landgrantpatent.orglandgrantpatent.org/doc/guadalupe-treaty.doc · Web viewMexican colonization laws also permitted foreign nationals the privilege of settling in the Mexican

5 SWJLTA 45 Page 1(Cite as: 5 Sw. J.L. & Trade Am. 45)

Southwestern Journal of Law and Trade in the AmericasSpring 1998

Symposium: Understanding the Treaty of Guadalupe Hidalgo on its 150thAnniversary

*45 EN EL NOMBRE DE DIOS TODO-PODEROSO: THE TREATY OF GUADALUPE HIDALGO ANDNARRATIVOS LEGALES

Guadalupe T. Luna [FNd1]

Copyright © 1998 Southwestern University School of Law; Guadalupe T. Luna

In the name of Almighty God.

The United States of America, and the United Mexican States, animated by a sincere desire to put an end to the calamities of the war which unhappily exists between the two Republics, and to establish upon a solid basis relations of peace and friendship, which shall confer reciprocal benefits upon the citizens of both, and assure the concord, harmony and mutual confidence, wherein the two peoples should live, as good neighbors. . .

En el nombre de Dios Todo-Poderoso.

Los Estados-Unidos mexicanos y los Estados-Unidos de America, animados de un sincero deseo de poner termino a las calamidades de la guerra que desgraciadamente existe entre ambas Republicas, y de establecer sobre bases solidas relaciones de paz y buena amistad que procuren reciprocas ventajas a los Ciudadanos de uno y otro pays, y afianzen la concordia, armonia y mutua seguridad en que deben vivir, como buenos vecinos. . . [FN1]

*46 I. Introduction

The Treaty of Guadalupe Hidalgo [FN2] ended the war between the Mexican Republic and the United States. In ceding territories abundant with natural resources, the treaty affected landowners of Mexican and Indian ancestries residing throughout the annexed territories. [FN3] In creating a legal relationship between these landowners, the treaty obligated the United States to protect the property of those annexed while ensuring to them the continued enjoyment of their liberty interests. This Conference on the Treaty of Guadalupe Hidalgo [FN4] provides an investigation of a population long dispossessed from their property.

The Treaty of Guadalupe Hidalgo provides a vehicle to explore race relations in the United States and informs of a decisive moment in Chicana/Chicano history. [FN5] It further reminds us that not unlike Native Americans, our communities were also acquired by conquest. Notwithstanding the Treaty's value as a tool in understanding modern race-relations, oppositionists challenge race-based investigations as "irrational" and "beyond all reason." [FN6] Objections to cultural diversity are threatening our obligation to ensure a well-rounded education to students. In the spirit of the times, scholars advocating the hegemony of mainstream legal education, moreover, are imposing interpretations that fail to acknowledge the legal experience of "outsiders" in *47 the law. [FN7] In essence critics of race-based scholarship are declaring war over knowledge. [FN8]

In following the interpretation of those resisting race-based inquiries, I asked myself a very simple question. Specifically, what are mainstream scholars hiding? I asked this question because within the law generally, and legal education specifically, the legal relationship between Chicanas/Chicanos and the United States remains inaccessible

Copr. © West 2002 No Claim to Orig. U.S. Govt. Works


to law students and future interpreters of law. [FN9] The exclusion of race-based analysis, as constructed by law, conceals the contributions of Chicanas/Chicanos in developing agricultural practices and expediting property law in this country. Its absence, moreover, disallows students from developing an awareness of the extent to which law constructed an outsider status for those promised full citizenship rights. [FN10]

In contrast, the analysis advocated by those resisting race-based investigation forces us to adopt several imperfect representations. [FN11] *48 First, few mainstream scholars examine the stories or engage in empirical studies of those long marginalized by law. In contrast, this exclusion defaults future interpreters of law to the "wild animal stint," [FN12] and permits less intellectual exercise by its assuming the objectivity of law. Without investigation of groups long marginalized by the legal culture, the experience of Chicanas and Chicanos obscures the extent to which law creates a distinct legal status that "others" them in law on the basis of their race. [FN13] Even more critically, exclusion of the other de- emphasizes the nature of privilege in law without accountability. In its totality, resisting a race-based inquiry adopts the status quo and forecloses the opportunity for beneficial change in our impoverished communities. [FN14]

Yet law derives its history not only from traditional structures but the legal experiences of those alienated from their property interests as imposed on Chicanas/Chicanos in the annexed territories. Without including the legal histories of "outsiders," students are unable to analyze the complex origins of the country, and consequently fail to "acknowledge and learn to respect the substantial differences in historical experiences of the ethnically diverse groups that make up contemporary American society." [FN15] Study of the Treaty of Guadalupe Hidalgo *49 provides an immeasurable teaching tool and permits those long disenfranchised, moreover, a space to reclaim their histories. [FN16]

This review first presents a general background on the land grants process and the nature of land alienation despite the powerful rhetoric "protecting" private property. [FN17] It next addresses two narrativos legales (legal narratives) and concludes with an examination of treaty law. [FN18]

II. Pre-Conquest: A Wild State of Nature? [FN19]

2d. Every person soliciting land, whether he be an empresario, head of a family, or private person, shall address to the Governor of the respective territory a petition, expressing his name, country, profession, the number, description, religion, and other circumstances of the families, or persons, with whom he wishes to colonize, describing, as distinctly as possible, by means of a map, the land asked for. [FN20]

Mexico's colonization laws required all interested settlers to first petition officials for permission to receive a land grant award to settle in its provinces. The petition obligated petitioners to include the size of the tract requested, the settler's profession and religion, and additional*50 information attesting that the award would not result in injury to third parties. [FN21] Land grant procedures also obligated petitioners to include a diseno (map) in their expedientes (records). Land grants were either individual or empresario grants (community). Mexican colonization laws also permitted foreign nationals the privilege of settling in the Mexican territories. [FN22] The Republic's Colonization Law of 1824 provides: The Supreme Executive Power, provisionally appointed by the General Sovereign Constituent Congress, to all who shall see and understand these presents: Know ye, that the said Congress has decreed as follows:

Article 1. The Mexican nation offers to foreigners, who come to establish themselves within its territory, security for their persons and property; provided, they subject themselves to the laws of this country. [FN23]

Resulting from Article 1 foreign nationals settled in various areas throughout the Mexican provinces. [FN24] Although Article 1 permitted distribution to foreign nationals, preference was given to Mexican citizens: A preference shall be given, in the distribution of lands, to Mexican citizens, and no other distinction shall be made in regard to them, except that which is founded on individual merit, or services rendered the country, or, under equal circumstances, a residence in the place where the lands to be distributed are situated. [FN25]

Whether petitioners were Mexican or foreign nationals all individuals excluding those seeking an empresario grant, were limited to a maximum of eleven square leagues consisting of one square league of irrigable land, four of non-



irrigable land and six for grazing purposes which encompassed approximately 48,000 acres. [FN26] Notwithstanding *51 this cap of eleven square leagues, petitioners resided throughout the region on tracts of various sizes.

A. Boundaries: Bio-regions

Mexican surveyors and settlers relied on bio-regions encompassing natural landmarks, watersheds, valley-bottomlands and adjoining properties to delineate a tract's boundaries. [FN27] Natural boundary demarcations did not typically consist of moveable and unknown natural objects. [FN28] Although the United States also employed natural boundaries in defining land awards, it ultimately turned to grid-based forms of demarcation emphasizing land as a commodity. [FN29] Several disenos available in case law, such as Fuentes v. United States, [FN30] provide examples of natural demarcations: [T]he land is within the ex-mission of San Jose, bounded on the north by the locality called the Warm Springs, on the south by Paols, on the west by the peak of the hill of the ranchos Tulgencio Higuera and Chrosostom Galenda, and on the east by the adjoining mountains. [FN31]

United States v. Arguello, also, reports that the boundaries of Rancho de Las Pulgas were 'from the creek of San Matteo to the Creek of *52 San Francisquito and from the esthero (estuary or bay) to the sierra, (mountain).' [FN32]

Pursuant to Mexican law, settlers accessed and shared natural resources through the use of varas. [FN33] The vara system facilitated settlement in regions of scarce natural resources where '[r]ivers, harbors, and public highways belonged to all persons in common.'[FN34] Land unsuitable for tilling or inaccessible to irrigation were held in common by the settlers, or turned into private land grants available for grazing or non-agricultural purposes.

B. Petitions

A series of expedientes (petitions) are included in much of the case law, such as the petition of the De Haro brothers. [FN35] EXCELLENT SENOR GOVERNOR OF BOTH CALIFORNIAS: We, Francisco de Haro and Ramon de Haro, in the name of our family, Mexican citizens by birth, and residents of the ex-Mission of San Francisco de Asis, represent to your Excellency, with due submission, that inasmuch as we have to remove the share of cattle appertaining to our deceased mother out of the rancho of the deceased Jose Antonio Sanchez, and as we have in view to tame them, we entreat your Excellency to grant to us in the exercise of your Excellency's powers, a small parcel of land called Potrero de San Francisco, & c., because there is no competent person to do it, according to the annexed sketch that we submit to your Excellency; and as said parcel of land can be inclosed, we intend to place on it the tamed cattle, because of the small extent of the location occupied at present by the cattle of our father, who has given us due permission to petition, as we are under the parental power and control. Therefore, we entreat your Excellency to grant us this benefit, whereby we shall receive favor and grace. We swear not to proceed *53 moved by malice, &c. This memorial has not been written on paper of the corresponding stamp, there not being any here.

RAMON DE HARO,

FRANCISCO DE HARO.

SAN FRANCISCO, April 12, 1844. [FN36]

The DeHaro petition is important because it demonstrates the procedures employed in petitioning for a land grant and also shows that land was granted prior to completion of all granting documents. Whereas, [F]rancisco and Ramon de Haro have solicited the grant of the Potrero de San Francisco, so called, from the mouth of the estuaries, together with the high land surrounding it, all the necessary investigations having been made according as the laws and regulations in the matter prescribed, by virtue of the authority in me vested, I have thought proper, in the name of the Mexican nation, to grant to them the occupation of the aforementioned Potrero, subject to the mensuration to be made of the corporation or common lands (ejidos) for the establishment of San Francisco, and under the following conditions. . . [FN37]



In the instant case, Governor Micheltorena obligated the De Haros to the following conditions: 1st. They shall have no power, under any consideration, to sell or alienate it to the detriment of any of the proprietors of the establishment of San Francisco.

