Pueblo Design
 La Jicarita

A community advocacy newspaper for northern New Mexico

Box 6 El Valle Route, Chamisal, NM 87521

Volume XV

January 2010

Number I

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A Look Back By Kay Matthews  

A Look at the History of the Mother of All Water Rights Court Cases By Kay Matthews


A Brief History of American Imperialism: Part 4: Implementing the Treaty of Guadalupe Hidalgo By Mark Schiller

A Look Back

By Kay Matthews

As La Jicarita News enters its 15th year, I thought I'd take a look back through time. Our first paper, in January of 1996, turned out to be a prescient one, as we wrote about two issues that would surface again and again over the years: protecting northern New Mexico's water resources and documenting &endash; and engaging in &endash; the battles between community foresters and environmentalists.

Two iconic La Jicarita News images that have been reproduced in many different venues: above, the Acequia de Abajo de El Valle ditch cleaning crew; below, Chicano activists on a march at Ghost Ranch, including Ike DeVargas and Moises Morales in the first row (photo by Eric Shultz).

One of the articles in that first issue was about a meeting with Taos County planners sponsored by the Rio Pueblo/Rio Embudo Watershed Protection Coalition (the progenitor of La Jicarita News) at Picuris Pueblo. Lt. Governor Carl Tsosie opened the meeting by saying, "Our decisions here should be based on our impending deaths" (or as Karl Marx put it, "The tradition of all dead generations weighs like a nightmare on the brain of the living"), setting the theme of the meeting that our resources, particularly water, are the legacy we will leave our children.

Fast forward to 1998 when Santa Fe County applied to the Office of the State Engineer to transfer northern Taos County Top of the World Farm water rights to underwrite growth in the city and county of Santa Fe, and subsequently to the Aamodt adjudication settlement (Pojoaque, Tesuque, Nambe and San Ildefonso pueblos). It took Taos County nine years to pass a memorial that it would protest any other Top of the World water transfers, but its attempt to incorporate a "public welfare" component into the regional water plan, providing the opportunity to review all potential water transfers out of the region, was squashed by development interests and parties to the Abeyta adjudication settlement (Taos Pueblo).

Obviously, we haven't had much success in keeping water in its area of origin as the stakes get higher and higher. Numerous agricultural water rights from the Middle Rio Grande Valley are being transferred to the city and county of Santa Fe, a second Top of the World water transfer is proposed for the Aamodt settlement, and a huge transfer of 54,000 afy is proposed (and protested, of course) from deep wells near Datil, potentially to the Rio Grande to sell to the state to meet Rio Grande Compact deliveries. One bright note in all of this is the victory of parciantes in Placitas, who thus far have successfully fought the transfer of surface to groundwater rights by Lomos Altos to underwrite development of more million dollar houses.

In our acequia communities, it's getting harder and harder to find folks willing or able to serve on their commissions and to find the funding for necessary structural improvements. Not only that, but as we first covered in 2001, and extensively covered in 2009, the Forest Service is trying to make these improvements as difficult as possible by requiring special use permits for maintenance and improvement of acequia structures on forest land. This issue remains unresolved until such time as the law is interpreted or changed to exempt acequias, which predate the FS, from federal oversight. But on another bright note, the acequia community was successful in getting two bills passed in 2003 that allow commissioners to deny proposed water rights transfers from their acequias if they would be detrimental to the integrity of the acequia, and the ability to bank water rights and protect them from forfeiture.

