Natural Resources Journal

The 1848 Treaty of Guadalupe Hidalgo: Presentation of GAO’s June 2004
Community Land Grant Report

Symposium on Land Grants and the Law
The University of New Mexico School of Law
Albuquerque, New Mexico
April 12, 2008

Background of GAO’s 2004 Report

  • Requested by U.S. Senators Bingaman and Domenici and U.S. Representative Tom Udall
  • 1st GAO report in 2001:
    — Exposure Draft in Jan. 2001
    — Final Report in Sept. 2001: Treaty of Guadalupe Hidalgo: Definition and List of Community Land Grants in New Mexico (GAO-01-951 (English) and GAO-01-952 (Spanish))
    — Findings of 1st Report: Using GAO’s definitions, Spain & Mexico issued 295 total land grants in present-day N.M. - 154 community grants and 141 individual grants.
  • 2nd GAO report in June 2004: Treaty of Guadalupe Hidalgo: Findings and Possible Options Regarding Longstanding Community Land Grant Claims in New Mexico (GAO-04-59 (English) and GAO-04-60 (Spanish)
  • Objectives of 2nd GAO report:
    1. Describe land grant confirmation procedures used to implement the Treaty’s property protection provisions for community land grants
    2. Assess concerns regarding results of these procedures
    3. Assess concerns regarding land awarded under these procedures but then lost
    4. Identify examples of possible options for consideration in response to remaining concerns

How GAO Prepared Its 1st and 2nd Reports

  • GAO is the independent investigative arm of Congress and provides information that is neutral, objective, and fact-based.
  • Based on GAO’s best professional judgment, the 1st report broadly defined and identified all potential “community land grants” and “individual land grants” in N.M. and the 2nd report investigated and evaluated the relevant facts and law on how these grants were addressed under the Treaty.
  • GAO did not make binding determinations on the validity of specific land grants or the legal rights of specific land grant heirs or claimants.
  • GAO reviewed archival land grant documents in N.M. and Washington, DC reflecting the procedures and results of the Surveyor General of N.M. and the Court of Private Land Claims confirmation processes, and reviewed dozens of court cases, adjudicative decisions, laws, treatises, and journal articles.
  • GAO interviewed dozens of officials from local, state, and federal agencies and scholars, attorneys, and historians who were familiar with the implementation of the Treaty’s property protection provisions.
  • GAO obtained information and comments from hundreds of land grant heirs and other members of the public by convening community meetings in N.M. and through other communications.

GAO’s 2004 Report: Overview of Today’s Discussion

  • History of the Treaty’s property protection provisions
  • The Surveyor General of New Mexico process (1854 Act)
  • The Court of Private Land Claims process (1891 Act)
  • Overall results of the confirmation procedures in New Mexico
  • Concerns raised about acreage not awarded under the confirmation procedures
  • Concerns raised about acreage awarded but lost after confirmation
  • Summary of GAO’s overall findings and conclusions in its 2004 Report
  • Examples of possible options in response to remaining land grant concerns

History of the Treaty’s Property Protection Provisions

  • The Treaty’s principal property protection provision was Article VIII, which said in part:

“In the said territories, property of every kind, now belonging to
Mexicans not established there, shall be inviolably respected
. The
present owners, the heirs of these, and all Mexicans who may hereafter
acquire said property by contract, shall enjoy with respect to it
guaranties equally ample as if the same belonged to citizens of the
United States.”

  • Because the Treaty was not “self-executing,” Congress was required to enact laws in order for the Treaty to go into effect.
  • The basic laws Congress enacted to implement the Treaty’s property protection provisions were:
    • 1851 Act (California Commission – California only)
    • 1854 Act (Surveyor General of New Mexico – N.M. territory)
    • 1891 Act (Court of Private Land Claims – N.M. territory & other jurisdictions)

The Surveyor General of New Mexico Process – 1854 Act

  • SG process lasted 37 years, 1854-1891
  • SG was required to investigate validity of specific land grant claims and recommend to Congress whether it should confirm the grants.
  • Under 1854 Act and Interior Dept. Instructions, SG determined validity based on the “laws, usages, and customs” of Spain and Mexico and a presumption that a community land grant was valid if a city, town, or village had existed at the time of the Treaty.
  • No deadline for filing claims
  • SG process only decided who had title as between U.S. and the claimant. Others who claimed superior title under Spanish or Mexican law could later bring suit against successful claimant
  • Claims were filed with the SG for 208 of 295 total community and individual land grants in N.M.
  • As of 1885, SG had recommended virtually all claims for approval: 151 of 159 land grants (95%)
  • Controversy surrounding the Maxwell and Sangre de Cristo land grants resulted in SG process becoming more rigorous after 1885, with supplemental SG decisions being issued on a number of grants

The Court of Private Land Claims Process – 1891 Act

  • CPLC process lasted 13 years, 1891-1904
  • CPLC heard evidence and made decisions on validity of land grant claims, which could be appealed to U.S. Supreme Court
  • CPLC and U.S. Supreme Court determined validity based on whether grant had been “lawfully and regularly derived” under Spanish or Mexican law
  • The “lawfully and regularly derived” CPLC standard was more stringent than the “laws, customs, and usages” SG standard:

—CPLC standard eliminated “equitable use” as possible basis for approval.

