In ways similar to this, millions of acres in New Mexico were transferred from collective ownership by Mexican Americans to the federal government to use as it pleased. Some of this “public domain” land was distributed to individuals for farming or ranching enterprises (under the Donation Act, Homestead Act, and Desert Lands Acts, for instance, the government gave individual users 160 acres each); the federal government also sold land to private buyers.28 But these uses of federal land—which, in the 1850s, 1860s, and 1870s in New Mexico accounted for only 1.2 million acres29—paled in comparison to land that was allocated to the U.S. Forest Service. In the early 1900s, the U.S. government transferred approximately 13.6 million acres in New Mexico from the public domain to the Forest Service.30 The massive Carson and Santa Fe National Forests in north central New Mexico, with a combined area of 2.4 million acres, are located on lands that came primarily from community land grants. Geographer Jake Kosek has described the effects of the transfer of lands from community ownership to the U.S. Forest Service:
The creation of these federal lands, especially the national forests, amounted to an effective closure of the de facto commons of forest and pasture and the conversion of locally controlled and defined places into national “productive” spaces. This closure threatened not only access to resources but also the identity of indigenous Hispano communities whose national allegiance was tied more to Mexico or Spain than to the United States of America.31
To understand how this happened we must return to the peace treaty of 1848. With the end of the war, the United States gained sovereignty over Mexico’s vast northern territory, but the U.S. government did not “own” the land. Over time, however, as more and more of the former Mexican lands went into the public domain, the federal government became the owner of a large portion (perhaps most) of the land ceded by Mexico.32 Simultaneously with ownership, the federal government became a land manager, with all three branches participating: Congress created the laws to settle land claims in California and New Mexico, which then were implemented by the executive branch’s Department of the Interior; when disputes arose, they were adjudicated by federal trial and appellate courts. For example, solely to administer land claims in the Mexican Cession, Congress created three novel mechanisms that involved intensive executive branch and judiciary roles, as well as ongoing congressional administration.
In 1851, in the wake of the California Gold Rush and the land speculation that accompanied it, Congress hurriedly passed the California Land Act.33 Under the law, a board administered by the Department of the Interior heard claims, which could then be appealed directly to the federal district court and then to the U.S. Supreme Court (bypassing the federal circuit court). Remarkably, the legislation specified only a two-year window for filing claims, after which all land not claimed in this way would revert to the public domain.34 In contrast, in the rest of the former Mexican territory, Congress established itself as the arbiter of land claims by instituting the cumbersome surveyor general system.35 Under this process, landowners in New Mexico filed claims with the federal surveyor general’s office in New Mexico, then waited in a queue for their land to be surveyed; eventually, the surveyor general made a recommendation to Congress, which ultimately decided whether to certify the claim.36 The entire process could take several decades, and there was no possibility of judicial review.
The differences in the two systems reflected two important facts. First, there was the differential strategic and economic value of California and New Mexico, as viewed by Euro-American elites, particularly those in Washington, D.C. Simply put, California was far more desirable than New Mexico to gold miners and land speculators alike. Second, there were notable differences in the racial composition of the two regions, as previously noted. Land was both less desirable given these demographics and less easy to control given New Mexico’s Mexican and Indian majority and its community of Mexican elites. In contrast to California’s rapid adjudication of claims, in New Mexico, 205 claims were filed with the surveyor general between 1854 and 1885; almost half of them (95) were left in limbo because Congress never formally acted on them.37
Congress recognized the failure of the surveyor general system in 1891, when it created the Court of Private Land Claims to attempt to put to rest land claims in the Mexican Cession (other than California).38 By then, land in New Mexico had become more desirable, concomitant with the railroad’s arrival, which went hand in hand with a steadily increasing stream of Euro-American immigrants. Congress now took the unprecedented step of creating a specialized federal court to hear only land claims. This court operated without lay juries, and appeals from it went directly to the U.S. Supreme Court (bypassing both the federal trial court and the federal appeals court). As Chapter 3 showed, Mexican Americans dominated juries in most New Mexico counties (and at all court levels), yet by legislative design the new land claims court bypassed those majority–Mexican American juries. Both the creation of a specialized federal court and the automatic appeal to the Supreme Court reflected the congressional agenda to transfer as much land as possible, as quickly as possible to federal hands.