In that first issue we also interviewed Ike DeVargas, longtime Chicano activist and president of La Companía Ocho, a community based logging company in the Vallecitos Sustained Yield Unit. The confrontations between community loggers and urban environmentalists (primarily Forest Guardians and Forest Conservation Council) got very ugly, as the loggers worked to kick Duke City Lumber, subsidiary of a multinational corporation, out of the Unit and get the Forest Service to set sustainable harvest levels, while the enviros used lawsuits based on the Endangered Species Act to force the local loggers out of the Unit. All of this was particularly tragic in light of the fact that the Sustained Yield Unit was supposedly set aside in the 1940s for the benefit of local communities to have access to their resources and the opportunity to sustain their economies. In a May 2005 article for La Jicarita, David Correia revealed how in reality the Forest Service forced the subsistence farmers and ranchers on the El Rito Ranger District to reduce their grazing permits and transition to logging under the Sustained Yield use designation, essentially forcing the population to become dependent on the commercial timber operators like Duke City that maintained a stranglehold on the Unit.

La Compania Ocho sued the Forest Service in 1994 claiming racism and abrogation of its fiduciary responsibilities in the Unit, and in 1996 the FS was forced to adjust its management policies and award the company 75% of the La Manga timber sale and 80% of the Agua Caballos timber sale without competitive bidding. But meanwhile, the environmentalists also sued the Forest Service over the Mexican Spotted Owl, which had been declared an endangered species, and an injunction shut down the entire Region Three to logging and firewood gathering, including La Manga. And then they sued Carson National Forest specifically over La Manga.

The carnage continued as they sued, over and over again, any and all timber sales to realize their policy of Zero Cut, or no commercial logging on public lands. By the time they got around to suing the FS over the Agua Caballos timber sale, which had gone through four revisions and numerous consultations with community groups and other environmentalists for 13 years, La Companía was out of business and other small community forestry groups, none of which had the capacity to log the Agua Caballos sale, were too busy fighting each other and the Forest Service, which failed to provide small enough sales, to build any capacity or get the Vallecitos sawmill up and running to process the timber. DeVargas continues to blame Governor Bill Richardson for maneuvering to give the mill to a non-profit organization that never got it running and doesn't exist anymore, and for raising everyone's hopes in a futile plan to buy La Companía out of La Manga.

We had a few successes over on the east side of the Rio Grande valley, with what we called Collaborative Stewardship, largely under the leadership of community forester Max Córdova and Camino Real District Ranger Crockett Dumas. Communities helped identify firewood sales needed in their areas, and some desperately needed thinning was accomplished by a few of the community forestry groups. But after Dumas retired (we always suspected it was a forced retirement; the FS doesn't like its employees to get too chummy with community people), it was pretty much back to business as usual.

Today, very few community foresters remain. Forests are overstocked, disease ridden, and susceptible to catastrophic wildfire. As for the environmentalists, Forest Conservation Council died an ignominious death while Forest Guardians morphed into WildEarth Guardians, their name indicating a continuing focus on biocentric issues at the expense of the social and economic implications of their work.

For now, La Jicarita marches on, despite the frustrations, disappointments, and retirement of many of our comrades in arms. We salute all of you who tried for many years to make this a more just world.

A Look at the History of the Mother of All Water Rights Court Cases

By Kay Matthews

Scott Boyd, the great-grandson of Dr. Nathan Boyd, has a vision and a mission, to make the Rio Grande one river, with a direct flow system that protects farmers and pueblos, acequias and wetlands. He would establish a water bank and water council to handle pre-1906 claims and cities would have to buy their water: no more water transfers, no more corruption, no more control of water rights by state and federal bureaucrats.

As I wrote about in the December La Jicarita News, Nathan Boyd was the driving force behind the Rio Grande Dam and Irrigation Company, which acquired Mesilla Valley water rights from farmers to build the Leasburg Dam at Ft. Seldon, a diversion dam for irrigation, and a dam and reservoir at Elephant Butte. In this article I want to provide readers with some background information on Nathan Boyd and the Rio Grande Company that I was able to collect in a phone interview with Scott Boyd and from Ira Clark's book, Water in New Mexico, a History of its Management and Use.

