Land Grant History
© 1999 by Rubén D Sálaz
[Editor’s Note: The following excerpts are from NEW MEXICO: A BRIEF MULTI-HISTORY. It is also recommended that works of authors like Malcolm Ebright (Land Grants and Lawsuits in Northern New Mexico; The Tierra Amarilla Grant: A History of Chicanery) and Victor Westphall (Mercedes Reales: Hispanic Land Grants of the Upper Río Grande Region; The Public Domain in New Mexico, 1854-1891) be consulted for more in-depth study.]
INTRODUCTION
The history of any people is also a history of their land. Land grant histories in New Mexico are as old as N.M. itself but few people know much about them. Nevertheless, knowledge of land ownership in N.M. is crucial to understanding our history. Furthermore, what has happened to the land is the principal element of New Mexican history since the area was taken by the USA in 1846 and made permanent by the Treaty of Guadalupe Hidalgo in 1848. This piece is intended as a general introduction to the subject.
PART ONE
In 1846 there were about 65,000 people living in New Mexico. Some 6,000 were in possession of small-holding land claims. These are plots of land which haven’t been conveyed formally as a land grant and indicate that perhaps 3,000 persons, or 1 out of every 26 New Mexicans, were small farmers, “independent tillers of the soil” who didn’t live on grant lands. Therefore, the overwhelming majority of remaining citizens reside on community grants (private grants were used more for grazing than residential purposes), where they owned their private residential and agricultural lands and shared the common lands. This type of land ownership was the foundation for life in New Mexico.
New Mexican land grants generally fall into two categories:
PRIVATE, which is made to one individual, male or female (unlike their sisters east of the Mississippi, Hispanic women could own land without a legal male presence; the same was true for Native American women), who owns the entire grant and can sell it after possession requirements (for example, residence on the grant for at least four years) are met;
COMMUNITY grants which are made to a group of people who each receive a solar de casa (plot of land for a house), suerte (an irrigable plot), and rights to use the common lands (unassigned grant land) for pasture, watering, logging, collecting firewood, hunting, fishing, rock quarrying, etc. According to M. Ebright, common lands, in N.M. referred to variously as ejidos, montes, pastos, abrevaderos, leña, árboles frutales, caza, pesca, etc., were owned by the community and couldn't be sold by any group or individual under Hispanic law since the commons belonged to everyone. (The same was true for water: no individual or group could own a water source because the welfare of all depended on access to water.) Before 1850 the literature contains no account of any individual or group trying to “sell” the commons or any portion thereof.
From the beginning of Hispanic New Mexico in 1598, settlements spread slowly in all directions from Santa Fe as the population grew. The first step in acquiring a grant of land was to verify that the land under petition was vacant. (It had to be verified that the area in question wasn’t owned by Indians. Again, unlike lands east of the Mississippi, Indian property rights in N.M. were generally respected by law.) The first land grant in the Española Basin, the Mesilla of San Ildefonso, was made in 1700 to José Trujillo for vacant land at the junction of Pojoaque Creek and the Río Grande. The land was so desirable the area reached its full growth by 1780. So other areas had to be searched out to develop through settlement with its concomitant agriculture and stock raising.
Spanish people have often been described as “the best record keepers in the world” so all land transactions were carefully recorded in order to avoid fights over land ownership. Efforts were made to preserve and keep such documents up to date. For example, official documents of the Embudo grant (1725) had become torn and frayed by 1786 so heirs of Francisco Martín, one of the original grantees of 1725, took them to the alcalde of Santa Cruz, José Campo Redondo, who made a certified copy of the original documents in 1786.
More New Mexican settlements were founded through the years as population increased. For example, in 1806 Francisco Salazar and thirty-some settlers petitioned for a grant of land, the Cañon del Río de Chama, which is awarded to the group and comes to be known as the San Joaquín land grant.
By the time of the Mexican Republic (1821-1846) the land grants took on overtones other than for settlement and development. For example: Governor Manuel Armijo grants land in an effort to encourage private enterprise but also to create barriers against marauding Indians, invading Texans, and encroaching Americans.
1841: the Beaubien-Miranda grant is made to Guadalupe Miranda and Carlos Beaubien, who receive lands east of the Sangre de Cristos along the Cimarron and Canadian rivers.
