Under the California land law, a parallel ruling appealed by the losing party would have gone to the federal district court and then, if again appealed, to the Supreme Court. But under the 1891 law, the U.S. attorney’s appeal went straight to the Supreme Court. It reversed the ruling of the Court of Private Land Claims, deciding to confirm only the individually allotted portions of the grant, totaling about five thousand acres. Prior to a series of cases decided around this time, the Supreme Court had essentially deferred to federal judicial interpretation of the Treaty of Guadalupe Hidalgo as requiring that Spanish and Mexican legal principles be applied to land claims in the former Mexican territories.74 The Court of Private Land Claims had relied on these prior rulings when it confirmed the San Miguel grant, but the Supreme Court changed course without prior notice.
In an opinion written by Chief Justice Melville W. Fuller, the Supreme Court decided that the differences between the congressional acts that created the California land court in 1851 and the 1891 court revealed Congress’s intent to make the 1891 law more stringent than the surveyor general standard.75 Under this reading of the case, “the sovereign retained fee title to all communal lands.”76 In other words, because the prior Spanish and Mexican sovereigns had retained control of the common lands in community grants, the United States, as the current sovereign, now did so as well. The argument flipped on its head the notion of a community grant as recognized under Spanish-Mexican jurisprudence. Instead of acknowledging that the vast majority of the grant (310,000 acres in this case) was collectively owned and operated, and that only a small portion of it (5,000 acres) was allocated to individuals for farming plots, they argued that the only valid portions of the grant were the individual allotments.
Yet it probably was this kind of outcome that Congress sought when it created the specialized court in 1891. In this respect, I differ with those who claim that cases like Sandoval violated the spirit of the peace treaty. From a realpolitik perspective, this was precisely the outcome envisioned by the United States when it started the war and negotiated the treaty—it just took Congress some time to get there. If Article X, as proposed by the Mexicans, had been included in the treaty, then it was precisely the shift in congressional legislation and judicial rulings that occurred in the 1890s that would have been prohibited (which is not to say the Court would not have been able to use other avenues to achieve its ends). With the ratification of the Treaty of Guadalupe Hidalgo in 1848, the United States gained sovereignty over the Southwest and West. But it was not until fifty years later that the federal government truly began to realize the fruits of Manifest Destiny as it gained ownership over the Mexican Cession lands, one community land grant at a time.
The tens of thousands of Mexican Americans in New Mexico who lost their communally owned lands at this time and in this manner reacted in two ways. The loss of these lands required many heads of households who had subsisted by small-scale farming and ranching to enter the formal labor market, becoming wage laborers, often forced to migrate seasonally to California, Colorado, or Texas to earn a meager living.77 Yet many Mexican Americans who lost their communal lands did not simply sit idly by but instead participated in a variety of political mobilizations closely linked to their status as a colonized, racially subordinated group. An early movement called Las Gorras Blancas (the White Caps), which directly challenged the transfer of lands, thrived in the late 1880s and early 1890s in and around the San Miguel del Vado land grant. Sociologist Phillip Gonzáles describes the movement thusly:
Covering riders and horses with white sheets, armed bands of Hispanos rode at night, killing livestock, knocking down fences, and tearing out railroad tracks. The movement posed considerable threat to the order that the territorial administration sought to maintain. . . . The organization won political support and influence in San Miguel and nearby counties.78
Nearly a century later, in the late 1960s, Reis López Tejerina would lead a cadre of Mexican Americans deeply conscious of their status as a colonized people and radicalized by the land grant issue. Organized on the 115th anniversary of the Treaty of Guadalupe Hidalgo as the Alianza Federal de Mercedes (National Alliance of Land Grants), the group sought attention for the federal government’s ongoing conversion of Mexican Americans’ land grants into federal forest lands. In 1966, they occupied part of the Carson National Forest, resulting in criminal charges against Tijerina and four others. In protest of what they considered political persecution, they forcibly occupied the Rio Arriba County courthouse in 1967, garnering national publicity and the governor’s mobilization of the New Mexico National Guard.79
Manifest Destiny as a Catalyst for the Civil War
Manifest Destiny was central to the larger nineteenth-century processes that restructured the American racial order. This section explores the connections between the conquest of northern Mexico and the Civil War that began just over a decade after the U.S.–Mexico War concluded. The role of Manifest Destiny as a catalyst for the Civil War remains almost entirely unrecognized. Yet a careful review of the historical record reveals that U.S. conquest of the expansive territory that had belonged to Mexico brought to a head the question of whether slavery would expand beyond the South, a question decided by the Supreme Court in the Dred Scott case. Understanding the connections between the two elucidates the similarities and differences between the racial subordination faced by Mexican Americans and that faced by African Americans.