In order to understand how these projects affect the current adjudication of the Lower Rio Grande, they need to be put in historical context. In the late 1880s, before New Mexico became a state, Texas, Mexico, and El Paso area farmers were jockeying for control of the Rio Grande. Investors were looking at building reservoirs on the river because of a lack of sustainable water supply in the Mesilla Valley and El Paso-Juarez Valley. Texas was concerned about getting its allotted supply, and in 1890 the U.S. and Mexico signed an agreement that outlined guidelines for equitable river management. El Paso wanted a dam built three miles above the city (the U.S. Geological Service, under John Wesley Powell, initially endorsed this project), but that would flood Mesilla Valley farmlands. When the Rio Grande Dam & Irrigation Company got the right of way to build a dam and reservoir at Elephant Butte and an irrigation dam at Ft. Seldon, Juarez protested its permit, claiming it would prevent the building of a a dam closer to El Paso and Juarez, thereby robbing citizens of their international waters. While this protest was working its way through the courts, another tactic was used to fight the Rio Grande Dam & Irrigation Company's projects. The U.S. Secretary of State, under the auspices of the War Powers Act and under pressure from Texas and Mexican speculators (and according to some accounts, President Teddy Roosevelt) who wanted to control the fertile agricultural lands in the area, declared the Rio Grande a "navigable river" and an injunction was imposed, stopping any of the Rio Grande Company's work. (This declaration was made in spite of the fact that the Army Corps of Engineers had declared that the Rio Grande was only irrigable, not navigable.) This case also worked its way through the court system, twice reaching the U.S. Supreme Court.

Initially, the New Mexico Territorial Government defended the Rio Grande Company because it saw the issue as a power struggle among Texas, Mexico, and the federal government, and its position was to protect water for New Mexicans. Nathan Boyd, as head of the company, had already agreed that in return for an annual payment of $225,000 over 20 years his company would deliver water to Mexican irrigators for $1.50 per acre foot. Boyd, who was a medical practitioner before he married into money and became an investor, had gotten bankers from London to finance the takeover of the Rio Grande Dam & Irrigation Company. He had initially been brought to New Mexico by the infamous law officer Pat Garrett to look at the possibility of a dam on the Pecos River, which didn't work out, and was subsequently contacted by farmers from Las Cruces. Whether his motives were altruistic, as his great-grandson Scott Boyd believes, or whether he just saw the dam projects as a good investment, he acquired 40,000 acres of Mesilla Valley land and as much as two-thirds of mesa land at a very small cost. Many farmers conveyed one half of their land for water rights to the other half. The plan was also to supply cities, industries, and other uses.

The Territory's defense of the company evaporated, however, once the U.S. Reclamation Act was passed and the Bureau of Reclamation recommended building a dam at Elephant Butte, below the Rio Grande Company's site, with sufficient water for southern New Mexico and the El Paso-Juarez Valley. The government demanded forfeiture of the Company's franchise in 1903 because of non-use of water rights, which Boyd declared was due to the injunctions imposed on the company because of the lawsuits. The Bureau of Reclamation built Elephant Butte Dam, its first major project, and established the Elephant Butte Irrigation District, which administers Lower Rio Grande water rights. Nathan Boyd fought this takeover for 30 years, and now his great-grandson Scott is a party to the current LRG adjudication that has been dragging on for 10 years, to finally determine the federal government's water rights. In late December, Judge Jerald Valentine issued an order for the state of New Mexico and the federal government to "present to the Court a proposed subfile order outlining what rights they assert the United States holds in New Mexico for the United States Bureau of Reclamation Rio Grande Project" by April 8, 2010.