[Father Martínez of Taos argued that the Beaubien-Miranda grant was larger than the law permitted, that it included some of the land of Taos Pueblo, that Charles Bent was an illegal partner in the deal. Bent excoriated Martínez and became his political enemy. Interim Governor Mariano Chávez annulled the grant but Beaubien appealed to the Departmental Assembly which restored it, only to have new Governor Mariano Martínez order it vacated. Then Interim Governor José Chávez reinstated it.]
1843: Narciso Beaubien, son of Carlos, and Stephen Louis Lee, whose wife was a sister of Carlos Beaubien’s wife, receive the Sangre de Cristo land grant in the San Luis Valley which straddles the N.M.-Colorado border.
The Las Animas grant in eastern Colorado is made to Cornelio Vigil and Ceran St. Vrain.
The Río Don Carlos grant is made to Gervacio Nolan, a naturalized French Canadian.
1845: Two New Mexicans and a French-Canadian receive a grant on the Canadian River.
A group of Mexican and American partners receive land on the eastern plains northwest of Las Vegas.
[Some English language writers describe Gov. Armijo as choosing foreigners “cautiously,” favoring men who had been in N.M. for decades, had married native women, and had become naturalized Mexican citizens. To boot, he gave them land only in association with New Mexican partners. It must also be observed that most “American” writers toe the “party line” when the USA enters the land grant picture. Victor Westphall declares in his Mercedes Reales: “Few Native New Mexicans were willing to risk the isolation and dangers from Indian attacks even for the promise of vast expanses of land, but foreigners were more daring and ambitious.” Then in the chapter titled Exploitation: Anglo Commercialism, he relates that “only 6 of the 42 grants” awarded by Gov. Armijo “included Anglos among the original claimants,” by way of substantiating that “Anglo entrepreneurs” didn’t take over for their personal gain. It is obvious that “motive” must be taken into consideration when studying land issues in N.M. Despite pressures to inject Orwellian precepts into American historiography, some writers have been able to approach historical veracity.]
PART TWO
When the USA took the northern half of Mexico, now called the Southwest, land titles in New Mexico were to become a never-ending struggle, one that persists to the present day. A new chapter could be said to have started when William Pelham was selected as Surveyor General in 1854. Six years had already passed since the end of the Mexican War. Unlike many of his successors, Pelham was conscientious, honest and intelligent but ill-prepared for the task at hand. He was not versed in the law, couldn’t read, write, or speak Spanish, wasn’t familiar with Spanish or Mexican law, legal history, or cultural traditions relating to land. There were no books from which to study these things and apparently no one interested in finding them for him.
Pelham’s basic duties were to "ascertain the origin, nature, character and extent of all claims" filed in his office, and he had the authority to summon witnesses. But Congress, through ignorance or artful dodge, provided no comprehensive system for adjudication of land titles and insufficient funds for staff and expenses, thus making Pelham’s office of Surveyor General "...a passive agent of the government..." with a procedure that "...was not really an adjudication at all...it lacked the essential element of all true adjudication--due process of law." Owners of coveted land feared Congress had no intentions of stabilizing land titles in New Mexico and future events were to effectuate these fears.
It has also been pointed out that the Treaty of Guadalupe Hidalgo “guaranteed” all New Mexicans equal treatment under the law, specifically mandating in Article 9 that “Mexicans shall be incorporated into the Union of the United States…at the proper time…and in the mean time shall be maintained and protected in the free enjoyment of their liberty and property…” This turns out to be lip service. Indeed, Government attitudes toward the land titles range from hindrance to the outright acquisitive more than anything else. For example, according to V. Westphall, when Pelham requests authority to ask for military protection when necessary due to dangers posed by hostile Indians he is informed there is no law to permit such a procedure, but if attacks are made on survey crews he can petition the President of the U.S. to order military protection.
Again, whether through ignorance or design, Government attitudes fostered immoral, unbridled speculative efforts to wrest land away from its legal owners, people who had lived and worked on it for decades if not centuries. Often the ruthless land speculators were lawyers or Government authorities themselves. For example, the office of Surveyor General was held by nine (9) different men and continued for almost four decades during which individuals with “insider trading” knowledge were able to enrich themselves, usually at the expense of settlers living and working on the land. Three of the Surveyor Generals themselves, officials of the Federal government, have been described as "...blatant land speculators: T. Rush Spencer (1869-1874), James K. Proudfit (1874-1876), and Henry M. Atkinson (1876-1884)." The office of the SG is in reality used “to further the interests of land speculators” at the expense of New Mexican settlers who are supposed to be protected by a Treaty which is supposed to be the “law of the land.”
