GAO-04-59 Treaty of Guadalupe Hidalgo: Findings and Possible

Report to Congressional Requesters

United States General Accountin

Office

June 2004

TREATY OF

GUADALUPE

HIDALGO

Findings and Possible

Options Regarding

Longstanding

Community Land

Grant Claims in New

Mexico

GAO-04-59

Page i GAO-04-59 Treaty of Guadalupe Hidalgo

Letter 1

Executive Summary 2

Purpose of This Report 2

Historical Background 3

Results in Brief and Principal Findings 6

Congress Directed Implementation of the Treaty of Guadalupe

Hidalgo’s Property Provisions in New Mexico through Two

Successive Procedures 6

Heirs Are Concerned That the United States Did Not Properly

Protect Land Grants during the Confirmation Process,

but the Process Complied with All U.S. Laws 8

Heirs and others Are Concerned that the United States Did

Not Protect Community Land Grants After the Confirmation

Process, but the United States Was Not Obligated to Protect

Non-Pueblo Indian Land Grants after Confirmation 11

Concluding Observations and Possible Congressional Options

in Response to Remaining Community Land Grant Concerns 12

Chapter 1 Introduction—Historical Background and the Current

Controversy 14

Overview 14

New Mexico during the Spanish Period, 1598-1821 15

New Mexico during the Mexican Period, 1821-1848 19

The United States’ Westward Expansion and Manifest Destiny 21

Texas Independence and Statehood and the Resulting Boundary

Disputes between the United States and México 24

The Mexican-American War 25

The Treaty of Guadalupe Hidalgo (1848) 27

The Gadsden Purchase Treaty (1853) 32

Organization of the New U.S. Territory and Procedures to Resolve

Land Grant Claims 33

Factors Contributing to Different Mexican and U.S. Systems of

Land Ownership 34

The California Commission Legislation (1851 Act) 35

The New Mexico Surveyor General Legislation (1854 Act) 41

The Court of Private Land Claims Legislation (1891 Act) 43

Land Grant Issues in New Mexico Today 44

Objectives, Scope, and Methodology of This Report 45

GAO’s First Report 46

GAO’s Second Report 48

Contents

Page ii GAO-04-59 Treaty of Guadalupe Hidalgo

Summary 51

Chapter 2 Congress Directed Implementation of the Treaty

of Guadalupe Hidalgo’s Property Provisions in

New Mexico through Two Successive Procedures

Overview 52

The Surveyor General of New Mexico Investigated Claims from

1854 to 1891 54

The Surveyor General Was Assigned Responsibility to

Investigate Land Claims in 1854 55

The Investigation and Recommendation Process Followed

by the Surveyor General 59

Early Criticism of the Land Grant Confirmation Process

under the Surveyor General 67

Congressional Confirmations Ended after Controversy

over the Size of Large-Acreage Grants (the Tameling Case) 70

The Surveyor General’s Investigation of Land Grant Claims

Became More Rigorous in 1885 74

Repeated Attempts to Reform the Land Grant Confirmation

Process Were Finally Successful 76

The Court of Private Land Claims Adjudicated Claims from 1891 to

1904 77

The CPLC Legislation Established Specific Requirements

for Land Grant Adjudication 78

The Scope of the CPLC’s Equity Authority Was Unclear 81

The Land Grant Confirmation Process As Implemented

by the CPLC 83

The Federal Government Awarded Small-Holding Claims

within Rejected Land Grants 91

The Percentage of Acreage Awarded during the Two Confirmation

Processes Is Substantially Higher Than Commonly Reported 92

Summary 96

Chapter 3 Heirs and Others Are Concerned That the United States

Did Not Protect Community Land Grants during the

Confirmation Process, but the Process Complied

with All U.S. Laws

Overview 97

Land Grant Heirs and Others Have Concerns about the Results of

the Confirmation Procedures for Community Land Grants 100

Acreage and Patenting Issues Regarding the 105 Confirmed

Page iii GAO-04-59 Treaty of Guadalupe Hidalgo

Community Land Grants 100

Issues Regarding the 49 Wholly Rejected Community Land

Grants 108

Studies Have Focused on Three Core Reasons for Rejected

Acreage 112

The Courts Restricted Seven Confirmed Grants to Their

Individual Allotments (the Sandoval Case) 113

The CPLC Rejected Grants Made by Unauthorized Officials