• Carson National Forest has approached the Cunnyngham family about the possible purchase of the Miranda Canyon property, formerly part of the Cristobal de la Serna Land Grant. The Taos County Commission last July failed to approve the preliminary plan for the 150-home site subdivision proposed for the property, and the owners have appealed that decision. The Trust for Public Lands is acting as the liaison between the Forest Service and the Cunnyngham family. While Carson National Forest has submitted this acquisition as its one and only request to the Region Three Office in Albuquerque, that office has downgraded its priority because although Miranda Canyon is bordered by Forest Service land, it's not an inholding, which carries more weight in the hierarchy of land acquisition. From the Regional Office the request is forwarded to Washington D.C. to be included in the President's budget. The New Mexico congressional delegation will have to use its influence to assure the acquisition is in the budget or seek other funding for its purchase. Senator Jeff Bingaman's staff is already following the issue. The Cunnyngham family has said it isn't ruling out any other purchase offers.

• A public workshop will be held on the Center for Disease Control and Prevention's (CDC) study of the Los Alamos Historical Document Retrieval and Assessment Project (LAHDRA), an analysis of accidents and radioactive and chemical releases from the Lab, on Thursday, January 28, at Ohkay Owingeh Pueblo Conference Center. It will be an all day workshop, beginning at 9:00 am with a reasonably priced box lunch. In the morning there will be a youth presentation, along with an update on the report by CDC and a presentation by Las Mujeres Hablan. The afternoon will include working groups with the CDC panel of experts and a discussion of how to move forward from this first step of information gathering to the process of reconstructing the dose of contaminants that local, and no doubt regional, New Mexicans have been exposed to throughout the history of LANL's operations. For more information you can contact Sheri Kotowski at 505 579-4076 or Joni Arends at 505 986-1973.


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A Brief History of American Imperialism: Part 4: Implementing the Treaty of Guadalupe Hidalgo

By Mark Schiller

Article VIII of the Treaty of Guadalupe Hidalgo, states in part: "In the said territories, property of every kind, now belonging to Mexicans . . . , shall be inviolably respected." "Inviolably respected" is obviously a very high but vaguely defined standard. By contrast, the Florida Purchase treaty of 1819, as interpreted by the Supreme Court in the case United States v. Percheman stipulated: " . . . the [land] grants shall remain ratified and confirmed to the persons in possession of them, to the same extent, thus conforming exactly to the universally received law of nations." The Florida treaty was specific in its terms and therefore "self-executing." The Treaty of Guadalupe Hidalgo, by contrast, was intentionally vague and "non self-executing" because, as historian Morris F. Taylor has noted, "The U.S. government was aware that grants in New Mexico and California were much larger . . . than Florida and certainly did not want the precedent of the Percheman case to apply there." It was up to Congress therefore to interpret how the terms of the Treaty of Guadalupe Hidalgo were implemented in New Mexico and enact legislation to put its provisions into effect. Congress did this with the 1854 Act that established the Office of the Surveyor General and 1891 Act that established the Court of Private Land Claims.