The case of United States v. Sandoval has come to symbolize the failure of the U.S. government to adhere to the property rights provisions of the Treaty of Guadalupe Hidalgo.39 Under Article VIII of the treaty, the United States pledged to respect the property rights of Mexico’s citizens living in the ceded territory.40 At the same time, contemporary events during the ratification process led to the interpretation that the United States hoped to avoid complying with this treaty provision. For one, upon recommendation from President Polk, the U.S. Senate refused to approve Article X of the treaty (as drafted by U.S. and Mexican diplomats and as ratified by the Mexican legislature), which would have even more directly governed grants of land awarded by the Spanish and Mexican sovereigns.41 The language of the proposed but never ratified Article X was forceful in its assertion that Mexican property rights in the ceded territory would be protected under American law to the same extent that they would have been protected under Mexican law: “All grants of land made by the Mexican Government or by the competent authorities . . . shall be respected as valid, to the same extent that the same grants would be valid, if the said territories had remained within the limits of Mexico.”42
The Mexicans strenuously objected to the provision’s removal and later demanded a diplomatic accord to attempt to restore some of its meaning in nonbinding diplomatic clarifications.43 The resulting Querétero Protocol, signed by diplomatic representatives of the two nations just prior to the treaty’s formal ratification, contained the following statement about the excised Article X:
The American Government, by suppressing the Xth article of the Treaty of Guadalupe Hidalgo did not in any way intend to annul the grants of lands made by Mexico in the ceded territories. These grants of land, notwithstanding the suppression of the article of the Treaty, preserve the legal value which they may possess; and the grantees may cause their legitimate titles to be acknowledged before the American tribunals.44
The inclusion of Article X by the Mexicans and its removal by the Americans, followed immediately by the Querétero Protocol, show there was contemporary worry (later proven prescient) that Mexican landowners in the ceded territory might well lose their property in the wake of the transfer of sovereign control. Seen in this light, we might well wonder why it took so long for the Americans to dispossess Mexican Americans of their land, rather than why it was allowed under the law.45 Ultimately, what is more surprising than the Supreme Court ruling against Julian Sandoval and his neighbors is that the legal procedures so blatantly constructed by Congress to increase federal land ownership in New Mexico sometimes proved susceptible to interim victories by land grant heirs.
The Sandoval lawsuit’s path illustrates the consolidation of federal power (across all three branches of government) over the new “western” lands of the United States. For twenty-two years, the Sandoval litigation wound its way through the surveyor
general process, resulting in an 1879 recommendation that Congress partially confirm the grant, but failing to result in any congressional action. When in 1891 Congress created a second process for adjudicating land grant claims in New Mexico, the Court of Private Land Claims, Sandoval and his neighbors appeared within a year to restate their claim in this new forum. Thus, the Sandoval litigation illustrates the two congressionally devised processes for settling land claims in New Mexico: the more legalistic, judicial process created by Congress (largely in response to intense criticism of the first process)46 and the surveyor general system it had instituted thirty-six years earlier. Just over a decade after the start of the American occupation, in 1859, the local justice of the peace in the village of San Miguel, Faustin Baca y Ortiz, filed a petition with the surveyor general, seeking recognition of the land as a community-owned grant.47 It would take a staggering twenty years for the surveyor general to act on the San Miguel claim.
Finally, in 1879, Surveyor General Henry M. Atkinson recommended to Congress (via the interior secretary) that the San Miguel del Vado grant be confirmed as the private grant of Lorenzo Márquez and his heirs.48 Although the petition had come from all the current residents of the grant, as a request for recognition of communal ownership, Atkinson reasoned that the fact that only Márquez, and not the fifty-one other original grantees, was listed in a 1794 document showed that “title vests solely in the grantee named.”49 Atkinson made this ruling despite the fact that subsequent documents, including those signed by Spanish authorities in 1798 and 1803, contained the names of all the original male heads of families (including Márquez). Atkinson’s position paralleled that of other San Miguel heirs, led by Márquez, who argued that they privately owned the entire grant.50 The evidence strongly suggests, though we cannot be certain, that Atkinson aimed to facilitate Márquez’s private ownership of the grant, so that Márquez could in turn sell it to Euro-American land speculators.51 In this respect, the case also illustrates the not infrequent dynamic of Mexican American complicity in the transfer of land out of collective ownership by Mexicans.
When Atkinson’s recommendation reached Washington in 1879, Congress refused to confirm any additional grants in New Mexico. Allegations of fraud and rampant land speculation were offered as explanations, and no action was taken on the San Miguel petition.52 Atkinson was viewed as a prime suspect and was accused of promoting his personal financial interests through his position as surveyor general.53 By this time, it appears that the Márquez faction had sold their interests in the grant to Euro-American land speculators, who probably were heavily lobbying Atkinson. In 1885, President Grover Cleveland appointed a purportedly reform-oriented successor to Atkinson, George Julian. But Julian’s public comments revealed contempt for New Mexico’s native Mexican and Indian people that resonated with the dominant racial narrative. In 1887, just two years after he had been sent to New Mexico, he wrote in the North American Review that the territory needed more Euro-American settlers so that “an intelligent and enterprising population [would build] a temple of civilization . . . [on] the ruins of the past.”54 Although he went to New Mexico as a self-proclaimed reformer, he seemed to offer an apology for men like Atkinson: “Official life in an old Mexican province, and in the midst of an alien race, offered few attractions to men of ambition and force.”55
In 1886, Julian wrote to Congress to criticize Atkinson’s recommendation. Under Mexican law, he said, the grant should be confirmed to the heirs of the fifty-two original settlers as well as all those settlers (and their heirs) residing on the grant in 1846, when the American occupation began (more than six hundred families).56 The radical shift in recommendations from one surveyor general to another may have made Congress more reluctant to act on the San Miguel petition, and it would be another decade before the claim was settled. Was Julian a friend of Mexican Americans since he was supporting the community grant, rather than the notion of the grant as owned by the small number of heirs, as Atkinson had recommended?57 To understand how the positions of both Atkinson and Julian were contrary to the interests of the majority of Mexican Americans (although Atkinson’s position favored Mexican American land speculators), we must understand that Euro-American elites were deeply split on the question of land use and distribution. The Atkinson camp promoted property as an investment strategy and so welcomed the role played by land speculators in driving up prices. The Julian camp favored getting land into the public domain, with the hope that it eventually would go into the hands of yeoman farmers in the homesteading tradition.
