo de Padilla individual land grant and a portion of the
22,636.92-acre Joaquin Sedillo & Antonio Guitierrez individual land
grant. The Pueblo of Santa Ana was awarded 4,945.24 acres for the
Ranchito community land grant. Also not included in this total are
1,070.69 acres that were jointly awarded to the Pueblos of Santo
Domingo and of San Felipe.
[End of table]
Summary:
In summary, the Treaty of Guadalupe Hidalgo did not create a fiduciary
relationship between the United States and non-Pueblo community land
grantees. The United States does have such a relationship with the
Pueblo Indians in New Mexico on the basis of specific legislation, and
so has special obligations to protect the Pueblos' community land grant
property. This legislation does not extend to other community land
grantees or their heirs and thus these parties are subject to the same
risk of loss of their lands as other citizens, from such causes as tax
foreclosures, contingency fee agreements, partitioning suits, and
voluntary transfers by the grantees and heirs themselves.
[End of section]
Chapter 5: Concluding Observations and Possible Congressional Options
in Response to Remaining Community Land Grant Concerns:
Overview:
As detailed in this report, grantees and their heirs have expressed
concern for more than a century--particularly since the end of the New
Mexico land grant confirmation process in the early 1900s--that the
United States did not address community land grant claims in a fair and
equitable manner. As part of our report, we were asked to outline
possible options that Congress may wish to consider in response to
remaining concerns. 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 are compelling policy or other
reasons for taking additional action. For example, Congress may
disagree with the Supreme Court's Sandoval decision and determine that
it should be "legislatively overruled," addressing grants adversely
affected by that decision or taking other action. Congress, in its
judgment, also may find that other aspects of the New Mexico
confirmation process, such as the inefficiency and hardship it caused
for many grantees, provide a sufficient basis to support further steps
on behalf of claimants. Based on all of these factors, we have
identified a range of five possible options that Congress may wish to
consider, ranging from taking no additional action at this time, to
making payment to claimants' heirs or other entities, or transferring
federal land to communities. We do not express an opinion as to which,
if any, of these options might be preferable, and Congress may wish to
consider additional options beyond those offered here. The last four
options are not necessarily mutually exclusive and could be used in
some combination. The five possible options are:
Option 1: Consider taking no additional action at this time because the
majority of community land grants were confirmed, the majority of
acreage claimed was awarded, and the confirmation processes were
conducted in accordance with U.S. law.
Option 2: Consider acknowledging that the land grant confirmation
process could have been more efficient and less burdensome and imposed
fewer hardships on claimants.
Option 3: Consider establishing a commission or other body to reexamine
specific community land grant claims that were rejected or not
confirmed for the full acreage claimed.
Option 4: Consider transferring federal land to communities that did
not receive all of the acreage originally claimed for their community
land grants.
Option 5: Consider making financial payments to claimants' heirs or
other entities for the non-use of land originally claimed but not
awarded.
As agreed, in the course of our discussions with land grant descendants
in New Mexico, we solicited their views on how they would prefer to
have their concerns addressed. Most indicated that they would prefer to
have a combination of the final two options--transfer of land and
financial payment.
Potential Considerations in Determining Whether Any Additional Action
May Be Appropriate:
This report has detailed the principal concerns and contentions that
grantees and their heirs and advocates have expressed, particularly
since completion of the New Mexico community land grant confirmation
process in 1904, about whether the property protection provisions of
the 1848 Treaty of Guadalupe Hidalgo were implemented in a legal and
fair manner. We have assessed these concerns and contentions based on
extensive factual investigation and legal research and provided what we
believe is the most thorough analysis undertaken to date of many of the
most contentious issues surrounding the Treaty. With respect to grants
and acreage, our analysis shows that the majority of the community land
grants in New Mexico--over 68 percent--were confirmed under the
Surveyor General and Court of Private Land Claims procedures, and that
the majority of the acreage claimed under these grants--over 63
percent--was awarded. Our analysis also shows that 55 percent of the
acreage claimed under both community and individual land grants in New
Mexico combined was awarded under these procedures, rather than the 24
percent that is commonly reported in the land grant literature.
With respect to compliance with legal requirements, our analysis shows
that the property provisions were carried out in accordance with all
applicable U.S. laws and requirements, including the U.S. Constitution.
First, because of the non-self-executing nature of the Treaty, Congress
was required to enact legislation to put the provisions into effect. It
did so in the 1854 and 1891 Acts establishing the Surveyor General and
the CPLC procedures, respectively, and under U.S. law, any conflict
between these statutes and the Treaty provisions (which we do not
suggest exists) must be resolved in favor of the statutes. Another
legally related issue of great concern to heirs, in part because it
affected the disposition of more than 1.1 million acres of land, is the
U.S. Supreme Court's 1897 decision in United States v. Sandoval. As
discussed in this report, many heirs believe the Sandoval case was
wrongly decided because the Court purportedly misapplied Spanish and
Mexican law in holding that the sovereign (Spain, México, and later the
United States), rather than communities, owned the common lands in
community land grants. As our analysis explains, however, the Court had
no authority under the 1891 Act to confirm grants based on the type of
equitable rights involved in the Sandoval land grant claim and related
cases; it could confirm only those grants "lawfully and regularly
derived" under Spanish or Mexican law. As a matter of statutory
interpretation, the Court found that these grants consisted only of
grants held under legal, not equitable, title. As the Court explained
in Sandoval, the grantees' concern was essentially a concern with the
Congress' policy judgments in the 1891 Act itself, rather than with the
courts' application of the act, and this concern could be addressed
only by "the political department" of the U.S. government--that is, the
Congress. As discussed in chapter 3, the California Commissioners had
come to a similar conclusion regarding the nature and limits of their
land grant confirmation authority, acknowledging that they were
essentially carrying out political, rather than judicial,
responsibilities.[Footnote 157] Heirs and scholars also have asserted
that the confirmation procedures violated the requirements of due
process of law under the U.S. Constitution. Our analysis shows,
however, that the procedures satisfied these requirements as the courts
had defined them at that time and even under modern-day standards.
Finally, with respect to heirs' contention that the United States had a
fiduciary duty, after their grants had been confirmed, to ensure that
ownership of the lands remained with the heirs and was not transferred
voluntarily or involuntarily, our analysis shows that the Treaty did
not create such a duty and thus the United States acted properly in
this regard.
The fact that the United States implemented the Treaty's property
provisions in accordance with U.S. law may suggest that a predicate for
taking additional congressional action at this time may be lacking and
that further action may not be necessary or appropriate. In the absence
of any legal violation for which relief might be warranted, taking
action could set a precedent for resolving other sensitive disputes,
and at least in the context of the Guadalupe Hidalgo claims, could be
costly to taxpayers, depending on what action is taken. On the other
hand, Congress may find that there are compelling policy or other
reasons for taking at least some additional action. For example, as a
matter of policy (or even law), Congress may disagree with the Supreme
Court's Sandoval decision and decide that it should be "legislatively
overruled," by addressing the affected grants in some way or taking
other action. Congress, in its judgment, also may find that other
aspects of the confirmation process in New Mexico provide a sufficient
basis to support further steps on behalf of claimants. For example,
Congress may wish to respond to the fact that, as detailed in this
report, pursuing a land grant claim in New Mexico was inefficient and
burdensome for many claimants, particularly compared with the more
streamlined Commission process that Congress had established for
California under the 1851 Act. As the New Mexico Surveyors General
themselves reported during the first 20 years of their claims reviews
under the 1854 Act, they lacked the legal, language, and analytical
skills, and financial resources to review grant claims in the most
effective and efficient manner. Moreover, unfamiliarity with the
English language and the American legal system made claimants reluctant
to turn over land grant documents and often required them to hire
English-speaking lawyers, sometimes necessitating sale of part of their
claimed land--for many, their principal resource--to cover legal
expenses. In addition, because of delays in Surveyor General reviews
and subsequent congressional confirmations caused by the intervention
of the Civil War, concerns about fraudulent claims, and other reasons,
some claims had to be presented multiple times to different entities
under different legal standards. Finally, the claims process could be
burdensome even after a grant was confirmed, because of the imprecision
and cost of having the lands surveyed, a cost that grantees had to bear
for a number of years. For these or other reasons, Congress may decide
that some additional action is warranted.
Possible Congressional Options for Response to Remaining Concerns:
With respect to your request for possible options to address remaining
concerns about community land grant claims in New Mexico, our analysis
and findings suggest a variety of possible responses, ranging from
taking no additional action at this time to taking one or more
additional steps. We describe five of these possible options below. If
Congress decides that some additional action is warranted, we note that
resolving specific land grant claims dating back to the 18th and 19th
centuries would be a challenging task: among other things, it could
require identification of the specific persons who were adversely
affected by the confirmation process, determination of where the
descendants of those persons are today, and an assessment of the
relationship between those descendants and persons currently living on
the affected land. We do not express an opinion as to which, if any, of
these options might be preferable, and Congress may wish to consider
additional alternatives. The five possible options are:
Option 1: Consider Taking No Additional Action at This Time:
A first option could be for Congress to take no further action at this
time regarding community land grants in New Mexico. As noted above, the
majority of the community land grants in New Mexico were confirmed and
the majority of acreage claimed under these grants was awarded. In
addition, the procedures that Congress developed for confirming
community land grants complied with applicable U.S. laws, including
constitutional due process requirements. Although the confirmation
processes could have been more efficient and less burdensome on
claimants, U.S. citizens sometimes are subjected to inefficient and
burdensome government procedures and yet do not receive compensation or
other formal relief. Particularly given the high rate of confirmation
of New Mexico land grants and the substantial passage of time since the
confirmation process was completed 100 years ago, Congress may decide
that no further official action is appropriate at this time.
Option 2: Consider Acknowledging Difficulties in Evaluating the
Original Claims:
If Congress decides for policy or other reasons that some type of
additional response is appropriate, one alternative could be to make an
official acknowledgment that the U.S. government could have evaluated
community land grant claims in New Mexico in a more efficient and less
burdensome manner and one that created fewer hardships for grantees.
Acknowledgement of these difficulties could take many forms, ranging
from a declarative statement to an apology by the U.S.
government.[Footnote 158]
Option 3: Consider Creating a Commission or Other Entity to Evaluate
and Resolve Remaining Concerns About Individual Claims or Categories of
Claims:
Another possible option for taking action in response to remaining land
grant concerns, if Congress determines this is appropriate, could be
for Congress to establish a commission or other entity to evaluate and
resolve concerns about specific claims or categories of claims
regarding New Mexico community land grants. Twenty-two congressional
bills and resolutions reflecting this concept were introduced between
1971 and 1980, triggered in part by a 1967 raid of a county courthouse
in northern New Mexico by land grant heirs and their
advocates.[Footnote 159] Since January 1997, at least eight additional
bills have been introduced to address New Mexico community land grant
claims, most recently in 2001, and most of these also have involved
creation of some type of commission. One of the bills, H.R. 2538,
passed the House of Representatives in September 1998.
The commissions proposed in these bills generally have fallen into five
basic categories, with differences in the composition of the
commission, its duration, and the legal effect of any decisions or
recommendations that the commission might issue.[Footnote 160] H.R.
9422, for example, the first bill introduced in 1971, would have
created a three-member commission to serve a 5-year term. The
commission's decisions would have been final except if disapproved by
Congress. The commission would have been authorized to direct U.S.
seizure of any privately owned lands in dispute and transfer of these
lands to the respective community land grant. The 1971 bill also would
have authorized $2.5 million for the expenses of the commission, $5
million for legal and professional assistance for petitioners, and a
substantial $5 billion for land acquisitions. More recently, H.R. 2538,
passed by the House in 1998, would have created a five-member
commission with no specific term limit. After investigating and ruling
on all pending claims, the commission was to report its decisions and
recommendations to the President and Congress; Congress then was to
decide whether to accept, reject, or modify the commission's
recommendations, similar to its role regarding the Surveyor General
confirmation recommendations. The 1998 bill would have authorized an
appropriation of $1 million per year for fiscal years 1999 through 2007
to fund the commission's operations and a land grant study center. Most
recently, Representative Tom Udall and 20 co-sponsors introduced H.R.
1823, the Guadalupe-Hidalgo Treaty Land Claims Act of 2001. Among other
things, H.R. 1823 would have created a commission authorized to receive
petitions from community land grant heirs in New Mexico and elsewhere,
seeking determination of the validity of their grants under the Treaty.
When its work was completed, the commission was to report its decisions
to Congress and make recommendations regarding whether Congress should
"reconstitute" certain grants--that is, restore the grants to full
status as a municipality with "rights properly belonging to a
municipality under State law"--or provide other relief to grant heirs.
The bill would have set a 5-year deadline for submission of petitions
and authorized an appropriation of $1.9 million per year for fiscal
years 2002 through 2008 to fund the commission's work and that of a
land grant study center.
One notable aspect of all of these bills was that they did not specify
what legal standard the commission was to apply in reviewing land grant
claims. The bills did not, for example, specify that the commission was
to confirm a grant based on Spanish or Mexican law, usages, and
customs--as in the 1854 Act--or only if title to the grant had been
lawfully and regularly derived under Spanish or Mexican law--as in the
1891 Act. To make any such commission as successful as possible, it
would be important for any congressional legislation creating such a
commission to specify what laws or other standards are to be applied in
reviewing claims.
Option 4: Consider Transferring Federal Land to Communities:
Another possible option for responding to remaining land grant
concerns, if Congress determines this is appropriate for policy or
other reasons, could be for Congress to transfer federal land to
communities that made claims to the Surveyor General or the CPLC under
a community land grant but did not receive all of the acreage they
claimed. This option has been reflected in some of the legislative
proposals over the last 30 years, whereby federal land located within
the grants' originally claimed boundaries would have been transferred
to claimants.[Footnote 161] As agreed, in the course of our discussions
with land grant descendants in New Mexico, we solicited their views on
how they would prefer to have their concerns addressed, and this
approach, which would address land grant heirs' claims of "lost"
acreage most directly, was one of the two options preferred by grant
heirs with whom we spoke. If Congress decided to adopt this option and
there were no federal lands located within the originally claimed grant
boundaries, alternate federal lands in New Mexico might be transferred
or financial payment made in lieu of transfer.
Although the amount of federal acreage that might be affected under
this option would depend on the specific grants at issue, preliminary
surveys indicate that it could be substantial if all of the acreage
originally claimed were now awarded. For example, according to Bureau
of Land Management estimates, over half of the almost 1 million acres
of land "lost" by three grants--the Cañón de Chama grant, the San
Miguel del Vado grant, and the Petaca grant--is now owned by the
federal government (the U.S. Forest Service), and thus potentially
could be transferred to these grants.[Footnote 162] Appendix XII to
this report shows the original claimed boundaries of these three grants
and the present-day land ownership within those boundaries that could
be at issue (see figures 9-11). Appendix XII also contains maps of five
additional land grant claims for which we were able to locate
preliminary surveys and which, if Congress adopted this option, it
might decide to increase in size (see figures 12-14).
One other potential hurdle in implementing this option might be that
any overlaps between claimed community land grant boundaries and the
boundaries of existing Indian lands or additional aboriginal Indian
lands would have to be resolved. For example, the Town of Cieneguilla
land grant claim partially overlaps with the Pueblo of Picurís land
grant, and the Don Fernando de Taos land grant claim conflicts with the
Pueblo of Taos. Similarly, conflicts between the boundaries of claimed
community land grants and confirmed land grants would have to be
resolved. The original claimed boundaries of the San Miguel del Vado
land grant, for example, overlap with the confirmed and patented
boundaries of the Town of Las Vegas and Town of Tecolote land grants.
Option 5: Consider Making Financial Payments to Claimants' Heirs or
Other Entities:
A final possible option if Congress determines that additional action
should be taken--and the other option favored by the land grant heirs
with whom we spoke--could be for Congress to make payments to claimants
for the "lost" use of land that was claimed but not awarded. If land
were not being transferred to a community under Option 4, payment could
be made for both past and future non-use; if it were being transferred,
there could be payment only for past non-use. Congress might assign the
task of determining payment amounts to the type of commission discussed
under Option 3, again presumably based on a specified legal standard.
Congress created a similar entity in 1946 in the Indian Claims
Commission, which was authorized to address claims by making financial
payments. Similarly, Congress created the Pueblo Lands Board to resolve
Indian land claims in the 1920s and 1930s, through a combination land
transfer/financial payment mechanism.
There likely would be a number of practical issues to be resolved in
implementing this option, the first of which would be determining the
criteria for payment. The amount might be determined on the basis of
acreage alone, for example, or might also account for the value of the
specific parcels at issue. A prime piece of agricultural property in a
river valley, for instance, might be worth more than rocky hillside
property. Likewise, the non-use of heavily wooded property with an
abundance of wildlife might have a greater value than the non-use of
property without those resources. A second practical issue to be
resolved would be determining who should receive compensation. The
individuals affected by adverse land grant decisions 100 years ago
would have to be identified, as would the individuals who are their
present-day descendants.
Finally, decisions would need to be made regarding possible
restrictions on the permissible uses of any payments made. For example,
funds might be directly distributed as cash payments to individual
heirs, with no restrictions on how the funds could be used.
Alternatively, payments might be made into some type of development
trust fund, with money earmarked for specific activities. Over the past
10 years, Congress has established these types of trust funds for
Indian tribes that lost land when:
dams were built on the Missouri River.[Footnote 163] A development
trust fund could create the flexibility to provide assistance for a
wide variety of activities, such as economic development, land
acquisition, or educational programs. Trust fund monies also might be
used to pay property taxes owing on community land grant common lands,
thus providing an immediate benefit to grants that continue to be at
risk of tax foreclosure. As discussed in chapter 4, the federal
government had no legal obligation under the Treaty of Guadalupe
Hidalgo to ensure continued ownership of community land grants once
they were confirmed, including by payment of a land grant's property
taxes to avoid forfeiture, but Congress may nevertheless decide that
there are compelling policy or other reasons to provide financial
assistance to these communities.
Summary:
In summary, we have identified, as requested, a range of five possible
options that Congress may wish to consider in response to remaining
concerns regarding New Mexico community land grants. These options
reflect our conclusion that there does not appear to be a specific
legal basis for relief but that Congress may nonetheless determine that
there are compelling policy or other reasons for taking additional
action.
[End of section]
Appendix I: Confirmation of Land Grants under the Louisiana Purchase
and Florida Treaties:
The congressional confirmation processes used for European land grants
in the Louisiana Purchase and Florida in the first half of the 19th
century provided potential models for U.S. implementation of the Treaty
of Guadalupe Hidalgo. At the beginning of the 19th century, the United
States acquired the Louisiana Territory, an area almost as large as the
United States, which had belonged at various times to France and Spain.
Both countries had encouraged settlement and light industry and
rewarded military service through the award of land grants. Spain also
had awarded similar grants in Florida, which the United States acquired
in 1819.[Footnote 164] Frequently, congressional legislation limited
the size of settlement grants that could be approved. In addition,
Congress placed grants into two categories: complete and incomplete
grants. Complete grants were grants that had satisfied all the legal
requirements and conditions of grant ownership under Spanish or French
law, which included cultivation of the land and its possession for
certain periods of time. Incomplete grants were grants that had not
complied with all legal requirements and conditions but which could be
made complete through the congressionally established confirmation
process. This process often involved the introduction of evidence to
show that Spanish and French legal requirements had been met and that
completion of grant conditions had been prevented by transfer of land
to the United States.
In both the Louisiana Purchase and in Florida, Congress used similar
methods to review land grant titles. These included boards of
commissioners to review land grants and to make recommendations to
Congress to confirm or reject them. Also, other officials, such as a
register of the land office and a recorder of land titles, either
served as commissioners or exercised similar functions. Eventually,
Congress authorized the courts to decide land grant titles. These
courts functioned as courts of equity, which provided more flexibility
than courts of law in deciding land claim cases.[Footnote 165] The
confirmation process proceeded very slowly and frequent changes in
legislation extended the time for filing claims. Courts were still
deciding land grant cases after the ratification of the Treaty of
Guadalupe Hidalgo.
The confirmation process that Congress established for the Louisiana
and Florida land grants differed from what Congress established for
California and New Mexico in two basic ways. First, with respect to
Louisiana and Florida, it was presumed that the granting official had
authority to make a grant and that the specifics of the grant were
correct. These presumptions shifted the burden of proof from the
grantee to the United States. Second, the treaties of cession for
Louisiana and Florida transferred to the United States public domain
only the land that had not been granted by, and still belonged to, the
previous sovereign, France or Spain. Under the grant confirmation
process in California and New Mexico, by contrast, all of the land that
was transferred under the Treaty of Guadalupe Hidalgo was deemed to
belong to the United States. Nevertheless, the California confirmation
legislation (the 1851 Act), and the General Land Office's instructions
to the Surveyor General of New Mexico issued under the 1854 Act,
provided that a grant to a town in existence at the Time of the Treaty
was presumed to have been validly made.
After they had evaluated land grant claims submitted to them, the
Louisiana and Florida commissioners forwarded a report on the results
of their evaluations to the Secretary of the Treasury, who then
forwarded the recommendations to Congress for action. The territorial
surveyors received copies of the commissioners' reports and had to
survey each approved grant. Government lawyers played an important a
role when the confirmation of grants shifted to the courts. They were
responsible for opposing land claims they believed were invalid, with
the result that invalidated claim increased land in the public domain.
The Louisiana and Florida commissioners had legal authorities similar
to those of the Surveyor General of New Mexico and the California
Commission. They could hear and decide claims, administer oaths, compel
the attendance and testimony of witnesses, and have access to all
public records. They decided cases according to "justice and equity"
and to the laws, customs, and usages of Spain and other European
powers. A successful claimant did not receive full title to the land
grant, but only the waiver by the United States of any interest it
might have in the land. A competing claimant who had better title could
still bring an action in local courts challenging the grantee's claim.
The Louisiana Purchase Treaty:
The Louisiana Purchase Treaty did not contain a provision specifically
protecting land grants. Article III of the treaty, on which Article IX
of the Treaty of Guadalupe Hidalgo was modeled, provided that the
inhabitants of Louisiana would be "protected in the free enjoyment of
their...property" until Louisiana became a State. Although not
defined by the treaty, the term "property" customarily included both
personal and real property. Shortly after ratification of the treaty,
Congress divided the Louisiana Purchase into two territories: Louisiana
and Orleans. In one territory, it created the position of register of
land titles, and in the other, the position of recorder of land titles,
to receive evidence of ownership from claimants. Under later
congressional legislation, the President appointed commissioners in
each district to review land claims and make recommendations to
Congress for their confirmation. They decided cases based on "justice
and equity." The legislation required that all claims be filed within a
certain time or else the grant would be void. Other legislation
established criteria for approving certain grants, such as setting
limits on the size of the grant that could be approved. In some
instances, commissioners were unable to decide whether a grant should
be approved. In 1807, Congress required the Louisiana commissioners to
prepare a list, which recommended action for three types of grants: (1)
grants that should be confirmed because they were consistent with
legislative criteria, (2) claims that should be confirmed according to
the laws, customs, and usages of Spain, and (3) grants that should be
rejected because they did not satisfy these criteria.
In 1812, additional legislation authorized the register of the land
office and receiver of public monies in a district of the Orleans
territory in Louisiana to submit to the Secretary of the Treasury their
opinion, based on evidence gathered, whether certain grants should be
confirmed. Subsequent legislation assigned similar responsibility to
the register and receiver in other areas of the Louisiana Purchase.
During this same year Congress established a commissioner for land
claims in each of two districts east of the Mississippi River, claimed
at one time by England, Spain, and the United States, to review land
titles and make recommendations to Congress. The commissioner was to
base his decision on the "justice and validity" of such grants. Persons
who held complete grants were only required to file the record of the
grant, the survey, and the plat whereas others had to provide more
evidence of their claim. Subsequent legislation frequently extended the
time for filing claims. Once Congress had confirmed land titles, a
survey was completed and the appropriate register of the land office or
the recorder of land titles issued patent certificates to the grantee.
These certificates stated that a claimant was entitled to receive a
patent for his grant. Confirmed grants did not convey full legal title
to the land within the grant, but only the interest that the United
States had in such property. Consequently, a person alleging that they
had title superior to the grantee could still bring suit in local
courts challenging the grantee's title. In the period leading up to the
Mexican-American War, Congress continued to use registers of the land
and receivers of public money to investigate land claims and make
recommendations whether grants should be confirmed.
In 1824, the first use of courts to settle land claims took place in an
area of the Louisiana Purchase that included the State of Missouri and
the Territory of Arkansas. The legislation provided that a claimant who
had incomplete title which could have been completed if the land had
not been transferred to the United States could file a petition in
federal district court in the State of Missouri and superior court in
the Territory of Arkansas.[Footnote 166] Any person alleging title
adverse to the petitioner's would also receive a copy of the claim. The
courts' decisions were to be based upon the law of nations
(international law), the treaty provisions, related acts of Congress,
and the laws and ordinances of the government from which title was
allegedly derived. General custom and usage were considered to be
included in the "law" of the predecessor government, in addition to
formal statutes and ordinances.[Footnote 167] The claimant and the
United States could appeal the court's decision to the Supreme Court.