Speculators now associated with the federal government employed a few principal strategies to acquire land grants. One was to “purchase a settler's interest” in a community grant. Once an attorney could purport to “own” a sufficient number of “interests” he could petition a judge to be declared owner of the grant. There seemed to be no lack of judges who would grant the new ownership.
These “interests” could not be sold under Hispanic law or anywhere else in a society that respected the law. In the contemporary world the equivalent of “buying” a resident’s interest in a land grant would be for an attorney to “buy” an ordinary citizen’s “share” of the local city park and then the attorney could use that “sale” to claim ownership of the city park. (If a park is small potatoes, try selling your “share” of the Carson National Forest.) “Ownership” would then be acknowledged by the “Right Honorable” Judge in a court of law and the lawyer would be the “owner” of the city park.)
The partition suit was also a handy favorite. An attorney would convince one (yes, it only took ONE) individual to file a suit demanding that his portion of the grant be deeded over to him individually. Due to the costly ensuing litigation, most of the grant lands were awarded to the attorneys as their fees (with some of the real estate going to the “Right Honorable” judge).
Another favorite was for an attorney to file suit against a certain land grant and declare to the judge that the defendants were “unknown heirs” of the original grantees. For example, in 1883 T.B. Catron filed a quiet title suit in order to become owner of the Tierra Amarilla grant, which contained seven distinct villages (wherein lived the descendants of the original grantees). He tells the judge the defendants are the “unknown heirs” of Manuel Martinez, that a legal notice was published in the newspaper years ago and that no defendant has come forward therefore the land should belong to him (Catron) via a default judgment. (V. Westphall relates that these “legal notices” were often printed in ONE copy of the newspaper’s edition, and that copy was kept by the lawyer to produce in court as “proof” of legal notice. Needless to say, the “unknown heirs” living in the seven Tierra Amarilla villages had no knowledge that their lands were being “litigated.” This was the “due process” of Territorial New Mexico.) And the judge gave Catron quiet title to the grant.
PART THREE
Mora Land Grant
A “court of law” during the Territorial period was where you didn’t want to be for the courts were controlled, by and large, by the Santa Fe Ring which was led by individuals like T.B. Catron and S.B. Elkins. The Ring included Territorial Governors, judges, lawyers, Supreme Court judges, newspaper owners, Surveyor Generals, wealthy business men, etc. Their activities are reflected in the history of the Mora land grant, a summation of which follows.
In 1835 some 76 families, from Río Arriba and Taos counties are awarded a community land grant in the Mora and San Antonio valleys. Within a few years little placitas, villages, spring up wherever there is enough water and arable land to sustain new settlers. By the end of the century there are thousands of people living on the Mora grant, farming the arable land and raising livestock, especially sheep.
In 1854 José María Valdez and Vicente Romero submit a petition to the Surveyor General to confirm the Mora community land grant to them and all settlers living on the grant.
July 1, 1859: The SG holds the required hearing then recommends to Congress that the Mora grant be confirmed to the Mora communities.
1860s: Stephen B. Elkins “acquires an undivided share” of the Mora commons land as payment for legal service. [University scholar and professor Clark S. Knowlton believes this might have been the beginning of the rationale that commons “shares” could be bought and sold. Heretofore such trafficking was illegal and unheard of.]
June 21, 1860: Congress confirms the Mora grant to its residents.
1870: S.B. Elkins and T.B. Catron have “bought up” 16 undivided shares in the Mora land grant. This can be done because, while “buying up shares” is contrary to Hispanic law, custom, and tradition, and everyone knows it, the Santa Fe Ring is in control of the territorial government, territorial courts, judges, lawyers, newspaper men, etc., and they can “legalize” just about any action they wish to take.
Surveyor General Spencer recommends to Congress that a patent be issued to Catron and Elkins for the Mora Community Land Grant. Residents on the land stage serious protests. They live on the land and don’t acknowledge Catron or Elkins’ ownership.
June 20, 1876: Commissioner of the General Land Office issues a patent to Catron and Elkins despite serious protests from inhabitants of the grant.
1877: Catron and Elkins petition the Court of New Mexico’s First Judicial District to partition the Mora common lands. Residents denounce the proceedings as a fraud and a swindle. The Court orders that common lands be sold as quickly as the western boundary line can be properly identified. Catron receives 250,000 acres. Years are spent in boundary investigations.
In 1909 Catron deeds his interest in the Mora land grant to his son, Charles C. Catron.
