A community advocacy newspaper for northern New Mexico
Box 6 El Valle Route, Chamisal, NM 87521
By Mark Schiller
As Surveyor General of the New Mexico Territory from 1885-1889 George W. Julian often ignored or dismissed presumptions, formal and equitable, which were explicitly included in his instructions from the Department of Interior or implicit in Spanish and Mexican usage, to which he was bound by the Act of 1854 (that created the Office of the Surveyor General). As a result, his rulings helped establish legal precedents that significantly disadvantaged legitimate claimants and set the stage for the Court of Private Land Claims, which adjudicated the vast majority of Spanish and Mexican land claims (282) confirming less than two million acres of the more than twenty million acres claimed throughout New Mexico and southern Colorado. These presumptions included:
1) The presumption that the existence of a city, town, or village was "prima facie evidence of a grant to such a corporation . . . ." (this was specifically detailed in the instructions issued by the Department of Interior to the Surveyor General of New Mexico as required by the 1854 Act).
2) The presumption that title to the common lands of a community grant vested in the settlers residing on that grant.
3) 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or an official copy of a grant had the authority to do so unless the archives demonstrated that the grant had been rescinded or revoked for want of authority.
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.
Though all of these presumptions were critical to claimants, one of the most important examples of Julian's malicious and unwarranted attacks can be found in the third claim he singled out in his 1887 "Land Stealing in New Mexico" article, the Cañon de Chama, which challenged the presumption that title to the common lands of a community grant vested in the settlers residing on that grant. In my discussion of this critical issue, which ultimately robbed this and other community grants of more than a million acres of land, I will also note some of the other grants he challenged on this basis that were included in his article.
In the "Land Stealing" article Julian says: "The grant to what is known as the Cañon de Chama tract is claimed to have been made to Francisco Salazar and others in 1806. The present claimants, in their petition to the Surveyor-General, did not give their names, but claimed title to a hundred and eighty-four thousand acres. The Surveyor General illustrated his genius in the art of measuring land by giving them 472,000. There is no proof that any valid grant was ever made, but if there was it was plainly confined to the Cañon de Chama, which is narrow, and would probably restrict the entire tract to 25,000 acres or less. The deputy surveyor gave no heed to these facts, but went outside the cañon from ten to fifteen miles in search of the boundaries. The entire tract, as surveyed, is reserved from settlement under the Act of July 22nd, 1854, and is enjoyed by a few monopolists; and should Congress approve the recommendation of the Surveyor-General, the public domain will be defrauded of at least four hundred and fifty thousand acres." Except for the material facts regarding the claimants' estimate of total acreage and the acreage contained in the preliminary survey, everything Julian said was misleading or incorrect.
In fact, the concession and act of possession included a substantial portion of the uplands outside the Cañon for grazing, and Julian's allegation that "there is no proof that any valid grant was ever made" is predicated on the fact that the claimants submitted a copy of the original grant made by a local alcalde because the original had been lost or mutilated. There was no question that the claimants and their families had been in long and continuous possession of the tract and had established a community upon it, so the accusation was completely spurious.
With regard to whom title to the common lands associated with this claim vested, there are two arguments to make, one general and applicable to all such claims and one specific to the Cañon de Chama, or San Joaquin as it is more commonly known. I will outline the general argument first and come back to the legal case specific to this claim afterwards.
The first pronouncement of the theory regarding in whom the common lands of a community grant vested occurred in General Land Commissioner William J. Sparks' 1885 report to Congress concerning pending Spanish and Mexican land claims. In this report Sparks claimed that title to a community land grant vested in the settlers only in regard to individual residential and agricultural tracts. While the sovereign granted a use right to the common lands, title to that land remained vested in the government, not the community. This interpretation of Spanish and Mexican law was clearly misinformed and completely ignored the customary manner in which the Spanish and Mexican governments dealt with such issues themselves. More to the point, his legal theory, for which he provides no substantive basis, was obviously concocted in order to keep as much land in the public domain as possible. I will discuss this issue in detail when I examine the Supreme Court's 1897 decision regarding the Cañon de Chama and San Miguel del Vado claims, but first I'll detail how Sparks and Julian promulgated this argument.