After the title had been confirmed, the surveyor of public lands
completed a survey, at the claimant's expense, and the General Land
Office issued a patent to the claimant upon receipt of a copy of the
survey. The patent conveyed full legal title because the court's
decision disposed of any adverse claim to the property. In 1844,
Congress authorized the federal district courts to hear land grant
claims in other areas of the Louisiana Purchase, including the States
of Louisiana, Arkansas, Mississippi and Alabama. The courts' authority
was similar to the Missouri court under the 1824 statute. Supreme Court
decisions interpreting the 1824 statute presumed as a settled principle
that a public grant was evidence that it was issued by lawful
authority.[Footnote 168]
The Florida Treaty:
By an 1819 treaty, Spain ceded East and West Florida to the United
States. The United States had claimed ownership over part of West
Florida under the Louisiana Purchase.[Footnote 169] At different times
Spain, Great Britain, and France had asserted claims to parts of
Florida and had made grants of land for settlement, as a reward for
military service, and as compensation for the development of light
industry such as sawmills and mining. Article VIII of the Florida
treaty provided that all Spanish grants of land "shall be ratified and
confirmed" to persons occupying the lands to the same extent that they
"would be valid if the territories had remained" under Spanish control.
Owners occupying such lands who had failed to satisfy all the
conditions of the grants because of recent circumstances affecting
Spain could fulfill these conditions within the times prescribed in the
grant. A deadline was set for filing of all claims; if a claim was not
filed, the grant would be considered null. In the U.S. Supreme Court's
1833 decision in the Percheman case, Chief Justice Marshall, reversing
the Court's previous position, ruled that based on the Spanish version
of the treaty, the treaty was self-executing for perfect grants and did
not require them to be submitted for approval. Incomplete grants,
however, would require approval, and the Court ruled that this aspect
of the treaty would require congressional legislation in order to
implement and become effective.:
In 1822, Congress enacted legislation authorizing the President to
appoint three commissioners to investigate the "justice and validity"
of any Spanish grant made in Florida. The commissioners could not
approve grants of more than 1,000 acres or of an undetermined amount of
land. Decisions were to be based upon Spanish law and the law of
nations (international law). The commissioners were directed to prepare
a report on each case indicating their decision and transmit the report
to the Secretary of the Treasury for submission to Congress for
confirmation. Confirmed grants were to be surveyed to determine the
precise boundaries. The commissioners had powers similar to those
appointed to implement the Louisiana Purchase Treaty, and, as under the
Louisiana Purchase Treaty, the confirmation of a grant under the
Florida treaty would only be binding as to the interests of the United
States; it would not prevent competing claimants who believed they had
superior title from filing suit against the grantee in state court.
In 1823, Congress appointed three additional commissioners to decide
claims in East Florida, with the original group addressing claims in
West Florida only. The new commissioners could approve grants up to
3,500 acres. Later legislation extended the time for filing claims and
required claimants to have been cultivating or occupying the land at
the time of the treaty. In 1825, Congress transferred the functions of
the commissioners in West Florida to the register and receiver of the
land office, whose job it was to decide all claims and titles to land
in West Florida. During the next two years, Congress confirmed titles
to lands in both East and West Florida. Like the 1823 act, the 1825 act
provided that congressional confirmations was only to relinquish the
interest of the United States to such lands and did not prevent
competing claimants from asserting superior title. After the confirmed
grants were surveyed and the survey submitted to the register of the
land office, the land office issued a certificate to the claimant. Upon
presentation of the certificate to the Secretary of the Treasury, the
claimant would receive a patent for the land confirmed.
In 1828, Congress confirmed the decisions of the register and receiver
of East Florida and established a limit of one square league for grants
submitted for confirmation. Congress also authorized the superior court
of the district where property was located to decide claims that had
not been approved. However, the only claims that could be resolved in
court were those that had previously been filed with the commissioners
or registers and receivers for confirmation and were for more acreage
than they could confirm. The court was required to follow the rules,
restrictions, and other limitations applicable to the district court of
the State of Missouri in the 1824 legislation. The claimant, as well as
the United States, could appeal to the Supreme Court from an adverse
decision of the superior court. In 1830, Congress required that all
unsettled claims be decided in the superior court according to the 1824
statute. This law also provided that a person with a claim adverse to
the petitioner should be included as a party in the court case.
Finally, in 1860, Congress passed legislation to confirm land claims in
Florida, Louisiana, and Mississippi that had not been previously
presented. Local state officials acted as commissioners and made
recommendations to the Commissioner of the General Land Office, who
transmitted recommendations to Congress for confirmation. As an
alternative, a claimant could petition the United States district court
in each of the States to pass upon the claim, with an appeal to the
Supreme Court in case of an adverse decision.
[End of section]
Appendix II: Articles VIII, IX, and Deleted Article X of the Treaty of
Guadalupe Hidalgo:
The following is an excerpt from the Treaty of Guadalupe Hidalgo
consisting of the provisions pertaining to protection of property.
Articles VIII and IX were included in the final Treaty; Article X was
deleted. The full text of the Treaty can be found at 9 Stat. 922.
"Article VIII;
"Mexicans now established in 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 free to continue
where they now reside, or to remove at any time to the Mexican
republic, retaining the property which they possess in the said
territories, or disposing thereof, and removing the proceeds wherever
they please, without their being subjected, on this account, to any
contribution, tax, or charge whatever; "Those who shall prefer to
remain in the said territories, may either retain the title and rights
of Mexican citizens, or acquire those of citizens of the United States.
But they shall be under the obligation to make their election within
one year from the date of the exchange of ratifications of this treaty;
and those who shall remain in the said territories after the expiration
of that year, without having declared their intention to retain the
character of Mexicans, shall be considered to have elected to become
citizens of the United States; "In the said territories, property of
every kind, now belonging to Mexicans not established there, shall be
inviolably respected. The present owners, the heirs of these, and all
Mexicans who may hereafter acquire said property by contract, shall
enjoy with respect to it guaranties equally ample as if the same
belonged to citizens of the United States;
"Article IX;
"Mexicans who, in the territories aforesaid, shall not preserve the
character of citizens of the Mexican republic, conformably with what is
stipulated in the preceding article, shall be incorporated into the
Union of the United States, and be admitted at the proper time (to be
judged of by the Congress of the United States) to the enjoyment of all
the rights of citizens of the United States, according to the
principles of the constitution; and in the mean time shall be
maintained and protected in the free enjoyment of their liberty and
property, and secured in the free exercise of their religion without
restriction;
"Article X [Deleted from the final version of the Treaty];
"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. But the grantees of lands in Texas, put in possession thereof,
who, by reason of the circumstances of the country since the beginning
of the troubles between Texas and the Mexican Government, may have been
prevented from fulfilling all the conditions of their grants, shall be
under the obligation to fulfill the said conditions within the periods
limited in the same respectively; such periods to be now counted from
the date of the exchange of ratifications of this treaty: in default of
which the said grants shall not be obligatory upon the State of Texas,
in virtue of the stipulations contained in this Article; "The foregoing
stipulation in regard to grantees of land in Texas, is extended to all
grantees of land in the territories aforesaid, elsewhere than in Texas,
put in possession under such grants; and, in default of the fulfillment
of the conditions of any such grant, within the new period, which, as
is above stipulated, begins with the day of the exchange of
ratifications of this treaty, the same shall be null and void."
[End of section]
Appendix III: Excerpts from the Protocol of Querétaro:
The Protocol of Querétaro consisted of an introductory paragraph, three
provisions, and a concluding paragraph. The following is an excerpt of
the Protocol consisting of the first provision, a portion of the second
provision that concerned grants, and the final paragraph.
"First;
"The American Government by suppressing the IXth article of the
Treaty of Guadalupe and substituting the III article of the Treaty of
Louisiana did not intend to diminish in any way what was agreed upon by
the aforesaid article IXth in favor of the inhabitants of the
territories ceded by Mexico. Its understanding that all of that
agreement is contained in the IIId article of the Treaty of Louisiana.
In consequence, all the privileges and guarantees, civil, political and
religious, which would have been possessed by the inhabitants of the
ceded territories, if the IXth article of the Treaty had been retained,
will be enjoyed by them without any difference under the article which
has been substituted;
"Second;
The American Government, by suppressing the Xth article of the Treaty
of Guadalupe did not in any way intend to annul the grants of lands
made by Mexico in the ceded territories. These grants, notwithstanding
the suppression of the article of the Treaty, preserve the legal value
which they may possess; and the grantees may cause their legitimate
titles to be acknowledged before the American tribunals;
"Conformably to the law of the United States, legitimate titles to
every description of property personal and real, existing in the ceded
territories, are those which were legitimate titles under the Mexican
law in California and New Mexico up to the 13th of May 1846, and in
Texas up to the 2d March 1836;
* * *
"And these explanations having been accepted by the Minister of Foreign
Affairs of the Mexican Republic, he declared in name of his Government
that with the understanding conveyed by them, the same Government would
proceed to ratify the Treaty of Guadalupe as modified by the Senate and
Government of the United States. In testimony of which their
Excellencies the aforesaid Commissioners and the Minister have signed
and sealed in quintuplicate the present protocol.".
[End of section]
Appendix IV: Excerpts from the Treaty Regarding the Gadsden Purchase:
The Gadsden Purchase Treaty was part of a larger treaty between the
United States and Mexico called the Treaty of Boundary, Cession of
Territory, Transit of Isthmus of Tehuantepec, which was signed on
December 30, 1853. The following are excerpts of the Treaty. The full
text of the treaty can be found at 10 Stat. 1031.
"Article V;
"All the provisions of the eighth and ninth, sixteenth and seventeenth
articles of the treaty of Guadalupe Hidalgo, shall apply to the
territory ceded by the Mexican republic in the first article of the
present treaty, and to all the rights of persons and property, both
civil and ecclesiastical, within the same, as fully and as effectually
as if the said articles were herein again recited and set forth;
"Article VI;
"No grants of land within the territory ceded by the first article of
this treaty bearing date subsequent to the day - twenty-fifth of
September - when the minister and subscriber to this treaty on the part
of the United States, proposed to the Government of Mexico to terminate
the question of boundary, will be considered valid or be recognized by
the United States, or will any grants made previously be respected or
be considered as obligatory which have not been located and duly
recorded in the archives of Mexico.".
[End of section]
Appendix V: Excerpts from the 1851 Act to Confirm California Land
Grants:
The following are excerpts from the 1851 Act, "An Act to Ascertain and
settle the private Land Claims in the State of California." The full
text of the 1851 Act can be found at 9 Stat. 631.
"Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That for the purpose of
ascertaining and settling private land claims in the State of
California, a commission shall be, and is hereby, constituted, which
shall consist of three commissioners, to be appointed by the President
of the United States, by and with the advice and consent of the Senate,
which omission shall continue for three years from the date of this
act, unless sooner discontinued by the President of the United States;
"Sec. 2. And be it further enacted, That a secretary, skilled in the
Spanish and English languages, shall be appointed by the said
commissioners, whose duty it shall be to act as interpreter, and to
keep a record of the proceedings of the board in a bound book, to be
filed in the office of the Secretary of the Interior on the termination
of the commission;
"Sec 3. And be it further enacted, That such clerks, not to exceed five
in number, as may be necessary, shall be appointed by the said
commissioners;
"Sec. 4. And be it further enacted, That it shall be lawful for the
President of the United States to appoint an agent learned in the law,
and skilled in the Spanish and English languages, whose special duty it
shall be to superintend the interest of the United States in the
premises, to continue him in such agency as long as the public interest
may, in the judgment of the President, require his continuance;
"Sec 5. And be it further enacted, That the said commissioners shall
hold their sessions at such times and places as the President of the
United States shall direct, of which they shall give due and public
notice; and the marshal of the district in which the board is sitting
shall appoint a deputy, whose duty it shall be to attend upon the said
board, and who shall receive the same compensation as is allowed to the
marshal for his attendance upon the District Court;
"Sec. 6. And be it further enacted, That the said commissioners, when
sitting as a board, and each commissioner at his chambers, shall be,
and are, and is hereby, authorized to administer oaths, and to examine
witnesses in any case pending before the commissioners, that all such
testimony shall be taken in writing, and shall be recorded and
preserved in bound books to be provided for that purpose;
"Sec. 7. And be it further enacted, That the secretary of the board
shall be, and he is hereby, authorized and required, on the application
of the law agent or district attorney of the United States, or of any
claimant or his counsel, to issue writs of subpoena commanding the
attendance of a witness or witnesses before the said board or any
commissioner;
"Sec. 8. And be it further enacted, That each and every person claiming
lands in California by virtue of any right or title derived from the
Spanish or Mexican government, shall present the same to the said
commissioners when sitting as a board, together with such documentary
evidence and testimony of witnesses as the said claimant relies upon in
support of such claims; and it shall be the duty of the commissioners,
when the case is ready for hearing, to proceed promptly to examine the
same upon such evidence, and upon the evidence produced in behalf of
the United States, and to decide upon the validity of the said claim,
and, within thirty days after such decision is rendered, to certify the
same, with the reasons on which it is founded, to the district attorney
of the United States in and for the district in which such decision
shall be rendered;
"Sec. 9. And be it further enacted, That in all cases of the rejection
or confirmation of any claim by the board of commissioners, it shall
and may be lawful for the claimant or the district attorney, in behalf
of the United States, to present a petition to the District Court of
the district in which the land claimed is situated, praying the said
court to review the decision of the said commissioners, and to decide
on the validity of such claim...[T]he said case shall stand for trial;
"Sec. 10. And be it further enacted, That the District Court shall
proceed to render judgment upon the pleadings and evidence in the case,
and upon such further evidence as may be taken by order of the said
court, and shall, on application of the party against whom judgment is
rendered, grant an appeal to the Supreme Court of the United States, on
such security for costs in the District and Supreme Court, in case the
judgment of the District Court shall be affirmed, as the said court
shall prescribe; and if the court shall be satisfied that the party
desiring to appeal is unable to give such security, the appeal may be
allowed without security;
"Sec. 11. And be it further enacted, That the commissioners herein
provided for, and the District and Supreme Courts, in deciding on the
validity of any claim brought before them under the provisions of this
act, shall be governed by the treaty of Guadalupe Hidalgo, the law of
nations, the laws, usages, and customs of the government from which the
claim is derived, the principles of equity, and the decisions of the
Supreme Court of the United States, so far as they are applicable;
* * *
"Sec. 13. And be it further enacted, That all lands, the claims to
which have been finally rejected by the commissioners in manner herein
provided, or which shall be finally decided to be invalid by the
District or Supreme Court, and all lands the claims to which shall not
have been presented to the said commissioners within two years after
the date of this act, shall be deemed, held, and considered as part of
the public domain of the United States; and for all claims finally
confirmed by the said commissioners, or by the said District or Supreme
Court, a patent shall issue to the claimant upon his presenting to the
general land office an authentic certificate of such confirmation, and
a plat or survey of the said land, duly certified and approved by the
surveyor-general of California, whose duty it shall be to cause all
private claims which shall be finally confirmed to be accurately
surveyed, and to furnish plats of the same;...Provided, always, That if
the title of the claimant to such lands shall be contested by any other
person, it shall and may be lawful for such person to present a
petition to the district judge of the United States for the district in
which the lands are situated, plainly and distinctly setting forth his
title thereto, and praying the said judge to hear and determine the
same, a copy of which petition shall be served upon the adverse party
thirty days before the time appointed for hearing the same. And
provided, further, That it shall and may be lawful for the district
judge of the United States, upon the hearing of such petition, to grant
an injunction to restrain the party at whose instance the claim to the
said lands has been confirmed, from suing out a patent for the same,
until the title thereto shall have been finally decided, a copy of
which order shall be transmitted to the commissioner of the general
land office, and thereupon no patent shall issue until such decision
shall be made, or until sufficient time shall, in the opinion of the
said judge, have been allowed for obtaining the same; and thereafter
the said injunction shall be dissolved;
"Sec. 14. And be it further enacted, That the provisions of this act
shall jot extend to any town lot, farm lot, or pasture lot, held under
a grant from any corporation or town to which lands may have been
granted for the establishment of a town by the Spanish or Mexican
government, or the lawful authorities thereof, nor to any city, or
town, or village lot, which city, town, or village existed on the
seventh day of July, eighteen hundred and forty-six; but the claim for
the same shall be presented by the corporate authorities of the said
town, or where the land on which the said city, town, or village was
originally granted to an individual, the claim shall be presented by or
in the name of such individual, and the fact of the existence of the
said city, town, or village on the said seventh July, eighteen hundred
and forty-six, being duly proved, shall be prima facie evidence of a
grant to such corporation, or to the individual under whom the said
lot-holders claim; and where any city, town, or village shall be in
existence at the time of passing this act, the claim for the land
embraced within the limits of the same may be made by the corporate
authority of the said city, town, or village;
"Sec. 15. And be it further enacted, That the final decrees rendered by
the said commissioners, or by the District or Supreme Court of the
United States, or any patent to be issued under this act, shall be
conclusive between the United States and the said claimants only, and
shall not affect the interests of the third persons....":
[End of section]
Appendix VI: Excerpts from the 1854 Act Establishing the Office of the
Surveyor General of New Mexico:
The following is an excerpt from the 1854 Act,
"An act to establish the offices of Surveyor-General of New Mexico,
Kansas, and Nebraska, to grant Donations to actual Settlers therein,
and for other purposes." The full text of the statute can be found at
10 Stat. 308.
"Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That the President, by and
with the advice and consent of the Senate, shall be, and he is hereby,
authorized to appoint a Surveyor-General for New Mexico, whose annual
salary shall be three thousand dollars, and whose power, authority, and
duties shall be the same as those provided by law for the Surveyor-
General of Oregon; he shall have proper allowances for clerk hire,
office rent, and fuel, not exceeding what now is or hereafter may be
allowed by law to the said Surveyor-General of Oregon; and he shall
locate his office from time to time at such places as may be directed
by the President of the United States;
"Sec. 2. And be it further enacted, That, to every white male citizen
of the United States, or every white male above the age of twenty-one
years who has declared his intention to become a citizen, and who was
residing in said Territory prior to the first day of January, eighteen
hundred and fifty-three, and who may be still residing there, there
shall be, and hereby is, donated one quarter section, or one hundred
and sixty acres of land. And to every white male citizen of the United
States, or every white male above the age of twenty-one years, who has
declared his intention to become a citizen, and who shall have removed
or shall remove to and settle in said Territory between the first day
of January, eighteen hundred and fifty-three, and the first day of
January, eighteen hundred and fifty-eight, there shall in like manner
be donated one quarter section, or one hundred and sixty acres, on
condition of actual settlement and cultivation for not less than four
years: Provided, however, That each of said donations shall include the
actual settlement and improvement of the donee, and shall be selected
by legal subdivisions, within three months after the survey of the land
where the settlement was made before the survey; and where the
settlement has been made; and all persons failing to designate the
boundaries of their claims within that time, shall forfeit all right to
the same;
* * *
"Sec. 8. And be it further enacted, That it shall be the duty of the
Surveyor-General, under such instructions as may be given by the
Secretary of the Interior, to ascertain the origin, nature, character,
and extent of all claims to lands under the laws, usages, and customs
of Spain and Mexico; and, for this purpose, may issue notices, summons
witnesses, administer oaths, and do and perform all other necessary
acts in the premises. He shall make a full report on all such claims as
originated before the cession of the territory to the United States by
the treaty of Guadalupe Hidalgo, of eighteen hundred and forty-eight,
denoting the various grades of title, with his decision as to the
validity or invalidity of each of the same under the laws, usages, and
customs of the country before its cession to the United States; and
shall also make a report in regard to all pueblos existing in the
Territory, showing the extent and locality of each, stating the number
of inhabitants in the said pueblos, respectively, and the nature of
their titles to the land. Such report to be made according to the form
which may be prescribed by the Secretary of the Interior; which report
shall be laid before Congress for such action thereon as may be deemed
just and proper, with a view to confirm bona fide grants, and give full
effect to the treaty of eighteen hundred and forty-eight between the
United States and Mexico; and until the final action of Congress on
such claims, all lands covered thereby shall be reserved from sale or
other disposal by the government, and shall not be subject to the
donations granted by the previous provisions of this act.":
[End of section]
Appendix VII: Excerpts from the 1891 Act Establishing the Court of
Private Land Claims:
The following are excerpts from the 1891 Act,
"An act to establish a court of private land claims, and to provide for
the settlement of private land claims in certain States and
Territories.
" The full text of the statute can be found at 26 Stat. 854.
"Sec. 3. That immediately upon the organization of said court the clerk
shall cause notices thereof, and of the time and place of the first
session thereof, to be published for a period of ninety days in one
newspaper at the city of Washington and in one published at the capital
of the State of Colorado and of the Territories of Arizona and New
Mexico. Such notices shall be published in both the Spanish and English
languages, and shall contain the substance of this act;
* * *
"Sec. 6. That it shall and may be lawful for any person or persons or
corporation, or their legal representatives, claiming lands within the
limits of the territory derived by the United States from the Republic
of Mexico and now embraced within the Territories of New Mexico,
Arizona, or Utah, or within the States of Nevada, Colorado, or Wyoming
by virtue of any such Spanish or Mexican grant, concession, warrant, or
survey as the United States are bound to recognize and confirm by
virtue of the treaties of cession of said country by Mexico to the
United States which at the date of the passage of this act have not
been confirmed by act of Congress, or otherwise finally decided upon by
lawful authority, and which are not already complete and perfect, in
every such case to present a petition, in writing, to the said court in
the State or Territory where said land is situated and where the said
court holds its sessions, but cases arising in the States and
Territories in which the court does not hold regular sessions may be
instituted at such place as may be designated by the rules of the
court;
"Sec. 7. That all proceedings subsequent to the filing of said petition
shall be conducted as near as may be according to the practice of the
courts of equity of the United States, except that the answer of the
attorney of the United States shall not be required to be verified by
his oath, and except that, as far as practicable, testimony shall be
taken in court or before one of the justices thereof. The said court
shall have full power and authority to hear and determine all questions
arising in cases before it relative to the title to the land the
subject of such case, the extent, location, and boundaries thereof, and
other matters connected therewith fit and proper to be heard and
determined, and by a final decree to settle and determine the question
of the validity of the title and the boundaries of the grant or claim
presented for adjudication, according to the law of nations, the
stipulations of the treaty concluded between the United States and the
Republic of Mexico at the city of Guadalupe-Hidalgo, on the second day
of February, in the year of our Lord, eighteen hundred and forty-eight,
or the treaty concluded between the same powers at the city of Mexico,
on the thirtieth day of December, in the year of our Lord, eighteen
hundred and fifty-three, and the laws and ordinances of the Government
from which it is alleged to have been derived, and all other questions
properly arising between the claimants or other parties in the case and
the United States, which decree shall in all cases refer to the treaty,
law, or ordinance under which such claim is confirmed or rejected; and
in confirming any such claim, in whole or in part, the court shall in
its decree specify plainly the location, boundaries, and area of the
land the claim to which is so confirmed;
"Sec. 8. That any person or corporation claiming lands in any of the
States or Territories mentioned in this act under a title derived from
the Spanish or Mexican Government that was complete and perfect at the
date when the United States acquired sovereignty therein, shall have
the right (but shall not be bound) to apply to said court in the manner
in this act provided for other cases for a confirmation of such title;
and on such application said court shall proceed to hear, try, and
determine the validity of the same and the right of the claimant
thereto, its extent, location and boundaries, in the same manner and
with the same powers as in other cases in this act mentioned;
If in any such case, a title so claimed to be perfect shall be
established and confirmed, such confirmation shall be for so much land
only as such perfect title shall be found to cover, always excepting
any part of such land that shall have been disposed of by the United
States, and always subject to and not to affect any conflicting private
interests, rights, or claims held or claimed adversely to any such
claim or title, or adversely to the holder of any such claim or title.