The 1854 Act stated: "It shall be the duty of the Surveyor General . . . to ascertain the origin, nature, character and extent of all land claims under the laws, usages, and customs of Spain and Mexico . . . ." While this clearly doesn't go as far as the Percheman decision, it could have established, if it had actually been implemented, a reasonably just standard for meeting the government's treaty obligation. Unfortunately, the government, during the era of the Surveyor General (1854-1891), rarely applied this standard. Fewer than twenty-five percent of the 194 New Mexico Hispano land claims submitted to the Surveyor General were confirmed by Congress, despite the fact that 136 were recommended for confirmation and only 8 were rejected outright. By comparison, California had a much higher confirmation rate and the political advantage of being granted statehood in 1850 as opposed to New Mexico, which was not granted statehood until 1912. This unquestionably was due in large part to the enormous influx of Anglo settlers who flooded into California following the discovery of gold there in 1849, as well as other Anglo homesteaders lured by its fertile soil and temperate climate. It contrasted dramatically with New Mexico, which, according to historian William L. Williams, was not even " destined" for statehood "unless more Anglo-Saxons populated [it]." It was not until the 1870s, when the extension of the railroads facilitated an enormously profitable expansion of the cattle industry, that New Mexico experienced a significant growth in its Anglo population. As a consequence of its relative lack of economic and political importance to the government's expansionist agenda, the New Mexico Office of the Surveyor General was chronically underfunded and the actions of the various Surveyors General themselves were tainted by ignorance, corruption, and incompetence, resulting in much of the land confirmed by Congress during this period being misappropriated by predatory Anglo land speculators, often with the tacit assent or the active participation of the Surveyor General. Historian Malcolm Ebright notes, "Of the nine men to hold the office [of Surveyor General], three were blatant land speculators: T. Rush Spencer (1869-1872), James K. Proudfit (1872-1876) and Henry M. Atkinson (1876-1884). Spencer and Atkinson each had land grant holdings while they were in office." This corruption, which resulted in the monopolization of land grants by lawyers and land speculators who were members of the notorious "Santa Fe Ring," was most dramatically demonstrated by the confirmations of the fraudulently exaggerated Maxwell grant (1,714,764.94 acres) and Sangre de Cristo grant (998,780.46 acres). These confirmations drew national attention and precipitated a scandal that was exploited by the press and used as a rationale by the government to, in its own words, "reform" the confirmation process. Historians, however, almost unanimously disagree with the government's assessment of that "reform" being successful, as it asserts in the 2004 GAO Report. The government's real agenda, as previously noted, was to make as much land as possible available for capitalist exploitation and Anglo settlement. An examination of the tenure of Surveyor General George W. Julian (1885-1889), who was appointed by President Grover Cleveland to effect this reform, confirms this view.

President Cleveland couldn't have chosen a better hatchet man for the job. Formerly a Congressman from Indiana and one of the drafters of the Homestead Act, Julian believed, with the self-righteous zeal of a Calvinist minister, that the pastoral life was redemptive and that an army of Anglo yeoman farmers could create an agricultural utopia in New Mexico. In his 1887 article "Land Stealing in New Mexico" in the North American Review, he suggested that as a result of the reform of the land grant adjudication process "The stream of [Anglo] settlers now crossing the Territory [of New Mexico] in search of homes on the Pacific will be arrested by the new order of things and poured into her valleys and plains. Small land-holdings, thrifty tillage, and compact settlements will supersede great monopolies, slovenly agriculture, and industrial stagnation. The influx of an intelligent and enterprising population will insure the development of the vast mineral wealth of the Territory, as well as the settlement of her lands . . . ."

Julian clearly didn't consider the legitimate owners of these grants, the Mexican population of New Mexico, part of this "intelligent and enterprising population." In personal journal entries from his New Mexico years Julian referred to the "stagnation of the natives" and the "prevailing tendency here to degenerate into barbarism." He referred to New Mexican homes as "the piles of mud in which the people of Santa Fe are domiciled" and dismissed the entire Territory claiming, "There is no future for this country in sight, and nothing in fact to keep any civilized man here but the climate." His actions as Surveyor General were clearly motivated by these sentiments.

In his zeal to expose what he termed the "systematic robbery of the Government" and ensure New Mexico fulfilled its "manifest destiny," Julian often asserted legitimate claims were fraudulent and deliberately misinterpreted the facts to underscore his accusations. He then broadcast these hyperbolized accounts in the mainstream media and special reports, whipping up a furor of public, Congressional indignation, and racial prejudice. Julian's biographer Patrick W. Riddleberger suggests that for Julian, "stimulation often came more from hatred of his enemies, real or supposed, than from a recognition of social and economic needs." As a result, dozens of legitimate claims were rejected. This is how the government initially implemented its so-called reform of the adjudication process.