2d. They shall not obstruct the paths, roads, and servitudes, using it for culture and cattle they intend to introduce on it, but within a year at the most it must be occupied.

3d. The parcel of land to which reference is made is of half a square league, and if they should transgress any of these conditions, they shall lose their right to this provisional grant, which is delivered to the parties concerned for their security, and other ends.

Given in Monterey, on the first day of May, 1844.

MANUEL MICHELTORENA. [FN38]

The case reports that pursuant to the grant, . . . the De Haros went into possession of the land, and occupied it for the pasturage of horses and cattle. The land was inclosed on three sides by water, and a wall had been erected by the priests of *54 the mission on the fourth side. This wall had gone to ruin, and the De Haros, after obtaining their concession, repaired it. [FN39]

United States v. Elder, [FN40] similarly provides an example of an empresario (group petition). Years one thousand eight hundred and forty-two and one thousand eight hundred and forty-three.

Habilitated for the years one thousand eight hundred and forty-four and one thousand eight hundred and forty-five.

Administrator Agustin Duran. Governor Manuel Armijo.

To his excellency Manuel Armijo, Governor of this Department of New Mexico:

I, Carlos Santistevan, for myself and in the name of five other associates, all residents of the town of Dolores, in the district of Taos, before your excellency in due legal form, represent and state that finding without any land with title in fee to cultivate for the support of ourselves and our needy families, and having found a vacant tract very suitable for cultivation, irrigable from certain water, said to be from the Lama, quite sufficient for its irrigation, at the place called by that name up to another place, the Cebolla, which places are between the settlements of the Rio Colorado and San Cristoval, pertaining to the said district of Dolores de Taos, I ask and pray, from the well-known and distinguished liberality of your excellency, that in the name of the high powers of our Mexican Republic, you be pleased to make us a grant of the said tract; for the same is of very convenient size, and has ample water to be cultivated, and to afford sufficient support for the petitioners and their families, and would not injure any third party with respect to property or pasturage, or in any other way, but would rather result in the great welfare and increase of population and of agriculture; and, besides relieving the necessity of the petitioners, it will also strengthen that locality or frontier which guards the said population of the Rio Colorado, from which the said tract is distant but about one league, and from the settlement of San Cristoval somewhat more.

*55 Therefore I earnestly pray that your excellency be pleased to accede to this our petition. I declare and protest, etc.

City of Sante Fe, December 31, 1845. At the disposition of your excellency.

Carlos Santistevan.

Santa Fe, December 31, 1845

Governor Armijo responds To the prefect of the district, that he ascertain whether the land applied for has an owner, and cause the corresponding justice to deliver the land referred to by the petitioner.



Armijo.

Juan Bautista Vigil y Alarid, Secretary.

Rio Arriba, January 3, 1846.

The justice of the peace to whom it corresponds to do so will investigate whether the tract the petitioners apply for is vacant, and whether any injury to a third party would result from the granting thereof; and, none resulting, he will proceed to grant them of the land an abundance of what each can cultivate, under the condition that they inclose the same with a regular fence, in order to prevent damages, and that they do not obstruct the roads, pastures, and watering places, and with notice that they shall keep arms sufficient for their defense.

D. Lucero.

In this, the third precinct, Dolores, of the district of Taos, on the twentieth day of the month of March, one thousand eight hundred and forty-six, I, Juan Lorenzo Martines, justice of the peace, by authority of law, for the said precinct, in pursuance of a decree of January 3, eighteen hundred and forty-six, by his honor Diego Lucero, prefect of the second district of the north, issued to me as the proper justice, that I investigate whether the land applied for by the five petitioners is vacant, and I, meeting no impediment, proceeded to the tract and, finding the same uncultivated and unoccupied, took the petitioners by the hand, and leading them very slowly and in full legal form, in virtue of holding competent authority, I placed them in possession of the land they pray for cultivation, they being without land in fee, doing so in the name of God and of the high authority of our wise Mexican laws, which are sufficient to grant the public domain, to the end that idleness be banished and agriculture be encouraged. Wherefore they, at the instant they received their liberal donation and were favored in this manner, shouted with joy, saying huzza for the renowned sovereignty of the Mexican nation. And in this joy they plucked up grass and cast stones, as being lawful proprietors of the land which they wished to *56 irrigate with the water of the valley of the Lama, as relying upon that small water source they had applied for the donation; and I therefore designate to them for limits: On the north, the boundaries of the Rio Colorado grant; on the south, to where the dividing line of San Cristoval is reached; on the east, the mountain, and on the west, the edge of the bluff of the Rio del Norte, leaving the pastures, roads, and watering places free, eastwardly, from where they cannot irrigate; they not to prevent pasturing in virtue of being the possessors; and they are also obligated to inclose with a regular fence, so that they may not have to claim damages, and shall keep arms sufficient for their protection.

And to the end that this grant may in all time subsist, I authenticate the same under the authority conferred upon me, with my attending witnesses, for the lack of a notary public, there being none in this department; and it is done on this common paper, there being none of the proper stamp, the new settlers binding themselves to supply the same of the proper stamp whenever they can opportunely procure it; to all of which I certify.

J. Lorenzo Martines.

Attending: Juan Jose Cordova

Attending: Jose Concepcion Medina. [FN41]

The instant case is important because it demonstrates the elements of a group's petition and references the ceremony of seisin in the award of grants.

Investigation by Mexican authorities of a petitioner's expediente absent adverse information or circumstances, ensured to grantees the requested area. [FN42] Key provisions in the Republic's colonization laws, and conditions attached to grant awards, moreover, prevented grantees from selling, transferring or alienating their tracts without the permission of Mexican authorities. [FN43] As long as grantees performed according to the conditions of their grants or pursuant to custom and practice, Mexico permitted the tracts and thereby established a contractual relationship with the grantees. Throughout the Mexican provinces, *57 consequently, settlers cleared roads, planted fruits and vegetables, and resided in numerous self- sufficient communities. [FN44]



III. Conquest of the Mexican Republic

In the very year of the grant [1846] a civil war broke out in the province, which ended by the expulsion of the Mexican troops; and Colonial Fremont entered California at the head of an American force in 1846 and the country was entirely subdued, and under the military government of the United States, in the beginning of 1847, and continued to be so held until it was finally ceded to the United States under the Treaty of Guadalupe Hidalgo. [FN45]

Historical accounts outside of law make evident the extent to which the United States coveted the Mexican territories rich with natural resources. [FN46] Misrepresentations in law, popular accounts, and literature over the lack of "industry" in the West served as a strong basis for promoting land fever throughout the Mexican regions. [FN47] Ultimately, the United States acquired territories encompassing the present states of California, Nevada, Utah, Missouri, New Mexico, Colorado and Texas. The Conquest also incorporated a significant population retaining property. While a vast amount of rhetoric and *58 constitutional law purports to protect private property, [FN48] it, nonetheless, failed to protect the grantee of Mexican descent. The grantees, however, did not quietly submit to the new rules in force.

IV. The Treaty: Treaty of Peace, Friendship, Limits and Settlement Between theUnited States of America and the Mexican Republic

Responsibility for negotiation of the Treaty of Guadalupe Hidalgo included Joaquin de Herrera, Jose Bernardo Couto, Brigadier General Ignacio de Mora y Villamil and Miguel Atristain for the Mexican Republic with Nicolas Trist representing the United States. [FN49] Enacted on July 4, 1848, the Treaty contained provisions that promised to protect private property of the remaining population and ensured their continued use and enjoyment. [FN50] The Treaty consequently, imposed a legal relationship between the United States and Chicanas/Chicanos. [FN51]

The Treaty extended citizenship status to grantees and promised that they, their heirs "and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guarantees equally ample as if the same belonged to citizens of the United States." [FN52] Grantees were promised the "free enjoyment of their liberty and property," and that they would be "secured in the free exercise of their religion." [FN53] Additionally, grantees would have political rights equal to the inhabitants in other territories of the United States. [FN54] Other provisions inter alia included the withdrawal of troops from Mexico, restoration of property captured in Mexico, establishment of geographical boundaries, authorization of uninterrupted passage by sea and secured payment to Mexico in exchange for the ceded territories. [FN55]

*59 A. The First Conflict: [FN56] Article X

As negotiated and signed, the Treaty contained twenty-three articles. Over the objections of Mexico, however, the Senate deleted Article X, a key provision that permitted grantees time to complete all conditions attached to their land grants. [FN57] Congress removed this portion of the Treaty because "[i]f grantees of lands in Texas, under the Mexican Government, possess valid titles, they can maintain their claims before our Courts of Justice." [FN58] In the Senate proceedings, Secretary of State James Buchanan justified the deletion of Article X to the Minister of Foreign Relations of the Mexican Republic in a note dated March 18, 1848. [FN59] Buchanan lobbied for striking Article X from the Treaty on the grounds that it would jeopardize the status of settlers in Texas and that it wasn't necessary. [FN60] Buchanan opined that Article X was superfluous because "[t]he present Treaty provides amply and specifically . . . for the security of property of every kind belonging to Mexicans[.] He therefore, proclaimed that "the property of foreigners under our Constitution and laws, will be equally secure without any Treaty stipulation." [FN61]

On May 26, 1848, emissaries for the United States responding to the objections of Mexico produced The Protocol of Queretaro. The American government by suppressing the Xth article of the Treaty . . . did not in any way intend to annul the grants of lands made by Mexico in the ceded territories. These grants . . . preserve the legal value which they may



possess and the grantees may cause *60 their legitimate [titles] to be acknowledged before the American tribunals. [FN62]

Ultimately, the Treaty was entered into force on July 4, 1948.