And no confirmation of claims or titles in this section mentioned shall
have any effect other or further than as a release of all claim of
title by the United States; and no private right of any person as
between himself and other claimants or persons, in respect of any such
lands, shall be in any manner affected thereby;
It shall be lawful for and the duty of the head of the Department of
Justice, whenever in his opinion the public interest or the rights of
any claimant shall require it, to cause the attorney of the United
States in said court to file in said court a petition against the
holder or possessor of any claim or land in any of the States or
Territories mentioned in this act who shall not have voluntarily come
in under the provisions of this act, stating in substance that the
title of such holder or possessor is open to question, or stating in
substance that the boundaries of any such land, the claimant or
possessor to or of which has not brought the matter into court, are
open to question, and praying that the title to any such land, or the
boundaries thereof, if the title be admitted, be settled and
adjudicated; and thereupon the court shall, on such notice to such
claimant or possessor as it shall deem reasonable, proceed to hear,
try, and determine the questions stated in such petition or arising in
the matter, and determine the matter according to law, justice, and the
provisions of this act, but subject to all lawful rights adverse to
such claimant or possessor, as between such claimant and possessor and
any other claimant or possessor, and subject in this respect to all the
provisions of this section applicable thereto;
"Sec. 9. That the party against whom the court shall in any case
decide--the United States, in case of the confirmation of a claim in
whole or in part, and the claimant, in case of the rejection of a
claim, in whole or in part--shall have the right of appeal to the
Supreme Court of the United States, such appeal to be taken within six
months from date of such decision, and in all respects to be taken in
the same manner and upon the same conditions, except in respect of the
amount in controversy, as is now provided by law for the taking of
appeals from decisions of the circuit courts of the United States. On
any such appeal the Supreme Court shall retry the cause, as well the
issues of fact as of law, and may cause testimony to be taken in
addition to that given in the court below, and may amend the record of
the proceedings below as truth and justice may require; and on such
retrial and hearing every question shall be open, and the decision of
the Supreme Court thereon shall be final and conclusive. Should no
appeal be taken as aforesaid the decree of the court below shall be
final and conclusive;
"Sec. 10. That whenever any decision of confirmation shall become
final, the clerk of the court in which the final decision shall be had
shall certify that fact to the Commissioner of the General Land Office,
with a copy of the decree of confirmation, which shall plainly state
the location, boundaries, and area of the tract confirmed. The said
Commissioner shall thereupon without delay cause the tract so confirmed
to be surveyed at the cost of the United States. When any such survey
shall have been made and returned to the surveyor-general of the
respective Territory or State, and the plat thereof completed, the
surveyor-general shall give notice that same has been done, by
publication once a week, for four consecutive weeks in two newspapers,
one published at the capital of the Territory or State and the other
(if any such there be) published near the land so surveyed, such
notices to be published in both the Spanish and English languages; and
the surveyor-general shall retain such survey and plat in his office
for public inspection for the full period of ninety days from the date
of the first publication of notice in the newspaper published at the
capital of the Territory or State;
If, at the expiration of such period, no objection to such survey shall
have been filed with him, he shall approve the same and forward it to
the Commissioner of the General Land Office. If, within the said period
of ninety days, objections are made to such survey, either by any party
claiming an interest in the confirmation or by any party claiming an
interest in the tract embraced in the survey or any part thereof, such
objection shall be reduced to writing, stating distinctly the interest
of the objector and the grounds of his objection, and signed by him or
his attorney, and filed with the surveyor-general, with such affidavits
or other proofs as he may produce in support of his objection. At the
expiration of the said ninety days the surveyor-general shall forward
such survey, with the objections and proofs filed in support of or in
opposition to such objections, and his report thereon, to the
Commissioner of the General Land Office;
Immediately upon receipt of any such survey, with or without objections
thereto, the said Commissioner shall transmit the same, with all
accompanying papers, to the court in which the final decision was made
for its examination of the survey and of any objections and proofs that
may have been filed, or shall be furnished; and the said court shall
thereupon determine if the said survey is in substantial accordance
with the decree of confirmation. If found to be correct, the court
shall direct its clerk to indorse upon the face of the plat its
approval. If found to be incorrect, the court shall return the same for
correction in such particulars as it shall direct. When any survey is
finally approved by the court, it shall be returned to the Commissioner
of the General Land Office, who shall as soon as may be cause a patent
to be issued thereon to the confirmee;
* * *
"Sec. 12. That all claims mentioned in section six of this act which
are by the provisions of this act authorized to be prosecuted shall, at
the end of two years from the taking effect of this act, if no petition
in respect to the same shall have then been filed as herein before
provided, be deemed and taken, in all courts and elsewhere, to be
abandoned and shall be forever barred;
"Sec. 13. That all the foregoing proceedings and rights shall be
conducted and decided subject to the following provisions as well as to
the other provisions of this act, namely:
"First. No claim shall be allowed that shall not appear to be upon a
title lawfully and regularly derived from the Government of Spain or
Mexico, or from any of the States of the Republic of Mexico having
lawful authority to make grants of land, and one that if not then
complete and perfect at the date of the acquisition of the territory by
the United States, the claimant would have had a lawful right to make
perfect had the territory not been acquired by the United States, and
that the United States are bound, upon the principles of public law, or
by the provisions of the treaty of cession, to respect and permit to
become complete and perfect if the same was not at said date already
complete and perfect;
"Second. No claim shall be allowed that shall interfere with or
overthrow any just and unextinguished Indian title or right to any land
or place;
* * *
"Fourth. No claim shall be allowed for any land the right to which has
hitherto been lawfully acted upon and decided by Congress, or under its
authority;
"Fifth. No proceeding, decree, or act under this act shall conclude or
affect the private rights of persons as between each other, all of
which rights shall be reserved and saved to the same effect as if this
act had not been passed; but the proceedings, decrees, and acts herein
provided for shall be conclusive of all rights as between the United
States and all persons claiming any interest or right in such lands;
"Sixth. No confirmation of or decree concerning any claim under this
act shall in any manner operate or have effect against the United
States otherwise than as a release by the United States of its right
and title to the land confirmed, nor shall it operate to make the
United States in any manner liable in respect of any such grants,
claims, or lands, or their disposition, otherwise than as is in this
act provided;
"Seventh. No confirmation in respect of any claims or lands mentioned
in section six of this act or in respect of any claim or title that was
not complete and perfect at the time of the transfer of sovereignty to
the United States as referred to in this act, shall in any case be made
or patent issued for a greater quantity than eleven squares leagues of
land to or in the right of any one original grantee or claimant, or in
the right of any one original grant to two or more persons jointly, nor
for a greater quantity than was authorized by the respective laws of
Spain or Mexico applicable to the claim;
"Eighth. No concession, grant, or other authority to acquire land made
upon any condition or requirement, either antecedent or subsequent,
shall be admitted or confirmed unless it shall appear that every such
condition and requirement was performed within the time and in the
manner stated in any such concession, grant, or other authority to
acquire land;
"Sec. 14. That if in any case it shall appear that the lands or any
part thereof decreed to any claimant under the provisions of this act
shall have been sold or granted by the United States to any other
person, such title from the United States to such other person shall
remain valid, notwithstanding such decree, and upon proof being made to
the satisfaction of said court of such sale or grant, and the value of
the lands so sold or granted, such court shall render judgment in favor
of such claimant against the United States for the reasonable value of
said lands so sold or granted, exclusive of betterments, not exceeding
one dollar and twenty-five cents per acre for such lands; and such
judgment, when found, shall be a charge on the Treasury of the United
States. Either party deeming himself aggrieved by such judgment may
appeal in the same manner as provided herein in cases of confirmation
of a Spanish or Mexican grant. For the purpose of ascertaining the
value and amount of such lands, surveys may be ordered by the court,
and proof taken before the court, or by a commissioner appointed for
that purpose by the court;
* * *
"Sec. 16. That in township surveys hereafter to be made in the
Territories of New Mexico, Arizona, and Utah, and in the States of
Colorado, Nevada, and Wyoming if it shall be made to appear to the
satisfaction of the deputy surveyor making such survey that any person
has, through himself, his ancestors, grantors, or their lawful
successors in title or possession, been in the continuous adverse
actual bona fide possession, residing thereon as his home, of any tract
of land or in connection therewith of other lands, all together not
exceeding one hundred and sixty acres in such township for twenty years
next preceding the time of making such survey, the deputy surveyor
shall recognize and establish the lines of such possession and make the
subdivision of the adjoining lands in accordance therewith;
"Sec. 17. That in the case of townships heretofore surveyed in the
Territories of New Mexico, Arizona, and Utah, and the States of
Colorado, Nevada, and Wyoming, all persons who, or whose ancestors,
grantors, or their lawful successors in title or possession, became
citizens of the United States by reason of the treaty of Guadalupe-
Hidalgo, and who have been in the actual continuous adverse possession
and residence thereon of tracts of not to exceed one hundred and sixty
acres each, for twenty years next preceding such survey, shall be
entitled, upon making proof of such facts to the satisfaction of the
register and receiver of the proper land district, and of the
Commissioner of the General Land Office upon such investigation as is
provided for in section sixteen of this act, to enter without payment
of purchase money, fees, or commissions, such legal subdivisions, not
exceeding one hundred and sixty acres, as shall include their said
possessions: Provided, however, That no person shall be entitled to
enter more than one such tract, in his own right, under the provisions
of this section;
"Sec. 18. That all claims arising under either of the two next
preceding sections of this act shall be filed with the surveyor-general
of the proper State or Territory within two years next after passage of
this act, and no claim not so filed shall be valid. And the class of
cases provided for in said two next preceding sections shall not be
considered or adjudicated by the court created by this act, and no
tract of such land shall be subject to entry under the land laws of the
United States."
[End of section]
Appendix VIII: Organizations and Individuals Contacted for GAO's
Reports:
During the course of our reviews for the first and second GAO reports
regarding the Treaty of Guadalupe Hidalgo, we interviewed and
communicated with heirs and members of boards of trustees of 45
community land grants in New Mexico. We also contacted the Governors of
19 Indian Pueblos, and historians, researchers, and others who have
studied land grant issues. These included lawyers representing the
interests of land grant heirs; officials at the U.S. Bureau of Land
Management, the U.S. Bureau of Indian Affairs, and the U.S. Forest
Service; several counties in which land grants exist; and various
representatives of other entities or interests associated with land
grant issues in New Mexico.
For our first report, we convened community meetings with various heirs
and land grant boards of trustees to get a better understanding of
community land grant issues and to solicit comments on our approach. We
also consulted with the Indian Pueblos and explained our work. For this
second report, we met with several land grant boards of trustees to
collect information. We also recontacted the Indian Pueblos to discuss
our work and its impacts, including at a briefing provided at an All
Indian Pueblo Council meeting at which representatives of 10 Indian
Pueblos were present.
Following are the names of the land grants, Indian Pueblos and others
that we contacted:
Original Documentation Community Land Grants:
Abiquiú (Town of);
Antón Chico (Town of);
Arroyo Hondo;
Atrisco (Town of);
Bernabé Manuel Montaño;
Cañón de Carnue;
Cañón de Chama;
Cañón de San Diego;
Cebolletta (Town of);
Chaperito (Town of);
Chililí (Town of);
Cubero (Town of);
Don Fernando de Taos;
Juan Bautista Valdez;
Las Trampas (Town of);
Las Vegas (Town of);
Los Trigos Manzano (Town of);
Mora (Town of);
Nicolás Durán de Cháves;
Nuestra Señora del Rosario, San Fernando y Santiago Ojo Caliente;
Petaca;
San Antonio de las Huertas;
San Miguel del Vado;
San Antoñito;
San Joaquín del Nacimiento;
San Pedro;
Santa Bárbara;
Sevilleta;
Tejón (Town of);
Tierra Amarilla;
Tomé (Town of);
Torreón (Town of):
Self-identified Community Land Grants:
Alameda (Town of);
Bernalillo (Town of);
Cristóbal de la Serna;
Embudo;
Francisco Montes Vigil;
La Majada;
Mesita de Juana López;
Polvadera;
Sangre de Cristo;
Santo Domingo de Cundiyó;
Sebastián Martín;
Tecolote (Town of):
Pueblo Community Land Grants:
Pueblo of Acoma;
Pueblo of Cochití;
Pueblo of Isleta;
Pueblo of Jémez;
Pueblo of Laguna;
Pueblo of Nambé;
Pueblo of Picurís;
Pueblo of Pojoaque;
Pueblo of San Felipe;
Pueblo of San Ildefonso;
Pueblo of San Juan;
Pueblo of Sandía;
Pueblo of Santa Ana;
Pueblo of Santa Clara;
Pueblo of Santo Domingo;
Pueblo of Taos;
Pueblo of Tesuque;
Pueblo of Zía;
Pueblo of Zuñí:
Scholars, Researchers, and Attorneys:
Anselmo F. Arellano, Ph.D., Telaraña Research, Las Vegas, NM;
David Benavides, Attorney at Law, Community and Indian Legal Services
of Northern New Mexico, Santa Fe, NM;
Tomas Benevidez, Town Attorney, Taos, NM;
Pete V. Domenici, Jr. Attorney at Law, Albuquerque, NM;
Malcolm Ebright, President, Center for Land Grant Studies, Guadalupita,
NM;
Narcisco Garcia, Attorney at Law, Albuquerque, NM;
Jeffrey A. Goldstein, Attorney at Law, Denver, CO;
Paula Garcia, Director, New Mexico Acequia Association, Santa Fe, NM;
Felipe Gonzalez, Ph.D, Director, Southwest Research Institute,
University of New Mexico, Albuquerque, NM;
Gerald Gonzales, Attorney at Law, Santa Fe, NM;
G. Emlen Hall, Professor, University of New Mexico School of Law,
Albuquerque, NM;
Robert Hemmerich y Valencia, Ph.D., Emeritus Editor, New Mexico
Historical Review, Albuquerque, NM;
Stanley Hordes, President, HMS Associates, Albuquerque, NM;
Richard Hughes, Attorney at Law, Santa Fe, NM;
Christine A. Klein, Professor of Law, University of Florida,
Gainesville, FL;
Teresa Leger de Fernandez, Attorney at Law, Santa Fe, NM;
Carmen Quintana, La Herencia en Santa Fe, Santa Fe, NM;
Jane C. Sánchez, Researcher, Albuquerque, NM;
Joseph Sánchez, Ph.D., Director, Spanish Colonial Research Center, U.S.
National Park Service/University of New Mexico, Albuquerque, NM;
Charles R. Thompson, Attorney at Law, Albuquerque, NM;
Robert Torrez, Former State Historian, New Mexico State Archives and
Records Center, Santa Fe, NM;
Frank Trujillo, Historian, Taos, NM;
Victor Westphall, Ph.D., Former President, Historical Society of New
Mexico and Chief Executive Officer, Vietnam Veterans National Memorial,
Eagle Nest, NM:
Agencies and Organizations:
Local governments:
County of Cibola;
County of Rio Arriba;
County of Santa Fe;
County of Taos;
Town of Taos:
State government agencies:
New Mexico Attorney General's Land Grant Task Force;
New Mexico State Records Center & Archives;
New Mexico Legislature, Land Grant Committee;
University of New Mexico, Center for Southwest Research, Zimmerman
Library University of New Mexico, Law School Library:
Federal government agencies:
U.S. Bureau of Indian Affairs, Department of the Interior;
U.S. Bureau of Land Management, Department of the Interior;
U.S. Forest Service, Department of Agriculture;
U.S. National Archives and Records Administration;
U.S. National Park Service, Department of the Interior:
Additional contacts:
All Indian Pueblo Council;
Fray Angelico Chavez Library;
Jicarilla Apache Nation;
New Mexico Land Grant Forum;
Northern New Mexico Stockmen's Association:
[End of section]
Appendix IX: Instructions Issued by Interior to the Surveyor General of
New Mexico as Required by the 1854 Act:
[End of section]
Instructions to the Surveyor General of New Mexico:
"General Land Office, August 21, 1854.
"Sir: The 8th section of the act approved 22d July last, for the
establishment of the office of surveyor general in New Mexico, declares
as follows:
"'Sec. 8. And be it further enacted, That it shall be the duty of the
surveyor general, under such instructions as may be given by the
Secretary on the Interior, to ascertain the origin, nature, character,
and extent of all claims to lands under the laws, usages, and customs
of Spain and Mexico; and for this purpose may issue notices, summon
witnesses, administer oaths, and do and perform all other necessary
acts in the premises;
"'He shall make a full report on all such claims as originated before
the cession of the territory to the United States by the treaty of
Guadalupe Hidalgo, of eighteen hundred and forty-eight, denoting the
various grades of title, with his decision as to the validity or
invalidity of each of the same under the laws, usages, and customs of
the country before its cession to the United States; and shall also
make a report in regard to all pueblos existing in the Territory,
showing the extent and locality of each, stating the number of
inhabitants in the said pueblos respectively, and the nature of their
titles to the land. Such report to be made according to the form which
may be prescribed by the Secretary of the Interior; which report shall
be laid before Congress for such action thereon as may be deemed just
and proper, with a view to confirm bona fide grants, and give full
effect to the treaty of eighteen hundred and forty-eight between the
United States and Mexico; and until the final action of Congress on
such claims, all lands shall be reserved from sale or other disposal by
the government, and shall not be subject to the donations granted by
the previous provisions of this act.'
"The duty which this enactment devolves upon the surveyor general is
highly important and responsible. He has it in charge to prepare a
faithful report of all the land titles in New Mexico which had their
origin before the United States succeeded to the sovereignty of the
country, and the law contemplates such a report as will enable Congress
to make a just and proper discrimination between such as are bona fide
and should be confirmed, and such as are fraudulent or otherwise
destitute of merit, and ought to be rejected;
"The treaty of 1848 between the United States and Mexico (United States
Statutes at Large, volume 9, page 922) expressly stipulates in the 8th
and 9th articles for the security and protection of private property.
The terms there employed in this respect are the same in substance as
those used in the treaty of 1803, by which the French republic ceded
the ancient province of Louisiana to the United States; and
consequently, in the examination of foreign titles in New Mexico, you
will have the aid of the enlightened decisions, and the principles
therein developed, of the Supreme Court of the United States, upon the
titles that were based upon the treaty of cession and the laws of
Congress upon the subject;
"The security to private property for which the treaty of Guadalupe
Hidalgo stipulates, is in accordance with the principles of public law
as universally acknowledged by civilized nations;
"The people change their allegiance; their relation to their ancient
sovereign is dissolved; but their relations to each other, and their
rights of property, remain undisturbed.'--United States vs. Perchman, 7
Peters' Reports;
"In the case of the United States vs. Arredondo and others, 6th Peters'
Reports, the Supreme Court declare that Congress 'have adopted, as the
basis of all their acts, the principle that the law of the province in
which the land is situated is the law which gives efficacy to the
grant, and by which it is to be tested whether it was property at the
time the treaties took effect.'
"Upon the same basis Congress has proceeded in the present act of
legislation, which requires the surveyor general, under instructions
from the Secretary of the Interior, to ascertain the origin, nature,
character and extent of all claims to land 'under the laws, usages, and
customs of Spain and Mexico;' and arms the surveyor general with power
for the purpose, by authorizing him to 'issue notices, summon
witnesses, administer oaths, and do and perform all other necessary
acts in the premises.'
"The private land titles in New Mexico are derived from the authorities
of Old Spain, as well as of Mexico;
"Among the 'necessary acts' contemplated by the law and required of
you, is, that you shall--:
"1st. Acquaint yourself with the land system of Spain as applied to her
ultra marine possessions, the general features of which are found--
modified, of course, by local requirements and usages--in the former
provinces and dependencies of that monarchy on this continent. For this
purpose you must examine the laws of Spain, the royal ordinances,
decrees and regulations as collected in Whites's Recopilacion, 2 vols;
"By the acts of Congress approved 26th May, 1824, 23d May, 1828, and
17th June, 1844, (United States Statutes at Large, vol. 4, page 52,
chap. 173; page 284, chap. 70; and vol. 5, page 676, chap. 95,) the
United States district courts were opened for the examination and
adjudication of foreign titles. Numerous cases on appeal under these
laws, and other cases on writs of error, in which actions on ejectment
in the courts below had been instituted, were brought before the
Supreme Court of the United States, where the rights of property under
inceptive and imperfect titles which originated under the Spanish
system have been thoroughly examined and discussed with eminent
ability;
"For these decisions I refer you to Peters' and Howard's Reports of the
Decisions of the Supreme Court of the United States. It is important
you should carefully examine them in connexion with the Spanish law,
and the legislation of Congress on the subject, in order that you may
understand and be able to apply the principles of the Spanish system as
understood and expounded by the authorities of our government;
"2d. Upon your arrival at Santa Fé you will make application to the
governor of the Territory for such of the archives as relate to grants
of land by the former authorities of the country. You will see that
they are kept in a place of security from fire, or other accidents, and
that access is allowed only to land owners who may find it necessary to
refer to their title records, and such references must be made under
your eye, or that of a sworn employé of the government;
"You will proceed at once to arrange and classify the papers in the
order of date, and have them properly and substantially bound. You will
then have schedules (marked 1) of them made out in duplicate, and will
prepare abstracts, (No. 2) also in duplicate, of all the grants found
in the records, showing the names of grantees, date, area, locality, by
whom conceded, and under what authority;
"You will prepare, in duplicate, from the archives or authoritative
sources, a document, (No. 3) exhibiting the names of all the officers
of the Territory who held the power of distributing lands from the
earliest settlement of the territory until the change of government,
indicating the several periods of their incumbency, the nature and
extent of their powers conceding lands; whether, and to what extent,
and under what conditions and limitations, authority existed in the
governors or political chiefs to distribute (repartir) the public
domain; whether in any class of cases they had the power to make an
absolute grant; and is so, for what maximum in area; or, whether
subject to the affirmance of the department or supreme government;
whether the Spanish surveying system was in operation, and since what
period in the country, and under what organization; also, with verified
copies in the original, and translations, of the laws and decrees of
the Mexican republic, and regulations which may have been adopted by
the general government of that republic for the disposal of the public
lands in New Mexico. Herewith you will receive a table of land measures
adopted by the Mexican government, translated from the 'Ordenanzas de
Tierras y Aguas,' by Marianas Galvan, edition of 1844, as printed in
Ex. Doc, No. 17, 1st session 31st Congress, House of Representatives,
containing much valuable information on the subject of California and
New Mexico, and of which document I would invite your special and
careful examination;
"In a report of the 14th November, 1851, from the surveyor general of
California, it is stated that all the grants, &c., of lots or lands in
California, made either by the Spanish government or that of Mexico,
refer to the 'vara' of Mexico as the measure of length; that, by common
consent in California, that measure is considered as exactly equivalent
to thirty-three American inches. That officer then enclosed to us copy
of a document he had obtained as being an extract of a treaty made by
the Mexican government, from which it would seem that another length is
given to the 'vara;' and by J. H. Alexander's (of Baltimore) Dictionary
of Weights and Measures, the Mexican vara is stated to be equal to
92.741 of the American yard;
"This office, however, has sanctioned the recognition, in California,
of the Mexican vara, as being equivalent to thirty-three American
inches;
"You will carefully compare the data furnished in the table herewith,
and in the foregoing, with the Spanish measurements in use in New
Mexico, and will report whether they are identical; or if varied in any
respect by law or usage, you will make a report of all the particulars;
"You should also add to 'document No. 3,' the forms used under the
former governments to obtain grants, beginning with the initiatory
proceeding, viz; the petition, and indicating the several successive
acts until the title was completed. A copy of the 'schedule,'
'abstract,' and 'document,' required of you in the foregoing, duly
authenticated by you, should constitute a part of the permanent files
of the surveyor general's office, and duplicates of them should be sent
as soon as practicable to the Department of the Interior;
"The knowledge and experience you will acquire in arranging the
archives, collecting materials, and making out the documents called for
by these instructions, will enable you to enter understandingly upon
the work of receiving and examining the testimony which may be
presented to you by land claimants, and prepare your report thereon,
for the action of Congress;
"In the first instance, you will provide yourself with a journal,
consisting of substantially bound volume or volumes, which is to
constitute a complete record of your official proceedings in regard to
land titles; and with a suitable docket, for the entry therein of
claims in the order of their presentation, and so arranged as to
indicate at a glance a brief statement of each case, its number, name
of original and present claimant, area, locality, from what authority
derived, nature of title--whether complete or incomplete, and your
decision thereon;
"Your first session should be held at Santa Fé, and your subsequent
sessions at such places and periods as public convenience may suggest,
of which you will give timely notice to the department;
"You will commence your session by giving proper public notice of the
same, in a newspaper of the largest circulation in the English and
Spanish languages--will make known your readiness to receive notices
and testimony in support of the land claims of individuals, derived
before the change of government;
"You will require claimants in every case--and give public notice to
that effect--to file a written notice setting forth the name of,
'present claimant;' name of the 'original claimant;' nature of claim--
whether inchoate or perfect; its date; from what authority the original
title was derived, with a reference to the evidence of the power and
authority under which the granting officer may have acted; quantity
claimed; locality, notice, and extent of conflicting claims, if any,
with a reference to the documentary evidence and testimony relied upon
to establish the claim, and to show a transfer of right from the
'original grantee' to 'present claimant.'