It is unclear from the archival evidence whether Julian or Sparks actually conceived this theory, but it is clear that Julian made the first application and that they pursued it together. A letter from Sparks to Julian on 16 April 1887 states, "I am in receipt of your letter of the 22nd [March 22] calling my attention to the matter of the resurvey of the Las Vegas Grant [also denounced in Julian's "Land Stealing" article]. You state as your reasons for making a resurvey of the grant that the present survey embraces nearly 500,000 acres of land and is manifestly indefensible; that the papers show a grant for agricultural purposes of numerous specified allotments of land amounting to perhaps 20,000 acres . . . [and] that the remainder of the land included in the out boundaries specified, was evidently intended for pasturage, and the grant provides that these lands and their waters shall be free to all; that it was not the custom of the Mexican government to grant in fee pasture land to the extent of nearly a half million acres as claimed in this case; . . . and that the land should be surveyed accordingly and patent issued for the land actually granted for agricultural purposes, thus settling vexed questions of title and restoring to the public domain . . . a large body of desirable land. . . . For the reasons presented in your report I have no hesitation in authorizing the resurvey of the grant as proposed."
The key to this legal theory is plainly spelled out in Spark's letter: i.e., "restoring to the public domain a large body of desirable land." It's also interesting to note that in all the recitations of this theory both Sparks and Julian allude to the notion that it was not customary for the Spanish or Mexican governments to invest title to the commons in the community, but they neglect to cite any legal or archival information that would support that theory.
On the 20 July 1887 Julian, whose flair for the dramatic was clearly evidenced, brought his case regarding the Town of Las Vegas grant to the Secretary of the Interior and the Congress in his annual report, stating: "Perhaps a more remarkable claim than any other is that known as the Las Vegas grant. The land involved is claimed by two parties, namely, the town of Las Vegas on the one side and the heirs of Luís María Baca on the other. Of course it was not possible for both sets of claimants to own the same land at the same time, since if the grant to one was valid the grant to the other could not be. But the surveyor-general decided after carefully examining both cases that under either grant the land was segregated from the public domain and beyond the control of the government, and he referred the case to Congress for its action in the premises without any recommendation . . . . Their interests [the Town of Las Vegas and the Baca family] were made to intersect each other at a point of mutual good will in furtherance of a common design upon the public domain. It is quite remarkable that the surveyor-general did not see this collusion, nor even seem to suspect it, and that although the grant as confirmed to the town of Las Vegas only contained about 20,000 acres of agricultural land the tract as surveyed by him was made to contain 496,446 acres, being about 475,000 acres in excess of the grant . . . . Congress confirmed the grant 'as recommended for confirmation by the surveyor-general'; but the surveyor-general made no recommendation whatever and gave Congress no data on which it could rightfully confirm to the town of Las Vegas any lands except the numerous small allotments set apart to as many holders for agricultural purposes and covering in the aggregate about the 20,000 acres before mentioned. Congress went further and yielding to the demands of the heirs of Baca, who could have no right to anything if the claim of the town was valid, gave them scrip in lieu of the lands thus unwarrantably asked for, covering the same area; and this illustration of legislative wisdom and consistency had its illuminating touch in the survey of the grant to the town of Las Vegas for 496,446 acres, while the General Land Office, assuming gratuitously that this monstrous fraud was authorized, proceeded to issue scrip to the Baca heirs for the same quantity of land by which the government would be robbed of nearly 1,000,000 acres . . . . I will not further multiply these examples. It is sufficient to say that of the whole number of cases submitted by surveyors-general for final adjudication, and passed upon them in the reckless manner I have specified, Congress has rejected but two and has thus criminally surrendered to monopolists not less than 5,000,000 acres which should have been reserved for the landless poor."