During the subsequent Court of Private Land Claims era (1891-1904), when the majority of Spanish and Mexican land claims were finally adjudicated (282 claims), that Court, as well as the U.S. Supreme Court, which heard Court of Private Land Claim cases on appeal, repeatedly rationalized their disregard for the terms of the Treaty of Guadalupe Hidalgo and the International Law of Nations by asserting that the Act of 1891 restricted their authority to confirming grants whose title met narrowly defined legal standards and prevented them from confirming legitimate claims that fell short of those biased standards, as well as equitable claims to title based upon continuous occupation and use. Astonishingly, these Courts (the Supreme Court to a greater extent than the Court of Private Land Claims) made this assertion and applied it despite the Act's own language that specifically stated: " . . . all proceedings . . . shall be conducted as near as may be according to the practice of the courts of equity . . . [and in accordance with] the law of nations [international law], the stipulations of the treaty concluded between the United States and the Republic of Mexico . . . and the laws and ordinances of the Government from which it [title] 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 . . . ."

Their unjust denials of confirmation often stated (as did the 1870 Supreme Court Cherokee decision that I cited in a previous issue) that it was up to the "political department [Congress] to deal with the equitable rights involved." However, because community claimants had little or no money (and therefore no political power), they were unable to pursue their claims legislatively through Congress and were, in essence, denied due process.

Moreover, the 1891 Act that created the Court of Private Land Claims placed an illegal and essentially impossible burden on most Hispano land claimants by making the adjudication process adversarial. The Act mandated the presence of the United States Attorney, who systematically opposed every claim and placed the burden of proof on the claimants. (The Percheman decision, by contrast, placed the burden of proving a claim false on the government.) This burden was compounded by the enormous disparity in resources between the Hispano claimants, who were largely impoverished, and the U.S. Attorney, whose funding increased commensurate with his record of defeating claims. Furthermore, the expense of defending a claim clearly violated Article VIII of the treaty, which states in part, "Mexicans now established in territories previously belonging to Mexico . . . shall be free to continue where they now reside . . . retaining the property which they possess in the said territories, without their being subjected, on this account, to any contribution, tax or charge whatever [emphasis added]."

This issue did, in fact, come up during the Congressional debate over the 1891 Act, and a few outspoken but isolated protests were lodged and ultimately ignored. Senator Preston B. Plumb of Kansas asserted, "Everyone seeking to acquire title to a piece of land under this bill is required to file his petition setting up at great length his claim of title . . . . He has got to prove that in court. One of these persons . . . would find not only all he has wiped out in the payment of lawyers fees, but a mortgage put on his entire future . . . . We have no right, I submit, to impose upon them this expensive proceeding, nor any expensive proceeding, for the purpose of enabling them to acquire title to land which Mexico would have given them practically without cost." Senator Joseph Roswell Hawley of Connecticut stated, "I should like to know . . . what would be the probable charge to a Mexican of four to six years in the Territorial courts and about three years in the Supreme Court of the United States upon a land case, and how much one thousand acres of average New Mexico land would be worth to the man in comparison with that cost."

Additionally, federal funding enabled the United States Attorney for the Court of Private Land Claims to hire a staff of expert assistants to research what historian Malcolm Ebright calls the "finely spun technicalit[ies] of Anglo jurisprudence" with which he defeated or reduced legitimate claims.

The United States Attorney for the Court of Private Land Claims, Matthew G. Reynolds, has been characterized by historian Richard Wells Bradfute as a man "dedicated to the defeat of as many claims as possible. If he could not defeat them, he strove to reduce the acreage confirmed as much as possible." In his 1894 Report to the Attorney General summing up the activities of his office Reynolds boasted: "In New Mexico and Arizona the total area claimed in the suits disposed of . . . was 4,784,651 acres; amount confirmed, 779,611 acres; amount rejected and not confirmed 4,005,040 acres. The result is very gratifying to me . . . . you will notice that in most of the grants where judgments were obtained, the areas have been much reduced . . . . the amount of land saved in this way alone during the term of court just past will more than compensate the Government for the cost of this court and the salaries of its officials during the entire time for which it was created." He went on to state explicitly whose interests he represented: "The celebrated Cochiti cases, four in number, were all tried, two defeated entirely and the other two so reduced in area as to make a complete victory for the Government, and this has relieved the public excitement growing out of fear that confirmations might be made so as to include the recently developed mining district covered by these claims." In his 1892 Report to the Attorney General, Reynolds acknowledged the government's unjust advantage over impoverished, non-English-speaking Mexican claimants, stating, " . . . those holding the small grants and those owned by communities, I have no doubt are being delayed from ignorance in many cases, and often from inability to obtain counsel to prosecute their claims."