"You will also require of every claimant an authenticated plat of
survey, if a survey has been executed, or other evidence, showing the
precise locality and extent of the tract claimed;
"This is indispensable, in order to avoid any doubt hereafter in
reserving from sale, as contemplated by law, the particular tract or
parcel of land for which a claim may be duly filed, or in communicating
the title to the same hereafter, in the event of a final confirmation;
"The effect of this will be not only to save claimants from
embarrassments and difficulties, inseparable from the presentation and
adjudication of claims with indefinite limits, but will promote the
welfare of the country generally, by furnishing the surveyor general
with evidence of what is claimed as private property, under treaty and
the act of July 22, 1854; thus enabling him to ascertain what is
undisputed public land, and to proceed with the public surveys
accordingly, without awaiting the final action of Congress upon the
subject;
"You will take care to guard the public against fraudulent or antedated
claims, and will bring the title-papers to the test of the genuine
signatures, which you should collect of the granting officers, as well
as to the test of the official registers or abstracts which may exist
of the titles issued by the granting officers. In all cases, of course,
the original title-papers are to be produced, or loss accounted for;
and where copies are presented, they must be authenticated; and your
report should also state the precise character of the papers acted upon
by you, whether originals or otherwise. Where the claim may be
presented by a party as "present claimant"in right of another, you must
be satisfied that the deraignment of title is complete; otherwise, the
entry and your decision should be in favor of the 'legal
representatives' of the original grantee;
"Your journal should be prefaced by a record of the law under which you
are required to act, and of your commission and oath of office; and
should contain a full record of the notice and evidence in support of
each claim, and of your decision, setting forth, as succinctly and
concisely as possible, all the leading facts, particulars, and the
principles applicable to the case, and upon which such decision may be
founded. All the original papers should of course be carefully
numbered, filed, and preserved; and upon each should be endorsed the
volume and page of the record in which they are entered, and such
reference should be made on the journal and docket as will properly
connect them with each other;
"Your docket should be a condensed exhibit of every case and of your
decision. The claims, both as to grade and dignity, may be classified
by numerals or alphabetically, accompanied by explanatory notes, in
such a manner that it will show every case confirmed, and every one
rejected by you;
"In the case of any town lot, farm lot, or pasture lots, held under a
grant from any corporation or town to which lands may be granted for
the establishment of a town, by the Spanish or Mexican government, or
the lawful authorities thereof, or in the case of any city, town, or
village lot, which city, town, or village existed at the time
possession was taken of New Mexico by the authorities of the United
States, the claim to the same may be presented by the corporate
authorities; or where the land on which the said city, town, or
village, was originally granted to an individual, the claim may be
presented by or in the name of such individual; and the fact being
proved to you of the existence of such city, town, or village at the
period when the United Sates took possession, may be considered by you
as prima facie evidence of a grant to such corporation, or to the
individuals under whom the lot-holders claim; and where any city, town,
or village shall be in existence at the passage of the act of 22d July,
1854, the claim for the land embraced within the limits of the same may
be made and proved up before you by the corporate authority of the said
city, town, or village. Such is the principle sanctioned by the act of
3d March, 1851, for the adjudication of Spanish and Mexican claims in
California; and I think its application and adoption proper in regard
to claims in New Mexico;
"In the month of March, 1849, there was published in the Atlantic
States an extract of a letter dated December 12, 1848, at Santa Fé, New
Mexico, purporting to be from a young officer of the army, in which it
was stated that "the prefect at El Paso del Norte has for the last few
months been very active in disposing (for his own benefit) of all lands
in that vicinity that are valuable, antedating the title to said
purchasers; that "these land titles would "be made a source of
profitable litigation," &c. It will be your duty to subject all papers
under suspicion of fraud to the severest scrutiny and test, in order to
settle the question of their genuineness;
"You will also collect information, from authentic sources, in
reference to the laws of the country respecting minerals, and ascertain
what conditions were attached to grants embracing mines; whether or not
the laws and policy of the former governments conferred absolute title
in granting lands of this class in New Mexico. It is proper, also, and
you are instructed in the case of every claim that may be filed, to
ascertain from the parties, and require testimony, as to whether the
tracts claimed are mineral or agricultural; and you will be careful to
make the necessary discrimination in the record of your proceedings and
in your docket;
"Your report should be divided into two parts. Part first should
embrace individual and municipal claims, and should be prepared in the
manner contemplated by law, and in accordance with the requirements in
the foregoing instructions;
"The law further requires you, also, to 'make a report in regard to all
pueblos existing in the Territory, showing the extent and locality of
each, stating the number of inhabitants in the said pueblos
respectively, and the nature of their titles to the land.'
"Part second of your report should be devoted to this branch of duty;
"It will be your business to collect data from the records and other
authentic sources relative to these pueblos, so that you will enable
Congress to understand the matter fully, and legislate in such a manner
as will do justice to all concerned;
"In a report dated July 29, 1849, in camp near Santa Fé, from the
Indian agent, James S. Calhoun, to the Commissioner of Indian Affairs,
he says: 'The Pueblo Indians, it is believed, are entitled to the early
and especial consideration of the government of the United States; they
are the only tribe in perfect amity with the government, and are an
industrious, agricultural, and pastoral people, living principally in
villages, ranging north and west of Taos South, on both sides of the
Rio Grande, more than 250 miles;" that "by a Mexican statute these
people,' as he had been informed by Judge Houghton, of Santa Fe, "were
constituted citizens of the republic of Mexico, granting to all of
mature age, who could read and write, the privilege of voting;" but
this statute has no practical operation; that "since the occupancy of
the territory by the government of the United States, the territorial
legislature of 1847 passed the following act, which at the date of the
Indian agent's report was in force:
"'Sec. 1. Be it enacted by the General Assembly of the Territory of New
Mexico, That the inhabitants within the Territory of New Mexico known
by the name of Pueblo Indians, and living in towns or villages built on
lands granted to such Indians by the laws of Spain or Mexico, and
conceding to such inhabitants certain land and privileges, to be used
for the common benefit, are severally hereby created and constituted
bodies politic and corporate, and shall be known in law by the name of
the "Pueblo,"&c., (naming it;) and by that name they and their
successors shall have perpetual succession -sue and be sued.'
"In a subsequent report, viz: of the 4th of October, 1849, the same
officer reported, from Santa Fé, that:
"the pueblos or civilized towns of Indians of the Territory of New
Mexico are the following:
"In the country of Taos: Taos Picoris: 283 inhabitants; In the country
of Rio Ariba: San Juan, Santa Clara: 500; In the country of Santa Fé:
San Ildefonso, Namba, Pojoaque, Tesuque: 590.
In the country of Santa Ana: Cochite, Santa Domingo,; San Felipe, Santa
Ana, Zia, Jenez: 1,918.
In the country of Bernalillo: Sandia-Gleta: 883.
In the country of Valencia: Leguna, Acona, Zunia: 1,800.
Opposite El Paso: Socoro, Islettas: 600.
"Recapitulation. - Pueblos of New Mexico; County of Taos: 283 over five
years of age; County of Rio Ariba: 500.
County of Santa Fé: 590.
County of Santa Ana: 1,918.
County of Bernalillo: 833.
County of Valencia: 1,800.
District of Tontero, opposite El Paso del Norte: 600:
6,524.'
"The above enumeration, it is stated by the officer mentioned, 'was
taken from census ordered by the legislature of New Mexico, convened
December, 1847, which includes only those of five years of age and
upwards;' and further, that:
"these pueblo are located from ten to near a hundred miles apart,
commencing north at Taos, and running south to near El Paso, some four
hundred miles or more, and running east and west two hundred miles;
"this statement having no reference to pueblos west of Zunia;
"In another dispatch, dated the 15th October, 1849, at Santa Fe, the
same agent reports that 'those pueblos are built with direct reference
to defence, and their house are from one to six stories high,' &c; that
'the general character of their house is superior to those of Santa Fé;
"they have rich valleys to cultivate,' &c; and they 'are a valuable and
available people, and as firmly fixed in their homes as any one can be
in the United States;' that their lands are held by Spanish and Mexican
grants--to what extent is unknown;
"that Santa Ana, as Major Weightman had informed the agent, 'decreed,
in 1843, that one born in Mexico was a Mexican citizen, and, as such,
is a voter, and therefore all the Pueblo Indians are voters;' but that
'the exercise of this privilege was not known prior to what is termed
an election--the last one is this Territory,' &c;
"It is obligatory on the government of the United States to deal with
the private land titles, and the 'pueblos,' precisely as Mexico would
have done had the sovereignty not changed. We are bound to recognize
all titles as she would have done--to go that far, and no further. This
is the principle which you will bear in mind in acting upon these
important concerns;
"You will append to your report on the pueblos the best map of the
country that can be procured, on a large scale, and will indicate
thereon the localities and extent of the several pueblos as
illustrative of that report; which you desired to prepare and transmit
to the department at as early a period as the nature of the duty will
allow;
Very respectfully, your obedient servant,
JOHN WILSON, Commissioner;
"Wm. Pelham, Esq.
U.S. Surveyor General of Mexico;
"The foregoing instructions are hereby approved.
R. McCLELLAND,
Secretary; Department of the Interior, August 25, 1854.
[End of section]
Appendix X: Data on the 295 Spanish and Mexican Land Grants in New
Mexico:
Grant name: Abiquiú (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 199;
Surveyor general report number[C]: 140;
CPLC docket number(s)[D]: 52.
Grant name: Agapito Ortega;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 226.
Grant name: Agua Negra;
Grant type[A]: I;
Surveyor general file number[B]: 41;
Surveyor general report number[C]: 12;
CPLC docket number(s)[D]: NA.
Grant name: Agua Salada;
Grant type[A]: I;
Surveyor general file number[B]: 177;
Surveyor general report number[C]: 103;
CPLC docket number(s)[D]: 31.
Grant name: Alameda (Town of);
Grant type[A]: OI;
Surveyor general file number[B]: 144;
Surveyor general report number[C]: 91;
CPLC docket number(s)[D]: 11.
Grant name: Álamitos;
Grant type[A]: C;
Surveyor general file number[B]: 151;
Surveyor general report number[C]: 69;
CPLC docket number(s)[D]: 91, 183.
Grant name: Álamo;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 200.
Grant name: Albuquerque (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 188;
Surveyor general report number[C]: 130;
CPLC docket number(s)[D]: 8.
Grant name: Alexander Valle;
Grant type[A]: C;
Surveyor general file number[B]: 54;
Surveyor general report number[C]: 18;
CPLC docket number(s)[D]: NA.
Grant name: Alfonso Rael de Aguilar (2);
Grant type[A]: I;
Surveyor general file number[B]: 146;
Surveyor general report number[C]: 81;
CPLC docket number(s)[D]: 234.
Grant name: Alphonso Rael de Aguilar (1);
Grant type[A]: I;
Surveyor general file number[B]: 104;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 191.
Grant name: Antón Colorado;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 160.
Grant name: Angostura;
Grant type[A]: I;
Surveyor general file number[B]: 165;
Surveyor general report number[C]: 84;
CPLC docket number(s)[D]: 229.
Grant name: Angostura del Pecos;
Grant type[A]: C;
Surveyor general file number[B]: 23, 76;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: NA.
Grant name: Antoine Leroux;
Grant type[A]: I;
Surveyor general file number[B]: 51;
Surveyor general report number[C]: 47;
CPLC docket number(s)[D]: NA.
Grant name: Antón Chico (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 63;
Surveyor general report number[C]: 29;
CPLC docket number(s)[D]: NA.
Grant name: Antonio Armijo;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 102.
Grant name: Antonio Baca;
Grant type[A]: OI;
Surveyor general file number[B]: 176;
Surveyor general report number[C]: 101;
CPLC docket number(s)[D]: 70.
Grant name: Antonio de Abeytia;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 68.
Grant name: Antonio de Salazar;
Grant type[A]: OI;
Surveyor general file number[B]: 191;
Surveyor general report number[C]: 132;
CPLC docket number(s)[D]: 235.
Grant name: Antonio de Ulibarrí;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 261.
Grant name: Antonio Domínguez;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 105.
Grant name: Antonio Martínez;
Grant type[A]: I;
Surveyor general file number[B]: 111;
Surveyor general report number[C]: 116;
CPLC docket number(s)[D]: 9.
Grant name: Antonio Ortiz;
Grant type[A]: I;
Surveyor general file number[B]: 55;
Surveyor general report number[C]: 42;
CPLC docket number(s)[D]: NA.
Grant name: Archuleta & González;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 104.
Grant name: Arkansas;
Grant type[A]: OI;
Surveyor general file number[B]: 100;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: NA.
Grant name: Arquito;
Grant type[A]: OI;
Surveyor general file number[B]: 75;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 145.
Grant name: Arroyo de San Lorenzo;
Grant type[A]: I;
Surveyor general file number[B]: 158;
Surveyor general report number[C]: 79;
CPLC docket number(s)[D]: 37.
Grant name: Arroyo Hondo;
Grant type[A]: C;
Surveyor general file number[B]: 81, 86, 174;
Surveyor general report number[C]: 159;
CPLC docket number(s)[D]: 5, 174, 175, 176, 186.
Grant name: Atrisco (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 184;
Surveyor general report number[C]: 145;
CPLC docket number(s)[D]: 45.
Grant name: Badito;
Grant type[A]: C;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 197.
Grant name: Baltazar Baca;
Grant type[A]: I;
Surveyor general file number[B]: 178;
Surveyor general report number[C]: 104;
CPLC docket number(s)[D]: 114.
Grant name: Barranca;
Grant type[A]: C;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 97, 265.
Grant name: Bartolomé Baca;
Grant type[A]: I;
Surveyor general file number[B]: 123;
Surveyor general report number[C]: 126;
CPLC docket number(s)[D]: 58.
Grant name: Bartolomé Fernández;
Grant type[A]: I;
Surveyor general file number[B]: 154;
Surveyor general report number[C]: 78;
CPLC docket number(s)[D]: 61, 126.
Grant name: Bartolomé Sánchez;
Grant type[A]: OI;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 264.
Grant name: Bartolomé Trujillo;
Grant type[A]: C;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 257, 263.
Grant name: Belén (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 43;
Surveyor general report number[C]: 13;
CPLC docket number(s)[D]: NA.
Grant name: Bernabé Manuel Montaño;
Grant type[A]: C;
Surveyor general file number[B]: 93;
Surveyor general report number[C]: 49;
CPLC docket number(s)[D]: 7, 77.
Grant name: Bernal Spring;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 118.
Grant name: Bernalillo (Town of);
Grant type[A]: OI;
Surveyor general file number[B]: 164;
Surveyor general report number[C]: 83;
CPLC docket number(s)[D]: 146, 208, 217, 258.
Grant name: Black Mesa;
Grant type[A]: OI;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 56.
Grant name: Bosque Del Apache;
Grant type[A]: I;
Surveyor general file number[B]: 69;
Surveyor general report number[C]: 35;
CPLC docket number(s)[D]: NA.
Grant name: Bosque Grande;
Grant type[A]: OI;
Surveyor general file number[B]: 175;
Surveyor general report number[C]: 100;
CPLC docket number(s)[D]: 66, 272.
Grant name: Bracito;
Grant type[A]: C;
Surveyor general file number[B]: 32;
Surveyor general report number[C]: 6;
CPLC docket number(s)[D]: NA.
Grant name: Cadillal;
Grant type[A]: C;
Surveyor general file number[B]: 90;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: NA.
Grant name: Caja del Río;
Grant type[A]: C;
Surveyor general file number[B]: 135;
Surveyor general report number[C]: 63;
CPLC docket number(s)[D]: 39.
Grant name: Cañada Ancha;
Grant type[A]: I;
Surveyor general file number[B]: 157;
Surveyor general report number[C]: 82;
CPLC docket number(s)[D]: 85.
Grant name: Cañada de Cochití;
Grant type[A]: I;
Surveyor general file number[B]: 95;
Surveyor general report number[C]: 135;
CPLC docket number(s)[D]: 205, 240.
Grant name: Cañada de los Álamos (1);
Grant type[A]: C;
Surveyor general file number[B]: 89;
Surveyor general report number[C]: 53;
CPLC docket number(s)[D]: 53.
Grant name: Cañada de los Álamos (2);
Grant type[A]: I;
Surveyor general file number[B]: 172;
Surveyor general report number[C]: 98;
CPLC docket number(s)[D]: 38, 76, 207.
Grant name: Cañada de Los Apaches;
Grant type[A]: I;
Surveyor general file number[B]: 131;
Surveyor general report number[C]: 50;
CPLC docket number(s)[D]: 15.
Grant name: Cañada de los Mestaños;
Grant type[A]: C;
Surveyor general file number[B]: 82;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 163.
Grant name: Cañada de San Francisco;
Grant type[A]: C;
Surveyor general file number[B]: 136;
Surveyor general report number[C]: 57;
CPLC docket number(s)[D]: 98.
Grant name: Cañada de Santa Clara;
Grant type[A]: P;
Surveyor general file number[B]: 193;
Surveyor general report number[C]: 138;
CPLC docket number(s)[D]: 17.
Grant name: Candelarios (Town of);
Grant type[A]: OI;
Surveyor general file number[B]: 99;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: NA.
Grant name: Cañón de Carnue;
Grant type[A]: C;
Surveyor general file number[B]: 96;
Surveyor general report number[C]: 150;
CPLC docket number(s)[D]: 74.
Grant name: Cañón de Chama;
Grant type[A]: C;
Surveyor general file number[B]: 83;
Surveyor general report number[C]: 71;
CPLC docket number(s)[D]: 107.
Grant name: Cañón de San Diego;
Grant type[A]: C;
Surveyor general file number[B]: 60, 128;
Surveyor general report number[C]: 25, 122;
CPLC docket number(s)[D]: 100.
Grant name: Cañón del Agua;
Grant type[A]: I;
Surveyor general file number[B]: 70;
Surveyor general report number[C]: 40;
CPLC docket number(s)[D]: NA.
Grant name: Cañón del Río;
Grant type[A]: I;
Surveyor general file number[B]: 142;
Surveyor general report number[C]: 93;
CPLC docket number(s)[D]: 166.
Grant name: Casa Colorado (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 29;
Surveyor general report number[C]: 5;
CPLC docket number(s)[D]: NA.
Grant name: Catarina Maese;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 119.
Grant name: Cebolla;
Grant type[A]: C;
Surveyor general file number[B]: 141;
Surveyor general report number[C]: 61;
CPLC docket number(s)[D]: 108.
Grant name: Cebolleta (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 73;
Surveyor general report number[C]: 46;
CPLC docket number(s)[D]: NA.
Grant name: Chaca Mesa;
Grant type[A]: OI;
Surveyor general file number[B]: 170;
Surveyor general report number[C]: 96;
CPLC docket number(s)[D]: 34.
Grant name: Chamisos Arroyo;
Grant type[A]: I;
Surveyor general file number[B]: 143;
Surveyor general report number[C]: 74;
CPLC docket number(s)[D]: 72.
Grant name: Chamita (Town of);
Grant type[A]: OI;
Surveyor general file number[B]: 64;
Surveyor general report number[C]: 36;
CPLC docket number(s)[D]: NA.
Grant name: Chaperito (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 7;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: NA.
Grant name: Chililí (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 40;
Surveyor general report number[C]: 11;
CPLC docket number(s)[D]: NA.
Grant name: Chupaderos de la Lagunita;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 113.
Grant name: Cieneguilla (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 145;
Surveyor general report number[C]: 62;
CPLC docket number(s)[D]: 84.
Grant name: Corpos Cristo;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 48.
Grant name: Cristóbal de la Serna;
Grant type[A]: OI;
Surveyor general file number[B]: 109;
Surveyor general report number[C]: 158;
CPLC docket number(s)[D]: 21.
Grant name: Cristóval Crespín;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 232.
Grant name: Cubero (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 26;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 1.
Grant name: Cuyamungué;
Grant type[A]: OI;
Surveyor general file number[B]: 139;
Surveyor general report number[C]: 54;
CPLC docket number(s)[D]: 112.
Grant name: Diego Arias de Quirós;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 190.
Grant name: Diego de Belasco;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 251.
Grant name: Diego Montoya;
Grant type[A]: I;
Surveyor general file number[B]: 209;
Surveyor general report number[C]: 156;
CPLC docket number(s)[D]: 51, 106.
Grant name: Domingo Fernández;
Grant type[A]: C;
Surveyor general file number[B]: 16;
Surveyor general report number[C]: 19;
CPLC docket number(s)[D]: NA.
Grant name: Domingo Valdez;
Grant type[A]: I;
Surveyor general file number[B]: 202;
Surveyor general report number[C]: 141;
CPLC docket number(s)[D]: 49.
Grant name: Don Fernando de Taos;
Grant type[A]: C;
Surveyor general file number[B]: 120;
Surveyor general report number[C]: 125;
CPLC docket number(s)[D]: 149.
Grant name: Doña Ana Bend Colony;
Grant type[A]: C;
Surveyor general file number[B]: 92, 161;
Surveyor general report number[C]: 85;
CPLC docket number(s)[D]: 24.
Grant name: El Pino;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 81.
Grant name: El Rito (Town of);
Grant type[A]: OI;
Surveyor general file number[B]: 196, 197;
Surveyor general report number[C]: 151;
CPLC docket number(s)[D]: 224.
Grant name: Embudo;
Grant type[A]: OI;
Surveyor general file number[B]: 91;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 173.
Grant name: Estancia;
Grant type[A]: I;
Surveyor general file number[B]: 10;
Surveyor general report number[C]: 70;
CPLC docket number(s)[D]: 152.
Grant name: Felipe Pacheco;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 192.
Grant name: Felipe Tafoya (1);
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 187.
Grant name: Felipe Tafoya (2);
Grant type[A]: I;
Surveyor general file number[B]: 173;
Surveyor general report number[C]: 99;
CPLC docket number(s)[D]: 67.
Grant name: Francisco de Anaya Almazán;
Grant type[A]: OI;
Surveyor general file number[B]: 4, 125;
Surveyor general report number[C]: 115;
CPLC docket number(s)[D]: 214, 243.
Grant name: Francisco García;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 230.
Grant name: Francisco Montes Vigil;
Grant type[A]: OI;
Surveyor general file number[B]: 189;
Surveyor general report number[C]: 128;
CPLC docket number(s)[D]: 14.
Grant name: Francisco X. Romero;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 262.
Grant name: Galisteo (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 5, 138;
Surveyor general report number[C]: 60;
CPLC docket number(s)[D]: 54.
Grant name: Gaspar Ortiz;
Grant type[A]: I;
Surveyor general file number[B]: 67, 159;
Surveyor general report number[C]: 31, 87;
CPLC docket number(s)[D]: NA.
Grant name: Gervacio Nolan;
Grant type[A]: C;
Surveyor general file number[B]: 9;
Surveyor general report number[C]: 39;
CPLC docket number(s)[D]: 46.
Grant name: Gijosa;
Grant type[A]: OI;
Surveyor general file number[B]: 110;
Surveyor general report number[C]: 109;
CPLC docket number(s)[D]: 16.
Grant name: Gotera;
Grant type[A]: OI;
Surveyor general file number[B]: 130;
Surveyor general report number[C]: 56;
CPLC docket number(s)[D]: 83.
Grant name: Guadalupe Miranda;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 139.
Grant name: Guadalupita;
Grant type[A]: OI;
Surveyor general file number[B]: 94, 204;
Surveyor general report number[C]: 152;
CPLC docket number(s)[D]: 131.
Grant name: Hacienda del Álamo;
Grant type[A]: OI;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 155.
Grant name: Heath;
Grant type[A]: OI;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 59.
Grant name: Jacona (Town of);
Grant type[A]: I;
Surveyor general file number[B]: 168;
Surveyor general report number[C]: 92;
CPLC docket number(s)[D]: 35.
Grant name: Joaquín (de) Mestas;
Grant type[A]: I;
Surveyor general file number[B]: 171;
Surveyor general report number[C]: 97;
CPLC docket number(s)[D]: 23, 279.
Grant name: Joaquín Sedillo & Antonio Gutiérrez;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 274, 275.
Grant name: John Scolly;
Grant type[A]: C;
Surveyor general file number[B]: 39;
Surveyor general report number[C]: 9;
CPLC docket number(s)[D]: NA.
Grant name: Jornado del Muerto;
Grant type[A]: I;
Surveyor general file number[B]: 58;
Surveyor general report number[C]: 26;
CPLC docket number(s)[D]: NA.
Grant name: José Antonio Lucero;
Grant type[A]: I;
Surveyor general file number[B]: 203;
Surveyor general report number[C]: 147;
CPLC docket number(s)[D]: 117.
Grant name: José Antonio Torres;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 255.
Grant name: José de Leyba;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 278.
Grant name: José Domínguez;
Grant type[A]: I;
Surveyor general file number[B]: 129;
Surveyor general report number[C]: 120;
CPLC docket number(s)[D]: NA.
Grant name: José García;
Grant type[A]: I;
Surveyor general file number[B]: 211;
Surveyor general report number[C]: 160;
CPLC docket number(s)[D]: 92.
Grant name: José Ignacio Alarí;
Grant type[A]: OI;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 227.
Grant name: José Leandro Perea;
Grant type[A]: I;
Surveyor general file number[B]: 50;
Surveyor general report number[C]: 16;
CPLC docket number(s)[D]: NA.
Grant name: José Manuel Sánchez Baca;
Grant type[A]: I;
Surveyor general file number[B]: 24;
Surveyor general report number[C]: 129;
CPLC docket number(s)[D]: 138.
Grant name: José Rómula de Vera;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 121.
Grant name: José Sutton;
Grant type[A]: I;
Surveyor general file number[B]: 61;
Surveyor general report number[C]: 45;
CPLC docket number(s)[D]: 143.
Grant name: José Trujillo;
Grant type[A]: OI;
Surveyor general file number[B]: 117, 118;
Surveyor general report number[C]: 112;
CPLC docket number(s)[D]: 115, 268.
Grant name: Juan Antonio Flores;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 125.
Grant name: Juan Bautista Valdez;
Grant type[A]: C;
Surveyor general file number[B]: 127, 137;
Surveyor general report number[C]: 55, 113;
CPLC docket number(s)[D]: 179.
Grant name: Juan Cayentano Lovato;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 103.