In 1911 the western boundary of the Mora grant is definitely set at the Pecos National Forest. In time C.C. Catron’s agent and representative, Robert Sammon, is found murdered.
In 1913 Catron’s Mora land is sold for non-payment of taxes. Frank Roy from Las Vegas is the buyer.
Sometime around 1915 the Elkins-Catron partition suit of 1877 is revived in the District Court but kept secret for a number of reasons. First and foremost, there might be trouble if the people living in the Mora villages learned that the courts were again trying to swindle them out of their remaining lands. And now there was a law on the books that all persons living on lands being partitioned by a court of law had to be served with legal papers in person.
[Before the 1911 law (Rodriguez v. La Cueva Ranch Co) lawyers could claim in front of the judge that “unknown heirs” of a land grant couldn’t be found so the land now belonged to the lawyers who had filed against the “unknown heirs,” (most of whom in reality were living on the land, in their villages) and crooked judges went along with these crooked lawyers.]
The “legal” scenario is stunning: a lawsuit that was some 38 years old is “revived.” Can a lawsuit be “legal and in force” after so many years? It didn’t matter in New Mexico: lawyers argued secretly in 1915, four years after the new law of 1911 (Rodriguez v. La Cueva Ranch Co.), that since the Elkins-Catron partition suit was filed in 1877, the law of 1911 didn’t apply in 1915. And the Judge agreed with the argument. With the law set aside, the “hearings” continued, in secret. The only participants were the lawyers, judge, and selected individuals who would soon “own” the Mora land.
On February 22, 1916, without anyone living in the Mora villages knowing what was happening, common lands of the Mora land grant are sold by the “authorities” at the courthouse door in Mora. The buyer is listed as the STATE INVESTMENT COMPANY (made up of G.A. Fleming, W. Shlinglaw, and R Eagle). After several years had gone by, word begins to circulate that the Mora land grant “was sold years ago” and anybody “breaking the law” would be arrested.
Landgrants3
PART FOUR
Land grant fraud wasn’t a reality only at the local level. Congress proved itself susceptible to influence from speculators and usually lands submitted by speculators were confirmed and patented. With the speculators taken care of, “Congress exhibited a startling lack of concern” for other claimants, virtually ignoring the rest of New Mexicans, Treaty of Guadalupe Hidalgo notwithstanding. New Mexicans had no recourse if the Government refused to abide by the Treaty. Armed resistance to land swindles was futile because it would result in declaring the situation an INSURECTION! then the Army could be called in to combat any who dared defend their land.
Government authorities often cited three circumstances as reasons for preventing granting of official title to lands (before 1891):
1) Farming lands are structured as relatively narrow strips that front along a water course, which is not compatible with the basic rectangular pattern survey used by the U.S.
2) Hispanic New Mexicans generally live around a plaza as protection against attacks by hostile Indians while U.S. land laws require residence on land to which title is sought.
3) Communal ownership of land is not traditional in the U.S.
(These “circumstances” are more specious than anything else. The Government wanted the land and was in a position to “get it legally.”)
New Mexicans tried to expose the situation. In 1860 Juan Batista Vigil charged that Surveyor General W. Wilbar was guilty of dereliction of duty under the Treaty of Guadalupe Hidalgo, referring specifically to the property guarantees which stipulate that bona fide land titles are to be acknowledged by American authorities. Vigil's charges were ignored and all land titles were considered to be in jeopardy when being reviewed by the Government.
V. Westphall: "The situation was allowed to drift in the old manner of possessory rights..." which is "...poor policy because technically the land was public domain and was so designated on official maps.” The fact of the matter is that the above were merely excuses for insiders, whether government authorities or lawyer-speculators, to take custody of desirable land. Land grabbers knew that almost any excuse would be accepted by the Courts. It has also been proved that various judges were “awarded” parts of the lands under litigation.
By 1861 the office of the Surveyor General was working so slowly that only seventeen Pueblo land claims and nineteen private and town land claims have been approved, causing native New Mexicans to believe that Government authorities were bent on swindling them out of their lands. For example:
In 1861, heirs of the San Joaquín land grant, numbering around 400, petition the SG for confirmation of their grant, which is estimated to contain about 184,000 acres,. The petition is ignored for seventeen years. (This was another basic strategy: string out the “legal” process as long as possible in order for the legal fee to cover taking over the land.) When a survey is done in 1878 the acreage of the San Joaquín is at 473,000 acres and speculators own most of the common lands. Seventeen individuals protest the 1878 survey of the San Joaquín grant, saying that their private lands have been included in the survey and confirmation of the grant will rob them of their land.