Although Julian was correct about the Baca claim (it was clearly invalid because the family had abandoned it and Congress never should have acknowledged the legitimacy of the claim), his assertion that the Town of Las Vegas claim was only entitled to confirmation of the private agricultural allotments within its exterior boundaries was not only false but overstated and hyperbolized. This was typical of the numerous reports and mass-media articles Julian issued in an attempt to whip-up governmental and public indignation about land fraud in New Mexico, much of which, as with the Town of Las Vegas claim, was clearly unwarranted. Note also how he cast himself as the voice of justice and morality crusading for the "landless poor." Ironically, Julian's insufferable self-righteousness would ultimately work to dispossess poor people from their land rather than protecting their legitimate land claims. Of course, the people he dispossessed were Mexicans who his journal entries made clear he felt were barbaric and slothful. Julian's "Land Stealing" article also makes clear his racist belief that the only real hope for New Mexico was to induce resettlement of the territory by making land available to enterprising Anglo farmers, ranchers, miners, loggers, and investors: "The stream of [Anglo] settlers now crossing the [New Mexico] Territory 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 [emphasis added]."
As a result of Spark's authorization, Julian initially tried to have the Las Vegas grant resurveyed but the project was ultimately abandoned, primarily because Julian could not obtain enough funding to continue his witch hunt, and after a protracted legal battle a patent was issued to the Town of Las Vegas for approximately 430,000 acres.
While the Las Vegas grant, having already been confirmed, withstood Julian's challenge regarding in whom title to the common lands vested, the Cañon de Chama and at least eight other grants, whose common lands comprised over 1.5 million acres, did not fair as well. Although Julian and Sparks failed to implement their legal theory regarding title to the common lands during their tenure in office, they set in motion the legal machinery that would result in the loss of that land by the legitimate heirs. Because it was Julian's impetus that led to this massive injustice, I will discuss the resultant Supreme Court decision at some length in order to demonstrate that both Julian's crusade and the Court's decision were based on misinterpretation of Spanish law and ignorance of customary land grant law and tradition.
When the Court of Private Land Claims was established in 1891, once again under the rubric of reforming the adjudication process, the United States Attorney for that court, Matthew G. Reynolds, who was clearly a colonial bureaucrat dedicated to keeping as much land in the public domain as possible, made this issue one of his central concerns. In a landmark adjudication, the Sandoval claim involving the San Miguel del Vado community grant, the Supreme Court infamously ruled that under Spanish and Mexican law title to the common lands of a community grant remained vested in the sovereign and, therefore, upon the change of sovereignty following the Mexican-American War, the United States government assumed ownership. The Court's judgment regarding this issue, however, is strictly limited to referencing fragments of Spanish colonial laws taken out of context and presented as if they were authoritative. It ignores other laws that contradict them and completely neglects to reference customary law and traditional usage. An unbiased court, which looked comprehensively at the issue of Spanish and Mexican land tenure, would have come to a vastly different conclusion.
Historian Richard Wells Bradfute, who wrote a study of the Court of Private Land Claims, references this problem in his book: "One of the factors limiting the effectiveness of the confirmation process . . . was the lack of adequate knowledge of the Spanish and Mexican laws relating to grants and land titles. . . . Therefore, it is highly doubtful that any of the justices [both on the Court of Private Land Claims and the Supreme Court] clearly understood either Spanish or Mexican law relating to grants and land titles." This obviously applied to Julian as well.
In the introduction to her book, Law of the Land Grant, legal historian Jane C. Sanchez says of the Recopilación de las Leyes de los Reynos de las Indias, the main source of codified Spanish colonial law for the American colonies and one of the sources upon which the San Miguel and Cañon de Chama decisions was predicated, "Although a wise and socially advanced compilation for its time, this influential collection has many defects. It lacks almost all dispositions of American authorities and indigenous law. The Recopilación included some laws no longer in force and omitted others that were valid. Still others are unclear or subject to misinterpretation or misunderstanding because they are abridged or only fragments of earlier laws, and are often out of context. Other laws contradict each other, and in others there are clashes of sordid individualisticinterests." She goes on to say, "Furthermore, in Hispanic law well-established custom could legally modify written law if it remained within the official legal philosophy. . . . Always, however, the community's advancement over the individual's remained the foundation of Spanish and Mexican land tenure."