Grant name: Juan de Gabaldón;
Grant type[A]: C;
Surveyor general file number[B]: 150;
Surveyor general report number[C]: 65;
CPLC docket number(s)[D]: 86, 202.
Grant name: Juan de Mestas;
Grant type[A]: I;
Surveyor general file number[B]: 147;
Surveyor general report number[C]: 80;
CPLC docket number(s)[D]: 237.
Grant name: Juan de Ulibarrí;
Grant type[A]: OI;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 253.
Grant name: Juan Durán;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 12.
Grant name: Juan Estevan García de Noriega;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 254.
Grant name: Juan Felipe Rodríguez;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 120.
Grant name: Juan G. Pinard;
Grant type[A]: I;
Surveyor general file number[B]: 34;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: NA.
Grant name: Juan José Archuleta;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 124.
Grant name: Juan José Lovato;
Grant type[A]: I;
Surveyor general file number[B]: 198;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 140, 250.
Grant name: Juan José Moreno;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 260.
Grant name: Juan José Sánchez;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 280.
Grant name: Juan Manuel Córdova;
Grant type[A]: I;
Surveyor general file number[B]: 35;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: NA.
Grant name: Juan Montes Vigil;
Grant type[A]: I;
Surveyor general file number[B]: 113;
Surveyor general report number[C]: 124;
CPLC docket number(s)[D]: NA.
Grant name: Juan Tafoya;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 266.
Grant name: Juana Baca;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 172.
Grant name: La Majada;
Grant type[A]: OI;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 89.
Grant name: La Nasa;
Grant type[A]: I;
Surveyor general file number[B]: 186;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 238.
Grant name: Las Lagunitas;
Grant type[A]: OI;
Surveyor general file number[B]: 207;
Surveyor general report number[C]: 154;
CPLC docket number(s)[D]: NA.
Grant name: Las Lomitas;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 156.
Grant name: Las Trampas (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 65;
Surveyor general report number[C]: 27;
CPLC docket number(s)[D]: NA.
Grant name: Las Vegas (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 12;
Surveyor general report number[C]: 20;
CPLC docket number(s)[D]: NA.
Grant name: Lo de Básquez;
Grant type[A]: I;
Surveyor general file number[B]: 101;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 178.
Grant name: Lo de Padilla;
Grant type[A]: I;
Surveyor general file number[B]: 102, 213;
Surveyor general report number[C]: 146;
CPLC docket number(s)[D]: 63, 273.
Grant name: Los Conejos;
Grant type[A]: C;
Surveyor general file number[B]: 80;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 109.
Grant name: Los Manuelitas;
Grant type[A]: C;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 242.
Grant name: Los Serrillos;
Grant type[A]: C;
Surveyor general file number[B]: 132;
Surveyor general report number[C]: 59;
CPLC docket number(s)[D]: 78.
Grant name: Los Trigos;
Grant type[A]: C;
Surveyor general file number[B]: 11;
Surveyor general report number[C]: 8;
CPLC docket number(s)[D]: NA.
Grant name: Luis de Armenta;
Grant type[A]: I;
Surveyor general file number[B]: 140;
Surveyor general report number[C]: 68;
CPLC docket number(s)[D]: NA.
Grant name: Luis María Cabeza de Baca;
Grant type[A]: I;
Surveyor general file number[B]: 6;
Surveyor general report number[C]: 20;
CPLC docket number(s)[D]: NA.
Grant name: Maes & Gallego;
Grant type[A]: I;
Surveyor general file number[B]: 205;
Surveyor general report number[C]: 153;
CPLC docket number(s)[D]: NA.
Grant name: Manuel Tenorio;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 188.
Grant name: Manuela García de las Ribas;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 249.
Grant name: Manzano (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 21;
Surveyor general report number[C]: 23;
CPLC docket number(s)[D]: NA.
Grant name: Maragua;
Grant type[A]: OI;
Surveyor general file number[B]: 126;
Surveyor general report number[C]: 121;
CPLC docket number(s)[D]: 276.
Grant name: Maxwell Grant;
Grant type[A]: I;
Surveyor general file number[B]: 48;
Surveyor general report number[C]: 15;
CPLC docket number(s)[D]: NA.
Grant name: Mesilla Civil Colony;
Grant type[A]: C;
Surveyor general file number[B]: 114, 162;
Surveyor general report number[C]: 86;
CPLC docket number(s)[D]: 151.
Grant name: Mesita Blanca;
Grant type[A]: C;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 159.
Grant name: Mesita de Juana López;
Grant type[A]: OI;
Surveyor general file number[B]: 149;
Surveyor general report number[C]: 64;
CPLC docket number(s)[D]: NA.
Grant name: Montoya;
Grant type[A]: OI;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: NA.
Grant name: Mora (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 66;
Surveyor general report number[C]: 32;
CPLC docket number(s)[D]: NA.
Grant name: Nepumecina Martínez de Aragón;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 223.
Grant name: Nerio Antonio Montoya;
Grant type[A]: I;
Surveyor general file number[B]: 87;
Surveyor general report number[C]: 51;
CPLC docket number(s)[D]: 20.
Grant name: Nicolás Durán de Cháves;
Grant type[A]: C;
Surveyor general file number[B]: 208;
Surveyor general report number[C]: 155;
CPLC docket number(s)[D]: 57.
Grant name: Nuestra Señora de Guadalupe Mine;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 165, 206.
Grant name: Nuestra Señora del los Dolores Mine;
Grant type[A]: I;
Surveyor general file number[B]: 192;
Surveyor general report number[C]: 162;
CPLC docket number(s)[D]: 147.
Grant name: Nuestra Señora del Rosario, San Fernando y Santiago;
Grant type[A]: C;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 28, 225.
Grant name: Ocate;
Grant type[A]: I;
Surveyor general file number[B]: 1;
Surveyor general report number[C]: 143;
CPLC docket number(s)[D]: 231.
Grant name: Ojito de Galisteo;
Grant type[A]: OI;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 164.
Grant name: Ojito de los Médanos;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 69, 209.
Grant name: Ojo Caliente;
Grant type[A]: C;
Surveyor general file number[B]: 156;
Surveyor general report number[C]: 77;
CPLC docket number(s)[D]: 88, 94.
Grant name: Ojo de Borrego;
Grant type[A]: I;
Surveyor general file number[B]: 97;
Surveyor general report number[C]: 118;
CPLC docket number(s)[D]: 95, 195.
Grant name: Ojo de la Cabra;
Grant type[A]: I;
Surveyor general file number[B]: 181;
Surveyor general report number[C]: 106;
CPLC docket number(s)[D]: 167.
Grant name: Ojo de San José;
Grant type[A]: C;
Surveyor general file number[B]: 185;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 130, 182, 259.
Grant name: Ojo del Apache;
Grant type[A]: I;
Surveyor general file number[B]: 148;
Surveyor general report number[C]: 72;
CPLC docket number(s)[D]: 101.
Grant name: Ojo del Espíritu Santo;
Grant type[A]: I;
Surveyor general file number[B]: 36;
Surveyor general report number[C]: 44;
CPLC docket number(s)[D]: NA.
Grant name: Orejas del Llano de los Aguajes;
Grant type[A]: I;
Surveyor general file number[B]: 116;
Surveyor general report number[C]: 117;
CPLC docket number(s)[D]: 169.
Grant name: Ortiz Mine;
Grant type[A]: I;
Surveyor general file number[B]: 28, 37;
Surveyor general report number[C]: 43;
CPLC docket number(s)[D]: NA.
Grant name: Pablo Montoya;
Grant type[A]: I;
Surveyor general file number[B]: 27;
Surveyor general report number[C]: 41;
CPLC docket number(s)[D]: NA.
Grant name: Pacheco;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 18.
Grant name: Pajarito;
Grant type[A]: OI;
Surveyor general file number[B]: 210;
Surveyor general report number[C]: 157;
CPLC docket number(s)[D]: 73.
Grant name: Paraje del Punche;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 241.
Grant name: Pedro Armendaris #33;
Grant type[A]: OI;
Surveyor general file number[B]: 56;
Surveyor general report number[C]: 33;
CPLC docket number(s)[D]: NA.
Grant name: Pedro Armendaris #34;
Grant type[A]: OI;
Surveyor general file number[B]: 57;
Surveyor general report number[C]: 34;
CPLC docket number(s)[D]: NA.
Grant name: Peralta (1) (La);
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 161.
Grant name: Peralta (2);
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 110.
Grant name: Petaca;
Grant type[A]: C;
Surveyor general file number[B]: 179;
Surveyor general report number[C]: 105;
CPLC docket number(s)[D]: 99, 153, 233.
Grant name: Piedra Lumbre;
Grant type[A]: I;
Surveyor general file number[B]: 152;
Surveyor general report number[C]: 73;
CPLC docket number(s)[D]: 30.
Grant name: Plaza Blanca;
Grant type[A]: I;
Surveyor general file number[B]: 84;
Surveyor general report number[C]: 148;
CPLC docket number(s)[D]: 32.
Grant name: Plaza Colorado;
Grant type[A]: OI;
Surveyor general file number[B]: 85;
Surveyor general report number[C]: 149;
CPLC docket number(s)[D]: 2.
Grant name: Polvadera;
Grant type[A]: OI;
Surveyor general file number[B]: 124;
Surveyor general report number[C]: 131;
CPLC docket number(s)[D]: 43.
Grant name: Preston Beck Jr;
Grant type[A]: I;
Surveyor general file number[B]: 2;
Surveyor general report number[C]: 1;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of Acoma;
Grant type[A]: P;
Surveyor general file number[B]: B;
Surveyor general report number[C]: B;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of Cochití;
Grant type[A]: P;
Surveyor general file number[B]: G;
Surveyor general report number[C]: G;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of Isleta;
Grant type[A]: P;
Surveyor general file number[B]: Q;
Surveyor general report number[C]: Q;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of Jémez;
Grant type[A]: P;
Surveyor general file number[B]: A;
Surveyor general report number[C]: A;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of Laguna;
Grant type[A]: P;
Surveyor general file number[B]: S;
Surveyor general report number[C]: S;
CPLC docket number(s)[D]: 133.
Grant name: Pueblo of Nambé;
Grant type[A]: P;
Surveyor general file number[B]: R;
Surveyor general report number[C]: R;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of Pecos;
Grant type[A]: P;
Surveyor general file number[B]: F;
Surveyor general report number[C]: F;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of Picurís;
Grant type[A]: P;
Surveyor general file number[B]: D;
Surveyor general report number[C]: D;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of Pojoaque;
Grant type[A]: P;
Surveyor general file number[B]: N;
Surveyor general report number[C]: N;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of Quemado;
Grant type[A]: C;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 171, 212.
Grant name: Pueblo of San Cristóbal;
Grant type[A]: P;
Surveyor general file number[B]: U;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of San Felipe;
Grant type[A]: P;
Surveyor general file number[B]: E;
Surveyor general report number[C]: E;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of San Ildefonso;
Grant type[A]: P;
Surveyor general file number[B]: M;
Surveyor general report number[C]: M;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of San Juan;
Grant type[A]: P;
Surveyor general file number[B]: C;
Surveyor general report number[C]: C;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of Sandía;
Grant type[A]: P;
Surveyor general file number[B]: P;
Surveyor general report number[C]: P;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of Santa Ana;
Grant type[A]: P;
Surveyor general file number[B]: T;
Surveyor general report number[C]: T;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of Santa Clara;
Grant type[A]: P;
Surveyor general file number[B]: K;
Surveyor general report number[C]: K;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of Santo Domingo;
Grant type[A]: P;
Surveyor general file number[B]: H;
Surveyor general report number[C]: H;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of Santo Domingo & San Felipe;
Grant type[A]: I;
Surveyor general file number[B]: 200;
Surveyor general report number[C]: 142;
CPLC docket number(s)[D]: 134, 184, 185.
Grant name: Pueblo of Taos;
Grant type[A]: P;
Surveyor general file number[B]: I;
Surveyor general report number[C]: I;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of Tesuque;
Grant type[A]: P;
Surveyor general file number[B]: L;
Surveyor general report number[C]: L;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of Zía;
Grant type[A]: P;
Surveyor general file number[B]: O;
Surveyor general report number[C]: O;
CPLC docket number(s)[D]: NA.
Grant name: Pueblo of Zuñí;
Grant type[A]: P;
Surveyor general file number[B]: V;
Surveyor general report number[C]: V;
CPLC docket number(s)[D]: NA.
Grant name: Pueblos of Zía, Jémez, & Santa Ana;
Grant type[A]: P;
Surveyor general file number[B]: TT;
Surveyor general report number[C]: TT;
CPLC docket number(s)[D]: 50.
Grant name: Ramón Vigil;
Grant type[A]: I;
Surveyor general file number[B]: 30;
Surveyor general report number[C]: 38;
CPLC docket number(s)[D]: NA.
Grant name: Ranchito;
Grant type[A]: C;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 157.
Grant name: Rancho de Abiquiú;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 247.
Grant name: Rancho de Coyote;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 248.
Grant name: Rancho de Gigante;
Grant type[A]: I;
Surveyor general file number[B]: 68;
Surveyor general report number[C]: 30;
CPLC docket number(s)[D]: NA.
Grant name: Rancho de la Gallina;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 222, 244.
Grant name: Rancho de la Santísima Trinidad;
Grant type[A]: I;
Surveyor general file number[B]: 42;
Surveyor general report number[C]: 123;
CPLC docket number(s)[D]: 26, 282.
Grant name: Rancho de los Comanches;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 219.
Grant name: Rancho de los Corrales;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 221.
Grant name: Rancho de los Rincones;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 246.
Grant name: Rancho de Nuestra Señora de la Luz;
Grant type[A]: OI;
Surveyor general file number[B]: 25;
Surveyor general report number[C]: 10;
CPLC docket number(s)[D]: NA.
Grant name: Rancho de Paguate;
Grant type[A]: I;
Surveyor general file number[B]: 68;
Surveyor general report number[C]: 30;
CPLC docket number(s)[D]: NA.
Grant name: Rancho de Río Arriba;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 245.
Grant name: Rancho de Río Puerco;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 220.
Grant name: Rancho de San Juan;
Grant type[A]: I;
Surveyor general file number[B]: 68;
Surveyor general report number[C]: 30;
CPLC docket number(s)[D]: NA.
Grant name: Rancho de Santa Ana;
Grant type[A]: I;
Surveyor general file number[B]: 68;
Surveyor general report number[C]: 30;
CPLC docket number(s)[D]: NA.
Grant name: Rancho de Ysleta;
Grant type[A]: C;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 33.
Grant name: Rancho del Río Grande;
Grant type[A]: C;
Surveyor general file number[B]: 78;
Surveyor general report number[C]: 58;
CPLC docket number(s)[D]: 10.
Grant name: Rancho el Rito;
Grant type[A]: I;
Surveyor general file number[B]: 68;
Surveyor general report number[C]: 30;
CPLC docket number(s)[D]: 136, 196, 210.
Grant name: Real de Dolores del Oro (Town of);
Grant type[A]: OI;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 111.
Grant name: Refugio Civil Colony;
Grant type[A]: C;
Surveyor general file number[B]: 163;
Surveyor general report number[C]: 90;
CPLC docket number(s)[D]: 150, 193.
Grant name: Río de Chama;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 218.
Grant name: Río del Oso;
Grant type[A]: OI;
Surveyor general file number[B]: 112;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 177.
Grant name: Río del Picurís;
Grant type[A]: C;
Surveyor general file number[B]: 71;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 65.
Grant name: Río Tesuque (Town of);
Grant type[A]: OI;
Surveyor general file number[B]: 98;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 123, 215.
Grant name: Rito de los Frijoles;
Grant type[A]: I;
Surveyor general file number[B]: 106;
Surveyor general report number[C]: 133;
CPLC docket number(s)[D]: 41.
Grant name: Rómulo Barela;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 281.
Grant name: Roque Jacinto Jaramillo;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 228.
Grant name: Roque Lovato;
Grant type[A]: I;
Surveyor general file number[B]: 133;
Surveyor general report number[C]: 52;
CPLC docket number(s)[D]: 180.
Grant name: Salvador Lovato;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 93.
Grant name: San Acasio;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 158.
Grant name: San Antonio de las Huertas;
Grant type[A]: C;
Surveyor general file number[B]: 88;
Surveyor general report number[C]: 144;
CPLC docket number(s)[D]: 90, 269.
Grant name: San Antonio del Río Colorado;
Grant type[A]: C;
Surveyor general file number[B]: 153;
Surveyor general report number[C]: 76;
CPLC docket number(s)[D]: 4.
Grant name: San Antoñito;
Grant type[A]: C;
Surveyor general file number[B]: 77;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 27.
Grant name: San Clemente;
Grant type[A]: OI;
Surveyor general file number[B]: 3;
Surveyor general report number[C]: 67;
CPLC docket number(s)[D]: 64.
Grant name: San Cristóbal;
Grant type[A]: OI;
Surveyor general file number[B]: 121;
Surveyor general report number[C]: 110;
CPLC docket number(s)[D]: NA.
Grant name: San Isidro (Town of);
Grant type[A]: OI;
Surveyor general file number[B]: 45;
Surveyor general report number[C]: 24;
CPLC docket number(s)[D]: NA.
Grant name: San Joaquín del Nacimiento;
Grant type[A]: C;
Surveyor general file number[B]: 134;
Surveyor general report number[C]: 66;
CPLC docket number(s)[D]: 144, 203, 213, 252.
Grant name: San Marcos Pueblo;
Grant type[A]: OI;
Surveyor general file number[B]: 155;
Surveyor general report number[C]: 102;
CPLC docket number(s)[D]: 22.
Grant name: San Mateo Spring(s);
Grant type[A]: I;
Surveyor general file number[B]: 190;
Surveyor general report number[C]: 134;
CPLC docket number(s)[D]: 75.
Grant name: San Miguel del Vado;
Grant type[A]: C;
Surveyor general file number[B]: 49;
Surveyor general report number[C]: 119;
CPLC docket number(s)[D]: 25, 60, 198.
Grant name: San Pedro;
Grant type[A]: C;
Surveyor general file number[B]: 44;
Surveyor general report number[C]: 14;
CPLC docket number(s)[D]: NA.
Grant name: Sangre de Cristo;
Grant type[A]: OI;
Surveyor general file number[B]: 14;
Surveyor general report number[C]: 4;
CPLC docket number(s)[D]: NA.
Grant name: Sanguijuela;
Grant type[A]: OI;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 170.
Grant name: Santa Bárbara;
Grant type[A]: C;
Surveyor general file number[B]: 122;
Surveyor general report number[C]: 114;
CPLC docket number(s)[D]: 96.
Grant name: Santa Cruz;
Grant type[A]: C;
Surveyor general file number[B]: 103;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 181, 194.
Grant name: Santa Fé;
Grant type[A]: C;
Surveyor general file number[B]: 166;
Surveyor general report number[C]: 88;
CPLC docket number(s)[D]: 19, 80.
Grant name: Santa Fé Cañón;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 199.
Grant name: Santa Rita del Cobre;
Grant type[A]: OI;
Surveyor general file number[B]: 107, 194;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: NA.
Grant name: Santa Rosa de Cubero;
Grant type[A]: OI;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 267.
Grant name: Santa Teresa;
Grant type[A]: I;
Surveyor general file number[B]: 108, 115;
Surveyor general report number[C]: 111;
CPLC docket number(s)[D]: 168.
Grant name: Santiago Bone;
Grant type[A]: I;
Surveyor general file number[B]: 206;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 62.
Grant name: Santiago Ramírez;
Grant type[A]: I;
Surveyor general file number[B]: 52;
Surveyor general report number[C]: 136;
CPLC docket number(s)[D]: 122, 148.
Grant name: Santo Domingo de Cundiyó;
Grant type[A]: OI;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 211.
Grant name: Santo Tomás de Yturbide;
Grant type[A]: C;
Surveyor general file number[B]: 201;
Surveyor general report number[C]: 139;
CPLC docket number(s)[D]: 137.
Grant name: Santo Toribio;
Grant type[A]: C;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 256.
Grant name: Sebastián De Vargas;
Grant type[A]: I;
Surveyor general file number[B]: 187;
Surveyor general report number[C]: 137;
CPLC docket number(s)[D]: 6.
Grant name: Sebastián Martín;
Grant type[A]: OI;
Surveyor general file number[B]: 62;
Surveyor general report number[C]: 28;
CPLC docket number(s)[D]: NA.
Grant name: Sevilleta;
Grant type[A]: C;
Surveyor general file number[B]: 169;
Surveyor general report number[C]: 95;
CPLC docket number(s)[D]: 55.
Grant name: Sierra Mosca;
Grant type[A]: I;
Surveyor general file number[B]: 119;
Surveyor general report number[C]: 75;
CPLC docket number(s)[D]: 87.
Grant name: Sitio de Juana López;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 82.
Grant name: Sitio de Los Serrillos;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 79.
Grant name: Socorro (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 180;
Surveyor general report number[C]: 107;
CPLC docket number(s)[D]: 13, 127.
Grant name: Tacubaya;
Grant type[A]: OI;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 239.
Grant name: Tajique (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 47;
Surveyor general report number[C]: 21;
CPLC docket number(s)[D]: NA.
Grant name: Talaya Hill;
Grant type[A]: I;
Surveyor general file number[B]: 160;
Surveyor general report number[C]: 89;
CPLC docket number(s)[D]: 116.
Grant name: Tecolote (Town of);
Grant type[A]: OI;
Surveyor general file number[B]: 8;
Surveyor general report number[C]: 7;
CPLC docket number(s)[D]: NA.
Grant name: Tejón (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 22;
Surveyor general report number[C]: 37;
CPLC docket number(s)[D]: NA.
Grant name: The Baird's Ranch;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 36.
Grant name: Tierra Amarilla;
Grant type[A]: C;
Surveyor general file number[B]: 33;
Surveyor general report number[C]: 3;
CPLC docket number(s)[D]: NA.
Grant name: Tomás Tapia;
Grant type[A]: I;
Surveyor general file number[B]: NA;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 189.
Grant name: Tomé (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 31;
Surveyor general report number[C]: 2;
CPLC docket number(s)[D]: NA.
Grant name: Torreón (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 20;
Surveyor general report number[C]: 22;
CPLC docket number(s)[D]: NA.
Grant name: Uña Del Gato;
Grant type[A]: I;
Surveyor general file number[B]: 167;
Surveyor general report number[C]: 94;
CPLC docket number(s)[D]: NA.
Grant name: Vallecito (de San Antonio);
Grant type[A]: C;
Surveyor general file number[B]: 183;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 141.
Grant name: Vallecito de Lovato (Town of);
Grant type[A]: C;
Surveyor general file number[B]: 59, 182;
Surveyor general report number[C]: 108;
CPLC docket number(s)[D]: 142, 204, 236.
Grant name: Vertientes de Navajó;
Grant type[A]: I;
Surveyor general file number[B]: 195;
Surveyor general report number[C]: NA;
CPLC docket number(s)[D]: 270.
Source: GAO analysis.
[A] "C" refers to community land grants identified through original
grant documentation. "OI" refers to grants identified by grant heirs,
scholars, or others as having common lands, but which lack supporting
grant documentation. "P" for Pueblo refers to grants made by Spain to
indigenous Pueblo cultures. "I" refers to grants made to individuals.
[B] The blank spaces in this column indicate that no claim was
presented to the Surveyor General.
[C] The blank spaces in this column indicate that the Surveyor General
did not prepare a final report for this grant.
[D] "CPLC" refers to the Court of Private Land Claims. The blank
spaces indicate that the grant was not presented to the CPLC and
consequently it does not have CPLC docket number.
[End of table]
[End of section]
Appendix XI: Results of Evaluations of Claims for Land Grants in New
Mexico:
The following three tables summarize the results of the evaluations
performed by the Surveyor General of New Mexico and confirmed by
Congress, and by the Court of Private Land Claims, of claims made for
community land grants located within present-day New Mexico.
Table 30: Community Land Grants in New Mexico Confirmed in Full:
Grants confirmed by Congress, 1854-1891:
Original documentation community grants (C): Alexander Valle;
Original documentation community grants (C): Antón Chico (Town of);
Original documentation community grants (C): Belén (Town of);
Original documentation community grants (C): Bracito;
Original documentation community grants (C): Cañón de San Diego;
Original documentation community grants (C): Casa Colorado (Town of);
Original documentation community grants (C): Cebolleta (Town of);
Original documentation community grants (C): Chililí (Town of);
Original documentation community grants (C): Domingo Fernández;
Original documentation community grants (C): John Scolly;
Original documentation community grants (C): Las Trampas (Town of);
Original documentation community grants (C): Las Vegas (Town of);
Original documentation community grants (C): Los Trigos;
Original documentation community grants (C): Manzano (Town of);
Original documentation community grants (C): Mora (Town of);
Original documentation community grants (C): San Pedro;
Original documentation community grants (C): Tajique (Town of);
Original documentation community grants (C): Tejón (Town of);
Original documentation community grants (C): Tierra Amarilla;
Original documentation community grants (C): Tomé (Town of);
Original documentation community grants (C): Torreón (Town of);
Self-identified community grants (OI): Chamita (Town of);
Self-identified community grants (OI): Mesita de Juana López;
Self-identified community grants (OI): Pedro Armendaris #33;
Self-identified community grants (OI): Pedro Armendaris #34;
Self-identified community grants (OI): Rancho de Nuestra Señora de la
Luz;
Self-identified community grants (OI): San Isidro (Town of);
Self-identified community grants (OI): Sangre de Cristo;
Self-identified community grants (OI): Sebastián Martín;
Self-identified community grants (OI): Tecolote (Town of);
Pueblo community grants (P): Pueblo of Acoma.