[The grant had already been recommended for confirmation by Surveyor General Proudfit in 1872, before a survey, and would be again after its enlargement, in 1880. Will M. Tipton, a key assistant to the U.S. Attorney, was a member of the survey crew.
While San Joaquín is being contested in N.M., William Blackmore is trying to sell it in England. T.B. Catron is attorney for some of the speculators who claim ownership of San Joaquín..]
The Supreme Court finally rules in 1896 that since common lands were owned by Spain/Mexico, the U.S. is now owner of the San Joaquín common lands.
This fiction was another basic strategy used to dispossess New Mexicans of their lands. Everyone knew that until the USA entered the region the community as a whole owned the common lands and that no individual could sell the commons or any portion of it. Daniel Tyler, cited by M. Ebright as studying all community land grants in N.M., writes that "...the ejido (common lands) belonged to the community to which it was appurtenant." Ebright concludes that "...it is somewhat appalling to contemplate the injustice that resulted from the United States Supreme Court's blanket acceptance of what Mr. Reynolds and Mr. Hall (attorneys working for the Government) told them about the Hispanic land law of New Mexico." Ebright, a genuine scholar and authority, appears not to be able to accept that the Supreme Court was as immoral as the swindlers operating the court system in New Mexico.
The local situation gets even more “appalling” if we investigate further. In 1876 the Territorial Legislature enacted the Partition Statute: a court can require a jointly owned land grant to be divided among its owners or sold in order to pay attorneys and other legal fees, when requested by even ONE of the owners. The instigator of a partition suit is often the attorney who secures confirmation of the grant, who is usually working on a contingency fee: the attorney isn't paid unless he wins confirmation of the grant. Standard fee for confirmation is one-fourth to one-third of the commons land. Lawyers usually want cash for their efforts, not group ownership in land. So the Partition Statute enables attorneys to force the sale of commons land.
Fraud escalated during the 1880s. Through 1883 there had been only four cases prosecuted for land fraud; by 1891 there were 641 cases prosecuted for land fraud. By 1884 land fraud was such a way of life that N.M. led the nation [with California second] in reported numbers of land fraud cases: 827. At least seven Special Agents for the General Land Office (R.J. Hinton, H.H. Eddy, J.M. Dunn, F.D. Hobbs, J.G. Evans, A.R. Greene, and C.A. Walker) conducted investigations into charges of fraud in New Mexico Territory. They estimated that from 75% to 90% of all Preemption claims in N.M. are fraudulent.
A partial list of persons/corporations indicted for fraud include Max Frost, Charles Ilfeld, Pedro Sánchez, Dubuque Cattle Co., Wm. H. McBroom, Luciano Baca, Red River Cattle Co., Lake Cattle Co., Palo Blanco Cattle Co., Prairie Cattle Co., Portsmouth Cattle Co., Stephen W. Dorsey, Miguel Martín, Cimarron Cattle Co., Wm. F. Purmont, George H. Purmont, Theo. Maxwell, Charles Blanchard, M.A. Upson, etc.
Even if the fraud winds up in court most prosecutions aren't unsuccessful:
a jury verdict of guilty occurs in only 15 cases (out of 827);
the U.S. Marshall is unable to find the defendant (82 cases), often because the person is no longer in the country or never existed in the first place;
cases have to be dismissed (209) because court records/files have been “lost” (stolen);
in 28 cases the verdict is unrecorded neither in the docket nor the transcript of the case.
It is obvious that the people being charged are still “inside traders” who have inordinate control over the judicial process and the personalities involved in it. But Hispanic New Mexicans are blamed (in Washington) for "...being unreliable witnesses who would swear to anything, and native juries were charged with never returning a verdict of guilty regardless of the evidence..."
Max Frost, register of the Land Office in Santa Fe, is "...singled out over all the others" because he is indicted nine times. [Five cases against Frost are dismissed because all records, files, etc., "... are missing from the office of the Clerk." The New Mexican newspaper, of which Frost is president, manager, and editor, vilifies Governor Ross and Surveyor General Julian for "persecuting" Frost.]
In 1885 Governor Ross declares: "The curse of this territory is rings...Many years ago a few sharp shrewd Americans came here--discovered a number of small Mexican and Spanish Grants--purchased them at nominal prices--learned the Spanish language--ingratiated themselves into favor with the Mexican people, and proceeded to enlarge the Grants they had purchased, and to manufacture at will, titles to still others, and to secure therefore Congressional recognition..."