According to historian David Vassberg, the Spanish system of land tenure clearly distinguished the royal or public domain, known as tierras realengas or tierras baldías, from community owned lands, known as tierras concegiles, and enacted a series of laws to protect community property from misappropriation by anyone, including the king himself.
Typically, residents of community land grants received individual title to the land their homes were constructed upon and the irrigated fields they planted, and a communal interest in the unallotted lands within the grant's exterior boundaries. These lands were used primarily for pasturing livestock, woodgathering, extraction of building materials, and hunting. Without exclusive access to these common lands, subsistence would have been impossible. Moreover, although these lands were also available for future settlement, the utilization level was clearly monitored and when a grant's "carrying capacity" reached its limit, new settlers or settlers seeking to expand their allotments were encouraged to seek their own grant, as was the case with the San Miguel del Vado residents who petitioned for the Las Vegas grant.
Ownership of these communal lands or ejidos by the municipal corporate body was evidenced in numerous ways. From a strictly practical perspective, it is unthinkable that these settlers would risk their lives taking up residence on a highly dangerous frontier if they were not secure in the idea that the common lands, upon which their subsistence depended, belonged to them. As J.D.W. Veeder, the lawyer for the Sandoval plaintiffs pointed out in his brief, "In an arid region like New Mexico, cultivation of the soil was then, as now, restricted to a very small area. Donations by the Government of a few varas of land to each of its citizens to till would be but a trifling contribution to the support of a family. Grazing stock was the chief occupation and means of livelihood of the people, and farming only the incident. The main inducement to colonization was pasture land, and the commons of a grant were always set apart for that purpose." Clearly, settlers would not have risked the hazards and deprivations of life on the remote frontiers of New Mexico if title to the commons did not vest in the community.
On Saturday, June 12, at the Peñasco Theater, 15047 State Highway 75, Sugar Nymphs Bistro will hold a Smoke Gets In Your Eyes cabaret and benefit dinner with various entertainments including Aerial Trapeze and Spoken Word. Wine and nibbles are scheduled for 7 p.m., dinner begins at 7:30 and entertainment at 8. The cost of the benefit evening is $80 per person. Please make reservations by calling 575-587-0311. For more information regarding details of the benefit go to the website http://www.sugarnymphs.com.
The Buckman Direct Diversion Board and the Department of Energy signed a Memorandum of Understanding at a ceremony on May 13 at Santa Fe City Hall to "protect the quality of Rio Grande waters from contamination by stormwater run-off in Los Alamos and Pueblo Canyons originating on Los Alamos National Laboratory property. The BDD Project is designed to divert San Juan/Chama Project water from the Rio Grande for use by the City and County of Santa Fe via a diversion dam three miles downstream from the confluence of the Rio Grande and Los Alamos Canyon. In 2007 the BDDB send a letter to LANL requesting the lab take six actions to help protect the drinking water supply, and over the course of the next three years this MOU was negotiated. The MOU includes eight Agreement Principles, the first of which is called Los Alamos/Pueblo Canyon Early Notification Gaging System, which will provide stream flow information that will allow the BDD Project to temporarily cease diversion of water from the river during stormwater run-off periods when the danger of contaminants is highest. BDDB members City Counselor Rebecca Wurtzberger and County Commissioner Virginia Vigil lauded this MOU as a "unique and successful collaboration" and predicted that in a year's time Santa Fe will have a conjunctive, sustainable water supply. See La Jicarita News, February 2009, for a more thorough analysis of the BDD Project.