B. The Second Conflict: Land Acts: Every statute has a story behind it. [FN63]

The removal of Article X from the Treaty left Congress free to promulgate the California Land Act of 1851 ("Land Act"). [FN64] The story behind the Land Act supports the idea that "[c]ritical legal thought [should]...refuse[ ] to accept the assumed objectivity of law, seeing it first and foremost, as a social and political construct." [FN65] This is made evident by the Land Act obligating grantees to present their claims to a Board of Land Commissioners to demonstrate the validity of their claim of ownership. It provided, in relevant part: That each and every person claim lands in California by virtue of any right or title derived from the Spanish or Mexican government, shall present the same to the said commissioners when sitting as a board, together with such documentary evidence and testimony of witnesses as the said claimant relies upon in support of such claims; and it shall be the duty of the commissioners, when the case is ready for hearing, to proceed promptly to examine the same upon such evidence, and upon the evidence produced on behalf of the United States, and to decide upon the validity of the said claim. . . [FN66]

In determining the validity of claims the process imposed on the Land Commissioners adherence to "the law of nations, the laws, usages and customs of the Government from which the claim is derived, the principles of equity and the (prior) decisions." [FN67] Upon proof of ownership, *61 grantees were to receive a patent from the United States, but not before a survey was taken. [FN68]

The Land Act provided for judicial review in the district court with appeal to the United States Supreme Court. [FN69] If a grantee was unable to demonstrate proof of fee ownership or present a claim within a two-year period, the property defaulted into the public domain. [FN70] The Land Act was contrary to the explicit language of the Treaty of Guadalupe Hidalgo, in its recognizing the validity and protection of all grants accepted by the Mexican government. It thereby established new standards by requiring each holder of land recognized under Mexican law to submit to a new test under United States law. Historical legal evidence makes evident a series of ongoing and adverse circumstances for grantees of Mexican descent.

Conflicting evidence prevents precise enumeration, but in California, 813 claims were filed with the Land Commission and about 190 were rejected. Approximately 209 were appealed from final judgment [FN71] and on appeal, 84 of the 209 were confirmed. [FN72] While this represents about a 75 percent total confirmation rate, the figures do not take into account the number of challenges confronting grantees from both the appeal process and federal land policies. The end result produced land alienation from Chicana/Chicano hands. [FN73]

In New Mexico, grants remained in limbo until 1854, when Congress established the office of Surveyor General with jurisdiction over New Mexico. Subsequent legislation extended its jurisdiction into Arizona, *62 Utah, Nevada, Colorado, and Wyoming. [FN74] The Surveyor General was empowered to "ascertain the origin, nature, character, and extent of all claims to lands under the laws, usages, and customs of Spain and Mexico." [FN75] Subsequent to his investigation, he next forwarded his findings and recommendation to Congress in the form of a report containing his decision as to the validity of the grant. [FN76] The process involving the surveyor general in New Mexico was acknowledged as a "failure, amounting to a denial of justice both to the claimants and to the United States." [FN77] Subsequently, Congress established a Court of Private Land Claims. [FN78] In all instances claimants carried the burden of proof in land claims, [t]he statute [does not require] that the United States, when an alleged Mexican title is presented for confirmation, shall be put to the burden of showing the title in question is not genuine, but that the evidence presented in favor of the asserted title shall be of such persuasive and preponderating force as to convince the court that it is real[.] [FN79]

In New Mexico, The Court of Private Land Claims heard claims for 231 grants with a total acreage of 34,653,140. [FN80] Eighty grants were confirmed for a total of 1,934,986, which did not include acreage Congress considered before the Court's creation in 1891. [FN81] In Arizona, seventeen grantees claimed 837,869 acres with courts



confirming eight for 116,639 acres and rejecting 721,139 acres. [FN82]

Encompassing the land grant adjudication process compelled grantees to face a number of challenges consisting of two principal clusters.

*63 1. Clusters and Land Grants Challenges

The land grant adjudication process created two problematic areas, or, "Clusters" with the first largely deriving from legal actors and their purported interpretation of Mexico's Colonization laws. The first Cluster comprises a number of issues related to the interpretation of Mexican law and includes whether grantees possessed granting documents, whether Mexican officials possessed authority to grant awards, whether coastal areas were ceded to the United States, whether Mexican registries referenced grants, and whether grantees performed all conditions subsequent attached to their grants.

The second Cluster surfaces from the survey requirement of the various land acts. Federal requirements implicate two components of this Cluster and include conflicts with enumerated boundaries that often required re-surveys, some taking as long as ten years or more after receiving confirmed status. [FN83] Although a derivative of federal law, subsequent state legislation conflicted with federal law, which burdened landowners and which also conflicted with the obligations provided in the Treaty of Guadalupe Hidalgo. Competing public law consisting of agricultural legislation [FN84] and United States competition for the land of Mexican grantees also affected grantees. [FN85] Expansion hysteria witnessed by the actions of squatters, gold miners, and trespassers who set up barbed wire around Chicana/Chicano holdings, further competed with the interests of land grantees. [FN86] Third party actions also encumbered already burdened landowners of Mexican descent. In the aggregate the various obstacles depleted the resources of Mexican grantees and expedited land losses.

*64 2. The Third Conflict: Land Grant Adjudication

Although innumerable Mexican grants were principally perfect titles, comprising the equivalent of a patent, [FN87] the Land Acts required claimants to prove, by a preponderance of the evidence, concrete claims of ownership. [FN88] A number of obstacles, however, essentially ensured they would not meet legal burdens allowing proof of ownership.

The first required grantees produce documentation of their grants. Yet the destruction and disappearance of land grant documents, during and after the conquest, by government actors stymied Mexican grantees. John Fremont, one of California's first senators, testified that during the Bear Flag Rebellion, he "lost" several granting documents "in the mountains." [FN89] United States v. Pendell [FN90] further evidences the destruction of documents by military officers. [I]n the year 1846, while the original documents of title were in existence in the town of Paso del Norte . . .where they resided, the place was occupied by the military forces of the United States, and the original documents of title and the official registry where they were recorded were destroyed by the American forces. [FN91]

In one instance, government officials ordered the destruction of granting documents as "waste papers." [FN92] Spanish recording books, which enumerated titles, were "lost" due to natural disasters. [FN93] These losses prevented grantees from accessing vital documents.

*65 Case law further reports that grant records were needlessly left "in a condition where spoliation or loss of documents may have taken place." [FN94] Commodore Stockton directed the removal of these archives, and for that purpose they were taken possession of by Colonel Fremont; and after some delay and some exposure, they were eventually delivered to Captain Halleck, of the United States army, at Monterey, then acting Secretary of State under the military Governor of California. Captain Halleck proves that, when delivered to him, they were in a bad condition, being much torn and mutilated. They were shortly after arranged, numbered, and labeled. [FN95]

Case after case provides specific instances of documents once in the possession of governmental officials, but



thereafter lost or destroyed--whether by design or by accident. As reported in United States v. Knight's Adm'r., [FN96] the court noted the condition in which the Los Angeles records were left. All the real records of land titles are known to have been in the Secretary's office at Los Angeles when the country was taken by the American army. But Captain Halleck lets us know that he and Mr. Hartnell and General Kearney mingled with them a large quantity of other papers found in the custom-house at Monterey, and that their bulk was further swelled by private contributions. It is notorious, too, that many false papers were placed among them at different times by dishonest claimants, for their own fraudulent ends. [FN97]

Captain Halleck, who was the custodian of several documents testified that "he found a [land grant] document in the office of the Mayor of San Jose, in January 1851; that he took it . . . and carried it to the Recorder's office, where he left it." [FN98] After his military service, Captain Halleck became an attorney in the land grant process and his office in San Francisco was the site of the first adjudication of land grants.

Even claimants with complete expedientes, or documents, often failed to prevail in court because presumptions were raised against the genuineness of documents and or with third parties asserting fraudulent acquisition of grants. [FN99] Possession of documents, moreover, exposed the grantee to questions of whether the grants were referenced in public title books. The inability to produce primary documents *66 deemed appropriate by courts imposed extensive delays, chain of custody problems, disallowed confirmation, and facilitated land theft or further destruction of records by interested third parties. By way of contrast, Euro-American claimants without [FN100] documents succeeded on the basis of reputation [FN101] and their service to the country. [FN102]

Legal scholar Malcolm Ebright makes evident as to the nature of legal tools employed by officers of the court. Ebright reports that the United States attorney for the Court of Private Land Claims, Matthew Givens Reynolds, "had acquired an arsenal of technicalities, together with several procedural advantages, to aid him in defeating land grant claims." [FN103] Ebright also asserts that after Spanish and Mexican land laws were compiled and published under Reynolds's name, the book "became the primary authority for both the Court of Private Land Claims and the Supreme Court of the United States on Spanish and Mexican law." [FN104] Ebright's assessment of the Reynolds's text is valuable because he emphasizes what Reynolds excluded from his treatise. For example, Reynolds did not include "laws making custom applicable and defining custom." [FN105] Mexican law permitted the use of custom and practice in the award of grants yet this factor was omitted during the land grant adjudication process. Other laws excluded from the Reynolds' text include "laws dealing with the acquisition of title to land by continuous possession," as well as rules of evidence and presumptions under Spanish and Mexican law." [FN106] Courts, nonetheless, relied on the Reynolds text to determine the "validity" of a grantee's claim. [FN107] In sum, generating inconsistent rulings and land grant decisions that disallowed land vesting in the hands of Mexican grantees.

*67 Shifting legal norms not applicable to Mexican grantees in privileging claimants of non-Mexican backgrounds further evinces unequal application of purported legal standards.

C. Narrativos Legales

1. United States v. Fremont [FN108]

One of the earliest cases to reach the Supreme Court on appeal from the board of commissioners was the claim of Captain John Fremont to the Mariposas land grant. [FN109] The board approved his claim, but the district court reversed. [FN110] Fremont allegedly received the grant from Juan B. Alvarado, who had received the grant from then Governor Manuel Micheltorena in 1844. [FN111] Not unlike many boundary references in land grant petitions, Mariposas' boundaries relied on bio-regions that fell "within the limits of the Snow Mountain, (Sierra Nevada) and the rivers known by the names Chanchilles, of the Merced and San Joaquin." [FN112] The Fremont litigation is important in several respects.