Gov. Ross feels N.M. is in the hands of the Santa Fe Ring. Ring members, Republicans and Democrats, fight his every action, constantly demanding his removal to President Cleveland.
PART FIVE
George W. Julian is appointed Surveyor General in 1885 and his primary goal is to break up the Santa Fe Ring because "the public domain was being harvested by fraud at an unprecedented rate." Julian orders a reexamination of 35 claims, confirmed by his predecessors, now pending before Congress. He recommends rejection of 22 of the 35 claims and for the remainder he recommends a much smaller acreage than was accepted by his predecessors.
While George Julian is considered a reformer who fought speculators it must also be observed that his aim was to divest settlers of their common lands. This was done in a number of ways and confirmation of a land grant is made much more difficult for the claimant. For example, Julian maintained that the Mexican government retained common lands ownership, not the community (which was patently untrue), therefore the rightful owner of the commons was now the American government.
William A.J. Sparks is appointed commissioner of the General Land Office in 1885 and, like Julian, is intent on combating land fraud. He suspends final action on all land entries whether made by speculators or settlers with a history of residing on their land. It appears that in the minds of Government authorities, settlers with an established history of living on the land and newly arrived speculators are in the same boat.
By 1889 the complete ineptitude of the Surveyor General system is apparent to everyone. There is a backlog of 116 land grants awaiting Congressional action. Congress hasn't confirmed any grants since early in 1879.
[The “dereliction of Congress” is described by V. Westphall as neglecting to provide a system by which to adjudicate land titles with justice and the refusal to supply funds with which to manage the enormous task. Once the speculator grants were confirmed by Congress to people who had influence with congressional members, the issue of adjudication of titles was permitted to drift, playing into the hands of more speculators, mostly lawyers, who would help claimants at the expense of exorbitant fees. The various surveyors general repeatedly urged reform, to no avail, because Congress took no action until the Court of Private Land Claims was enacted by statute in 1891, half a century after N.M. had been taken by the U.S. And when Congress ended its neglect, all burdens of proof were on the claimants, usually ordinary farm-and-ranch people with few resources to combat the covetous acquisitiveness of government officials bent on enlarging the public domain at the expense of New Mexicans. Westphall does make an effort: “The shortsightedness evinced by this neglect is a pathetic example of man’s whimsical choice of values.”]
In an effort to settle disputed land titles in N.M. [and Co., Wyo., Nev., Az., Utah, the largest jurisdiction of any court in history], the Court of Private Land Claims is created and operating during the years 1891-1904
Justices are Joseph R. Reed (Chief, from Iowa), Thomas C. Fuller (S.C., died in 1901, replaced by Frank R. Osborn from N.C.), Henry C. Sluss (Kansas), William W. Murray (Tennessee), and Wilbur F. Stone (Colorado). In keeping with the congressional act, no justice from a territory could serve in the Court. Why? In order “to make sure that none would have experience with the problems involved,” according to V. Westphall. No writer has asserted that the Court of Private Land Claims in New Mexico was merely the culminating factor in the Government acquiring “legal” title to the land. It must be remembered that the Government held all the cards: it made all the rules, had control of all documents, was the judge and jury, etc., and victory would give the Government title to the land.
A number of strategies (most of which were illegal because of the Treaty of Guadalupe Hidalgo) were used effectively by the machinations of Congress and the Court of Private Land Claims:
1.) Custom is not specifically mentioned as a factor to be considered by the Court.
2.) Proof is required that all conditions imposed by Spain and Mexico had been met, within the time allowed. “A stricter, more technical approach” is followed in N.M. (compared to other places like California);
3.) the burden of proof resides with the plaintiff (this is tantamount to being considered guilty until you prove your innocence);
4.) all records are in possession of and controlled by the government.
5.) The Court requires the claimant to prove the existence of a bona fide grant document, and that it isn’t a forgery;
6.) It must be “proved” that the granting official had the authority to award said grant;
7.) if a worn or torn document had been recopied, it had to be proved that the person doing the copying had the authority to do so, that all necessary steps and procedures for validation of the grant had been fulfilled.
8.) Presumption is eliminated as a factor. (Previously the presumption of the existence of a grant document was aided by the existence of a settlement on said grant, that the settlement wouldn’t have been there if the granting official didn’t have the legal right to authorize it.) Henceforth the fact that a settlement existed didn’t mean that it had a document to legalize it. And even when the document existed, it had to be proved that it wasn’t a forgery.)