Last October the Embudo Valley Environmental Monitoring Group designed a project with the New Mexico Environment Department's LANL Oversight Bureau to investigate the migration of the exceptional levels of cesium, strontium and plutonium found at the top of the Rio Embudo watershed. In the project they collected two samples from seven locations at 1,000 foot elevational increments starting at the Trampas Lakes and working their way down the Rio Trampas and the Rio Embudo to the Rio Grande. Of the two samples, one investigates the river as a pathway and the other investigates precipitation as the pathway for contaminants generated by the nuclear weapons industry in communities downwind from LANL. The results of these samplings will soon be released by the NMED and EVEMG will hold a public meeting to discuss the findings. La Jicarita will publish the data when it becomes available.
By Kay Matthews
Norteños have always had an ambivalent and troubled relationship with the Forest Service. On the one hand, we've done everything in our power to run them out of town &endash; or more accurately, out of our former land grants &endash; but on the other hand, we complain vociferously that they're not doing their job, they have no presence in the communities, and none of them ever answer our phone calls.
University of California geographer Jake Kosek, in his book Understories, the Political Life of Forest in Northern New Mexico, puts this complicated relationship into historical context, going back to the inception of the Forest Service and the evolution of its thinking that "mastery over nature &endash; primarily though science &endash; could free man 'from the restraints which physical necessity now impose' on humanity." Unfortunately, as we all are witnessing today, this philosophy has translated into devastating practices that have left our forests overgrown and diseased and created a paternalistic relationship with the local communities, accurately described by community forester Max Córdova: "Over the last hundred years it seems the more they [Forest Service] do for us the worse off we end up."
Over the last forty years many of us have experienced this first hand. Years ago when I lived in Placitas, at the north end of the Sandia Mountains, I spent my summers as a seasonal employee of the Forest Service. The first couple of years I (wo)manned La Mosca Fire Lookout on the Mount Taylor Ranger District near Grants. The next few years I was stationed in the Cedro Peak Fire Lookout on the Sandia Ranger District. Those were the heydays of the Forest Service: Mount Taylor manned five lookouts, had fire patrols who combed the mountains, a resident helicopter crew, tanker crews, and pick-up crews . And these were just for fighting fire, back in the days when almost every fire was immediately extinguished, getting us into the fix we're in today with the danger of catastrophic fire because of overgrown forests. On the Sandia District, primarily a recreation district because of its proximity to Albuquerque, there were, in addition to the fire crews, archeologists, biologists (some of whom were stationed on the mountain just to provide information to visitors), and hiking patrols who maintained trails, aided hikers, and provided public relations for visitors. After I worked the fire lookout I was a patrol on Sandia Crest and then, with the designation of the Sandia Mountain Wilderness, the wilderness patrol. La Floresta reigned supreme.
In the 1970s and 80s, however, both environmentalists and the local communities began challenging Forest Service policy. Kosek also documents many of these struggles in his book, showing how La Floresta tried to deflect these criticisms by issuing the Region Three Policy Statement, establishing the Collaborative Stewardship program on the Carson National Forest, and more deceptively, pitting the communities against the environmentalists in the war over access to timber and range resources. By the mid-90s we were locked into battles over sustainable timber cuts, firewood accessibility, range management protections, ski area expansions, and the role of wildfire.
The ideological differences between forest dependent communities and urban environmentalists were extreme, and the Forest Service quickly became bogged down in appeals and lawsuits as various interest groups fought over management prescriptions. But ultimately, and ironically, it was budget cuts, more than this analysis paralysis that brought us to where we are today: no pick-up fire crews, no hiking patrols, no district archeologists, no timber marking crews, no one answering phones. I was going to write a follow up to articles we've previously run (see July 2001, April 2009) highlighting the controversy over acequia easement rights and whether the Forest Service can force acequias to obtain special use permits for maintenance and rehabilitation that takes place on public land. But attempts to reach the Carson Forest Supervisor and someone at the Regional Office were futile. No one ever answered their phone and no one ever called me back. The only person in green we talk to is Henry Lopez, the Carson National Forest timber technician who is responsible for laying out the contract stewardship blocks, the only thinning that seems to be happening these days (we get the thinned trees for firewood). And now they've got Henry running all over the forest trying to do what he's done on the Camino Real for 20 years because there's no one else to do it and because centralization of services has become standard operating procedure.
