Preliminary Comments by
The New Mexico Land Grant Forum and the Mexicano Land Education and Conservation Trust
Through the recent efforts of land grant organizations and communities, Senators Pete Domenici and Jeff Bingaman and Congressman Tom Udall requested the study of land grants and federal involvement, which took two years to complete and another two years to translate and print. The study involved more than 21 lawyers and accountants and cost $1 million. The study, in part was supposed to address the issues involved in the implementation of the Treaty of Guadalupe Hidalgo.
The Congressional General Accounting Office (GAO) recently issued its long-awaited study of New Mexico land grant claims, entitled Treaty of Guadalupe Hidalgo: Findings and Possible Options Regarding Longstanding Community Land Grant Claims in New Mexico. Although a complete evaluation of the 220-page study will take some time, a number of problems with the report are readily apparent.
This statement addresses 3 major problem areas in the analysis found in the report from the GAO. These 3 problems are:
1. incorrect ownership
1. INCORRECT OWNERSHIP OF LAND GRANTS.
The 2004 GAO Report completely downplays how easily the land grant confirmation process set up by the federal government could be manipulated so that a land grant would be awarded to someone other than the correct owners, without the knowledge or participation of the correct owners.
The well-documented history of the Tierra Amarilla Grant illustrates the problem of the manipulation of the land grant confirmation process.
In that case, Francisco Martinez applied to the Surveyor General and claimed the entire 600,000-acre grant as his private land. The grant was actually a community land grant, with common lands set aside by the Mexican government when it made the grant in 1832. However, Francisco Martinez was able to convince the Surveyor General that the Mexican government granted the land as a private grant to his father Manuel Martinez in 1832. He was able to do this, among other reasons, because the decision-making process before the Surveyor General was first-come-first-serve and ex parte, meaning, Francisco Martinez could give his side of the story, and there was no requirement that notice be given to any other person with an interest in the grant who might have a different view as to what Francisco Martinez was claiming.
Based on the Surveyor General's recommendation, the Tierra Amarilla Grant was awarded by Congress as a private grant to the heirs of Manuel Martinez.
Due to the federal government's land confirmation process, the Tierra Amarilla Grant residents ultimately lost all of their rights to use and to manage the hundreds of thousands of acres of common lands which rightfully belonged to the community.
Source: The Tierra Amarilla Grant: A History of Chicanery, Malcolm Ebright
How did the 2004 GAO Report address these issues? The Report recounted some of the Tierra Amarilla Grant history, and described the difficulty the settlers of the grant had in getting the courts to review or undo what the Surveyor General and Congress did. But with respect to the issue of the ex parte nature of the process and the lack of notice, rather than comment on the obvious unfairness of what occurred, the GAO report instead gave a general and non-grant-specific evaluation of the legality of the land grant confirmation process, concluding that there were no constitutional or other legal deficiencies in the process.
The 2004 GAO Report found it sufficient that various notices were published in Santa Fe-area newspapers as to the presence of the Surveyor General in Santa Fe to accept application for confirmation of land grants.
The GAO determined that once the Surveyor General received and began considering an actual application for a particular land grant, no further notice was required that specifically mentioned that the particular land grant was under consideration by the Surveyor General.
The Report stated that such further notice would have been unduly burdensome on the federal government, and not required in any event because of the previously published notice.
Without mentioning the Tierra Amarilla Grant specifically when making these points, the Report implied that it was fault of others for not coming forward more quickly to make their claim before the Surveyor General and to find out what Francisco Martinez was doing, rather than there being any lack of notice or flaws in the Surveyor General process.
We seriously question these statements and the conclusion that there were no legal or constitutional notice problems with the confirmation process, particularly by today's standards. We hope to provide a thorough and thoughtful response on these particular legal questions in time.
The injustices stemming from the Surveyor General process were recognized even by the Surveyors General themselves. For example, Surveyor General John A. Clark, wrote in 1867: "The law now in force, requiring the surveyor general to ascertain the origin, nature, character, and extent of all claims to land under the laws, usages, and customs of Spain and Mexico, . . . after thirteen years' experience, has failed utterly to accomplish the purposes intended by it. Great injustice is liable to be done, as well to claimants as to the government, by this anomalous manner of determining the rights of parties. The surveyor general is not permitted to incur any expenses in calling witnesses, no notice is required to be given to any party in interest by publication or otherwise, and, as a consequence, almost all investigations have been ex parte . . . the government in these confirmations may not have done any injustice to individuals, or parted with the title to any lands which properly belonged to it, but its liability to do so under the circumstances is manifest. I have, therefore, again to urge that Congress will make provision for the better security of the rights of individuals and the government in the settlement of these claims."
What happened to the Tierra Amarilla Grant is precisely the type of injustice Surveyor General Clark warned about.