Both groups supported Manifest Destiny in both its ideological and material senses, and neither supported following Spanish-Mexican property law to its natural limits because that meant upholding the concept of communally owned land. It was the public domain faction of Euro-American elites (those against land speculators) who won out in 1891, when Congress created the five-judge U.S. Court of Private Land Claims to resolve claims stemming from the territory gained after the Mexican War.58 One of the principal criticisms of the surveyor general system had been that it did not provide for judicial review and the associated legal protections of claimants.59 The new system attempted to cure this defect by creating a new court from which the losing party could appeal directly to the Supreme Court. One of the most contentious issues was how the new process differed from that created by the California Land Act of 1851. Under the California law, land claims initially were heard by a presidentially appointed board, then appealed to the federal district court, then to the Supreme Court.60
The transition from the surveyor general system to the land claims court was intensely resisted by the cadre of lawyers in New Mexico who most frequently had petitioned the surveyor general and who were themselves among the wealthiest landowners in New Mexico as a result of their legal work. As noted previously, lawyers often were paid by their clients in the form of title to property. The leader of these lawyer–land barons was Thomas B. Catron, who at this time was the largest individual landowner in New Mexico. According to 1910 tax rolls, Catron owned $200,000 in assets—more than six times those of the second richest Euro-American serving in the legislature with Catron at the time and more than ten times those of the wealthiest Mexican American legislator at the time.61
Two days before the Court of Private Land Claims first met in Santa Fe, Catron convened an emergency meeting of the New Mexico Bar Association and garnered the attendance of the five newly appointed judges.62 The bar association voted to recommend substantial amendments to the 1891 act and selected a committee to present them to Congress, to be headed by Catron.63 In the end, Catron decided to work with the new court. He was involved with the San Miguel del Vado grant as attorney to Levi P. Morton, who had purchased land from the Márquez faction and stood to lose it if the court adopted the community theory of the grant.64 Morton and Catron nicely illustrate the land speculators’ strategy. Morton was a former New York congressman (1879–81) and former vice president of the United States under President Benjamin Harrison (1889–93). When he appeared before the land claims and Supreme Court, Morton was governor of New York.65 His financial agenda was to buy land and sell it quickly at a profit. Catron, his attorney, would have been paid in land upon winning the claim for his client.
By the time the case was heard by the Court of Private Land Claims in 1894, more than one thousand families lived in eight villages (as well as in many communities too small to be described as villages) on the San Miguel del Vado land grant.66 A century after their ancestors had received the original grant, the grandchildren and great-grandchildren of the original grantees made the trip to Santa Fe to testify. The judges were Euro-Americans whose states of origin included Iowa, North Carolina, Kansas, Tennessee, and Colorado, and who very likely did not speak Spanish.67 The transcript of examinations and cross-examinations of witnesses shows that most of the witnesses testified in Spanish, with an interpreter translating the attorneys’ questions to the witnesses and the witnesses’ responses to the judges and audie
nce. Fifty-nine-year-old Celso Baca testified that his grandfather was an original grantee and that his wife’s great-grandfather also was an original settler of the grant.68 Eighty-year-old Mariano Barros of La Cuesta spoke about how each family on the grant had an area of a few acres to cultivate for their own subsistence and how the common areas of the grant were collectively used for grazing sheep, cutting timber, and other activities.69
Euro-American lawyer John Veeder represented the petitioners and explained to the court that the case involved “a community grant” in which each settler was given “a place for planting and his house,” with the rest of the land “to be in common for all the people who resided upon the grant.”70 In a preview of his lone dissent, Judge William W. Murray, a Tennessee Democrat, interrupted Veeder: “Do you claim it as a town or corporation grant?” “We claim it as a pueblo grant,” responded Veeder, “we call it a town grant or a community grant” (the Spanish word pueblo means town).71 During the trial, Veeder objected repeatedly to the questioning of witnesses by U.S. Attorney Matthew Reynolds about individual parcels of the grant used for subsistence farming, reminding the court that these facts were irrelevant to the community claim before it.72 In the end, the court voted four to one to confirm collective ownership of the grant by the descendants of the original fifty-two grantees and all others who had settled there prior to December 1848, when the Treaty of Guadalupe Hidalgo was assumed to have taken effect in New Mexico (that is, when word of its ratification would have reached New Mexico).73
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