So we end up back where we began. Now that the Forest Service has been completely reorganized and essentially emasculated, do we still want to complain that it's not doing its job, or should we be thankful that there isn't much opportunity for it to do more harm? Except that no management is bad management. Maybe it's time to take the bull by the horns and once again insist that it's our job to maintain healthy forests and communities without Forest Service oversight. Where are the Max Córdova's and Ike DeVargas' when we need them (We send our heartfelt hopes to Max for a full recovery from his impending surgery).
Sheri Kotowski of the Embudo Valley Environmental Monitoring Group helping to gather samples for the EVEMG and the New Mexico Environment Department's soil sampling project to investigate the migration of the exceptional levels of cesium, strontium and plutonium found at the top of the Rio Embudo watershed. (See Announcements)
Surveyor General George W. Julian, continued
Spanish law also supports this position. Partida 3, Title 28, Law 9 of Las Siete Partidas, the main compendium of Spanish law during the period we are concerned with, stipulates: "[the things which] belong separately to the commons of cities or towns are . . . the exidos . . . forests, and pastures, and all other similar places which have been established and granted for the common use of each city and town." Partida 3, Title 28, Law 10 states that municipal lands "belong in common to all the dwellers of the city or town to which they belong . . . ." Volume II, Book IV, Title VII, Law XIV of the Recopilación de las Leyes de los Reynos de las Indias, a compendium of law specifically formulated to govern Spanish colonies in the western hemisphere, states: "Those with authority . . . to make new settlements shall set aside a sufficient quantity of land for the ejido (commons) of the settlement and its growth according to the decree . . . that shall be the property of the council [emphasis added]." The Mexican colonization law of 1824 stipulates that the lands available for colonization are "Those lands of the nation . . . not being private nor belonging to any corporation or town [emphasis added]."
Not surprisingly, much of the Spanish law cited by the Supreme Court in the Sandoval decision to support its assertion that title to the common lands remained vested in the sovereign was ambiguous or completely misconstrued. Let me give an example. One of the most critical pieces of legal evidence cited by the Supreme Court to support its decision, in both the San Miguel del Vado and City of Santa Fe decisions, was extracted from Elizondo's Práctica Universal Forense de los Tribulanes de España, y de las Indias, an eighteenth century compilation of and commentary upon Spanish law. Claiming "The Spanish understanding of the prerequisite designation is well illustrated by the following passage," both decisions cited Part II, Chapter XI, Section I. The citation in the Court's decision reads: "There is nothing whatever designated by law as belonging to towns, other than that which by royal privilege, custom or contract between man and man, is granted to them, so that although there be assigned to the towns at the time of their constitution a territorio and pertinencias, which may be common to all residents, without each one having the right to use them separately, it is a prerogative reserved to the princes to divide the terminus of the provinces and towns assigning to these the use and enjoyment, but the domain remaining in the sovereigns themselves." On the surface this seems to clearly underwrite the Court's opinion. However, the Court neglected to include the title of this chapter and the conclusion of the passage that it did cite, both of which contextualize the commentary and drastically alter its intent. In point of fact, Part II, Chapter XI is entitled "Of the Extraordinary Recourses for the Alienation of Public Municipal Property" and the passage cited concludes, "but the domain remaining in the sovereigns themselves, to which follows their free disposition in cases of necessity or public utility." The inclusion of these passages makes it abundantly clear that what is referred to in this section is the sovereign's right of eminent domain, a right which all governments, including the United States, maintain so that government can, in the words of the San Miguel del Vado attorney John W. Veeder, "invade the sanctity of even our highest form of title, to wit, the fee." He went on to explain, "The very existence of sovereignty under any form of government depends upon some reserved control both of persons and property . . . ." That right, as the title to the chapter makes explicit, is to be invoked only under "extraordinary" circumstances and in no way undermines normal title to municipal lands.