9.) Finally, the Court of Private Land Claims, the judicial body that was created to enlarge and protect government land holdings, had to make the final ruling.
Technicalities are considered crucial by government attorneys and/or authorities, who strive to lengthen the legal process as much as possible in order to create greater expense for the claimant so that he might abandon the struggle to keep his land. For example, if the grant was made during the Mexican period, that the grant had to be approved by the territorial deputation, and that absolute compliance had been made regarding the procedural process of petition, grant, and act of possession. Other technical requirements include that the grant document has to be recorded in the Spanish/Mexican archives [the Archives that Governor Pile tried to destroy in 1870 and that were nearly burned in a “mysterious” fire in 1892].
U.S. Attorney for the Court of Private Land Claims is M.G. Reynolds, who has by now "...acquired an arsenal of...technicalities, together with several procedural advantages, to aid him in the task of defeating land grant claims, which is the primary responsibility of his position. He also has assembled a superb team of experts to assist him in fashioning a defense to each claim..."
The final strategy is that any adverse decision is appealed to the Supreme Court by Reynolds, forcing litigants to spend more time, energy, and money (until a "proper" verdict is decided). No such team of experts is provided by the Government for the people claiming their own land, though such a creation would have been in keeping with responsibilities guaranteed by the Treaty of Guadalupe Hidalgo. Once again New Mexicans are on their own, this time with the Government of the U.S., which acts as if the Treaty of Guadalupe Hidalgo never existed, as adversary.
The Supreme Court usually sides with the Government against the claimant. Many cases are won by appeal in the Supreme Court because the Supreme Court is disposed to accept whatever government attorneys tell it. (For example, the Court is told that Spain/Mexico retained possession of title for all common lands in a land grant, which was patently untrue but accepted by the Court because present title would therefore reside with the United States. “Experts” like Will Tipton and Henry Flipper, who are salaried employees of the government, are permitted to give testimony. For example, it is Will Tipton who testifies to the Court of Private Land Claims that documents by which Governor Cruzate awarded grants to the Pueblos are forgeries, saying that the signatures of Cruzate and his secretary are in the same handwriting, that Cruzate’s secretary was named Pedro Ortiz Nino de Guevara and not Pedro Ladrón de Guitara as written in the documents, etc.)
Claimants have to rely on their lawyers and meet their fees, which are usually the greater part of the land grant. Some claimants are ruined financially and usually lose their land to boot in this cataclysmic holocaust wrought by the legal system, assuring poverty for themselves and future generations.
M. Ebright has written: "The...grants most deserving of confirmation were caught in the middle [from a liberal to a conservative approach to land grant adjudication] since many of the large speculative grants had already been confirmed. The procedure in the Court of Private Land Claims heavily favored the government, resulting in numerous unjust decisions.”
[It is interesting to compare what happened in other States: according to the literature, in California the confirmation rate for adjudicated land was 73%; in Florida, 90%; in Louisiana, 100%; in New Mexico the Court of Private Land Claims confirmed SIX percent (6%). “A soundly based estimate has been made that some 70% of the Court’s rejections--even considering the relatively stringent guidelines provided by Congress--are subject to serious question.”]
Major reasons cited for rejection or reduction of acreage include:
1. alleged lack of authority of the granting official;
2. insufficiency of the grant document(s);
3. the belief that common lands were not granted to individuals or community, thereby remaining “public domain” (i.e., Government land) which accounts for the largest amounts of land rejected by the Court, thus making it property of the U.S.;
4. refusal to accept testimony of grant residents;
5. survey errors.
PART SIX
Rarely was a land grant case handled morally but one such instance is United States v. Chaves, a case that "...stands out as a beacon of fairness, showing how all these cases should have been handled..."
1833: Cubero is begun by a community grant to various families. Original granting documents are lost but the Court of Private Land Claims confirms the grant because people living on the land are proof that the grant was made; other legal documents show that the settlement has been in continuous existence since 1833. Government attorneys maintain that the granting document isn't extant so the claim must be rejected according to the 1891 Act. They appeal the verdict to the Supreme Court. (As already stated, if the people were awarded a positive verdict, Government attorneys merely appealed the decision to the Supreme Court where they usually won control of the land for the Government.) In this case, however, Justice Shiras voiced the opinion of the Supreme Court by referring to international law, the Treaty of Guadalupe Hidalgo, and the fact that several residents had seen the actual grant document, and most importantly that Cubero had been inhabited continuously since 1833. The Supreme Court affirmed granting the Cubero people a patent for their land.