First, the Fremont decision was critical to the land grant adjudication process because it involved an appeal from the Land Claims court to the district court and on appeal to the United States Supreme Court, was one of the first to establish the legal principles in land grant adjudication law. [FN113] As one court noted "it has therefore, remained the most important and the leading case on this branch of the law, and has exercised a controlling



influence on all subsequent decisions of this court." [FN114]

Second, in the determination over the "validity of land titles," the Land Act obligated adherence to "the law of nations, the laws, usages, and customs of the government from which the claim is derived . . ." [FN115] Established precedent regarding the law of conquest further provided that "where countries have been acquired by the United States, its courts take judicial notice of the laws which prevailed there up to the time of such acquisition. Such laws are not foreign, but those of an *68 antecedent government." [FN116] In the instant case, the law of the antecedent government obligated the original grantee, Juan B. Alvarado to two critical conditions. The first required that "the original grantees shall not sell, alienate or mortgage the same, nor subject it to taxes, entail, or any other incumbrance." [FN117] The second covenant provided that "[s]hould he violate these conditions, he will lose his right to the land, and it will be subject to being denounced by another." [FN118]

Juan B. Alvarado, the case reports, had neither comported to nor performed any conditions as required by the two covenants. On its face, this rendered the grant void. The grant, moreover, stipulated it was "subject to the approbation of the most excellent assembly, and to [certain conditions]." [FN119] Alvarado had failed in this regard by not taking possession, residing, nor cultivating the land for the required period. [FN120] The court, nonetheless, ruled that California was a conquered territory now held by the United States and thus an American citizen had a right to purchase property. The opinion additionally recognized the use of secondary evidence in establishing a claim and in doing so, created less rigorous standards of proof governing land grant process. Through this ruling, the Supreme Court effectively re-interpreted the stated purposes of the Land Acts and contradicted treaty law. [FN121]

Scholarly investigations recognize that Anglo-Saxon-American law extends "careful protection" to private property. [FN122] Some assert that "[f]rom the days of the Founding Fathers through the nineteenth century, the legal profession and the courts seem to have been obsessed with this need." [FN123] The Fremont claim reveals, however, that *69 such legal protections and purported ideals extended to an illegal claim in which the court repudiated the California Land of 1851 and Constitutional principles defining federal and state relations. In redefining the land grant process similar legal treatment escaped Mexican grantees and an example is examined next.

2. Peralta v. United States [FN124]

In approximately 1843, Senora Teodora Peralta, in conformance with the 1828 Colonization Law and laws in force in the Mexican Republic, moved onto a tract in Alta California. [FN125] Pursuant to Mexican law, Peralta in 1845 submitted a petition and completed the necessary process to establish ownership status. [FN126] Governor Pico ensured her ownership of the tract and discharged her from further action. Peralta thereafter could control all rents and profits from her property as recognized under Mexican law.

For several years before the conquest, Peralta resided on the property and the Treaty of Guadalupe Hidalgo should have inviolably protected her property rights. [FN127] To demonstrate the validity of her ownership claim, Peralta introduced the expediente that contained all documents of her claim. [FN128] Peralta, additionally, introduced substantial evidence to the Board of Land Commissioners of long-standing possession and occupancy. Yet, the Court held that she failed to meet the appropriate legal tests of that period because her claim was not referenced in Mexican recording books. [FN129] The Court, therefore, disallowed her claim of ownership and by this ruling redefined her status as among the dispossessed. The instant case is interesting because the Peralta family was one of the more established families in Alta California, however, neither their wealth nor their class standing saved the family's property.

*70 D. The Treaty of Guadalupe Hidalgo: A Legal Construct

Land grant scholars assert that land dispossession resulted from the differences between Mexican and American land use policies, [FN130] while others claim that the land grant adjudication process was fair. [FN131] Two primary factors, however, are not addressed in either assertion. First, a number of inconsistent legal rulings and competition from United States interests defeated the claims of grantees. [FN132] Second, and for the purpose of this review, the question of whether a treaty is self-executing surfaces.



Currently, scholars debate the nature of "self-executing" treaties and acknowledge attempts to distinguish the two involve some controversy. [FN133] A self-executing treaty consists of one "that may be enforced in the courts without prior legislation by Congress." [FN134] A non-self- executing treaty is the opposite and may "not be enforced in the courts without prior legislative implementation." [FN135] Some scholars have characterized the Treaty of Guadalupe Hidalgo as a non-self-executing Treaty. [FN136] The removal of Article X by Congress, without the benefit of notice to treaty negotiators and grantees and over Mexico's subsequent objections converted the Treaty of Guadalupe Hidalgo into a non self-executing treaty. The Treaty of Guadalupe Hidalgo's status as defined by the United States Constitution illustrates this point on various counts.

First, treaties are deemed the "supreme law of the land" and the United States Constitution directs courts to give them effect. [FN137] *71 Although Congress is free to refine treaties as guaranteed by the Supremacy clause, it is obligated to ensure its actions do not violate the intent of the treaty. [FN138] The Treaty of Guadalupe Hidalgo specifically provided for the protection of the property rights of grantees. [FN139] Deleting Article X violated the intent of the Treaty of Guadalupe Hidalgo and rendered Article VIII ineffective. It further demonstrates that the California Land Act of 1851 breached the Treaty as originally agreed upon by its negotiations. Furthermore, "[b]y virtue of the Supremacy Clause, treaties of their own force nullify inconsistent state laws and earlier federal laws." [FN140] In the instant case the Land Acts conflicted with the Treaty but also rendered inconsistent subsequent federal and state legislation.

Second, United States v. Percheman, involving a treaty between the United States and Spain, [FN141] provided precedent that protected the rights of grantees in Louisiana and the Florida territories. [FN142] The instant case, moreover, held that the treaty did "operate of itself" and could "accordingly be applied by the courts without prior legislative action." [FN143] By its actions the United States consequently racialized treaty law and ensured to those of Mexican descent the status of outsiders.

A number of land grants were valid before the conquest and should have been recognized as valid legal claims to land ownership. The Land Acts created a legal presumption that obligated grantees to prove the validity of their claims by placing the legal burden onto grantees in violation to the intent and purpose of the Treaty. [FN144] Courts re-wrote the Treaty of Guadalupe Hidalgo and in the process *72 created imprecise application of its own terms and inconsistent rulings made it difficult to establish ownership. Long ago courts recognized that "it is elementary that a change of sovereignty does not affect the property rights of the inhabitants of the territory involved" [FN145] yet obstacles confronted the "inhabitants of the territory involved." It is well established, moreover, that "[i]n harmony with the rules of international law, as well as with the terms of the treaties of cession, the change of sovereignty should work no change in respect to rights and titles. That which was good before should be good after." [FN146] Notwithstanding established precedent the United States entrusted with protecting the property rights of grantees of Mexican descent failed in its obligation.

In sum the purported objectivity of law did not extend to those most affected by the Treaty of Guadalupe Hidalgo. The culture of law constructed those of Mexican descent as a race and did not entitle them to legal protections equal to the assimilated populations.

V. Summary and Conclusion

As drafted by its negotiators, Article VIII "secure[d] Mexicans in their title" and guaranteed to them "the same protection of law that it extended to the citizens of the United States." [FN147] To the contrary, by the turn of the century almost all land was lost during the land grant adjudication process. Outside of the adjudication process, challenges from squatters, settlers, land speculators also promoted land alienation. Competing homestead legislation and agricultural public laws perpetuated the unequal treatment of grantees and which extends long into the contemporary period. Currently, there are fewer than 20,000 people of Mexican ancestry owning rural enterprises in the country; far less than before the Treaty of Guadalupe Hidalgo. [FN148]

*73 This review, in addressing the contemporary "war over knowledge" began its inquiry with a question as to what is being "hidden" from students. Scholarly investigations of the Treaty of Guadalupe Hidalgo present a valuable tool to examine race relations in the United States. In the instant case, grantees of Mexican descent were



not privileged by liberal and expansive rulings and instead were consigned to the status of the "other" within law that continues into the present. Studying the role of law in privileging selected individuals would provide greater intellectual exercise to students and afford a more complete understanding of land dispossession.

Inclusion of the land grant adjudication period permits a more precise legal history and would afford contemporary students and future interpreters of law, a broader representation of the complex origins of the nation's history. [FN149] The realm of land grant adjudication law is vast and the following issues should be encouraged, including inter alia, adverse possession, [FN150] boundary issues, [FN151] ejectment and trespass law, [FN152] fencing law, [FN153] squatters and preemption law, [FN154] natural resource law, [FN155] and the law of estates. [FN156] While specific to the study of property, several of the above are also of value in environmental, constitutional, and civil procedure law courses. Additionally *74 studying land grant adjudication is valuable for a more thorough and historical analysis of the conquest of the former Mexican provinces.

In the present, as during the first land grant adjudication process, the State of California continues to re-construct the legal standing of those of Mexican descent. Institutions and governmental officers are promoting restrictive legislation that targets those viewed as outsiders as witnessed by Proposition 187 and anti-affirmative action rhetoric. [FN157] By failing to recognize the full measure and value of groups long relegated to the margins of law regarding the State's purported "dilemma" Chicanas/Chicanos whose presence predates Anglo "settlers" adversely harms them as a class. Examining the land grant adjudication period and the litigation experience of those of Mexican descent offers alternatives with one immediate answer found in the Treaty of Guadalupe Hidalgo: If unhappily any disagreement should hereafter arise between the Governments of the two Republics, whether with respect to the interpretation of any stipulation in this treaty, or with respect to any other particular concerning the political or commercial relations of the two Nations, the said Governments, in the name of those Nations, do promise to each other, that they will endeavour in the most sincere and earnest manner, to settle the differences so arising, and to preserve the state of peace and friendship, in which the two countries are now placing themselves; using, for this end, mutual representations and pacific negotiations. . . [FN158]

In applying the covenant to the present, canons that help treaty interpretation provide that treaty promises should be constructed "liberally and in good faith" and "should effectuate the intent of the parties." [FN159]

The Treaty of Guadalupe Hidalgo stipulates that the role of legislative actors and legal interpreters of the present is to ensure the full citizenship rights of Chicana/Chicano communities in the contemporary period. [FN160] As a living document with many of its provisions remaining *75 yet unfulfilled, it consequently offers hope to the Chicana/Chicano communities of the present. [FN161]

[FNd1]. Associate Professor of Law, Northern Illinois University, B.A., University of Minnesota; J.D., University of Minnesota. I thank Professor Dennis Valdes for his immeasurable contribution and encouragement that permits Chicanas and Chicanos to reclaim their histories. While this review is part of the author's ongoing series of investigations on the Treaty of Guadalupe Hidalgo other scholarly examinations in law are required, ranging inter alia from evidence, legal history, civil procedure, federal/state law jurisdictions and federal/state court relations issues. The role that railroads and canals played in alienating Mexicans from their property also requires scholarly investigation in law. By including the legal record of the Treaty of Guadalupe Hidalgo and land grant adjudication attendant to its interpretation, the author seeks to add insight into the origin of land dispossession for the Chicana/Chicano community.