The question of whether slavery would be legal in the newly acquired territories west of the original thirteen colonies arose almost with the birth of the nation, but it grew more acute as the federal government annexed ever-larger parcels of land, culminating in the Mexican Cession of 1848.80 In perhaps the preeminent historical analysis of the Dred Scott case, Don Fehrenbacher identifies three important moments in this early history: Congress’s prohibition of slavery in the Northwest Ordinance of 1787, which established federal administrative authority over the trans-Appalachian west; Congress’s silence on slavery in the 1804 annexation of the Louisiana Territory; and Congress’s so-called Missouri Compromise of 1819–20. The Missouri Compromise actually consisted of three separate congressional actions, bundled together to accumulate sufficient numbers of votes for passage: (1) Missouri joined the Union as a slave state, (2) Maine joined as a free state, and (3) slavery was prohibited in the remainder of the Missouri Territory (what remained of the Louisiana cession, after removing the states of Missouri and Louisiana and the Arkansas Territory) north of the thirty-sixth parallel but allowed south of that line.81
This national compromise did not last long; debates about slavery arose again in the context of various efforts to annex Texas. First in 1837 and again in 1844, northerners blocked the admission of Texas on the slavery question.82 Southerners got the upper hand in 1845, and Texas was admitted as a state where slavery was legal. That result certainly pleased Euro-American settlers in Texas (both legal and illegal immigrants), who had for years advocated for Texas independence largely in order to protect the right to hold black slaves in the face of Mexico’s antislavery laws. In August 1846, when President Polk initially sought congressional funding to pursue negotiations with Mexico over the question of Texas’s southern boundary, Congressman David Wilmot, a Pennsylvania Democrat, attached an amendment to provide that slavery would be banned in any additional lands obtained from Mexico.83 Whigs and some Democrats viewed Polk’s efforts as the first step toward a war with Mexico, which itself, they believed, was a thin guise for acquiring more territory in which to expand slavery.84 The so-called Wilmot Proviso passed the House in 1846, but did not make it to the Senate; in 1847, the House again endorsed the Wilmot Proviso, but it failed in the Senate.85
When Congress debated the ratification of the Treaty of Guadalupe Hidalgo in early 1848, the question of whether slavery would be allowed in the newly ceded territories figured prominently. During the presidential campaign later that year, Polk argued that the Missouri Compromise should be extended west to t
he Pacific Ocean—that slavery would be allowed south of the thirty-sixth parallel, but not north of it.86 No agreement was reached until almost two years later, with the Compromise of 1850. This congressional action consisted of a series of votes taken in the summer of 1850, each bearing on slavery.87 First, Congress admitted California as a free state. Second, Congress designated the remainder of the Mexican Cession as the Utah and New Mexico territories, without specifying any policy on slavery in them. Third, Congress settled the question of the boundary between Texas and New Mexico, putting it considerably further east than Texas had wanted, but providing Texas monetary compensation for doing so.88 Finally, it included a strengthened Fugitive Slave Act, demanded by southern slaveholders to protect against the increasing threat of slaves escaping to jurisdictions where slavery was illegal.89