It is important, in the process of this type of academic discussion (over whether the process was technically "legal"), that care is taken to maintain focus on the obvious injustices and inequities that occurred in the implementation of the Treaty of Guadalupe Hidalgo. An overly legalistic analysis, such as the GAO's, tends to trivialize the actual histories of what happened to the Tierra Amarilla Grant and other land grants in this critically important chapter in New Mexico history. Such an analysis calls into question what our collective sense of fairness and justice demands as a response to that history. Some of the worst injustices that occurred in this country -- e.g., slavery, racial segregation -- were "legal" for much of our history. In asking for this study, the people of New Mexico, through their congressional delegation, wanted an evaluation of whether or not justice was done in a broader sense than technical legality, and whether the results were fair and equitable. The 2004 GAO Report fell far short of that goal.
2. PARTITIONING OF COMMON LANDS.
The 2004 GAO Report dismisses legitimate grievances regarding cases where community land grants were confirmed improperly, which led to partitioning and sale of common lands.
Many community land grants were erroneously (perhaps purposefully) awarded to a group of resident families &endash; as a tenancy-in-common &endash; rather than to the community, a mistake that turned out to be fatal to the grants' common lands.
This is because a tenancy-in-common was subject to being partitioned under state law (or formerly, territorial law), with the result that the commonly-held lands were put up for bid at a partition sale. This occurred over any objection by the community if just one co-tenant filed for partition.
In contrast, a true community grant with true common lands was not legally subject to partition; those common lands remained in the name of the community and under the community's collective management and decision-making.
Under Spanish and Mexican law, there was no such thing as a community land grant structured as a tenancy-in-common, so no land grant should ever have been confirmed that way.
Each time the Surveyor General or the Court of Private Land Claims erroneously "confirmed" a community land grant as a tenancy-in-common rather than as a true community grant, they not only converted the grant to a land tenure that had no basis in Spanish and Mexican law, but it also led inevitably to partition and loss of the entire common lands.
The common lands or large portions of common lands that belonged to the Cañon de San Diego Grant (Jemez Springs, Cañon, Cañones) (116,000 acres), the Santa Barbara Grant (Peñasco, Rodarte, Llano) (31,000 acres) and the Mora Grant (828,000 acres), to name a few, were lost by this process.
How did the 2004 GAO Report handle the issues surrounding the federal government's incorrect confirmations of community lands as private lands? Curiously the 2004 GAO Report discusses the partition problem in the section on whether the United States had a duty to protect land grants after confirmation had been completed.
The thrust of the 2004 GAO Report's discussion is that the federal government had no duty to intervene in state-law processes, such as stepping in and urging state courts to stop partition sales. But that is not where the U.S. was at fault here.
The real problem was that the U.S. should have had enough of an understanding of basic Spanish and Mexican land tenure to not have awarded these grants as tenancies-in-common in the first place. Had that not happened, the existence of a state or territorial partition law would not have mattered and those common lands would not have been put up for bid.
The 2004 GAO Report does not acknowledge this point. It notes that people in New Mexico have made this point, but it neither agrees nor disagrees with it. As a result, partitioned community lands grants are not "counted" in the Report as ones that experienced land loss attributable to flaws in the confirmation process.
Response to the 2004 GAO Report's conclusions to the problem of partitioning lands in New Mexico.
The 2004 GAO Report's discussion on this subject was wholly inadequate, amounting to a dismissing of legitimate grievances against the federal confirmation process.
3. LEGAL REMEDIES.
Once a land grant was confirmed, it could not be amended even if it was wrong. The report states that mistakes in the confirmation process were fixable through the courts &endash; and are fixable today &endash; a statement that is contradicted by a number of U.S. Supreme Court, federal and state court decisions where land grant heirs have attempted to obtain relief.
The 2004 GAO Report states numerous times that if the federal confirmation process mistakenly awarded a land grant to the wrong claimant, that mistake could have been fixed by the true owner initiating an independent court proceeding at a later point in time before a different court and proving his or her claim.
Under this view, community grants that were wrongly patented to an individual (like the Tierra Amarilla Grant) or wrongly patented to a group of families (like the Mora Grant) rather than the community are mistakes for which a judicial remedy exists even today if someone were to bring a court action to do so. If this view were true, these types of mistakes in the federal confirmation process would not be so tragic because they would not be "set in stone".
Tameling. This view is flatly contradicted, however, by a lengthy list of reported court decisions. The U.S. Supreme Court held in Tameling v. U.S. Freehold and Emigration Co. in 1876 that the courts could not provide a remedy in the case of a land grant being incorrectly awarded. Tameling and the cases following its lead have never been overruled.
How then, in the face of these cases, did the 2004 GAO Report arrive at its conclusion? The GAO did in fact discuss and acknowledge the Tameling line of cases and the problem heirs have run into with them. But the GAO contrasted that with a case presently pending in the state district court for San Miguel County, Montoya v. Tecolote Land Grant.
In Montoya, the district court has ruled that the Montoya family is not barred from claiming that it should have been awarded a portion of the grant patented to the Town of Tecolote. The decision reportedly will be appealed. The Montoya case, as it now stands, is in contrast to Tameling and similar cases, but its value as a precedent is exceedingly weak.