[FN1]. See Treaty of Peace, Friendship, Limits and Settlement with the Republic of Mexico, Feb. 2, 1848, U.S.-Mex., 9 Stat. 922 [hereinafter "Treaty of Guadalupe Hidalgo" ]. Ratification took place in Queretaro, Mexico, May 30, 1848, and proclamation made July 5, 1848. The mistranslation of Spanish documents during the period requires including both the Spanish and English version of the Treaty's provisions. Long ago in United States v. Percheman, 32 U.S. (7 Pet.) 51, 68 (1833), the United States Supreme Court reported that the differences between the English and Spanish versions of a Treaty required reading both versions. The Treaty in Percheman involved Spain and the United States. This ruling, however, was disregarded in the land grant adjudication period involving Mexican grantees.


http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DB=780&FindType=Y&ReferencePositionType=S&SerialNum=1833196846&ReferencePosition=68



[FN2]. See id.

[FN3]. Each group's history is unique and economy disallows a full treatment of their legal history. The focus of this review is on the Chicana/Chicano community. This discussion, moreover, excludes the Spanish period in the annexed territories.

[FN4]. Southwestern University Symposium on the Treaty of Guadalupe Hidalgo, February 6, 1998.

[FN5]. The term "Mexican" references individuals of Mexican birth and descent, "Mexican" nationals include citizens of Mexico, and "Chicana/Chicano" refers to individuals of Mexican descent residing in the United States. "Latina/Latino" refers to Puerto Ricans, Cubans, and people from Central and South America. Terms are used interchangeably with "emphasis on self- designations." Genaro M. Padilla, My History, Not Yours (1993). For an alternative designator, see Ana Castillo, Massacre of the Dreamers (1994) (Xicanisma).

[FN6]. Whole careers are based on assaulting race-based scholarship. See e.g., Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 Stan. L. Rev. 807 (1993) ; Daniel A. Farber & Suzanna Sherry, Beyond All Reason: The Radical Assault on Truth in American Law (1997). While criticism can be a positive endeavor, it is the extent to which legal commentators attempt to define the focus of race-based theory and thus shape its intellectual contours that is repudiated by the author.

[FN7]. Resistance against outsiders retains a long history. As to the nature of Chicanas/Chicanos as outsiders see Philip Ortega, The Chicano Renaissance, in LaCausa Chicana, The Movement for Justice 3 (Margaret M. Mangold, ed., 1971/1972) ("Mexicans themselves ... were kept at arms length as outsiders."). See also Mari Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 Mich. L. Rev. 2320 (1989) ("outsider" used as opposed to "minority" which results from the term "minority" contradicting "the numerical significance of the constituencies typically excluded from jurisprudential discourse."); Trina Grillo & Stephanie M. Wildman, Obscuring the Importance of Race: The Implication of Making Comparisons Between Racism and Sexism (or Other Isms), in Critical Race Feminism (Adrienne K. Wing ed., 1997).

[FN8]. I am indebted to Professor Dennis Valdes for his scholarship on the condition of Chicanas/os and his continued contributions involving the "war over knowledge" theories.

[FN9]. Outside of the legal arena, scholars have examined the Treaty of Guadalupe Hidalgo extensively. See, e.g., Mario Barrera, Race and Class in the Southwest, A Theory of Racial Inequality 18 (1979); Rodolfo Acuna, Occupied America 9 (3d ed. 1991); Richard Griswold del Castillo, The Treaty of Guadalupe Hidalgo, A Legacy of Conflict (1990). Within law reference Richard Garcia & Todd Howland, Determining the Legitimacy of Spanish Land Grants in Colorado: Conflicting Values, Legal Pluralism, and Demystification of the Sangre de Cristo/Rael Cases, 16 Chicano-Latino L. Rev. 39 (1995); Placido Gomez, The History and Adjudication of the Common Lands of Spanish and Mexican Land Grants, 25 Nat. Resources J. 1039, 1066-1068 (1985). On the invisibility of Latina/Latinos within the law, see generally Kevin Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 B.Y.U.L. Rev. 1139 (1993); George A. Martinez, The Legal Construction of Race: Mexican and Whiteness, 2 Harvard Latino Law Rev. 321 (1997)[hereinafter Mexican and Whiteness].

[FN10]. The recent efforts of LatCrit theorists demonstrate the role of law as constructing race. See e.g., Martinez, Mexican and Whiteness, supra note 9 (addressing LatCrit theory); Jean Stefancic, Latino and Latina Critical Theory: An Annotated Bibliography, 85 Cal. Law Rev. 1509 (1998)/10 La Raza Law J. 423 (1998).


http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DocName=85CALIFLREV1509&FindType=Y

http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DocName=1993BYULREV1139&FindType=Y

http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DocName=1993BYULREV1139&FindType=Y

http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DocName=25NATRESOURCESJ1039&FindType=Y

http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DocName=16CHICANOLREV39&FindType=Y

http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DocName=87MILR2320&FindType=Y

http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DocName=87MILR2320&FindType=Y

http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DocName=45STANLREV807&FindType=Y



[FN11]. See generally Curry v. Regents of the University of Minnesota, complaint of five students attending the University of Minnesota-Twin Cities. (Complaint on file with author). The students are challenging the University's fee structure on the grounds that it funds the "ideological and political advocacy of private student groups that THE STUDENTS do not support." See Complaint 1-2. Although the complaint references other organizations, it names specifically, the U-YW (affiliated with the YWCA), the Queer Student Cultural Center and La Raza Student Cultural Center. Their objections as expressed centers on the complainants "individual moral, ideological and religious beliefs." Id.

[FN12]. Berta Hernandez-Truyol, Borders (En)Gendered: Normativities, Latinas, and a Latcrit Paradigm, 72 N.Y.U.L. Rev. 882, 886-87 (1997).

[FN13]. See e.g., Martinez, Mexican and Whiteness, supra note 9, at 322 (showing how LatCrit theory has "sought to identify how law constructed race"); Guadalupe T. Luna, Agricultural Underdogs and International Agreements: The Legal Context of Agricultural Workers Within The Rural Economy, 26 N. M. L. Rev. 9 (1996) ("The Mexican 'peon' (Indian or mixed-breed) is a poverty- stricken, ignorant, primitive creature." (quoting Lothrop Stockard, Re-Forging America: The Story of Our Nationhood 214 (1927)).

[FN14]. Historians have long advocated inclusion for Chicanas/Chicanos and assert that their exclusion bars opportunity for change. See Antonia I. Castaneda, Presidarias Y Pobladoras: The Journey North and Life in Frontier California, in Renato Rosaldo Lecture. Series Monograph, Vol. 8 (1992). Property law teaches all first year students "the doctrine of first possession and that first possession is the root of title." Carol M. Rose, Possession as the Origin of Property, 52 U. Chi. L. Rev. 73, 75 (1985). The absence from legal directed inquiry and education obscures the extent to which property titles derive from early Spanish and Mexican landholders. See United States v. Moreno, 68 U.S. (1 Wall.) 400, 405 (1864) ("When the sovereignty of Spain was displaced by the revolutionary action of Mexico, the new government established regulations. These two sovereignties are the spring heads of all land titles in California."). Omission of the events surrounding the Treaty ultimately renders an imprecise legal history.

[FN15]. Malcolm Ebright, Land Grants and Lawsuits in Northern New Mexico xiii (1994).

[FN16]. See, e.g., Lisbeth Haas, Conquests and Historical Identities in California, 1769-1936 (1995).

[FN17]. Jennifer Nedelsky, Law, Boundaries, and the Bounded Self, in Law and the Order of Culture, 164 (Robert Post ed., 1991).

[FN18]. The land adjudication jurisprudence involving Chicanas/Chicanos subsequent to the conquest is addressed in Guadalupe T. Luna, On The Edge of a Naked Knife: Chicana/Chicano Land Tenure in the Agrarian Domain, 3 Mich. J. of Race and Law _(1998) (seeks to dispel prevailing ideology and myths promoting the status of individuals of Mexican ancestry as newcomers to the United States and that they did not resist the efforts to alienate them from their property interests).

[FN19]. The United States emphasized the nature of its purported industry as a basis for settling land grants and employed misrepresentations in characterizing those of Mexican descent. See e.g., Peralta v. United States, 70 U.S. (3 Wall.) 434, 439 (1865) (settlers introducing industry in western areas); United States v. Galbraith, et al., 63 U.S. (22 How.) 89, 92 (1859) ("The Californians are a simple, ignorant people"). "These Spaniards (Mexicans) are the meanest looking race of people I ever saw, don't appear more civilized than our Indians generally. Dirty, filthy








http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DocName=52UCHILREV73&FindType=Y&ReferencePositionType=S&ReferencePosition=75

http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DocName=26NMEXLREV9&FindType=Y

http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DocName=72NYULREV882&FindType=Y&ReferencePositionType=S&ReferencePosition=886

http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DocName=72NYULREV882&FindType=Y&ReferencePositionType=S&ReferencePosition=886


looking creatures." Captain Lemuel Ford, of the United States Army in 1835, cited in Roxanne Dunbar Ortiz, Roots of Resistance, Land Tenure in new Mexico, 1680- 1980 (1980)[hereinafter Roots of Resistance, Land Tenure in Northern New Mexico]. This form of mischaracterization served as justification for annexation as well as subsequent land dispossession for grantees remaining in the conquered provinces.