With the 1850 actions, an earlier shift in federal policy on slavery in the territories became institutionalized. Congress began its regulation of newly annexed lands in 1787 with a prohibition on slavery in the Northwest Ordinance; by 1850, however, Congress had adopted the position euphemistically referred to as “nonintervention” in the territories. The positive gloss on nonintervention was that popular sovereignty in each territory would be allowed to run its course to decide whether or not to legalize slavery. But the reality was that nonintervention meant a victory for white slaveholders, who were free to settle in the new territories with their slaves knowing their “private property” would be respected.90 At the same time, the enhanced fugitive slave law gave federal officials—from U.S. marshals to federal judges—a greater role in protecting the rights of slaveholders in all the states and territories. All in all, the increased rancor of the congressional debates about slavery in Texas, California, New Mexico, and the other far western territories revealed a federal legislature increasingly unlikely to resolve the slavery question, making judicial intervention almost inevitable.91
The Supreme Court finally did speak to the question of slavery in the territories in 1857, when it decided Scott v. Sandford.92 Most narrowly, Scott’s lawsuit involved his right as a slave to sue in federal court. Then and now, only certain types of cases can be brought in federal court, as a court of limited rather than general jurisdiction. Scott alleged that his case was appropriate for federal court due to the parties’ diversity of citizenship—he, as the plaintiff, and Dr. Sanford, as defendant, were citizens of different states, Missouri and New York, respectively.93 The substance of Scott’s suit for freedom was that, because he had lived for substantial periods in states and territories where slavery was illegal, he was now free. Scott’s travels were an integral part of his theory of the case, but they also reveal another layer of connection between Manifest Destiny and the Civil War, one typically neglected in historical accounts.
At around age thirty, Scott was purchased for five hundred dollars by Dr. John Emerson from the estate of Peter Blow.94 When Emerson entered the military service as a surgeon in 1834, he took Scott with him from Missouri to Fort Armstrong, Illinois (about two hundred miles north of St. Louis). While at Fort Armstrong, Emerson took up land speculation, purchasing multiple lots in both Illinois and what would become Iowa; he directed Scott to build a log cabin on one lot in order to improve his claim. In 1836, Emerson was transferred to Fort Snelling (in the Wisconsin Territory) and again took Scott with him.95 While at Fort Snelling, Scott married Harriet, the young female slave of the Indian agent stationed at the fort.96 Emerson left Fort Snelling in 1837, but Scott and his family remained there, as he had been hired out to other officers. About a year later, Emerson, now living at Fort Jessup in the Louisiana Territory, sent for Scott, who traveled (unescorted) with his family by steamboat to join Emerson in St. Louis.
Once again, Emerson was transferred, and he returned with his own family and with his slaves, the Scotts, to Fort Snelling. When in 1840 Emerson was transferred to Florida where the Seminole War was in progress, Mrs. Emerson took their slaves with her to her family home in St. Louis. In early 1843, Emerson died, and, perhaps to earn extra income, Emerson’s widow rented Scott to her brother-in-law, Captain Bainbridge. Scott accompanied Bainbridge to army posts in Florida, the Louisiana Territory, and Texas.97 From 1844 to 1846, Bainbridge served under General Taylor’s command on the Texas border with Mexico, accompanied by Scott. At the very moment when the United States declared war against Mexico, Scott was with the U.S. Army in Texas. It was upon his return from Texas that Scott initiated his first suit for freedom, also claiming emancipation for his wife and two daughters.98
The Supreme Court might have dispensed with Scott’s case in any number of ways in order to avoid reaching the merits of the larger claims as they related to the freedom of a slave who had lived in free territory.99 In a sweeping decision, however, Chief Justice Roger B. Taney ruled that blacks, whether they were free or enslaved, stood outside the American polity: they were not citizens, nor did they have the privilege of suing in federal court.100 The Dred Scott case is considered a precursor to the Civil War, which erupted only a few years later.101 As significant as the ruling on black exclusion from citizenship was, an equally important aspect of the case—and arguably one that was a more important catalyst for the Civil War—was the Court’s ruling that the Missouri Compromise of 1850 was unconstitutional.