Montoya is not a "reported" court decision to which other courts must defer to in any way. Being appealed, the decision is open to challenge and the case cannot be said to have reached its conclusion. There is a strong possibility the Montoya decision would be overruled on appeal as contrary to the U.S. Supreme Court's decision in Tameling.
Rather than suggest any possibility of the decision being overruled on appeal, the GAO, throughout the remainder of the Report, refers to Montoya when making the point that a remedy still exists in cases of wrongful confirmation, treating Montoya almost as if it were settled law. It is not.
Elevating the questionable Montoya ruling in this way displays an alarming lack of candor on the part of the GAO. Beyond that, it is self-serving insofar as the Report's main thesis that the federal role with respect to New Mexico land grants was benign.
In setting up adjudication under the Surveyor General, the United States did not use the same standards it had used in other similar cases. With the Louisiana Purchase and Florida settlements only land that had belonged to the sovereign was considered to be in the public domain. In New Mexico, all land was considered to be public domain. Another fact pointed out in the GAO report is that equity was not required by the Congress in setting up the Surveyor General and the Court of Private Land Claims. In New Mexico, because of the adversarial nature of the proceedings, the claimants were required to employ lawyers who then were awarded between 25% and 33 1/3% of the grant lands as payment. An example of this was the Anton Chico grant in which judges awarded the lawyers more than 100,000 acres in a dispute over 35,000 acres. In the land grants where lawyers were landholders, they were then often eligible to file for partition of the common lands.
A preliminary evaluation of the 2004 GAO Report reveals three fairly serious flaws in the GAO's historical and legal analysis. To review, those are 1. incorrect ownership, 2. partitions, and 3. legal/judicial remedies. In each case, the role of federal institutions and federal actors in the land loss experienced by land grants has been downplayed in a way that is historically unwarranted. In doing so, responsibility for some of the more notorious causes of land loss is unjustifiably deflected from the federal government to the state or to the land grant heirs themselves, or the land losses are simply justified as technically "legal" or "constitutional". As a history, the Report simply is not candid about the federal role in the land loss that occurred.
It is this unwarranted alteration of history that allows the GAO to conclude that the federal government largely met its obligations under the Treaty of Guadalupe Hidalgo during the confirmation period. While the Report acknowledged that a certain amount of land was "lost", i.e., not confirmed and became part of the federal public domain, it failed to recognize a further category of "wrongly confirmed" grants which suffered losses of their entire common lands, attributable to this wrongful confirmation by the federal government. For this reason, the Report understates the problems in the implementation of the Treaty of Guadalupe Hidalgo both in terms of the number of grants adversely affected and the amount of land loss that occurred.
Another conclusion stated repeatedly in the Report -- that whatever method Congress chose to implement the Treaty, no matter how flawed or inequitable, was "legal"-- is even less convincing as a basis for any sense of satisfaction with how the Treaty was honored. This view, other than preordaining the ultimate (and questionable) conclusion that there "does not appear to be any specific legal basis for relief", tells us nothing about whether injustices or inequities -- in the broader sense of those words -- occurred.
Due to the length and complexity of the 2004 GAO Report, a much more concerted review will be necessary in order to present these and other issues in more detail and address any legal or equitable bases for relief. A more detailed evaluation based on such a review will be forthcoming.
Other groups which have suffered injustice at the hands of the federal government have been given reparations. Some examples include: former slaves were given 40 acres and a mule, citizens of Japanese descent placed in internment camps during World War II were given cash settlements and Native Americans have been given combinations of land and monetary in settlements of treaty obligations.
The GAO report offers Congress 5 options for action concerning the land grants in New Mexico, due to the inconvenience and hardship placed on land grant heirs according to the report. The options include
1. Just let it be and do nothing
The report also states that the only means of fixing these problems at this point is by international action or by action of Congress. Our preference at this time is that appropriate remedial action be taken by the Congress.
We would like to request that the Congressional delegation ignore the first option and consider options 2, 3, 4, and 5 or a combination of these options. The Land Grant Forum has always support the idea of establishing a land grant claims commission.
Concerning the reconstitution of land grants with lands, we have agreed that no claims will be made on Indian lands already adjudicated or on private lands which the current owners do not wish to sell. We suggest federal lands be used for this purpose.
Most land grant heirs continue to oppose monetary awards to individuals, but, instead, prefer setting up a land grant trust fund. Compensation by way of a trust fund could be broader, and might be established in such a way as to be permanent where only the interest could be applied for by land grants wanting to purchase additional land, or establish economic development zones or set up educational programs or institutions.
Compensation associated with option 4 should go to land grants with a duly constituted board according to New Mexico state statutes. Any land grant without a board which wishes to form one would do so under Chapter 124 of the laws of 2004 recently passed by the legislature and signed by Governor Bill Richardson.
This statement was prepared by land grant heirs and members of the New Mexico Land Grant Forum and the Mexicano Land Education and Conservation Trust.