—CPLC standard eliminated presumption in favor of cities and towns.

  • The standard was strengthened because of concern over fraud and corruption in California & N.M. claims
  • 2-year deadline for filing claims
  • Like SG process, CPLC process only decided who had title as between U.S. and the claimant. Others who claimed superior title under Spanish
    or Mexican law could later bring suit against successful claimant
  • Claims were filed with the CPLC for 211 of 295 total community and individual land grants in N.M.
  • CPLC decided claims for 139 of these 211 grants “on the merits”; U.S. or the claimants appealed decisions involving 57 grants to the Supreme Court
  • For community land grants, the CPLC or the Supreme Court confirmed and awarded acreage to 56 land grants; 21 were rejected and received no acreage

Overall Results of the Confirmation Procedures in New Mexico

  • For the 154 community land grants:

—Most grants were confirmed at least in part (105 grants, 68%) and were awarded most of the acreage claimed (about 6M acres, 64%, of the 9.4M acres claimed)

—The remaining grants were rejected (49 grants, 32%) and awarded no acreage

—The 3.4M acres not awarded generally became public lands of the U.S.

  • For all 295 land grants: a much higher proportion of total land grant acreage was awarded in N.M. than is commonly reported: 55 % not 24 %. The 55 % figure reflects GAO’s adjustments for factors such as land being located outside N.M. and acreage being double-counted.

Concerns Raised About Acreage Not Awarded Under the Confirmation Procedures

Concern # 1: Some heirs believe the stricter standards imposed by the CPLC, compared to the SG standards, resulted in rejection of their community land grant claims and believe it was unfair to change the standards (17 grants, 1.3M acres).

  • Example: The CPLC and U.S. Supreme Court restricted 7 land grants (1.12M acres) to their individual allotments under the 1897 U.S. vs. Sandoval case. In Sandoval, the Supreme Court ruled that under Mexican law, legal title to common lands—though perhaps not “equitable title” or “equitable use rights”—was held by the sovereign, rather than the community. Result was that most acreage in these grants was declared to be U.S. public domain land.
  • Example: The CPLC rejected 8 land grants (93,000 acres) because under Mexican law, they had been made by unauthorized officials (Cambuston, Vigil cases)
  • Example: The CPLC rejected 2 land grants (69,000 acres) because under Mexican law, they were based on copies made by unauthorized officials (Hayes case)

GAO finding # 1: GAO found that the CPLC and SG processes imposed different land grant claim approval standards. But Congress had broad discretion in implementing the Treaty, and the differences in the statutes reflected differences in the facts, i.e., concerns about fraud and corruption in the SG process and in California.

Concern # 2: Some heirs believe the SG confirmation procedures were unfair because they did not comply with the U.S. Constitution’s Due Process requirements

GAO finding # 2: GAO found that the procedures met the Constitution’s Due Process requirements at that time and even today:

  • Notice (may be constructive notice)
  • Opportunity to be heard (may not include cross-examination)
  • “[N]otice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” (Mullane case)

Concern # 3: Some heirs believe the confirmation process was unfair overall because of language barriers, different property ownership systems, different legal systems, prolonged confirmation process, changing & more stringent confirmation standards, costs of filing claim, costs of surveying grants.

GAO finding # 3: GAO found that the confirmation process was inefficient and created hardships for many grantees.

Concerns Raised About Acreage Awarded but Lost After Confirmation

  • Concern: Some heirs believe the U.S. has a “fiduciary duty” under the Treaty to protect their confirmed land grants indefinitely.
  • Under this duty, some grantees believe they should not have lost their community land by means such as:

—Sale to private owners
—Contingency fee agreements with attorneys
—Partitioning suits
—Tax foreclosures

  • GAO finding: GAO found the Treaty did not create a general fiduciary duty to heirs. Heirs had the same property rights and obligations as all U.S. citizens. The U.S. has a fiduciary duty to protect Pueblo Indian lands, but under specific statutes and laws, not under the Treaty.

Summary of GAO’s Overall Findings and Conclusions in its 2004 Report

  • The Treaty’s property protection provisions were implemented in compliance with U.S. law.
  • Under the procedures established to implement the Treaty, most community land grants in N.M. were confirmed at least in part and were awarded most of the acreage claimed.
  • The 50-year land grant adjudication process in N.M. was inefficient and created hardships for many grantees.

Examples of Possible Options in Response to Remaining Land Grant Concerns

  • Option 1: Take no additional action because there is no specific legal basis to do so
  • Option 2: Acknowledge inefficiencies and hardships in how the land grant confirmation procedures were implemented
  • Option 3: Establish a commission or other body to reexamine specific land grant claims
  • Option 4: Transfer federal lands
  • Option 5: Make financial payments

For More Information

For questions or information concerning specific matters in GAO’s 1st or 2nd land grant reports, please contact:

Susan D. Sawtelle
Managing Associate General Counsel
(202) 512-5400

Jeffery D. Malcolm
Assistant Director, NRE
(202) 512-3841