When a Supreme Court dominated by southerners heard Scott’s case in 1857, it was poised to reach well beyond the narrow confines of the dispute between Scott and Sanford. Taney wanted desperately to reach the question of whether Scott had become free by virtue of his owner taking him into free territory under the Missouri Compromise, and hence the issue of Congress’s power to prohibit slavery in the territories.102 Like most white southerners, Chief Justice Taney perceived the question of slavery in the territories as central to the larger goal of maintaining slavery in the nation.103 Fehrenbacher identifies the dilemma faced by Taney: “In short, while the power to prohibit slavery in the territories must be nullified, the power to protect [slavery] must be not only affirmed but converted into an obligation.”104 Taney accomplished this goal by way of a three-part argument: (1) the federal government had no power to govern new territories (other than a limited, temporary power to govern them until they were to be admitted as states);105 (2) this limited governing power meant that the federal government was also limited in its regulation of the rights of “citizens” of the territories, including those Americans who had migrated from states to territories;106 and (3) as a result, the federal government (Congress, in this case) could not in any way restrict the property rights of citizens of the territories, making the prohibition of slavery north of the thirty-sixth parallel unconstitutional.107
The American colonization of northern Mexico brought to a head the question of whether slavery would expand beyond the South. It pointedly raised the issue of whether white slaveholders would be allowed to share equally in the profits of imperialism. If white slaveholders could not take their property in slaves with them into the vast new territory, then, according to Taney’s view of the world, they were not equal beneficiaries of America’s imperial enterprise. Relative to white Americans who did not own slaves, they would be held to second-class citizenship if the Missouri Compromise was enforced. Ironically, Taney’s view of the case may have inadvertently led him to expand the rights of Mexican American citizens in the territories.
As one of the pillars for his argument about black inferiority, Taney pointed to the categorical exclusion of non-whites from the ability to become naturalized American citizens.108 In doing so, however, he ignored the recent act of “collective naturalization” of more than 115,000 Mexicans under the Treaty of Guadalupe Hidalgo. Most of the Mexicans living in the vast region ceded by Mexico after the war were racially mixed and very likely would have been considered non-white by Taney and his brethren. The Mexican War had ended less than a decade before the Supreme Court decided the Dred Scott case, and the Taney Court already had decided several cases involving the peace treaty and the war.109 Taney’s om
ission of Mexicans’ questionable racial status produced two outcomes. At least as a formal legal matter, it effectively ranked the nation’s brand-new Mexican American citizens above African Americans in the U.S. racial hierarchy.110 In so doing, Taney perhaps inadvertently expanded the rights of those Mexican Americans who held only federal (but not state) citizenship, such as Mexicans in New Mexico.
In invalidating the Missouri Compromise, the Court emphasized that the ban on slavery south of the thirty-sixth parallel violated the due process rights of slaveholders who had migrated or who might immigrate to the new territories. Taney framed the Missouri Compromise as a law that discriminated against territorial citizens, who by virtue of their migration west no longer held state citizenship:
It is a total absence of power everywhere within the dominion of the United States, and places the citizens of a Territory, so far as these [property and liberty] rights are concerned, on the same footing with citizens of the States, and guards them as firmly and plainly against any inroads which the General [i.e., federal] Government might attempt, under the plea of implied or incidental powers.111
As legal scholar Ediberto Román has noted, Taney’s interest was in protecting the rights of white “settler citizens” to the federal territories, not the rights of territorial citizens per se.112 While Taney’s interest clearly was in protecting the property rights of white, slaveholding newcomers to the territories, the opinion applied to all “citizens” of all federal territories—including Mexican Americans who held only federal citizenship in New Mexico.
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