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The General Accounting Office Report

Listen to KUNM 98.9FM on Monday, August 9, at 8:30 AM to hear Malcolm Ebright, Norman Martinez & Moises Morales analyze the GAO study in a half interview by Mike Tilley of Cultural Energy. or Listen online to the interview Order CD or Tape

A Slap in the Face

By Malcolm Ebright
Published in La Jicarita News

After four years of "work" the General Accounting Office has spoken. In its 222 page report: Treaty of Guadalupe Hidalgo: Findings and Possible Options Regarding Longstanding Community Land Grant Claims in New Mexico, dated June 2004, the G.A.O. found that the United States government has fully met its responsibilities under the Treaty of Guadalupe Hidalgo regarding its promise to protect property rights in Spanish and Mexican land grants. The G.A.O. arrived at this conclusion without examining in detail specific land grant documents or the Spanish and Mexican laws and customs under which the grants were made, and without arriving at any standard of its own by which to measure whether the treaty's promises were fulfilled. The first e-mail reaction I received to the report was: "It's a whitewash." I would go further: the report is a slap in the face.

The G.A.O. report is neither independent, unbiased, nor objective. It is, rather, a partisan brief for the government, rationalizing, as the government has been trying to do since land grants were first "adjudicated" by the Surveyor General of New Mexico in 1854, why these adjudications were fair. In fact, they were often not fair by any standard. As a result of government deliberations pursuant to the treaty some valid grants were rejected entirely (Embudo); some valid grants were partially rejected (San Joaquín del Rio de Chama, San Miguel del Bado); some valid grants were confirmed to the wrong people (Tierra Amarilla); some valid grants were confirmed to the right people but with the wrong boundaries (Truchas); and some invalid grants were confirmed (Sebastián de Vargas, the Baca Locations). The Surveyor General's proceedings lacked due process of law and the decisions of the Court of Private Land Claims and the Supreme Court were often mistaken in their interpretation of Spanish and Mexican law. Land grant scholars have been pointing this out for decades in well-documented peer-reviewed publications. How come this long-awaited, so-called independent study got it so wrong?

We may never know, but I believe the report's conclusion that the U.S. government "met all its obligations under the Treaty of Guadalupe Hidalgo" was predetermined from the very beginning. In my conversations with G.A.O. staff I detected little interest in any of the overwhelming evidence that the U.S. government did not meet its obligations under the treaty. Neither Allan R. "Dick" Kasdan, senior G.A.O. attorney, nor any of the twenty other people who apparently contributed to the report, deign to respond to most of the arguments that have been raised to support the view of many that the U. S. failed to meet its obligations under the treaty. The three most glaring examples of this failure are the lack of a standard for assessing the fairness of adjudications under the treaty, the lack of due process under the Surveyor General of New Mexico, and the mistaken interpretation of Spanish and Mexican law in the Sandoval case (U.S. v. Sandoval, 167 U. S. 278 (1897).

U. S. v. Sandoval

In spite of its complexity and the importance of the issue of the ownership of the common lands of a community grant, the G.A.O report gives this subject short shrift. Less than five and one-half pages are occupied with the discussion of the ownership of the common lands, and of these only a paragraph is devoted to a discussion of the Sandoval case. Instead of analyzing the reasoning behind the decision, the authors of the G.A.O. study (whoever they may be), state simply "the Sandoval court concluded that common lands within the San Miguel del Bado grant passed to the new sovereign - the United States - under the Treaty of Guadalupe Hidalgo" (because those lands had remained in ownership of the old sovereigns - Spain and Mexico). The determination by Sandoval that these governments and not the land grants themselves owned the common lands is not questioned or analyzed. This is the extent of the G.A.O. report's "discussion" of the Sandoval case. It is misleading and not even a complete account of what the Sandoval opinion said. This is typical of the entire G.A.O. report. It relies almost entirely on court cases that support the government's predetermined position.

The G.A.O. researchers could have analyzed the background of the Sandoval case. They could have examined arguments by Daniel Tyler, Michael Meyer, Michael Brescia, and myself regarding the historical and legal case for common lands ownership under Spain and Mexico (see Ebright, Land Grants and Lawsuits in Northern New Mexico, 48-9, 105-23, 266-69), but they choose to ignore this scholarship.