Reynolds' reports make it abundantly clear that he was not a public servant dedicated to the "just" prosecution of Spanish and Mexican land claims but, a colonial bureaucrat whose job, during this era of aggressive expansionism and overt racism, was to defeat or reduce all claims, regardless of their validity, in order to make land available for capitalist development and Anglo settlement.

Most claimants, on the other hand, were forced to employ mercenary lawyers, such as Thomas B. Catron, who, more often than not, placed their own interests before those of their clients. Not surprisingly, lawyers who represented Mexican claimants were usually land speculators themselves and worked on a contingency basis, forcing claimants, who were part of a rural subsistence economy, to barter away enormous portions of their grants in order to obtain representation. Claimants' burden was compounded by the fact that many of them were illiterate farmers and ranchers who spoke only Spanish, knew little of the world outside their communities, and were completely unfamiliar with the American form of jurisprudence.

Further compounding claimants disadvantage, both Courts' interpretation of the 1891 Act became increasingly restrictive over the course of the Act's tenure (1891-1904). They upheld absurd legal arguments made by the U.S. Attorney that were based upon technicalities and chicanery rather than the customary practices of the Spanish and Mexican governments. These rulings established legal precedents that significantly disadvantaged legitimate claimants and overturned critical presumptions, included or implicit in the 1854 Act, that were essential for claimants to get a fair hearing. These included:

1) The presumption that title to the common lands of a community grant vested in the settlers residing on that grant (Sandoval Case involving the San Miguel del Vado grant).

2) The presumption that the official or agency that made a grant or an official copy of a grant had the authority to do so unless the archives demonstrated that the grant had been rescinded or revoked for want of authority (Hayes Case involving the Antonio Chavez grant).

3) The presumption that the existence of a city, town, or village was "prima facie evidence of a grant to such a corporation . . . ." (specifically detailed in the instructions issued by the Department of Interior to the Surveyor General of New Mexico as required by the 1854 Act).

4) The presumption that if the government and the claimant held conflicting views of a boundary call, the burden of proof was on the government to demonstrate the legitimacy of an interpretation that rendered the claim smaller (Whitney v. United States involving the Cañada de Cochiti grant).

The 1891 Act also placed an arbitrary and illegal two-year statute of limitations on filing claims, stating that after which "no claim not so filed shall be valid." This injustice was compounded by the Act's woeful failure to ensure that claimants were given adequate notice of the Court's proceedings and its powers and limitations. This was especially crucial in light of the fact that most claimants lived in remote locations, spoke only Spanish, and were illiterate.

Finally, consider this candid assessment of the Treaty of Guadalupe Hidalgo by Secretary of State John M. Clayton (1849-50): "Could it . . . reasonably be expected that this government [United States], in addition to the treasure and blood expended in prosecuting the [Mexican-American] war, would engage to pay fifteen millions of dollars for lands, the title to the most valuable part of which had been extinguished?"

As a result of the inequities of the 1891 Act and the draconian manner in which it was applied, more than ninety percent of the land adjudicated by the Court of Private Land Claims was rejected and over eighty percent of the land that was confirmed went to American lawyers, land speculators, and Anglo settlers rather than the legitimate Mexican owners. In keeping with its history of duplicity, and in spite of the preponderance of evidence to the contrary, the government continues to assert (in the 2004 GAO Report) "that there does not appear to be specific legal basis for relief."








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