[FN20]. Translation of the General Rules and Regulations for the colonization of Territories of the Republic of Mexico, November 21, 1828, taken from Rockwell's Spanish and Mexican Law, cited in Ferris v. Coover, 10 Cal. 589, 635 (1858). Disclaimer: The English translationsmust be taken with a degree of care given the imprecise translation of Spanish documents into English by legal actors.

[FN21]. See Coover, 10 Cal. at 635 (citing Art. 2d. Colonization Law of 1828).

[FN22]. Mexico permitted foreign nationals access to land through its colonization laws. See e.g., Coover, 10 Cal. at 634 (citing Art. 1 Colonization Law of 1824). Foreign nationals were in the Republic as "traders, trappers, or beaver hunters." Westfall, Mercedes Reales, Hispanic Land Grants of the Upper Rio Grande Region 27 (1983) [hereinafter Mercedes Reales]. Westfall, for example, provides accounts of mountain men in Taos at one time including "Old Bill Williams, Antoine Le Roux, the Robidoux brothers, Jedediah Smith, and Thomas Fitzpatrick. The most famous of these was Christopher "Kit" Carson, who became a legend in his own time." Id. Mexico, moreover, had long engaged in trade with foreign markets.

[FN23]. Coover, 10 Cal. at 634 (quoting Colonization Law of 1824) (emphasis original).

[FN24]. "By 1844, several hundred Americans resided in the lower Sacramento Valley." Victor Westphall, Mercedes Reales, supra note 22, at 69.

[FN25]. Coover, 10 Cal. at 634 (quoting Art. 9 Colonization Law of 1824).

[FN26]. See id. (citing Art. 12 Colonization Law of 1824).

[FN27]. Mexican law relied on bioregions to support agriculture and settlement. See Juan Estevan Arrellano, La Querencia: La Raza Bioregionalism, 72 N. M. Hist. Rev. 32 (1997) (citing Recopilacion de Leyes de los Reynos de las Indias (1681) the basis of Spanish law). See also Shaw v. Kellogg, 170 U.S. 312, 324 (1898) (containing example of a non-Mexican survey executed for the heirs of Luis Maria Baca in San Luis Valley Colorado Territory).

[FN28]. The use of natural landmarks, however, facilitated challenges to a grantee's claim because courts characterized natural landmarks as in conflict with grid-based forms of land use. For an account on the differing forms of land use see generally Gordon Morris Bakken, Mexican and American Land Policy: A Conflict of Cultures, 75 So. Calif. Q. 237 (1993) ("Mexican and American land description systems and land policy were products of very different cultures and economies"). Yet, accessing or sharing the resources of another exists in American jurisprudence and is not an unknown concept. See generally Edward T. Price, Dividing the Land, Early American Beginnings of Our Private Property Mosaic (1995) (communal rights extending to the period of early colonists).

[FN29]. See An Ordinance for Ascertaining The Mode of Disposing of Lands In The Western Territory, May 20, 1785, 28 J. Continental Congress 1774-1789 (Library of Congress (1933)) (detailing the grid-based manner surveyors used to divide the Western Territory). A grid-system permits delineation of land as a commodity. See Roxanne Dunbar Ortiz, Roots of Resistance, Land Tenure in New Mexico, supra note 19, at 109.











[FN30]. 63 U.S. (22 How.) 443, 450 (1859).

[FN31]. Id. See also Lerma v. Stevenson, 40 F. 356 (C.C.W.D.Tex. 1889) (reference to natural resources as boundary demarcations and reporting that the "'Sierra Blanca,' 'Eagle Peak,' and 'Hot Springs' are natural calls, also stone monuments; these three natural calls being corners, and known notoriously as such corners").

[FN32]. United States v. Arguello, 59 U.S. (18 How.) 539, 540 (1855). See also Robert J. Rosenbaum, Mexicano Resistance in the Southwest, 70-71 (1981) (detailing the 1841 land grant to Guadalupe Miranda and Charles Beubien that used the Royado, Colorado and Una de Gato Rivers as boundary delineations).

[FN33]. Varas are narrow strips of land leading to bodies of water that create an irrigation system. Varas derive from Spanish law to accommodate the arid conditions and employed sustainable use of an area's scare natural resources. These form of irrigation systems remain in use to the present period. See Garcia & Howland, supra note 9, at 40-41.

[FN34]. See Heard v. Town of Refugio, 103 S.W.2d 728, 733 (Tex. 1937). To the present, communal access of property is a dominant feature in western lands and benefits from support of public law. See Rangelands Improvement, 43 U.S.C.A. § 1905 (1996).

[FN35]. See De Haro v. United States, 72 U.S. (5 Wall.) 599, 601-04 (1866).

[FN36]. Id. at 601.

[FN37]. Id. at 603-04.

[FN38]. Id. at 604.

[FN39]. See id. The case reports the brothers were killed during the Conquest. Id. at 604, n.1. For an interpretation of the deaths of the De Haro twins, see Ken Chavez, Gold Rush State's Latino Lost in the Rush Status in Land They Once Ruled, Sacramento Bee, Jan. 18, 1998, at 1.

[FN40]. 177 U.S. 104 (1900).

[FN41]. Id. at 105-107, n.1.

[FN42]. See generally Warren A. Beck and Ynez D. Haase, Historical Atlas of California 24 (1974) (includes maps of land grants with a focus on the geography of the State).

[FN43]. See Coover, 10 Cal. at 635 (citing Art. 15 Colonization Law of 1824) ("No person who... acquires title to lands, shall hold them, if he is domiciliated out of the limits of the Republic"). Mexico, moreover, would attach non-alienability clauses in granting documents. See United States v. Fremont, 58 U.S. (17 How.) 542 (1854) De


http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DB=780&FindType=Y&SerialNum=1800116618


http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&FindType=Y&SerialNum=1900108684







http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DB=1000546&DocName=43USCAS1905&FindType=L






Haro petition, infra page ___.

[FN44]. For an account of several agricultural endeavors practiced by grantees see John Van Ness & Christine Van Ness, Introduction to 19 J. of West 3 (1990).

[FN45]. See United States v. Fremont, 58 U.S. (17 How.) 542, 562 (1854). Seealso Leonard Pitt, The Decline of the Californios, A Social History of the Spanish-Speaking Californians 1846-1890 32-37, 84-86 (1970); United States v. Hornsby, 77 U.S. (10 Wall.) 224, 239 (1869)("The military forces of the United States took possession of Monterey, an important town of California, on the 7th of July, 1846, and within a few weeks afterwards occupied the principal parts of the country; and this occupation continued until the treaty of peace. On that date, therefore, the authority and jurisdiction of Mexican officials are considered as having terminated."). For additional accounts as to the war between the United States and Mexico reference William H. Goetzmann, When the Eagle Screamed: The Romantic Horizon in American Diplomacy 1800-1860 (1966) (account of American expansionism); Fredrick Merk, Manifest Destiny and Mission in American History (1966) (interpretation of whether Manifest Destiny was a "true expression" of the "national spirit").

[FN46]. See generally Acuna, supra note 9, at 19.

[FN47]. Violence also plagued Mexican grantees who confronted lynching and other hostile actions. Leonard Pitt provides: "In the 1850's representations of many minority groups suffered legal injustice in California, but none more painfully than the Mexicans and Chileans." Pitt, supra note 45, at 70. In citing to historian Hubert Howe Bancroft, Pitt provides that an "inordinately high number of Mexicans [were] whipped, banished, or hanged from 1849 to 1860." Id. He further contends that "the San Francisco Daily Alta California sneered angrily in 1854, it was almost a by-word in our midst, that none but Mexicans could be convicted of a capital offense." Id. at 70. In quoting a lyncher, Pitt provides that: "'Greasers' had public opinion ranged against them from the outset: "To shoot these Greasers ain't the best way ... Give 'em a fair jury trail, and rope 'em up with all the majesty of the law. That's the cure." Id. at 71.

[FN48]. Legal remedies as expressed in constitutional, legislative, and court rulings protect against injuries to the interests of a feeholder. The Fifth Amendment of the United States Constitution provides, in part, "nor shall private property be taken for public use, without just compensation." U.S. Const. amend. V.

[FN49]. See Treaty of Guadalupe Hidalgo, supra note 1.

[FN50]. See Treaty of Guadalupe Hidalgo, supra note 1, art. VIII. Other provisions inter alia, defined boundaries and exempted tariffs on goods. See Treaty of Guadalupe Hidalgo, supra note 1, art. XIX.

[FN51]. See generally A Documentary History of the Mexican Americans, 241 (Wayne Moquin & Charles Van Doren eds., 1971).

[FN52]. Article VIII extended constitutional protections to the country's new citizens. See Treaty of Guadalupe Hidalgo, supra note 1, art. VIII.

[FN53]. Treaty of Guadalupe Hidalgo, supra note 1, art. IX.


http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DB=1000546&DocName=USCOAMENDV&FindType=L

http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DB=1000546&DocName=USCOAMENDV&FindType=L





[FN54]. See id.

[FN55]. See Treaty of Guadalupe Hidalgo, supra note 1.

[FN56]. I expand on the concept of conflict previously enumerated by several authors. See, e.g., Richard Griswold Del Castillo, The Treaty of Guadalupe Hidalgo, A Legacy of Conflict (1990). Legal investigations on the Treaty of Guadalupe Hidalgo benefit greatly from the work of historians and should not rely solely on the language and construct of mainstream law.

[FN57]. See Hunter Miller, Treaties & Other International Acts of the United States of America 255 (1937)[hereinafter "Treaties & Other Acts" ]("The third amendment of the Senate strikes from the Treaty the 10th Article. It is truly unaccountable how this article should have found a place in the Senate"). This provision was critical because without complete performance of all conditions attached to awards, grantees were subject to the arbitrary whims of judicial decisions and political actors. For a discussion on conditions subsequent see Pico v. United States, 19 F. Cas. 593 (D.C.D. Cal. 1856) (No. 11,128).

[FN58]. Miller, Treaties & Other Acts, supra note 57, at 255.