Due Process of Law under the Surveyor General

The G.A.O. report spends many more pages (twenty-one) dealing with fairness and due process issues than it does on the Sandoval case, but the results are even more one-sided, distorted, and outrageous. It is distorted because the report misstates the facts. It says that the notice provided by the Surveyor General to those with a possible interest in a land grant was adequate and "satisfied due process" (p. 129). In fact, in the case of the Tierra Amarilla Grant, absolutely no notification was given that it was being considered by the Surveyor General. The Surveyor Generals themselves complained that this procedure was unfair and did not protect individual property rights. For example, in 1867, Surveyor General Clark stated, "no notice is required to be given to any party of interest by publication or otherwise, and as a consequence, almost all investigation has been ex parte [one side making its case to the judge without notice to the other side] . . . . I have, therefore, again to urge that Congress will make provision for the better security of the rights of individuals in the settlement of these claims." (The G.A.O. report actually includes this quote but does not respond to Clark's criticism.) Surveyor General Clark did not think that property rights of all individuals with an interest in land grants under consideration by the Surveyor General were being protected or secured. One hundred thirty-seven years later the G.A.O. insists that they were.

The "reasoning" that leads the G.A.O. report to the conclusion that the Surveyor General proceedings met due process requirements is so illogical it is bizarre. The report reaches the conclusion that the notice that Surveyor General Clark thought was required may not have been required at all. The report implies that it was an excessive burden on the government to publish a notice in a Santa Fe newspaper in 1860 stating which land grants were being considered by the Surveyor General. You do not have to be a lawyer to realize it is not a burden on the government to publish such a notice and to devise other methods of informing people with a possible interest in a land grant that their interest is in jeopardy. In fact, this is the least you would expect from a government that is deciding whether it owns land it annexed by conquest or whether the land is the property of citizens of the invaded country protected by the Treaty of Guadalupe Hidalgo.

Lack of a Standard:
Assessing the Fairness of "Adjudications" under the Treaty

The most glaring omission in the G.A.O. report is its failure to arrive at a standard by which to judge whether land grant deliberations by the Surveyor General, the Court of Private Land Claims, and the U.S. Supreme Court met the property rights guarantees in the Treaty of Guadalupe Hidalgo. It is an example of U.S. government double-speak that the first part of the title of the report is "Treaty of Guadalupe Hidalgo," and yet no attempt is made to decide independently what was required by the Treaty of Guadalupe Hidalgo. The standard that should have been applied was the same standard that the Surveyor General of New Mexico was instructed to follow by the General Land Office: "to deal with private titles . . . precisely as Mexico would have done had the sovereignty not changed", i.e., follow Mexican law and practice. (GLO Commissioner John Wilson to Surveyor General William Pelham, 1871.)

If the authors of the G.A.O. report had followed this standard they would have been required to examine the land grant documents themselves and the law and custom under which they were made. By doing this they would have found the answers they said they were seeking. They would have found, for instance, that notice to adjacent landowners was almost always given when a land grant was made so that those with a possible interest in that grant would have an opportunity to object. The governments of Spain and Mexico did not find this requirement burdensome, it was a matter of basic fairness. If the authors of the G.A.O. report had examined the land grant documents they would have found a definitive answer to the questions of who owned the common lands. In the Las Trampas grant, for instance, the grantees were granted private tracts together with a proportionate interest in the common lands by Governor Vélez Cachupín. It is crystal clear that the common lands of the Las Trampas grant and other community grants were owned by the grantees and not by the governments of Spain and Mexico, as the GAO study maintains.

The authors of the G.A.O. report looked only at the cases regarding land grant adjudications by the Court of Private Land Claims and the Surveyor General, not at their historical background. We did not need what must have been a multi-million dollar study to tell us what we already knew: that the U. S. government believes it met all its responsibilities under the Treaty of Guadalupe Hidalgo in adjudicating New Mexico land grants. Because it is so partisan, the G.A.O. report does not deserve to be taken seriously as historical scholarship or as fair-minded legal analysis. The G.A.O. report is a slap in the face because it sidesteps the issues and still expects that scholars, lawyers, and land grant heirs and residents will actually "like" the report. The essence of the G.A.O. report is: Here are the court decisions regarding the adjudication of land grants in New Mexico; these decisions demonstrate that the process was fair and the U.S. met its responsibility under the Treaty of Guadalupe Hidalgo. The G.A.O. agrees without doing any independent analysis. End of story.

But this is not the end of the story. New Mexicans interested and involved in the land grant question are more dedicated and more sophisticated than these Washington bureaucrats. They read and understand the research and land grant histories that have been written and continue to be written. They have worked this land, plowed it, irrigated it, planted it, weeded it, harvested it, and then gone to meetings in the evening about whether they owned it or whether they will retain their water rights to irrigate it. They have grazed their cattle on it and gathered wood, herbs, and other important resources from it. They can see behind the legal niceties that in their hard-hearted application by the G.A.O. squeeze the life out of something they hold sacred. They know, as their ancestors knew, that this land was guaranteed them by the Treaty of Guadalupe Hidalgo and has been denied them because of unfair actions by the U. S. government. This is not the end of the story.

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