Pueblo community grants (P): Pueblo of Cochití.
Pueblo community grants (P): Pueblo of Isleta.
Pueblo community grants (P): Pueblo of Jémez.
Pueblo community grants (P): Pueblo of Nambé.
Pueblo community grants (P): Pueblo of Pecos.
Pueblo community grants (P): Pueblo of Picurís.
Pueblo community grants (P): Pueblo of Pojoaque.
Pueblo community grants (P): Pueblo of San Felipe.
Pueblo community grants (P): Pueblo of San Ildefonso.
Pueblo community grants (P): Pueblo of San Juan.
Pueblo community grants (P): Pueblo of Sandía.
Pueblo community grants (P): Pueblo of Santa Ana.
Pueblo community grants (P): Pueblo of Santa Clara.
Pueblo community grants (P): Pueblo of Santo Domingo.
Pueblo community grants (P): Pueblo of Taos.
Pueblo community grants (P): Pueblo of Tesuque.
Pueblo community grants (P): Pueblo of Zía.
Grants confirmed by the Court of Private Land Claims, 1891-1904:
Original documentation community grants (C): Abiquiú (Town of);
Original documentation community grants (C): Atrisco (Town of);
Original documentation community grants (C): Caja del Río;
Original documentation community grants (C): Doña Ana Bend Colony;
Original documentation community grants (C): Mesilla Civil Colony;
Original documentation community grants (C): Santa Bárbara;
Original documentation community grants (C): Sevilleta;
Original documentation community grants (C): Socorro (Town of);
Self-identified community grants (OI): La Majada;
Self-identified community grants (OI): Polvadera;
Self-identified community grants (OI): San Marcos Pueblo;
Self-identified community grants (OI): Santo Domingo de Cundiyó;
Grants confirmed by special congressional action:
Original documentation community grants (C): Albuquerque (Town of);
Original documentation community grants (C): Santa Fé;
Pueblo community grants (P): Pueblo of Zuñí.
Source: GAO analysis.
[End of table]
Table 31: Community Land Grants in New Mexico Confirmed in Part:
Grants that appear to have been awarded complete acreage to the extent
possible:
Original documentation community grants (C): Álamitos;
Original documentation community grants (C): Arroyo Hondo;
Original documentation community grants (C): Bernabé Manual Montaño;
Original documentation community grants (C): Cañada de los Álamos (1);
Original documentation community grants (C): Cubero (Town of);
Original documentation community grants (C): Juan de Gabaldón;
Original documentation community grants (C): Los Serrillos;
Original documentation community grants (C): Nicolás Durán de Cháves;
Original documentation community grants (C): Nuestra Señora del
Rosario, San Fernando y Santiago;
Original documentation community grants (C): Rancho del Río Grande;
Original documentation community grants (C): Santo Tomás de Yturbide;
Self-identified community grants (OI): Alameda (Town of);
Self-identified community grants (OI): Black Mesa;
Self-identified community grants (OI): Bosque Grande;
Self-identified community grants (OI): Cristóbal de la Serna;
Self-identified community grants (OI): Cuyamungué;
Self-identified community grants (OI): Francisco Montes Vigil;
Self-identified community grants (OI): Gijosa;
Self-identified community grants (OI): Pajarito;
Grants with boundary disputes:
Original documentation community grants (C): Juan Bautista Valdez;
Original documentation community grants (C): Ojo de San José;
Original documentation community grants (C): Ranchito;
Original documentation community grants (C): Refugio Civil Colony;
Original documentation community grants (C): San Antonio de las
Huertas;
Self-identified community grants (OI): Bartolomé Sánchez;
Self-identified community grants (OI): Bernalillo (Town of);
Self-identified community grants (OI): Francisco de Anaya Almazán;
Self-identified community grants (OI): Plaza Colorado;
Self-identified community grants (OI): San Clemente;
Self-identified community grants (OI): Santa Rosa de Cubero;
Pueblo community grants (P): Cañada de Santa Clara.
Pueblo community grants (P): Pueblo of Laguna.
Grants restricted to individual allotments only:
Original documentation community grants (C): Cañón de Carnue;
Original documentation community grants (C): Cañón de Chama;
Original documentation community grants (C): Don Fernando de Taos;
Original documentation community grants (C): Galisteo (Town of);
Original documentation community grants (C): Petaca;
Original documentation community grants (C): San Miguel del Vado;
Original documentation community grants (C): Santa Cruz;
Grants restricted to 11 square leagues:
Self-identified community grants (OI): Antonio Baca;
Self-identified community grants (OI): Chaca Mesa;
Source: GAO analysis.
[End of table]
Table 32: Rejected Community Land Grants in New Mexico:
Grants for which claimants failed to pursue and grants were dismissed:
Original documentation community grants (C): Angostura del Pecos;
Original documentation community grants (C): Bartolomé Trujillo;
Original documentation community grants (C): Cadillal;
Original documentation community grants (C): Chaperito (Town of);
Original documentation community grants (C): Los Manuelitas;
Original documentation community grants (C): Mesita Blanca;
Original documentation community grants (C): Pueblo of Quemado;
Original documentation community grants (C): Santo Toribio;
Original documentation community grants (C): Vallecito (de San
Antonio);
Self-identified community grants (OI): Antonio de Salazar;
Self-identified community grants (OI): Arkansas;
Self-identified community grants (OI): Arquito;
Self-identified community grants (OI): Candelarios (Town of);
Self-identified community grants (OI): El Rito (Town of);
Self-identified community grants (OI): Guadalupita;
Self-identified community grants (OI): Hacienda del Álamo;
Self-identified community grants (OI): José Ignacio Alarí;
Self-identified community grants (OI): José Trujillo;
Self-identified community grants (OI): Juan de Ulibarrí;
Self-identified community grants (OI): Las Lagunitas;
Self-identified community grants (OI): Montoya;
Self-identified community grants (OI): Ojito de Galisteo;
Self-identified community grants (OI): Río del Oso;
Self-identified community grants (OI): San Cristóbal;
Self-identified community grants (OI): Santa Rita del Cobre;
Self-identified community grants (OI): Tacubaya;
Pueblo community grants (P): Pueblo of San Cristóbal.
Grants made by officials who lacked authority to make grants:
Original documentation community grants (C): Badito;
Original documentation community grants (C): Cañada de los Mestaños;
Original documentation community grants (C): Cañada de San Francisco;
Original documentation community grants (C): Río del Picurís;
Original documentation community grants (C): San Antonio del Río
Colorado;
Original documentation community grants (C): San Antoñito;
Self-identified community grants (OI): Gotera;
Self-identified community grants (OI): Maragua;
Grants that relied on copies of documents made by officials who were
not authorized to make copies:
Original documentation community grants (C): Cieneguilla (Town of);
Self-identified community grants (OI): Embudo;
Self-identified community grants (OI): Sanguijuela;
Grants rejected for a variety of legal reasons:
Original documentation community grants (C): Barranca;
Original documentation community grants (C): Cebolla;
Original documentation community grants (C): Gervacio Nolan;
Original documentation community grants (C): Los Conejos;
Original documentation community grants (C): Rancho de Ysleta;
Original documentation community grants (C): San Joaquín del
Nacimiento;
Original documentation community grants (C): Vallecito de Lovato (Town
of);
Self-identified community grants (OI): Heath;
Self-identified community grants (OI): Real de Dolores del Oro (Town
of);
Self-identified community grants (OI): Río Tesuque (Town of);
Pueblo community grants (P): Pueblos of Zía, Jémez, & Santa Ana.
Source: GAO analysis.
[End of table]
[End of section]
Appendix XII: Current Land Ownership within Originally Claimed Grant
Boundaries:
This appendix contains six maps (figures 9-14) showing the original
claimed boundaries and current land ownership of eight community land
grants--Cañón de Chama, San Miguel del Vado, Petaca, the Town of
Cieneguilla, San Antonio del Río Colorado, Gotera, Maragua, and Cañada
de San Francisco.
The maps are based on preliminary surveys by the U.S. Bureau of Land
Management (BLM) and are intended to be used for illustrative purposes
only. The maps show the approximate locations and the approximate
original size of eight community land grants. BLM makes no warranty as
to the accuracy, reliability, or completeness of the data represented
in the maps. If Congress decides to take any action concerning any of
the community land grants discussed in this report, additional surveys
would need to be completed by BLM.
The version of this report available on the GAO Web site, at
http://www.gao.gov, shows these six maps (and the other maps in this
report) in color.
Figure 9: Current Land Ownership Within the Original Claimed Boundaries
of the Cañón de Chama Land Grant:
[See PDF for image]
Note: This map is based on a preliminary survey by the Bureau of Land
Management (BLM) and is intended to be used for illustrative purposes
only. The map shows the approximate location and the approximate
original size of a community land grant. BLM makes no warranty as to
the accuracy, reliability, or completeness of the data represented in
the map.
[End of figure]
Figure 10: Current Land Ownership Within the Original Claimed
Boundaries of the San Miguel del Vado Land Grant:
[See PDF for image]
Note: This map is based on a preliminary survey by the Bureau of Land
Management (BLM) and is intended to be used for illustrative purposes
only. The map shows the approximate location and the approximate
original size of a community land grant. BLM makes no warranty as to
the accuracy, reliability, or completeness of the data represented in
the map.
[End of figure]
Figure 11: Current Land Ownership Within the Original Claimed
Boundaries of the Petaca Land Grant:
[See PDF for image]
Note: This map is based on a preliminary survey by the Bureau of Land
Management (BLM) and is intended to be used for illustrative purposes
only. The map shows the approximate location and the approximate
original size of a community land grant. BLM makes no warranty as to
the accuracy, reliability, or completeness of the data represented in
the map.
[End of figure]
Figure 12: Current Land Ownership within the Originally Claimed
Boundaries of the Cieneguilla Land Grant:
[See PDF for image]
Note: This map is based on a preliminary survey by the Bureau of Land
Management (BLM) and is intended to be used for illustrative purposes
only. The map shows the approximate location and the approximate
original size of a community land grant. BLM makes no warranty as to
the accuracy, reliability, or completeness of the data represented in
the map.
[End of figure]
Figure 13: Current Land Ownership within the Originally Claimed
Boundaries of the San Antonio del Río Colorado Land Grant:
[See PDF for image]
Note: This map is based on a preliminary survey by the Bureau of Land
Management (BLM) and is intended to be used for illustrative purposes
only. The map shows the approximate location and the approximate
original size of a community land grant. BLM makes no warranty as to
the accuracy, reliability, or completeness of the data represented in
the map.
[End of figure]
Figure 14: Current Land Ownership within the Originally Claimed
Boundaries of the Gotera, Maragua, and Cañada de San Francisco Land
Grants:
[See PDF for image]
Note: This map is based on preliminary surveys by the Bureau of Land
Management (BLM) and is intended to be used for illustrative purposes
only. The map shows the approximate location and the approximate
original size of three community land grants. BLM makes no warranty as
to the accuracy, reliability, or completeness of the data represented
in the map.
[End of figure]
[End of section]
Appendix XIII: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
Susan D. Sawtelle, Associate General Counsel Alan R. Kasdan, Senior
Attorney Office of General Counsel (202) 512-5400:
Jeffery D. Malcolm, Assistant Director Natural Resources and
Environment Team (202) 512-3841:
Acknowledgments:
In addition to those named above, Robert Alarapon, Robert C. Arsenoff,
Aldo Antonio Benejam, Sue Conlon, Edda Emmanuelli-Perez, James D.
Espinoza, José Alfredo Gómez, Tracy Harris, Barry T. Hill, Chase
Huntley, Gary L. Kepplinger, Jonathan S. McMurray, Wanda Okoro, Anthony
R. Padilla, Veronica C. Sandidge, Josie H. Sigl, Katheryn E. Summers,
and Earl Williams made key contributions to this report.
Translation: The Spanish version of this report (GAO-04-60) was
translated by the Spanish Colonial Research Center, U.S. National Park
Service/University of New Mexico, Albuquerque, New Mexico, Dr. Joseph
P. Sánchez, Director.
FOOTNOTES
[1] GAO simultaneously issued the report in Spanish--U.S. General
Accounting Office, Tratado de Guadalupe Hidalgo: Definición y Lista de
las Concesiones de Tierras Comunitarias en Nuevo México, GAO-01-952
(Washington, D.C.: Sept. 10, 2001).
[2] The Mexican government also entered into agreements with
empresarios, who contracted to provide settlers with tracks of land.
[3] Alan Brinkley, American History: A Survey (McGraw Hill College,
10th ed. 1999), p. 430.
[4] See United States v. Percheman, 32 U.S. 51, 86-87 (1833);
Restatement of the Law, Third, Foreign Relations Law of the United
States (1987) §§ 208-09.
[5] Louisiana Purchase Treaty, Article III (emphasis added).
[6] Appendix I to this report discusses the confirmation processes that
Congress established regarding grants of land covered by the Louisiana
Purchase Treaty and the 1819 U.S.-Spain treaty, known as the Adams-Onis
Treaty or the Transcontinental Treaty. Both treaties served as possible
models for the Treaty of Guadalupe Hidalgo.
[7] Under Article II, Section 2, Clause 2 of the U.S. Constitution, the
President is authorized to negotiate treaties, the terms of which must
then be approved by at least two-thirds of the U.S. Senate. After
Senate approval, the President, acting as the chief diplomat of the
United States, ratifies the treaty. The ratifications of the U.S. and
other parties to the treaty are then exchanged. See generally
Restatement of the Law, Third, Foreign Relations Law of the United
States (1987) § 303. As discussed in chapter 3, in order for provisions
of ratified treaties to be given effect in the United States, they must
either be "self-executing" or implemented by an act (such as an act of
Congress) having the effect of federal law.
[8] Appendix II to this report contains Articles VIII and IX of the
Treaty of Guadalupe Hidalgo and Article X as negotiated by Mr. Trist
but deleted before ratification. The complete Treaty as approved by the
U.S. Senate and ratified by the President and by Mexico is set forth at
9 Stat. 922 (1848).
[9] See Treaty of Guadalupe Hidalgo, Art. XII; Christine Klein,
Treaties of Conquest: Property Rights, Indian Treaties, and the Treaty
of Guadalupe Hidalgo, 26 N.M.L. Rev. 201, 208 (1996).
[10] When the Senate approves a treaty on the basis of a particular
understanding of its meaning, the President, if he ratifies the treaty,
must do so on the basis of the Senate's understanding. Restatement,
Foreign Relations Law, footnote 7 above, § 314. In the case of the
Treaty of Guadalupe Hidalgo, the President agreed with the Senate's
changes and his ratification reflected support for these changes.
[11] See Letter from Secretary of State Buchanan to the Minister of
Foreign Relations of the Mexican Republic (Mar. 18, 1848).
[12] Appendix III to this report contains relevant portions of the
Protocol of Querétaro.
[13] The official name of the treaty, signed on December 30, 1853, is
the Treaty of Boundary, Cession of Territory, Transfer of Isthmus of
Tehuantepec.
[14] Appendix IV to this report contains Articles V and VI of the
Gadsden Purchase Treaty. As discussed in chapter 2, footnote 38, land
grants which had been made within the Gadsden Purchase territory were
not initially treated in the same manner as grants within the
territories ceded under the Treaty of Guadalupe Hidalgo, due to the
Department of the Interior's initial interpretation of the Act of
August 4, 1854 (10 Stat. 575) that added the Gadsden Purchase territory
to the New Mexico Territory.
[15] Relevant portions of the 1851 Act, 9 Stat. 631 ("An Act to
ascertain and settle the private Land Claims in the State of
California"), sometimes referred to as the Mexican Claims Act, are
contained in appendix V of this report.
[16] Relevant portions of the 1854 Act, 10 Stat. 308 ("An Act to
establish the offices of Surveyor-General of New Mexico, Kansas, and
Nebraska, to grant donations to actual settlers therein, and for other
purposes"), are contained in appendix VI of this report.
[17] As reflected in table 1 later in this chapter, Congress
established the Office of the Surveyor General of California in 1851
and later established Surveyor General positions in Utah, Colorado,
Nevada, and Arizona. The 1854 legislation that established the Office
of the Surveyor General of New Mexico also established the Office of
Surveyor General for Kansas and Nebraska.
[18] United States v. O'Donnell, 303 U.S. 501, 523-24 (1938). The
O'Donnell decision, the "political" nature of the Commission's
jurisdiction, and the non-adversarial nature of its proceedings are
discussed in greater detail in chapter 3.
[19] Equity principles reflect broad principles of fairness, in
addition to technical requirements of the law.
[20] Prima facie evidence is evidence that is sufficient to establish a
presumption that a particular set of facts are true and to switch the
burden of proof to the party seeking to establish that the facts are
not true or have a different meaning.
[21] Thus the California land grant confirmation process was not to be
a strictly "in personam" proceeding (determining the rights and
obligations of one person over another) or an "in rem" proceeding
(determining the ownership rights of all persons regarding specific
property), but rather a "quasi in rem" proceeding (determining the
interests of particular persons in particular property). See generally
Restatement, Second, Judgments (1982) §§ 2, 5, 6 (a "true" in rem
proceeding is one "against all the world," see § 6, Comment "a"). Quasi
in rem proceedings include those where a claimant seeks to establish
ownership in specific property and extinguish the ownership interests
of others, see Hanson v. Denckla, 257 U.S. 235, 246 n. 12 (1958). The
constitutional due process implications of these different categories
of proceedings for land grant claims under the Treaty of Guadalupe
Hidalgo are discussed in chapter 3.
[22] A "perfect" grant was a grant made in accordance with Spanish or
Mexican legal requirements and for which the conditions attached to the
grant have been satisfied. An "imperfect," "incomplete" or "inchoate"
grant was a grant either not made in accordance with these legal
requirements or for which all conditions had not been satisfied.
[23] See, e.g., DeArguello v. Greer, 26 Cal. 615 (1864); Minturn v.
Brower, 24 Cal. 644 (1864).
[24] See generally Federico M. Cheever, Comment: A New Approach to
Spanish and Mexican Land Grants and the Public Trust Doctrine: Defining
the Property Interest Protected by the Treaty of Guadalupe-Hidalgo, 33
UCLA L. Rev. 1364, 1389-95 (1986). See also United States v. O'Donnell,
footnote 18 above (because 1851 Act resolved title between claimants
and the U.S., persons later claiming title under the U.S. were not
"third parties" entitled to file challenges under Section 15).
[25] See, e.g., Freemont v. United States, 58 U.S. 542 (1854); United
States v. Reading, 59 U.S. 1 (1855); United States v. Larkin , 59 U.S.
557 (1855); United States v. Fossatt, 62 U.S. 445 (1858); United States
v. Teschmaker, 63 U.S. 392 (1859); United States v. Andres Pico, 63
U.S. 406 (1859); United States v. Rose, 64 U.S. 256 (1859); Luco v.
United States, 64 U.S. 515 (1859); Stearns v. United States, 73 U.S.
589 (1867). But see United States v. Cambuston, 61 U.S. 59 (1857)
(rejecting California land grants not made by Mexican governors, in
light of 1824 Mexican statute and 1828 Mexican regulations authorizing
only governors to make grants according to terms of the statute and
regulations).
[26] United States v. Fossatt, footnote 25 above, p. 451.
[27] C. Klein, footnote 9 above, 26 N.M.L. Rev., p. 223.
[28] The Botiller decision is discussed in greater detail in chapter 3.
[29] The General Land Office, created in 1812, was later combined with
the Grazing Office on July 16, 1946, to form the Department of the
Interior's Bureau of Land Management. Today, the Bureau of Land
Management's New Mexico Office, located in Santa Fe, retains some of
the historical records and surveys from the Surveyor General of New
Mexico.
[30] See Act of Feb. 28, 1861, 12 Stat. 172. The Department of the
Interior did not issue instructions for the investigation of land grant
claims to the Surveyor General of Colorado until 1877, however.
[31] The Office of the Surveyor General of Arizona was originally
established by the Act of the February 24, 1863, and the office opened
in Tucson, Arizona, on January 25, 1864. Under the Act of February 24,
1863, 12 Stat. 664, the Surveyor General of Arizona had the same powers
and duties as the Surveyor General of New Mexico. However, the Office
of the Surveyor General of Arizona closed on July 4, 1864. From 1864
until 1870, when the office reopened, either the Surveyor General of
New Mexico or the Surveyor General of California covered the Arizona
Territory. The Office of the Surveyor General of Arizona was reopened
by the Act of July 11, 1870, 16 Stat. 230, and the Act of July 15,
1870, 16 Stat. 291, reestablished the authority for the Surveyor
General of Arizona to investigate land grant claims. The Department of
the Interior did not issue instructions for the investigation of land
grant claims to the Surveyor General of Arizona until 1877, however.
[32] See Act of March 3, 1891, 26 Stat. 854 ("An act to establish a
court of private land claims, and to provide for the settlement of
private claims in certain States and Territories"). Relevant portions
of the 1891 Act are contained in appendix VII to this report.
[33] As noted, appendix I to this report discusses the confirmation
processes under the Louisiana and Florida purchase treaties.
[34] As noted, whether the Surveyor General process complied with due
process requirements is discussed in chapter 3.
[35] In June 1967, a group of armed men took two hostages from the Rio
Arriba County courthouse in the town of Tierra Amarilla, in which
several Alianza Federal de Mercedes members were being arraigned for
unlawful assembly. The Alianza Federal de Mercedes, headed by Reies
Lopez Tijerina, was an organization that sought the return of ownership
of Spanish and Mexican land grants to heirs of the grantees. Many of
these heirs were concerned about what they believed was the loss of
hundreds of thousands of acres of ancestral grant lands through the
actions of private parties and the U.S. government.
[36] See U.S. General Accounting Office, Treaty of Guadalupe Hidalgo:
Definition and List of Community Land Grants in New Mexico, GAO-01-951
(Washington, D.C.: Sept. 10, 2001); U.S. General Accounting Office,
Tratado de Guadalupe Hidalgo: Definición y Lista de las Concesiones de
Tierras Comunitarias en Nuevo México, GAO-01-952 (Washington, D.C.:
Sept. 10, 2001).
[37] The Surveyor General of New Mexico was established with the same
general "power, authority, and duties...as those provided by law
for the Surveyor-General of Oregon." The Surveyor General of Oregon, in
turn, was established in 1850 with the same authority and duties, as
the "surveyor of lands in the United States northwest of the Ohio,"
except as provided otherwise. See Act of September 27, 1850, 9 Stat.
496. At the end of 1854, there were a total of 11 surveyors general
across the country from Florida to California.
[38] Initially, the Surveyor General's authority to evaluate land grant
claims was not considered to include grants located within the Gadsden
Purchase. An Act of August 4, 1854 (10 Stat. 575), provided that "until
otherwise provided by law, the territory acquired under the late treaty
with Mexico, commonly known as the Gadsden treaty, be, and the same is
hereby incorporated with the territory of New Mexico, subject to all
the laws of said last named territory." (Emphasis added.) From 1854 to
1872, however, the Department of the Interior's General Land Office
interpreted the phrase "subject to all the laws of said last named
territory" to mean local territorial laws and not acts of Congress such
as the 1854 Act implementing the Treaty of Guadalupe Hidalgo, and thus
the Surveyor General's authority was not deemed to include the Gadsden
Purchase. It was not until February 1872, when the Department issued a
new interpretation of the Act of August 4, 1854, that the Surveyor
General's authority was deemed to extend to the Gadsden Purchase.
[39] The 1891 Act creating the CPLC also set a 2-year filing deadline,
as did the statutes pertaining to filing land grant claims with respect
to the Louisiana Purchase and Florida. (The Louisiana Purchase and
Florida deadlines were later extended.)
[40] As shown in appendix VI of this report, to encourage settlement of
the vast public lands the federal government owned in the western
United States, Sections 1 and 2 of the 1854 Act offered to every white
male citizen of the United States, and every white male above the age
of 21 residing in the territory prior to the first day in January 1853
who had declared the intention to become a citizen, 160 acres of land
in the territory.
[41] Interior's instructions to the Surveyor General, dated August 21,
1854 and entitled, "Instructions to the Surveyor General of New
Mexico," are contained in appendix IX to this report.
[42] As noted in chapter 1, a "perfect" grant was a grant that had
satisfied all the requirements and conditions for a valid grant under
Spanish or Mexican law. An "imperfect" grant, also called an "inchoate"
or "incomplete" grant, was one that had not met all these requirements
and conditions. In this context, the terms "imperfect grant,"
"incomplete grant," and "inchoate grant" are equivalent to having
"equitable title." A claim based on equitable title gives all of the
benefits of ownership even though technical legal title is held by
another party. See Chitimacha Tribe of Louisiana v. Harry L. Laws Co.,
690 F.2d 1157, 1169-70 (5th Cir. 1982); Soulard v. United States, 29
U.S. 511, 512 (1830); Strother v. Lucas, 37 U.S. 410, 436 (1838); Leese
v. Clark, 20 Cal. 387, 421 (1862).