[FN59]. See id. at 253. Another basis for objection of Article X provides that the "object and effect of ... was to revive those lavish grants of land by the Mexican government, not only in the State of Texas, but in the territories which had not been by law incorporated into the United States at the date of the Treaty." Id. at 401. Disclaimer: the two Protocol examples differ "slightly and immaterially in matters of capitalization, spelling, and abbreviations; there are also some variances of punctuation ..." Id. at 380.

[FN60]. See id. at 256.

[FN61]. Id.

[FN62]. Miller, Treaties & Other Acts, supra note 57, at 380.

[FN63]. See Abner J. Mikva & Eric Lane, An Introduction to Statutory Interpretation and the Legislative Process 1 (1997).

[FN64]. See An Act To Ascertain and Settle the Private Land claims in the State of California, Ch. 40-41, 9 Stat. (1851)[hereinafter "California Land Act of 1851" ]. Its eighteen sections provided, inter alia, interpreters, notice, time and place of hearings, determination over the validity of claims, form of petition, and appeal to various courts. The legislation empowered a Board of Land Commissioners to determine the validity of all land claims, and to allow it to complete its charge, it was amended several times. See An Act to continue In Force The Act Entitled "An Act to ascertain and settle the Private Land Claims in the State of California," and for other purposes, Ch. 2, 10 Stat. 265 (1854).

[FN65]. See Nicholas K. Blomley, Law, Space, and the Geographies of Power 5 (1994).

[FN66]. California Land Act of 1851, supra note 64, Section 8 (1851).





[FN67]. Id. at Sec. 11.

[FN68]. Section 13 of the California Act provides: "and for all claims finally confirmed ... a patent shall issue to the claimant upon his presenting to the general land office an authentic certificate of such confirmation, and a plat or survey of the said land, duly certified and approved by the surveyor- general of California, whose duty it shall be to cause all private claims which shall be finally confirmed to be accurately surveyed, and to furnish plats of the same." Compare with Section 15 of the Act providing "That the final decrees rendered by the said commissioners, or by the District or Supreme Court of the United States, or any patent to be issued under this act, shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons."

[FN69]. See id. at Sec. 9.

[FN70]. See id. at Sec. 13. Public domain includes public lands that are subject to sale and disposition under the general land laws. See Newhall v. Sanger, 92 U.S. 761 (1875).

[FN71]. See Paul Gates, The California Land Act of 1851, 50 Cal. Hist. Q. 395, 402. Where rejected, the land went to preemptors (squatters) or was sold for $1.25 (a "privileged price") per acre to persons holding title from an original claimant. See id. at 404.

[FN72]. See id. at 402.

[FN73]. See Rodolfo O. De La Garza & Karl Schmitt, Texas Land Grants & Chicano-Mexican Relations: A Case Study, 21 Lat. Am. Res. Rev. 123, 125 (1986); Arnoldo de Leon & Kenneth L. Stewart, Lost Dreams and Found Fortunes: Mexican and Anglo Immigrants in South Texas, 1850-1900, 14 West. Hist. Q. 291 (1983) (census data).

[FN74]. An Act To Establish the Offices of Surveyor-General of New Mexico, Kansas and Nebraska, to Grant Donations to Actual Settlers Therein, and for Other Purposes, Ch. 103, 10 Stat. 308 (1854) [hereinafter "Act to Establish the Surveyor General" ].

[FN75]. Id. at Section 8.

[FN76]. See id.

[FN77]. Malcolm Ebright, The Tierra Amarilla Grant: A History of Chicanery, ix (1993).

[FN78]. An Act to Establish a Court of Private Land Claims, and to Provide for the Settlement of Private Land Claims in Certain States and Territories, Ch. 539, 26 Stat. 854, 861 (1891).

[FN79]. United States v. Ortiz, 176 U.S. 422, 425-26 (1900).

[FN80]. See Richard W. Bradfute, The Court of Private Land Claims: The Adjudication of Spanish and Mexican





Land Grant Titles 1891-1904 214-15 (1975). [[hereinafter The Court of Private land Claims].

[FN81]. See id.

[FN82]. See id.

[FN83]. See, e.g., United States v. D' Aguirre, 68 U.S. (1 Wall.) 311 (1863).

[FN84]. See, e.g., The Homestead Act of 1862, Act of July 2, 1862, ch. 130, 12 Stat. 503 (codified as amended at 7 U.S.C. § § 301-308 (providing 160 acre grants to settlers); The Morrill Act of July 2, 1862 ch. 130, 12 Stat. 503 (1862) (codified as amended at 7 U.S.C. § § 301-305, 307, 308 (1988)). The Morrill Act has expedited the wealth of the agricultural sector through sophisticated university research and extends into the modern period. An attempt to expand research efforts at land grant universities to include the rural poor failed in one litigation attempt. See e.g., Cal. Agrarian Action Project v. Regents of the Univ. of Cal., 210 Cal. App. 3d 1245, 1247 (Cal. Ct. App. 1989) (holding that the university "is not required to establish an administrative process to ensure that Hatch Act funds for agricultural research are expended so as to give primary consideration to the needs of the small family farmer").

[FN85]. See, e.g., An Act to Extend Preemption Rights to Certain Lands therein mentioned, Ch. 143 (1853); An Act to Provide for the Survey of the Public Lands in California, the Granting of Preemption Rights Therein, and for Other Purposes, Ch. 145 (1853).

[FN86]. For an account of the use of barb wire to bar grantees from the use of the commons or access to area resources see David Montejano, Anglos and Mexicans in the Making of Texas, 1836-1986, 56-7 (1987).

[FN87]. Contrary to some authority, private property was held in "fee simple absolute" status, "free from all conditions or charges" as argued in Hayes v. United States, 170 U.S. 637, 641 (1898). As long as grantees performed according to the conditions of their grant, Mexico awarded them fee holder status. Custom and practice also recognized the validity of a land grant particularly in areas involving community access to natural resources. See generally Malcolm Ebright, Tierra Amarilla Grant, A History of Chicanery 28, n.74 (1993) (concern is not so much on what law books reports but "on what actually happened").

[FN88]. See United States v. Ortiz, 176 U.S. 422, 425-26 (1899).

[FN89]. United States v. Cambuston, 25 F. Cas. 266 (D. Calif. 1859) (No. 14, 713). John Fremont was instrumental in the conquest of California and leader of the Bear Flag Rebellion. See Pitt, supra note 45, at 27, 30-1. See also United States v. Bale, 24 F. Cas. 968 (N.D. Cal. 1855) (No.14,504)('[T] he records of [grant] proceedings...deposited in the alcalde's office...[were] destroyed at the time [the]office [was] taken possession of by [the] 'Bear Flag Party"').

[FN90]. 185 U.S. 189, 190 (1902)(involving heirs of original grantees who were in possession of Rancho Santa Teresa in New Mexico).

[FN91]. Id. See also Mackay v. Armstrong, 19 S.W. 463 (Tex. 1892).

[FN92]. United States v. Chaves, 159 U.S. 452, 462 (1895).



















[FN93]. See Fuentes v. United States, 63 U.S. 443, 451 (1859).

[FN94]. United States v. Cambuston, 25 F. Cas. 266, 267 (D. Cal. 1859) (No. 14, 713).

[FN95]. United States v. Bolton, 64 U.S. (23 How.) 341, 348-49 (1859).

[FN96]. 66 U.S. (1 Black) 227 (1861).

[FN97]. Id at 237.

[FN98]. United States v. Castillero, 67 U.S. (2 Black) 17, 29-30 (1862).

[FN99]. See Peralta v. United States, 70 U.S. (3 Wall.)434 (1865).

[FN100]. The terms "dominant population," "Euro-American," and "European- American" reference individuals of European descent. For a discussion of the legal identification of the dominant population in law see In Re Camille, 6 F. 256 (C.C.D.Or. 1880) (referencing members of dominant population as "Europeans or white race").

[FN101]. See United States v. Hancock, 30 F. 851 (C.C.N.D. Cal. 1887).

[FN102]. See United States v. Rose, 27 F. Cas. 896 (N.D.Cal. 1856)(No. 16,195).

[FN103]. Malcolm Ebright, The Embudo Grant: A Case Study of Justice and the Court of Private Land Claims, 19 J. of the West 74, 79 (1990).

[FN104]. Id.

[FN105]. Id.

[FN106]. Id. at 79-80. Malcolm Ebright also provides an assessment on the elimination of presumptions in the Embudo Grant that permitted its rejection by the Private Land Claims Court in 1898. Its rejection caused the property to transfer to the United States. For an analysis of land grant adjudication in New Mexico see Malcom Ebright, Land Grants and Lawsuits in Northern New Mexico (1994).

[FN107]. See Malcolm Ebright, A Case Study of Justice and the Court of Private Land Claims, supra note 103, at 79.

[FN108]. 58 U.S. (17 How.) 542 (1854).















[FN109]. See id. at 543.

[FN110]. See id.

[FN111]. See id.

[FN112]. Id. at 545.

[FN113]. See United States v. Cambuston, 25 F. Cas. 266, 273 (D.C. Cal. 1859) (No. 14,713) for a discussion of the significance of the Fremont opinion.

[FN114]. Id. at 273.

[FN115]. California Land Act of 1851, supra note 64, at Sec. 11.

[FN116]. United States v. Perot, 98 U.S. 428, 429 (1878).

[FN117]. Fremont, 58 U.S. at 545 (citing Alvarado's petition upon which Fremont relied).

[FN118]. Id. at 546.

[FN119]. Id. at 545.

[FN120]. See id. at 568 (Catron, J., dissenting).

[FN121]. One major defining purpose of the Treaty was to protect the property and liberty interests of Mexican grantees by a process provided in the Treaty. See Treaty of Guadalupe Hidalgo, supra note 1; See also, The California Land Act of 1851, supra note 64, at Sec. 11 (providing that Mexican law was to govern in the determining the validity of a grantee's claim). By not following the process, the court repudiated the treaty and redefined new rules that were not applied equally to those of Mexican descent. By its reasoning the court adhered to a legal culture and a reliance on indeterminate legal reasoning for which those of Mexican descent did not benefit. For an account of the nature of legal indeterminism and Mexican Americans in law, see George A. Martinez, Legal Indeterminacy, Judicial Discretion and the Mexican American Litigation Experience: 1930-1980, 27 U.C. Davis L. Rev. 555 (1994).

