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.
|
ANNOUNCEMENTS
• 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.
A big thanks to all our loyal
subscribers, and some new ones as
well, for your 2010 contributions.
It is much appreciated.
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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