[43] The Surveyor General's first annual report, dated September 30,
1855, includes a copy of the Surveyor General's initial newspaper
notice, as published in English and Spanish, requesting the information
specified in Interior's instructions. No deadline was set for filing of
claims; the notice stated that "[t]o enable the surveyor general to
execute the duty thus imposed upon him, by law, he has to request all
those individuals who claimed lands in New Mexico before the treaty of
1848, to produce the evidences of such claims at this office at Santa
Fe as soon as possible." The report does not indicate whether the
notice was published only in the Santa Fe newspaper of largest
circulation or in other locations as well. The Surveyor General's
annual report for 1858 indicates that the notice was published multiple
times; as the Surveyor General explained, "The office has been in
operation now for four years, and notice has been constantly given to
the inhabitants from the period of its establishment up to the present
time, inviting them to present their claims at as early a day as
practicable; notwithstanding all this, but a small proportion of the
claims have been filed." (Emphasis added.)
[44] A total of 229 claims were filed with the Surveyor General of New
Mexico, including two claims for land grants currently located
exclusively in Colorado, two claims for land grants made by Texas in
the disputed area of the New Mexico Territory east of the Rio Grande
River, and three claims for land grants made after the United States
took control of the territory. Except for one of the Texas grants, each
of the claims was either assigned a Surveyor General file number from 1
to 213 or a letter from A to V. Not all of the numbers or letters in
either sequence were used. In some cases, multiple claims were filed
for the same grant or one claim involved multiple land grants. The
Indian Pueblo claims were designated alphabetically from A to V. The
letter "J" was not used, and the joint claim by the Pueblos of Zía,
Jémez, and Santa Ana was designated as "TT."
[45] As detailed in chapter 1, some of the archives had been destroyed
during the American military occupation of Santa Fe in 1846. In
addition, the Surveyor General of New Mexico, in an 1885 annual report,
noted "many grant documents disappeared during the attempted wholesale
destruction of the New Mexico Archives by an American Governor in
1870." Also, the Surveyor General reported that other documents related
to grants suffered from "wear and tear," were lost, were mutilated, or
became illegible.
[46] Docket information contained in reports of the Surveyors General
of New Mexico indicates that there was cross-examination of witnesses
in at least 20 instances regarding at least the following claims:
Cross-examination of witnesses supporting the claimant by an attorney
for a party contesting claim: (1) Los Trigos grant (Surveyor General
Report (SGR) No. 8, 1856); (2) Los Serillos grant (SGR No. 59, 1872);
(3) Cañada de los Apaches (Gotera) grant (SGR No. 56, 1871); (4) Town
of Galisteo grant (SGR No. 60, 1872); (5) Bartolomé Baca grant (SGR No.
126, 1881); (6) Sierra Mosca grant (Supplemental SGR No. 75, 1886); and
(7) José García grant (SGR No. 160, 1888). In addition, in the Ojito de
las Gallinas grant (Preston Beck) case (SGR No. 1, 1856), involving a
dispute between Preston Beck and settlers on the grant lands, attorneys
for both parties presented testimony.
Cross-examination of witnesses supporting the claimant by an attorney
for the United States: (1) Jornado del Muerto grant (SGR No. 26, 1859);
(2) Bartolomé Baca grant (SGR No. 126, 1881); (3) Rancho de la Santísma
Trinidad grant (SGR No. 123, 1881); (4) Sebastián de Vargas grant (SGR
No. 137, 1884); and (5) Santo Tomás de Yturbide grant (SGR No. 139,
1885). In addition, in the José Manuel Sánchez Baca grant (SGR No. 129,
1882), an attorney for the United States was present but did not
conduct cross-examination.
Cross-examination of witnesses supporting the claimant by the Surveyor
General or his staff: (1) Town of Antón Chico grant (SGR No. 29, 1859);
(2) Town of Mora grant (SGR No. 32, 1859); (3) San Joaquín de
Nacimiento grant (Supplemental SGR No. 66, 1886); (4) Francisco de
Anaya Almazán grant (Supplemental SGR No. 115, 1886) (the docket is
unclear as to the person conducting the cross-examination; it appears
to have been the Surveyor General or his staff because they were in
overall control of the proceeding); (5) Pajarito grant (SGR No. 157,
1887); (6) Town of Cieneguilla grant (Supplemental SGR No. 62, 1886);
(7) Arroyo Hondo grant (SGR 159, 1888); and (8) Cristóbal de la Cerna
grant (SGR No. 158, 1888).
[47] A total of 183 reports were issued, including reports for 2 land
grants currently located exclusively in Colorado and 2 reports for the
land grants made by Texas in the disputed area of the New Mexico
Territory east of the Rio Grande River. Two reports covered multiple
grants and three grants were covered by multiple reports. There is no
correlation between the Surveyor General file number and the Surveyor
General report number. The San Clemente community land grant, for
example, was Surveyor General File No. 3 and Report No. 67.
[48] The two alternative criteria that GAO applied in identifying
community land grants were that a grant contained common lands and that
the grant had been issued to 10 or more settlers.
[49] The Cambuston case is discussed in greater detail in chapter 3.
[50] The 1860 statute, for example, provided that "the foregoing
confirmation shall only be construed as quit-claims or relinquishments
on the part of the United States, and shall not affect the adverse
rights of any other person or persons whomsoever." 12 Stat. 71, 71-72
(1860).
[51] See, e.g., Interstate Land Co. v. Maxwell Land Grant Co., 139 U.S.
569, 580 (1893); Jones v. St. Louis Land & Cattle Co., 232 U.S. 355,
359-61 (1914). But see Lobato v. Taylor, 13 P.3d 821 (Colo. Ct. App.
2000)(citing Tameling v. U.S. Freehold & Emigration Co., 93 U.S. 644
(1876), discussed later in this chapter), rev'd on other grounds, 71
P.3d 938 (Colo. 2002) (holding later claimants were bound by 1860
confirmation act despite act's statement that it only affects rights of
U.S. and original claimant). See generally F. Cheever, footnote 24
above.
[52] Act of May 30, 1862, 12 Stat. 409; Act of June 2, 1862, 12 Stat.
410.
[53] The Act of June 2, 1862 was repealed by the Act of February 18,
1871, 16 Stat. 416. Section 3 of the Act of May 30, 1862 was repealed
by the Act of March 3, 1875, 18 Stat. 384.
[54] Act of July 31, 1876, 19 Stat. 121. Under the subsequent CPLC
statute enacted in March 1891, the survey cost was split evenly between
the claimant and the U.S. government.
[55] See H.R. 544, 35th Cong., 1st Sess. (1858).
[56] The Tameling decision is also discussed in chapter 3.
[57] See United States v. Larkin, 59 U.S. 557 (1855); United States. v.
The Widow, Heirs, and Executors of William E.P. Hartnell, 63 U.S. 286
(1859).
[58] The Las Animas grant in Colorado represents the opposite
situation: where the original grant was large and was considerably
reduced by Congress. The grant was confirmed by the Act of June 21,
1860 along with the Maxwell and Sangre de Cristo grants, and was
reduced from its original size of over 4 million acres to about 97,000
acres (22 square leagues, or 11 square leagues per person for 2
people).
[59] By contrast, as noted above and discussed in chapter 3, persons
who believed they had title equal or superior to the original claimants
could file a separate court challenge.
[60] Tameling, 93 U.S. at 663. In this context, the Supreme Court used
the term grant de novo to mean that congressional confirmation was the
equivalent of the United States having awarded a new grant conveying
its own property interest. Congress took similar action when, after the
Supreme Court had rejected confirmation of the Santa Fé and Town of
Albuquerque grants previously confirmed by the Court of Private Land
Claims, Congress decided to confirm the two grants itself (see tables
12 and 13 later in this chapter).
[61] Congress appropriated $25,000 for the fiscal year ending June 30,
1877, for the surveying of land grant claims in the United States. Most
of the funding--$17,000--was allocated to New Mexico, the remainder
being divided between Arizona, California, and Nevada. The funding
allowed the U.S. government to determine the size of the grants
awaiting congressional action. The claimants were still ultimately
responsible for the surveyor costs and had to reimburse the U.S.
government for these costs if their grant was eventually confirmed. The
Mesita de Juana López grant was one of the first grants to be surveyed
with this new funding.
[62] 21 Cong. Rec. 10415 (Sept. 25, 1890).
[63] J.J. Bowden, "Private Land Claims in the Southwest" (unpublished
L.L.M. thesis), Vol. I (Dallas, Tex.: Southern Methodist University,
1969), p. 230.
[64] Appendix X of this report lists all 295 Spanish and Mexican land
grants made in New Mexico and for each grant, identifies the grant
type, the Surveyor General file and report number, and the CPLC docket
number.
[65] Sections 16-18 of the1891 Act authorized small-holding claims of
up to 160 acres per person. (See appendix VII to this report.)
[66] Although section 9 of the 1891 Act authorized the U.S. Supreme
Court to conduct an entirely new trial on the claim if "truth and
justice required," it never exercised this authority.
[67] As detailed in chapter 3, heirs have filed suit against the
Tecolote Land Grant in New Mexico state court over what they assert is
their superior title to portions of the grant based on both Mexican law
and state adverse possession statutes. See Montoya v. Tecolote Land
Grant, No. D-412-CV-9900322, Fourth Judicial District, County of San
Miguel. The doctrine of adverse possession allows a person to gain
complete, fee simple title to real property owned by another person
through open, continuous, and uninterrupted possession of the real
property for a period of years, and New Mexico has enacted legislation
specifically addressing land grants, allowing title to be obtained in
this manner after 10 years. See N.M.S.A. § 37-1-21. Thus a person with
inferior title who has occupied a land grant for at least 10 years in
compliance with the New Mexican adverse possession statute might be
able to defeat the challenge of a party with superior title, see, e.g.,
Montoya v. Gonzales, 232 U.S. 375 (1914) (applying previous New Mexico
statute). There appears to be no statute-of-limitations deadline under
New Mexico law for bringing challenges based on either superior Spanish
or Mexican title or adverse possession, and on September 17, 2003, the
court in the Montoya v. Tecolote Land Grant suit ruled that the claims
there also were not barred by the doctrine of laches (injury or
prejudice resulting from the lapse of time).
[68] As noted above, to encourage new settlers, the 1854 Act offered up
to 160 acres to every white male citizen of the United States and every
white male above the age of 21 who had declared the intention to become
a citizen and was residing in the territory prior to the first day in
January 1853.
[69] See United States v. Elder, above, 77 U.S. at 123; Peralta v.
United States, 70 U.S. 434, 441 (1865).
[70] Equity courts developed in England in response to the rigid nature
of English law. Although at one time in the United States there were
separate courts of law and courts of equity, modern courts exercise
both of these powers.
[71] Ely's Administrator involved a grant located in the Gadsden
Purchase, and the Supreme Court held that CPLC could use its equity
powers to locate the area covered by the grant:
Therefore in an investigation of this kind [the CPLC] is not limited to
the dry, technical rules of a court of law, but may inquire and
establish that which equitably was the land granted by the government
of Mexico. It was doubtless the purpose of congress by this enactment,
to provide a tribunal which should examine all claims and titles, and
that should, so far as was practicable in conformance with equitable
rules, finally settle and determine the rights of all claimants.
171 U.S. at 240.
[72] See United States v. Chaves, 159 U.S. 452, 456 (1895); see also
Sena v. United States, 189 U.S. 233, 240 (1903).
[73] See Sandoval, 167 U.S. at 298. See also Rio Arriba Land & Cattle
Co. v. United States, 167 U.S. 298, 309 (1897) (applying Sandoval
decision to Cañón de Chama grant).
[74] On December 5, 1901, President Theodore Roosevelt appointed Frank
I. Osborne to fill the vacancy created by Associate Justice Fuller's
death.
[75] See U.S. Attorney's annual reports for 1891and 1892. The U.S.
Attorney for the CPLC was required to submit an annual report outlining
the workings of the court, and these were incorporated into the
Department of Justice's annual report of the Attorney General of the
United States.
[76] A total of 282 claims were filed with the CPLC's New Mexico
District, including 12 claims that were subsequently transferred to the
Arizona District and 5 claims for the Las Animas land grant in
Colorado. Multiple claims were filed for a number of grants.
[77] For example, special agent Will M. Tipton, who remained with the
U.S. Attorney's Office for 9 years, was fluent in Spanish and an expert
in handwriting. He examined and advised upon papers involved in land
grant cases and was considered an expert because he had served for 16
years in the New Mexico Surveyor General's office as a clerk, copyist,
translator, and custodian of the archives.
[78] According to Bowden, footnote 63 above, the CPLC discovered that
many of the potentially relevant laws and statutes had never been
translated into English. The U.S. Attorney, Matthew Reynolds, therefore
compiled and published translations of the Spanish and Mexican cedulas
and laws that were most frequently referred to in the land grant
claims, and Mr. Reynolds and the CPLC used these translations in their
work. The U.S. Supreme Court also used these and other translations in
its review of the CPLC's decisions. Scholars have criticized the use of
Reynolds's translations on the ground that they did not include all
laws pertaining to land grants.
[79] See generally Richard Wells Bradfute, The Court of Private Land
Claims: The Adjudication of Spanish and Mexican Land Grant Titles,
1891-1904 (Albuquerque, N. Mex.: University of New Mexico Press, 1975).
[80] See F. Cheever, footnote 24 above, 33 UCLA L. Rev., p. 1388.
[81] See 1891 Act, Sec. 17. As discussed in footnote 67 above, the
doctrine of adverse possession allows a person to gain complete, fee
simple title to real property owned by another person through open,
continuous, and uninterrupted possession of the real property for a
period of years.
[82] Congress later passed three additional acts in 1922, 1926 and 1932
authorizing the Commissioner of the General Land Office or the
Secretary of the Interior to issue patents for up to 160 acres for
tracts of land that had been held in adverse possession.
[83] See, e.g., Malcolm Ebright, Land Grants & Law Suits in Northern
New Mexico (Albuquerque, N. Mex.: University of New Mexico Press,
1994), p. 37.
[84] Of this 55 percent (9.98 million acres) awarded, the Surveyor
General awarded 80 percent of the acreage and the CPLC awarded the
remaining 20 percent.
[85] Appendix XI to this report contains a detailed summary of the
results for each of the 154 community land grants.
[86] As discussed in chapter 2, the surveying of land grants was
controversial and open to abuse because of: (1) vague or nonexistent
boundary descriptions; (2) the Surveyor General's reliance on claimants
to help identify the grant boundaries; and (3) using contract surveyors
who were paid by the mile. While some heirs claim that their grants
were inappropriately reduced in size due to inaccurate surveys,
allegations also have been made by numerous Surveyors General and the
public that grants were inappropriately enlarged during the surveying
process.
[87] The surveys reduced the acreage from 12,546 acres, to 9,647 acres,
to 7,342 acres, respectively. The grant was awarded 7,342 acres based
on the final survey. The first survey was defective because the lines
of the survey did not close to form an enclosed land area. A boundary
conflict with the San Miguel del Vado grant led to the final
adjustment, from 9,647 acres to 7,342 acres.
[88] As the Court noted, "[t]his was matter for the consideration of
Congress; and we deem ourselves concluded by the action of that body.
The phraseology of the confirmatory act is, in our opinion, explicit
and unequivocal." Id. at 663.
[89] For cases involving the Tierra Amarilla grant, see Martinez v.
Rivera, 196 F.2d 192, 193-94 (10th Cir.), cert. denied, 344 U.S. 828
(1952); Flores v. Brusselbach, 149 F.2d 616, 617 (10th Cir. 1945);
Payne Land & Livestock Co. v. Archuleta, 180 F. Supp. 651, 654-55
(D.N.M. 1960); and H.N.D. Land Co. v. Suazo, 44 N.M. 547 (1940). See
also Martinez v. Mundy, 61 N.M. 87, 90 (1956) (following Suazo and
holding that whether Congress confirmed the Tierra Amarilla grant as an
individual grant or made a grant de novo of its common lands, it vested
"absolute title" in the grantee). For cases involving challenges to
congressional confirmation of community grants, see Mondragon v.
Tenorio, 554 F.2d 423, 425 (10th Cir. 1977), and Reilly v. Shipman, 266
F. 852, 859 (8th Cir. 1920) (both involving the Town of Antón Chico
grant), and Yeast v. Pru, 292 F. 598, 605-07 (D.N.M. 1923) (involving
the towns of Casa Colorado and Belén grants).
[90] As discussed in chapter 1, however (see footnote 24), although the
1851 Act provided that decisions resulting from the California
Commission process were not binding on certain "third persons" who had
not filed a claim, the Supreme Court's Botiller v. Dominguez decision
effectively eliminated this provision of the statute and made the
Commission's decisions binding on all parties.
[91] See Montoya v. Tecolote Land Grant, No. D-412-CV-9900322, Fourth
Judicial District, County of San Miguel, Partial Stipulated Order and
Judgment (May 2, 2003).
[92] See Montoya v. Tecolote Land Grant, footnote 91 above, Findings of
Fact and Conclusions of Law (Sept. 17, 2003). The court found two
independent grounds for the heirs' superior title: Mexican law (the
1825 grant and the 1838 administrative decision) and state adverse
possession statutes. The court also ruled that the heirs' claims were
not barred by the doctrine of laches (injury or prejudice resulting
from the lapse of time). At the time of this report, the Land Grant has
indicated that it plans to appeal the court's September 17, 2003
decision.
[93] See University of New Mexico School of Law, Natural Resources
Center (submitted to the Farmers Home Administration in Washington,
D.C.), Remote Claims Impact Study: Lot II-A, Study of the Problems That
Resulted from Spanish and Mexican Land Grant Claims (Albuquerque, N.
Mex.: 1980); Richard Wells Bradfute, The Court of Private Land Claims:
The Adjudication of Spanish and Mexican Land Grant Titles, 1891-1904
(Albuquerque, N. Mex.: University of New Mexico Press, 1975); Plácido
Gómez, Comment, The History and Adjudication of the Common Lands of
Spanish and Mexican Land Grants, 25 Nat. R. J. 1039 (1985).
[94] An "equitable right" in property is a right to benefit from the
use of property to which another entity holds legal title.
[95] Article IV, Section 3, Clause 2 of the U.S. Constitution, known as
the Property Clause, provides that "Congress shall have Power to
dispose of and make all needful Rules and Regulations respecting the
Territory or other Property belonging to the United States." (Emphasis
added.)
[96] See M. Ebright, Land Grants and Law Suits in Northern New Mexico,
footnote 83 above, p. 24 and chapter 5; Michael C. Meyer with Michael
M. Brescia, The Contemporary Significance of the Treaty of Guadalupe
Hidalgo to Land Use Issues in Northern New Mexico (Taos, N. Mex.:
Northern New Mexico Stockman's Association and the Institute of
Hispanic American Culture, 1998), pp.15-41; Daniel Tyler, "Ejido Lands
in New Mexico," in Spanish and Mexican Land Grants and the Law
(Manhattan, Kan.: Sunflower University Press, Malcolm Ebright, ed.,
1989), pp. 24-35.
[97] See M. Meyer and M. Brescia, footnote 96 above, p. 80; C. Klein,
footnote 9 above, 26 N.M.L. Rev., pp. 236-37; Richard Garcia and Todd
Howland, Determining the Legitimacy of Spanish Land Grants in Colorado:
Conflicting Values, Legal Pluralism and Demystification of the Sangre
de Cristo/Rael Case, 16 Chicano-Latino L. Rev. 39, 41-44, 52-57, 60-63
(1995). Public land was owned either by the King, tierras realengas or
tierra baldías, or by a town or village, tierras concegiles. Tierras
baldías were available for everyone's use, either in common as grazing
land, or by a few individuals for planting as long as the lands were in
continuous use. The tierras concegiles of the towns and villages fell
into two categories: (1) common property set aside by all the settlers,
for example, ejidos, montes, and dehesas; and (2) the propios, which
were rented out by the towns to earn income to cover town expenses.
In addition, although none of the property provisions of the Treaty of
Guadalupe Hidalgo defined the term "property," in other cases
concerning land grants in Florida and Missouri, under different
treaties, the U.S. Supreme Court has defined the term to include all
kinds of land title--legal and equitable, perfect and imperfect--which
attaches to land according to local custom and usage. See Hornsby v.
United States, 77 U.S. 224, 242 (1869); Strother v. Lucas, 37 U.S. 410,
436 (1838). See also Mitchell v. United States, 34 U.S. 711, 734-35
(1835); United States v. Repetigny, 72 U.S. 211, 259-60 (1866); Knight
v. United States, 142 U.S. 161, 184 (1891); West v. Multibanco
Commermex, S. A., 807 F.2d 820, 830 (9th Cir. 1987).
[98] See P. Gómez, footnote 93 above, pp. 1051-53.
[99] Cambuston, 61 U.S. at 63-64 (emphasis added). The Supreme Court
was looking in part at principles of equity because, as discussed in
chapter 2 above, the California Commission was allowed to consider such
principles under the 1851 Act.
[100] The Departmental Assembly was equivalent to Provincial Deputation
or Territorial Deputation under different Mexican governmental
structures.
[101] Where the presumption in favor of towns did not apply, however,
the Surveyor General followed Cambuston and Vigil in rejecting grants.
For example, in rejecting the Ojo del Apache individual land grant in
1872, Surveyor General Proudfit specifically cited Cambuston:
[I]n this case the grant was made by a justice of the peace, who, so
far as I can learn, was not empowered either by law or custom, under
any circumstances whatever, to make donations of the "vacant public
lands of the republic of México." It does not appear that any attempt
was ever made to comply with any single one of the regulations of 1828,
or the law of 1824, in making this grant.
See Surveyor General James K. Proudfit, "Opinion of the Surveyor
General for the Ojo del Apache Grant," Dec. 19, 1872, Report No. 72, in
Sen. Ex. Doc. No. 45, 42d Cong., 3rd Sess. (1873), p. 19. Similarly,
after the 1871 Vigil decision, the Surveyor General of New Mexico began
rejecting Mexican land grants that did not qualify for the presumption
and that had been made by the Mexican Departmental Assembly/Territorial
Deputation rather than the Governor. Surveyor General Julian also cited
Vigil in two 1886 supplemental decisions recommending rejection of two
individual grants which did not qualify for the presumption, the Nerio
Antonio Montoya grant and the Ojo de la Cabra grant.
[102] While the claimants for the Sanguijuela land grant also relied on
a copy of grant documents, the CPLC rejected the grant for this and
other reasons, as discussed below.
[103] The CPLC's Bernalillo decision contains a lengthy discussion
about the necessity of making copies of grant documents as they became
worn over time and about how such copies were customarily made. The
U.S. Attorney representing the U.S. government's interests in the
proceedings before the CPLC recommended that the U.S. government appeal
the Bernalillo decision, but no appeal was filed and the Town of
Bernalillo was awarded 3,404.67 acres.
[104] The Hayes case involved an appeal by the claimants for the Arroyo
de San Lorenzo individual land grant. The CPLC had rejected the grant
because it was made by an unauthorized Mexican official and the U.S.
Supreme Court upheld the CPLC's decision.
[105] See Antonio Griego v. United States, unpublished CPLC decision
for the Embudo Grant, Docket No. 173, July 5, 1898, pp. 1-2.
[106] As discussed later in this chapter, the United States had
discretion as a matter of international law to adopt whatever
confirmation procedures it deemed appropriate. Thus the only potential
legal grounds for objecting to the procedures established in the 1854
Act are requirements of U.S. law such as the Constitution's due process
requirements.
[107] Statements that the Surveyor General of New Mexico procedures
violated the requirements of due process of law under the Constitution
have appeared repeatedly in the land grant literature, and may
contribute to the belief by some land grant heirs today that the
procedures violated legal requirements. Because of the prominence of
these statements and the role they may play in the continuing public
debate over implementation of the Treaty of Guadalupe Hidalgo, we quote
four selected examples at length here: (1) "The procedures followed by
the Surveyor General...lacked the due process safeguards of notice
and a hearing. [The Surveyor General] acted ex parte, the claimant
merely presenting evidence, usually by affidavit, without challenge or
cross-examination. . . The Tierra Amarilla case is illustrative of . .