[FN122]. See Gates, supra note 71, at 405. Gates asserts denunciation of land grant adjudication is "sheer nonsense." Id. What is missing from this characterization is examination of the complete land grant adjudication process in law which reveals how law was used to justify alienation of the property interests of Mexican grantees.

[FN123]. Gates, supra note 71.


http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DocName=27UCDLAWRV555&FindType=Y

http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DocName=27UCDLAWRV555&FindType=Y










[FN124]. 70 U.S. (3 Wall.) 434 (1866).

[FN125]. See id. at 435.

[FN126]. Contrary to the English common law, ancient Spanish and Mexican law recognized the legal identity of women. See Antonia I. Castaneda, Presidarias y Pobladoras: The Journey North and Life in Frontier California, supra note 14. The land grant adjudication experience of women of Mexican descent and their efforts to defend their property interests are examined in Guadalupe T. Luna, Chicanas, Land Grant Adjudication and the Treaty of Guadalupe Hidalgo: This Land Belongs To Me, Harv. Latino L. Rev. (forthcoming 1998) (manuscript on file with the author).

[FN127]. See Treaty of Guadalupe Hidalgo, supra note 2, Art. XIII.

[FN128]. See Peralta, 70 U.S. at 435.

[FN129]. See id. at 440-41.

[FN130]. See generally Gordon Morris Bakken, Mexican and American Land Policy: A Conflict of Cultures, 75 So. Cal.Q. 201, 237-62 (1993).

[FN131]. See Bradfute, supra note 80.

[FN132]. In a number of instances, the United States directly appealed confirmed grants requiring yet additional defense of an interest. See Vallejo v United States, 28 F. Cas. 926 (1856) (No. 16, 819). Other legal techniques assisted third party challenges and included instances in which the United States permitted upon a payment of a $1,000.00 bond to employ the name of the United States even in the instance where it did not have a grievance against the particular claimant. See United States v. Throckmorton, 98 U.S. 61, 70 (1878). For a more complete account of the challenges directed against grantees, see Guadalupe T. Luna, On the Edge of a Naked Knife, Chicana/Chicano Land Tenure in the Agrarian Domain, supra note 18.

[FN133]. See Carlos Manuel Vasquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int'l L. 695 (1995).

[FN134]. Id.

[FN135]. Id.

[FN136]. See generally Christine A. Klein, Treaties of Conquest: Property Rights, Indian Treaties, And The Treaty of Guadalupe Hidalgo, 26 N. Mex. L. Rev. 201, 204 (1996).

[FN137]. The United States Constitution provides: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, and Thing in the Constitution or Laws of any state to the Contrary




http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DocName=89JIL695&FindType=Y








notwithstanding. U.S. Const. art VI, cl. 2. See also Geofroy v. Riggs, 133 U.S. 255, 271 (1890) ("A treaty stands on the same footing as the Constitution of the United States which direct courts to give them legal effect").

[FN138]. Vasquez, supra note 133, at 699.

[FN139]. Treaty of Guadalupe Hidalgo, supra note 1, art.VIII.

[FN140]. Id.

[FN141]. Hunter Miller, Spain: February 22, 1819, 3 Treaties and Other International Acts of the United States of America, Documents 41-79: 1819-1835, 3 (1933) (citing to Treaty Series No. 327, 8 Statutes at Large, 252-73, Public Treaties, 712-18).

[FN142]. See United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833). See also Miller, supra note 57, at 255.

[FN143]. See Vasquez, supra note 133, at 698.

[FN144]. See Peralta v. United States, 70 U.S. (3 Wall.) 434 (1865) (affirming rejection of land grant). For a discussion on the grantee's burden of proof, see generally United States v. Ortiz, 176 U.S. 422 (1899) (requiring preponderance of the evidence). By shifting the burden of proof to grantees, the process was redefined, thus thwarting the purpose of protecting grantees, as defined by the treaty and international legal principles.

[FN145]. Miller v. Letzerich, 49 S.W.2d 404, 407 (S. Ct. Tex. 1932).

[FN146]. Ely's Adm'r. v. United States, 171 U.S. 220, 223 (1898).

[FN147]. Amaya v. Stanolind Oil & Gas Co., 158 F.2d 554, 558 (5th Cir. 1946); cert. denied, 331 U.S. 808 (1947).

[FN148]. U.S. Bureau of the Census, 1992 Census of Agriculture (1995); U.S. Bureau Of The Census, 1992 Census Of Agriculture, U.S. Data Characteristics Of Operator And Type Operated by Black and Other Races, 1992, 1987, and 1982 (1995). The national total of 12.4 million is dominated by majority-status individuals. Yet only 1.7 percent of the Latino population comprising 9 percent of the nation's population are owner-operators of farming enterprises. U.S. Bureau Of The Census, 1992 Census Of Agriculture, U.S. Data Characteristics Of Operator And Type Operated by Black and Other Races, 1992, 1987, and 1982 (1995). In rural areas Chicana/os remain primarily as laborers lacking land tenure. As identified by U.S. Census data Latinos are more likely to be employed in "farming, forestry and fishing" than non-Latino males (8.6% vs. 3.7%). Latinas share similar characterization totaling 1.2 percent compared to 0.9 percent non-Latinas. U.S. Dep't Census, The Hispanic Population Of The U.S. Southwest Borderland, c3.196: P23/17 (1992). For the impact of racism on the population, see, Arnoldo De Leon, They Called Them Greasers, Anglo Attitudes Toward The Making of Texas, 1821-1900 (1983); Alvin R. Sunseri, Anglo Attitudes Toward Hispanos, 1846-1861, J. Mexican Am. Hist. 76 (1973).

[FN149]. See Robert W. Gordon, Foreword: The Arrival of Critical Historicism, 49 Stan. L. Rev. 1023 (1997) (discussing the use of critical history by lawyers).










http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DB=1000546&DocName=USCOARTVICL2&FindType=L


[FN150]. See, e.g., Castro v. Adams, 95 P. 1027 (Cal. 1908).

[FN151]. See, e.g., Gutierrez v. Albuquerque Land & Irrigation Co., 188 U.S. 545 (1908); United States v. Martinez, 184 U.S. 441 (1902); Ainsa v. United States, 161 U.S. 208 (1897) (reporting on a grant resulting from the "Gadsden Purchase").

[FN152]. See Airhart v. Massieu, 98 U.S. 491 (1878); Dodge v. Perez, 7 F. Cas. 794 (C.C.D.Cal. 1872) (No. 3,953).

[FN153]. See Buford v. Houtz, 133 U.S. 320 (1890).

[FN154]. See generally A. M. Sakolski, The Great American Land Bubble (1932)(commenting on the loss of public domain to 'land speculators, land sharks, and land robbers'). Squatters resorted to violence and at times, in pursuit of grantee land, had grantees arrested by misrepresenting themselves as public officers. See generally Motion to District Court on behalf of Anastasio Chabolla arrested by "a person acting as a peace officer," and who arrested Chabolla without cause (on file with author). By physically removing grantees, squatters would then assert that the land was abandoned and thus could homestead on the "abandoned" property.

[FN155]. See, e.g., Rael v. Taylor, 876 P.2d 1210 (Co. 1994)(en banc). See also Sanchez v. Taylor, 377 F.2d 733 (10th Cir. 1967). Control over mineral rights has produced extensive litigation, which is beyond the scope of this review. See generally United States v. Castillero, 67 U.S. 17 (1862) (involving inter alia a cinnabar mine in 1845).

[FN156]. See McNeil v. First Congregational Society of San Francisco, 4 P. 1096 (Cal. 1884) (discussing Mexican estate law).

[FN157]. During the Symposium on the Treaty of Guadalupe Hidalgo at Southwestern University, Fremont supporters brought in a Bear Flag that covered the Mexican Flag with a giant black X across the Mexican eagle. One Bear Flag supporter donned army greens and demonstrated to this author the intensity of his feelings. Yet, what seemed forgotten was that his side had long ago "won" California and that the "war" over knowledge is not a matter of simple scholarly investigations.

[FN158]. Treaty of Guadalupe Hidalgo, supra note 1, art. XXI.

[FN159]. David J. Bederman, Revivalist Canons and Treaty Interpretation, 41 UCLA L. Rev. 953, 966-70 (1994).

[FN160]. For examples of legislation and judicial holdings targeting Chicana/o communities see Yniguez v. Arizonas For Official English, 48 F.3d 127 (1990), superseded 69 F.3d 920 (1995); Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1992) (court employed a racial construct in holding for non- Chicana/o plaintiffs purported injured by the law school's affirmative action policy), cert. denied sub. nom., 116 S. Ct. 2580 (1996); The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104- 208 (1996). The above decisions purposely ignore the huge litigation history of Chicanas/Chicanos seeking inter alia, the franchise, for example, White v. Register, 412 U.S. 755 (1983); rejecting segregation in Indep. Sch. Dist. v. Salvatierra, 33 S.W.2d 790 (Tex. Civ. App. 1930), cert. denied, 284 U.S. 580 (1931) (education); Westminster v. Mendez, 161 F.2d 774 (9th Cir. 1947) and equal access to public accommodations Terrell Wells Swimming Pool v. Rodriguez, 182 S.W.2d 824 (Tex. Civ. App. 1944). These conditions extend into the present period as seen in the school financing litigation















http://www.westlaw.com/Find/Default.wl?rs=%20%20%20%201.0&vr=2.0&DocName=41CLA953&FindType=Y&ReferencePositionType=S&ReferencePosition=966















throughout Texas. See Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex. 1989).

[FN161]. In Abeyta v. United States, 642 F. Supp. 1301, 1305 (D.N.M. 1986), the court provided that: "Because the Treaty of Guadalupe Hidalgo afforded protection to the pueblos, however, it is in this dimension more than a settlement between then hostile nations; it is a living Indian treaty. It memorializes a pledge to the Mexican nation that the United States would honor the rights of Indians living in the ceded territory at the time the treaty was executed." Id.

END OF DOCUMENT