More typical is the 1897U.S. v. Sandoval, a landmark case used by the Court of Private Land Claims as the precedent for denying confirmation of common lands. For example: In 1879 the 300,000 acre San Miguel del Bado grant is surveyed as a community grant and the Surveyor General recommends its confirmation. The General Land Office commissioner recommends that only the land occupied by villages be confirmed, about 5,000 acres, rejecting confirmation of the common lands, the bulk of the grant and from which most settlers make their living. But the Court of Private Land Claims confirms the entire grant. Not a problem: Government lawyers appeal to the Supreme Court, which rules that common lands belonged to Spain and Mexico, therefore they now belong to the U.S. [This vast acreage is now known as the Carson and Santa Fe National Forests.] The Sandoval decision is not applied retroactively so past grants, confirmed mostly to speculators, keep their common lands while Hispanic communities lose them. According to V. Westphall, "After the 1897 Sandoval decision, the land claims court rejected the common lands of every community grant that came up for adjudication. In so doing it violated international law” which permits public domain to belong to the successor state while private domain is still vested in communities and municipalities just like individuals retain their private property. Usurping community land to the public domain “was clearly an injustice to the owners of these community grants.” [Westphall ends the chapter by stating emphatically that the “entire land grant story in N.M. under U.S. control is surrounded by unsavory overtones,” that this may be “an unpalatable truth” to Americans who believe “our brand of justice” is a “benevolent force.”]
The Hayes v. United States of 1898 is another landmark case because land grant claimants would henceforth have to prove that granting officials had the authority to award grants of land, and if copies were made of original documents, that the copier had authority to do so. The Government has sole authority over the land grant archives. “Experts” like Will Tipton and Henry Flipper [the latter is the first African-American to graduate from West Point and is said to be a handwriting expert] who have studied the archives and researched Spanish and Mexican law, work for the Government and are supported by all its resources. They are Government witnesses on the Government payroll and they give testimony which invariably leads to the confiscation of claimants’ land.
Land claimants are usually unable to hire "experts" so they are dependent on the skill and honesty of their lawyers. "Land grant lawyers are more often concerned with their own interests than with their basic duty to pursue their clients' interests..." while "...the government pursued every case assiduously, appealing many on highly technical grounds..."
M. Ebright sums up: “One thing is clear: Hispanic people have not been treated fairly in relation to the land grant issue.” Other writers are in agreement: “Land grabbing” was facilitated by legislation that required land grant heirs “to pay for their own surveys and to undertake long, expensive litigation to protect their titles.” Many lawyers and judges were able to “cheat” heirs out of their grant lands, “many of whom managed to obtain portions of the land in question even when Hispanic land-grant residents lost their cases in court.”
The popular mind often considers New Mexican land grants to be a nuisance issue. Without ever admitting to it, the topic is often loaded with cultural bias: What right did the “king of Spain” have to “give away” this land? For the record, all land transactions were under the authority of local officials. None were signed by the “king of Spain” any more than title for a 160 acre homestead was signed personally by the President of the USA. And because the study of history isn’t popular, especially in a society laced with Orwellian overtones (What about the Indians? This from a psychology that promoted “The only good Indian is a dead Indian!”), we usually “go with the flow” and seldom investigate or understand what has actually transpired. Furthermore, if we “paid good, hard earned money” for land that at one time or another was swindled away from its previous owners, “I had no part in the swindle.” But authors like Ebright and Westphall seem to be genuinely appalled that federal authorities and many personalities of Territorial society could be so immoral and ignoble. One might wonder how such vile machinations could be effected without the people learning about the goings-on. It must be pointed out that to this day no book has been commissioned or written on “The Santa Fe Ring,” so the cover-up is still in force. As for the secrecy or “insider trading” that governed land dealings during the Territorial period (and beyond), are we aware of what is going on today? When did you first become apprised that there was a law on the books described as “the marriage penalty”? Most people admit that the family unit is basic to society but for how many years did you pay extra taxes before you “discovered” you were paying more just because you were married? The study of history shows that the human condition is pretty much constant throughout the ages. An analogy to the holocaust that hit New Mexican land owners can be made very succinctly: taking away land from the New Mexican agrarian society of that day is tantamount to removing all computers from the business world of today. And even if we don’t give a hoot for the study of history, everybody has heard the old adage: What goes around comes around.