. the injustice of the Surveyor General system in New Mexico which
failed to hold hearings or to provide adequate notice. Political
influence generally determined the outcome of many of these
'adjudications.' They can hardly be called adjudications since they
contained none of the procedures associated with due process."--Charles
DuMars and Malcolm Ebright, Problems of Spanish and Mexican Land Grants
in the Southwest: Their Origin and Extent, 1 Southwest Rev. of Mgmt. &
Econ. 177, 177, 185 (1981) (no legal authorities cited) (footnote
omitted, quoting selected portion of 1867 annual Surveyor General's
Report addressing impact on private claimants). (2) "The most glaring
disparity [between the Surveyor General of New Mexico and the
California Commission] was in the procedures manipulated by the
Surveyor General. 'He acted ex-parte, the claimant merely presenting
evidence...without challenge or cross-examination.' . . '[D]ue
process safeguards of notice and a hearing' were disregarded and the
door was left open to fraud and political collusion."--P. Gómez,
footnote 93 above, pp. 1069-70 (1985) (citing DuMars and Ebright,
above). (3) "[S]urely the most serious defect in the surveyor general
procedure [was that] it lacked the essential element of all true
adjudication--due process of law. To adjudicate land titles is to
determine land ownership judicially, and the Constitution of the United
States mandates that no one be deprived of property without a judicial
determination meeting the requirements of due process of law. Due
process requires that there be a hearing at which interested parties
can present evidence and cross-examine opposing witnesses and that
actual notice of the hearing be given to those whose property rights
might be affected. The failure to require a hearing with an adversarial
procedure meant that most claims were decided solely on self-serving
affidavits with no opportunity for cross-examination. Potential adverse
claimants were usually not even notified of the proceedings."--M.
Ebright, Land Grants and Law Suits in Northern New Mexico, footnote 83
above, p. 39 (citing 16 American Jurisprudence 2d [Constitutional Law]
§ 935). (4) "The prime culprit here [regarding Surveyor General's
evaluation of the Tierra Amarilla Grant] was the system of land grant
adjudication devised by Congress for New Mexico. It was not a real
adjudication meeting due process of law standards, but was a one-sided
administrative proceeding in which the Surveyor General acted as
lawyer, judge and jury. This is in sharp contrast to the relatively
fair judicial system employed in California to settle land grant
claims, under which both the claimant and the government were
represented by lawyers. There, the issues of the validity and nature of
the grant were argued before a commission which decided the questions
raised in an adversary proceeding."
"The difference between these two procedures illustrates the
requirements of due process of law, a right guaranteed under the United
States Constitution. The elements of due process are: a hearing, at
which all interested parties have the right to present evidence and
cross-examine opposing witnesses, and actual notice of the hearing to
those whose property rights might be affected."--Malcolm Ebright, The
Tierra Amarilla Grant: A History of Chicanery (Center for Land Grant
Studies, 3rd ed. 1993), pp. 18-20 (citing 16 American Jurisprudence 2d
[Constitutional Law] § 935).
[108] As one commentator has noted, "[d]ue process may be the most
frequently litigated concept in the Constitution." Robert Riggs,
Substantive Due Process in 1791, 1990 Wis. L. Rev. 941, 941 n. 1
(1990).
[109] Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272,
282 (1856) (holding U.S. Treasury Department complied with due process
requirements using summary, non-court procedures to seize property
owned by former Collector of the Customs to satisfy $1.3 million
government debt; Court relies on "[i]mperative necessity" of federal
government to raise funds and fact that debtor could dispute debt in
subsequent court proceeding).
[110] See Davidson v. City of New Orleans, 96 U.S. 97, 102 (1877) ("An
exhaustive judicial inquiry into the meaning of the words 'due process
of law,' as found in the Fifth Amendment, resulted in the unanimous
decision of this court, that they do not necessarily imply a regular
proceeding in a court of justice, or after the manner of such courts.")
(citing Murray's Lessee, footnote 109 above).
[111] Davidson, footnote 110 above, p. 105 (upholding collection of
state property taxes and possible forfeiture only after personal
service of notice had been provided to owners whose identities were
known or, for those who were unknown or could not be found, "due
advertisement" of the proceeding).
[112] Grannis v. Ordean, 234 U.S. 385, 394 (1914).
[113] As noted in chapter 1 (footnote 21), an in personam case is one
in which the court decides rights of particular persons; an in rem case
is one in which the court decides the rights of all persons in
particular property; and a quasi in rem case is one in which the court
decides the rights of particular persons in particular property. See
footnote 21 above.
[114] The rule that constructive notice sufficed to alert property
owners of proceedings that could deprive them of their ownership rights
was based in part on courts' judgment that owners should monitor
activities that could affect their property. See, e.g., The Mary, 13
U.S. 126, 144 (1815) ("[I]t is the part of common prudence for all
those who have any interest in [property], to guard that interest by
persons who are in a situation to protect it."). This included an
obligation of property owners to take notice, by reading the newspaper,
of government actions that might adversely affect their property. See,
e.g., Huling v. Kaw Valley Railway & Improvement Co., 130 U.S. 559, 564
(1889) ("It is, therefore, the duty of the owner of real estate...
to take measures that in some way he shall be represented when his
property is called into requisition; and if he fails to do this, and
fails to get notice by the ordinary publications which have usually
been required in such cases, it is his misfortune, and he must abide by
the consequences. Such publication is 'due process of law' as applied
to this class of cases.") (citations omitted). In Huling, the Supreme
Court found that newspaper notice announcing that land in a general
area was at risk for a railroad right-of-way provided due process to
non-resident owners: "we think that this was all the notice they had a
right to require. Of course, the statute [requiring newspaper notice]
goes upon the presumption that, since all the parties cannot be served
personally with such notice, the publication, which is designed to meet
the eyes of everybody, is to stand for such notice." Id. at 563.
Similarly, in Case of Broderick's Will, 88 U.S. 503 (1874), the Supreme
Court declined to hear claims filed by heirs seeking real property that
already had been distributed as part of a probate proceeding in which
they had not participated. General notice of the proceeding had been
published in the local newspaper, and the fact that the heirs did not
see the notice because they lived "in a secluded region" was not
considered relevant. "If this excuse could prevail," the Court
explained, "it would unsettle all proceedings in rem....Parties
cannot thus, by their seclusion from the means of information, claim
exemption from the laws that control human affairs, and set up a right
to open up all the transactions of the past. The world must move on,
and those who claim an interest in persons or things must be charged
with knowledge of their status and condition, and of the vicissitudes
to which they are subject. This is the foundation of all judicial
proceedings in rem." Id. at 518-19. See also Winona & St. Peter Land
Co. v. Minnesota, 159 U.S. 526 (1895) (notice by publication sufficient
for tax forfeiture proceeding); Leigh v. Green, 193 U.S. 79, 93 (1904)
(same); Ballard v. Hunter, 204 U.S. 241, 255 (1907) (same); Longyear v.
Toolan, 209 U.S. 414, 418 (1908) (same); North Laramie Land Co. v.
Hoffman, 268 U.S. 276 (1925) (newspaper notice sufficient for taking of
property to build county road).
[115] See, e.g., Pennoyer v. Neff, 95 U.S. 714 (1878); Arndt v. Griggs,
134 U.S. 316 (1890); Hamilton v. Brown, 161 U.S. 256 (1896). See
generally Mennonite Board of Missions v. Adams, 462 U.S. 791, 796 n.3
(1983); Shaffer v. Heitner, 433 U.S. 186, 196-205 (1977).
[116] See also Mennonite Board of Missions v. Adams, footnote 115 above
(mailed notice required for property tax foreclosure where names and
addresses are available from deed records).
[117] In Dusenbery, the Court ruled that actual notice was not required
even though the name and address of the interested party--a prison
inmate--were readily available. The Court found that notice mailed to
the inmate advising him of an imminent FBI administrative forfeiture
proceeding afforded due process even though the inmate never received
the notice due to mishandling at the prison. The Court reasoned that
mailing the notice was reasonably calculated under the circumstances to
apprise the inmate of the proceeding.
[118] Eventually, claims were filed for 294 of the 295 Spanish and
Mexican land grants in New Mexico. As reflected in appendix X to this
report, no formal claim has been filed for the Montoya grant, a self-
identified community land grant.
[119] As discussed in chapter 2, because the 1854 Act contained no
deadline, the Surveyor General's newspaper notice requested only that
claims be filed "as soon as possible." The early Surveyors General
expressed concern that this lack of a deadline, among other reasons,
initially resulted in few claims being filed.
[120] While this report focuses on community land grants located within
the present-day boundaries of New Mexico, as noted above, the Surveyor
General of New Mexico also was responsible for evaluating claims and
surveying lands located within the current boundaries of Arizona,
Colorado and Nevada.
[121] Through the early 1900s, the federal Postal Service, established
in 1789, transported mail principally by horseback (including the Pony
Express), stagecoach, and railroad. Mail typically had to be picked up
at a post office rather than being delivered to a specific address;
residential delivery did not begin on a large scale in large cities
until the 1860s, and did not begin in rural areas until the late 1890s
(in what became known as rural free delivery or RFD). The telephone was
not invented until 1876, and universal phone service was not developed
until considerably later.
[122] See, e.g., Elk River Coal & Lumber Co. v. Funk, 271 N.W. 204
(Iowa 1937) (due process does not require notice of all subsequent
steps once original notice has been provided); Collins v. North
Carolina State Highway & Public Works Commission, 74 S.E.2d 709 (N.C.
1953) (same); Lehr v. Robertson, 463 U.S. 248 (1983) (non-parties not
entitled to special notice).
[123] In some cases, due process notice may be provided by enactment of
a statute that deprives persons of property rights after a certain
period of time, even without providing any additional notice (including
newspaper notice). Where a self-executing statute requires property
claims to be filed in order to maintain ownership, the statute itself
provides the necessary notice. See, e.g., Texaco, Inc. v. Short, 454
U.S. 516 (1982) (notice not required of 2-year statutory deadline for
filing of claims to retain dormant oil, gas and coal interests). Cf.
Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478
(1988) (notice not required of statutes of limitations). As the Supreme
Court explained in Texaco, "[p]ersons owning property within a State
are charged with knowledge of relevant statutory provisions affecting
the control or disposition of such property...[and] it has never
been suggested that each citizen must in some way be given specific
notice of the impact of a new statute on his property before that law
may affect his property rights." Id. at 532, 536 (citations omitted).
We conclude that enactment of the 1854 Act, without more, did not
provide this type of "Texaco" due process notice with respect to the
Surveyor General process. The 1854 Act required the Surveyor General to
solicit claims and make recommendations to Congress on their
confirmation, but the statute itself did not provide for termination of
property rights if property holders did not file a claim. Enactment of
the 1851 and 1891 Acts, by contrast, which established 2-year deadlines
for filing of claims with the California Commission and the CPLC,
respectively, and deemed all lands for which claims were not filed to
be part of the U.S. public domain, arguably constituted due process
notice under the reasoning of the Texaco case.
[124] By contrast, the Sixth Amendment to the Constitution, ratified in
1791, generally provides a right to cross-examine in all criminal
prosecutions. The Sixth Amendment guarantees criminal defendants the
right to "confront" witnesses against them, and this generally has been
interpreted to include the right to cross-examine.
[125] See also Securities and Exchange Commission v. Jerry T. O'Brien,
Inc., 467 U.S. 735 (1984) (target of SEC investigation had no due
process right to cross-examine witnesses because investigation would
not result in determination of legal liabilities); United States v.
Nugent, 346 U.S. 1 (1953) (persons claiming Conscientious Objector
status had no right to cross-examine persons providing information to
the Federal Bureau of Investigation, where the draft appeals board, not
the Federal Bureau of Investigation, determined Conscientious Objector
status using Federal Bureau of Investigation information).
[126] As the New Mexico state court recently found in the Montoya v.
Tecolote Land Grant case with respect to the heirs' argument that they
should be allowed to pursue claims under their superior Mexican title,
"[i]t was not the function of the Surveyor General or the U.S. Congress
to determine and adjudicate any existing valid adverse rights within
the exterior boundaries of a land grant. ...[Rather, the]
Congressional purpose [in creating the Surveyor General/congressional
confirmation process]...was to determine what lands belonged to the
United States by segregating such as had become, under the former
sovereignty, private property; not to adjudicate, nor to provide for
the adjudication, of conflicting private claims." Findings of Fact and
Conclusions of Law, footnote 92 above, Conclusions of Law para. 24-25.
See also Beard v. Federy, 70 U.S. 478 (1865); Board of Trustees of
Antón Chico Land Grant v. Brown, 33 N.M. 398 (1928); State v. Red River
Valley Co., 51 N.M. 207 (Ct. App. 1946). But see Lobato v. Taylor, 13
P.3d 821 (Colo. Ct. App. 2000) (citing Tameling), rev'd on other
grounds, 71 P.3d 938 (Colo. 2002) (holding later claimants bound by
1860 confirmation act despite act's statement that it affects only
rights of U.S. and original claimant).
[127] One scholar has criticized the Surveyor General process as "a
one-sided administrative proceeding in which the Surveyor General acted
as lawyer, judge, and jury," as noted above. However, the Constitution
does not require judge and jury functions to be performed by different
persons. Chicago, R.I. & P.R. Co. v. Cole, 251 U.S. 54 (1919). Even
today in less formal proceedings, one person sometimes serves in all
three roles--lawyer (asking questions of witnesses), judge (applying
the law), and jury (determining facts).
[128] See, e.g., Mathews v. Eldridge, above (pre-hearing termination of
Social Security disability payments constitutional where subsequent
agency hearing available); Ingraham v. Wright, 430 U.S. 651(1977) (pre-
hearing student punishment constitutional where subsequent state tort
suit available).
[129] Stein v. People of New York, 346 U.S. 156 (1953); see also Davon,
Inc. v. Shalala, 75 F.3d 1114 (7th Cir.), cert. denied, 519 U.S. 808
(1996) (Congress not required to select fairest procedure, only a fair,
rational, and non-arbitrary procedure).
[130] The Commission's regulations provided that "[w]hen the same tract
of land, or a portion of it is claimed adversely under Spanish or
Mexican title by two petitioners, either or both of them, may file a
motion in the case of the other, for leave to appear and contest the
right of the petitioner to a confirmation of his claim;...and upon
the granting of such motion, the petitioner will be required to notify
the contesting claimant or his counsel, as well as the [U.S.] Law
Agent, of the time and place of taking evidence, and such claimant or
his counsel, may appear and cross-examine witnesses, and may also
attend to the taking of testimony against the petitioner, and be heard
in the argument upon the question relating to his interfering claim."
Organization, Acts and Regulations of the U.S. Land Commissioners for
California, above, p. 6.
[131] See Organization, Acts and Regulations of the U.S. Land
Commissioners for California, footnote 130 above, pp. 8 (Commission is
carrying out "a political obligation, which could not be performed by
our courts of justice, acting in their ordinary judicial capacity."),
10 ("we are exercising for the legislature of the nation a political
rather than a judicial authority."), 12 ("By the [1851 Act,]
constituting the present commission, the political power of confirming
Spanish and Mexican titles is delegated to the Commissioners....").
[132] Because the Supreme Court's decision in O'Donnell addresses many
of the points made by current critics of the Surveyor General of New
Mexico process, it is appropriate to quote additional passages here. In
discussing the fact that the United States had discretion under the
Treaty of Guadalupe Hidalgo and international law to carry out its
property protection obligations using whatever procedures it deemed
appropriate, the Court explained that the United States "could relegate
all the multitude of claims under the Mexican grants to the ordinary
procedure of courts with the inevitable delays and confusion affecting
land titles in the vast annexed area...[or it] could set up an
administrative tribunal acting by a more summary procedure designed to
establish with finality the status of all the Mexican grants as of the
date of annexation. It chose the latter course by the creation of the
Board of Land Commissioners, by the [1851 Act]....[T]he role of the
Government was not that of a litigant. It was...supervisory: 'to
superintend the interests of the United States' in the performance,
through an administrative agency, of its treaty obligation to ascertain
for the Mexican claimants, and for itself, what lands had been
withdrawn from the public domain by the Mexican grants. 'The United
States did not appear in the courts as a contentious litigant; but as a
great nation...' United States v. Fossatt, 21 How. [62 U.S.] 445,
450, 451 [(1858)]." O'Donnell, 303 U.S. at 511-12, 516, 524 (footnote
and other citations omitted).
[133] As the Supreme Court explained in Foster v. Neilson, 27 U.S. 283,
314-15 (1829), where a treaty is not self-executing, "the treaty
addresses itself to the political, not the judicial, department; and
the legislature must execute the contract [treaty] before it can become
a rule for the Court." See also In re Cherokee Tobacco Case, 78 U.S.
616, 621 (1870) ("The effect of treaties and acts of Congress, when in
conflict, is not settled by the Constitution. But the question is not
involved in any doubt as to its proper solution. A treaty may supercede
a prior act of Congress, and an act of Congress may supercede a prior
treaty."). See generally C. Klein, footnote 9 above, 26 N.M.L. Rev.,
pp. 217-34.
[134] After an extensive search, we were unable to obtain any
information on 47 of the 84 land grants. According to members of the
New Mexico Land Grant Forum, the best estimate for the current acreage
holdings of these grants is zero.
[135] Under the earlier laws, the incorporated land grant's by-laws
defined trustee responsibilities, rules for determining grant
membership, and title stipulations. In 1927, New Mexico enacted a state
statute amending previous statutes to allow community-grant boards of
trustees to sell portions of the common lands. See N.M. Stat. Ann. 49-
2-7 (2001). See also Phillip B. Gonzales, "Struggle for Survival: The
Hispanic Land Grants of New Mexico" (Albuquerque, N. Mex.: University
of New Mexico, 2002).
[136] However, in 1967 the New Mexico legislature authorized community
land grant corporations to convert themselves into private
corporations. N.M. Stat. Ann. 49-2-18 (2001).
[137] See Apodaca v. Tomé Land & Improvement Co., 91 N.M. 591, 598
(1978).
[138] Tenancy-in-common is a type of real property ownership in which
two or more people own an undivided interest in an entire parcel of
land. The property may be divided by mutual agreement or pursuant to a
partitioning suit, which is a court action that divides real property
owned by more than one person into separately owned pieces of property.
[139] See David Benavides, "Lawyer-Induced Partitioning of New Mexican
Land Grants: An Ethical Travesty" (Guadalupita, N. Mex.: Paper, Center
for Land Grant Studies, 1994).
[140] See G. Taylor, "Notes on Community-Owned Land Grants in New
Mexico, 9" (University of New Mexico Law Library, 1937); David
Benavides, footnote 139 above.
[141] White, Koch, Kelly, and McCarthy, Attorneys at Law, and the New
Mexico State Planning Office, Land Title Study (Santa Fe, N. Mex.:
1971).
[142] These rights might include a citizen's Fifth and Fourteenth
Amendment rights under the Constitution to receive "due process of law"
before the government deprived them of their property (an issue
discussed in chapter 3), to receive equal protection of the laws as
other citizens received, and to receive just compensation if the
government took their private property for public use.
[143] As noted in chapter 2, the doctrine of adverse possession allows
a person to gain complete, fee simple title to real property owned by
another person through open, continuous, and uninterrupted possession
of the real property for a period of years, and New Mexico has enacted
such legislation specifically addressing land grants and awarding title
after 10 years of adverse possession. See N.M.S.A. § 37-1-21.
[144] See Gonzales v. Yturria Land & Livestock Co., 72 F. Supp. 280
(S.D. Tex. 1947) (applying state statute of limitations).
[145] See H.N.D. Land Co. v. Suazo, 44 N.M. 547, 555 (1940), citing
First National Bank of Albuquerque v. Town of Tomé, 23 N.M. 255 (1917);
Merrifield v. Buckner, 41 N.M. 442 (1937); Pueblo of Nambé v. Romero,
10 N.M. 58 (1900).
[146] See footnote 142 above.
[147] See, e.g., Town of Atrisco v. Monohan, 56 N.M. 70, 77 (1952);
Board of Trustees of the Town of Tomé v. Sedillo, 28 N.M. 53, 54
(1922).
[148] The U.S. Supreme Court recognized the United States' duty of
trust toward Indians as early as 1831, in its decision in Cherokee
Nation v. Georgia, 30 U.S. 1, 17 (1831). In that case, the Court
described the relationship between the United States and Indian tribes
as "resembl[ing] that of a ward to his guardian." The Court later
described this relationship as deriving from the government's "humane
and self-imposed policy...[under which] it has charged itself with
moral obligations of the highest responsibility and trust. Its conduct
. . . should therefore be judged by the most exacting fiduciary
standards." Seminole Nation v. United States, 316 U.S. 286, 296-97
(1942).
[149] Act of May 29, 1872, ch. 223, 17 Stat. 165 (1872).
[150] See Territory of New Mexico v. Delinquent Taxpayers, 12 N.M. 139
(1904).
[151] Pub. L. No. 58-212, 33 Stat. 1069 (1905).
[152] Pub. L. No. 61-219, 36 Stat. 557 (1910).
[153] See United States v. Sandoval, 231 U.S. 28 (1912). This case
involved another party named Sandoval, different than the person
involved in the 1897 Sandoval decision discussed in chapter 3.
[154] A claim by the Pueblo of Sandía was resolved through creation of
a preservation trust area. In Pub. L. No. 108-7, 117 Stat. 11 (2003),
Congress resolved the Pueblos' litigation against the Department of the
Interior and the Department of Agriculture regarding 10,000 acres
within the Cibola National Forest, including a portion of the Sandía
Mountains, by creating the 9,800-acre T'uf Shur Bien Preservation Trust
Area. The Sandía Pueblo was given access to the land for traditional
and cultural uses and has received certain rights to be consulted
regarding use and management of the area.
[155] Pub. L. No. 68-253, 43 Stat. 636 (1924).
[156] In Pub. L. No. 108-66, 117 Stat. 876 (2003), Congress declared
that certain lands owned by the Bureau of Land Management in Rio Arriba
and Santa Fe counties in New Mexico shall now be held in trust for the
Pueblos of San Ildefenso and Santa Clara.
[157] See footnote 131.
[158] For example, in Pub. L. No. 103-150, 107 Stat. 1510 (1993),
Congress acknowledged the 100th anniversary of the takeover of the
Kingdom of Hawaii in 1893 and offered an apology for the U.S.
government's involvement.
[159] In June 1967, a group of armed men took two hostages from the Rio
Arriba County courthouse in the town of Tierra Amarilla, in which
several Alianza Federal de Mercedes members were being arraigned for
unlawful assembly. The Alianza Federal de Mercedes, headed by Reies
Lopez Tijerina, was an organization that sought the return of ownership
of Spanish and Mexican land grants to heirs of the grantees. Many of
these heirs were concerned about what they believed was the loss of
hundreds of thousands of acres of ancestral grant lands through the
actions of private parties and the U.S. government.
[160] The five basic models are reflected in the following five bills
or resolutions: (1) H.R. 9422, 92nd Congress, 1st Session, introduced
June 24, 1971; (2) H. Res. 364, 93rd Congress, 1st Session, introduced
April 19, 1973; (3) S. 4050, 93rd Congress, 2nd Session, introduced
Sept. 26, 1974; (4) H.R. 5963, 96th Congress, 1st Session, introduced
Nov. 27, 1979; and (5) H.R. 2538, 105th Congress, 2nd Session,
introduced Sept. 24, 1997 (modeled on H.R. 260, 105th Congress, 1st
Session, introduced Jan. 7, 1997).
[161] H.R. 9422, the first bill introduced in 1971, and some of the
other 1970s bills would have given both federally owned and privately
owned land, but more recent bills would have given only federally owned
land. Privately owned land could only be transferred if the federal
government seized these lands under its eminent domain authority.
[162] As described in chapter 3, these three grants were restricted to
their individual allotments and thereby were not awarded about 99
percent of the almost 1 million acres originally claimed. Most of that
acreage--54 percent, or 520,473 acres--is now owned by the U.S. Forest
Service.
[163] See U.S. General Accounting Office, Indian Issues: Cheyenne River
Sioux Tribe's Additional Compensation Claim for the Oahe Dam, GAO/
RCED-98-39 (Washington, D.C.: Jan. 28, 1998).
[164] Great Britain also had owned part of Florida at one time and made
grants to settlers.
[165] The courts were to conduct their review of each claim according
to the rules of a court of equity. These rules are the "well settled
and established usages and principles of the court of chancery, as
adopted and recognized in their decisions." United States v. Arredondo,
31 U.S. 691, 709 (1832); United States v. Clarke, 33 U.S. 436 (1834);
Johnson v. Towsley, 80 U.S. 72, 84 (1871). A court of chancery offered
a less rigorous forum than courts of law for deciding cases in order to
achieve the most appropriate result. Traditionally, courts of law
adhered more strictly to the applicable principles of law. For example,
an equity court might decide to carry out the intention of a donor,
even though a gift did not comply with all legal requirements. John R.
Kroger, Supreme Court Equity, 1789-1835, and the History of American
Judging, 34 Houston L. Rev. 1425 (1998).
[166] The 1824 act limited the court's jurisdiction in Arkansas to
claims for up to one square league. See Annals of Congress, 18th
Congress, 1st Session (1823-1824), Ch. 173, Sec. 15.
[167] See Arredondo, footnote 165 above, 31 U.S. at 715.
[168] See Arredondo, footnote 165 above, 31 U.S., pp. 724-30; Clarke,
footnote 165 above, 33 U.S. at 451.
[169] In 1812, Congress confirmed British grants to U.S. citizens
claiming lands in the Mississippi territory (West Florida), which the
United States alleged was acquired pursuant to the Louisiana Purchase.
[170] United States v. Percheman, 32 U.S. 51, 88-95 (1833).
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