The most compelling evidence of the municipal ownership of the common lands, however, is the archival grant related documents themselves. In the 1794 act of possession for the San Miguel del Vado grant, when the alcalde placed the petitioners in possession he specifically noted that the pastures and watering places were to be held in common and that the possession was "without prejudice to the royal interest or that of any third party." This clearly indicates that the entire grant was severed from the royal domain. Moreover, the governor's decree stipulated that the alcalde was to execute the concession "so that they [the settlers] their children and successors, may have, hold and possess the same in the name of his majesty . . . ." How could the authorities be any more clear or specific in exactly what they were granting?
The archival documentation for many other community grants supports the same conclusion. The Las Trampas grant, for instance, instructs the alcalde to "give royal [emphasis added] and personal possession to all [that is held] in common and to each one in particular of their respective tracts . . . . " Likewise, Governor Vélez Cachupín, who made the Las Trampas grant in 1751, specifically named and granted each head of household "one hundred and eighty varas of wheat growing land, with corresponding water, pastures, and watering places, entrances and exits . . . ."
The 1769 concession for the San Joaquin del Nacimiento grant [also denounced in Julian's "Land Stealing" article] by Governor Pedro Fermin de Medinueta not only makes clear that he is granting title to both the private allotments and the common lands but acknowledges the importance of community ownership of the ejido: "[the] concession being royal domain, and adapted as well for planting of all kinds of seeds as for the raising of livestock, the whole so necessary for the support and increase of the province, and welfare of its inhabitants . . . I do concede . . . to each of the settlers . . . corresponding irrigable land and all the remainder of the tract shall be lands of the said settlement, common to all grantees, and to none others, for pasture grounds of their animals, and for other uses of the residents . . . ."
Historian Daniel Tyler concludes: "In sum, the word ejido [community common lands] was often used incorrectly to stress the rights of Hispanic citizens to the use of grass, wood, water and other resources of the public domain. Its real meaning, according to the laws of Spain and Mexico, as well as to the customary and accepted practices of New Mexico prior to United States occupation, was that a special portion of land was removed from the public domain, attached to a community which had legal title to and control of an area into which new settlers were expected to expand and in which they, too, had common use rights."
Finally, historian Malcolm Ebright provides irrefutable evidence that the Mexican government specifically considered the common lands of the Cañon de Chama/San Joaquin grant to be vested in the community. In chapter five of his book, Land Grants and Lawsuits in Northern New Mexico, Ebright demonstrates how customary law, which in the remote settlements of New Mexico was the only judicial system available, was applied to the question of ownership of the common lands when settlers from outside the San Joaquin community took up residence within the grant boundaries about five miles from the village of San Joaquin in 1832. The San Joaquín residents consequently filed a protest and the litigation that ensued was overseen by an "asesor" (attorney general), Antonio Barreiro, a "lawyer whom the central government in Mexico City . .. sent to New Mexico to act as a one-man judicial system for the province . . . ." Barreiro's decision, as reported by the local alcalde, "indicates that the Mexican government considered the entire San Joaquin grant &endash; not just the allotments [privatized agricultural tracts and home sites] . . . &endash; to be owned by the settlers and not the government." In the alcalde's words, the unalloted lands within the exterior boundaries designated in the act of possession "remained for the benefit of the children of the [original] settlers." Moreover, the record of the 1832-1833 San Joaquin litigation was contained in the archive the United States government inherited from Mexico following the Mexican-American War and was therefore available to Julian and Reynolds had they bothered to look.
Next month's issue will examine Julian's unwarranted dismissal of another of these presumptions.
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