(the Cambuston and Vigil Cases) 118

The CPLC Rejected Grants That Relied on Copies Made by

Unauthorized Officials (the Hayes Case) 121

Land Grant Heirs and Others Have Additional Concerns about the

Fairness and Equity of the Confirmation Procedures Followed

for Evaluating Community Land Grant Claims 124

Perceived Fairness and Due Process Issues with the

Surveyor General Procedures 124

Perceived Equity Issues with the CPLC Process 140

Any Conflict between the Confirmation Statutes and the Treaty

Would Have to Be Resolved under International Law or by

Additional Congressional Action 141

Summary 144

Chapter 4 Heirs and Others Are Concerned That the United States

Did Not Protect Community Land Grants after the

Confirmation Process, but the United States Was Not

Obligated to Protect Non-Pueblo Indian Lands

Grants after Confirmation

146

Overview 146

Heirs Claim That the United States Had a Fiduciary Duty to Protect

Confirmed Land Grants 147

Heirs Transferred Some Community Lands to Private

Ownership 149

Private Arrangements with Attorneys Resulted in Loss of

Community Lands 150

Partitioning Suits Led to Breakup of Common Lands 151

Property Taxes and Subsequent Foreclosures Led to Loss

of Land Ownership 152

The Treaty of Guadalupe Hidalgo Provided No Special Protections

for Community Land Grants After Confirmation 153

The U.S. Government Currently Has a Fiduciary Duty to Protect

Pueblo Indian Lands 156

Summary 160

Page iv GAO-04-59 Treaty of Guadalupe Hidalgo

Chapter 5 Concluding Observations and Possible Congressional

Options in Response to Remaining Community Land

Grant Concerns

161

Overview 161

Potential Considerations in Determining Whether Any Additional

Action May Be Appropriate 162

Possible Congressional Options for Response to Remaining

Concerns 164

Summary 170

Appendix I Confirmation of Land Grants under the Louisiana

Purchase and Florida Treaties 171

The Louisiana Purchase Treaty 173

The Florida Treaty 175

Appendix II Articles VIII, IX, and Deleted Article X of the

Treaty of Guadalupe Hidalgo 177

Appendix III Excerpts from the Protocol of Querétaro 178

Appendix IV Excerpts from the Treaty Regarding the Gadsden

Purchase 179

Appendix V Excerpts from the 1851 Act to Confirm California

Land Grants 180

Appendix VI Excerpts from the 1854 Act Establishing the

Office of the Surveyor General of New Mexico 183

Page v GAO-04-59 Treaty of Guadalupe Hidalgo

Appendix VII Excerpts from the 1891 Act Establishing the

Court of Private Land Claims 184

Appendix VIII Organizations and Individuals Contacted for

GAO’s Reports 189

Appendix IX Instructions Issued by Interior to the Surveyor General

of New Mexico as Required by the 1854 Act 193

Appendix X Data on the 295 Spanish and Mexican Land Grants

in New Mexico 200

Appendix XI Results of Evaluations of Claims for Land Grants

in New Mexico 209

Appendix XII Current Land Ownership within Originally Claimed

Grant Boundaries 214

Appendix XIII Contacts and Staff Acknowledgements 221

Tables

Table 1: Establishment of Surveyors General for the

Southwestern United States 41

Table 2: Surveyors General of New Mexico, 1854-1925 42

Table 3: Spanish and Mexican Land Grants in New Mexico 48

Table 4: Overview of the Results of the Surveyor General Land

Grant Confirmation Process of Spanish and Mexican

Land Grants in New Mexico, 1854-1891 60

Page vi GAO-04-59 Treaty of Guadalupe Hidalgo

Table 5: Grants Recommended for Rejection in Original

Decisions by the Surveyor General of New Mexico,

1854-1891 62

Table 6: Statutes Confirming Spanish and Mexican Land Grants

in New Mexico, 1854-1891 65

Table 7: Time Line of Key Events for the Maxwell and Sangre de

Cristo Land Grants 72

Table 8: Mexican Land Grants Confirmed by Congress in Excess

of 11 Square Leagues per Person in New Mexico, 1854-

1891 73

Table 9: Results of Surveyor General Julian’s Supplemental

Reports, 1885-1889 75

Table 10: Spanish and Mexican Land Grants in New Mexico for

Which Claims Were Filed with the CPLC, 1891-1904 85

Table 11: Number of New Mexico Grants for Which Claims Were

Filed and Ultimately Decided on Their Merits by the

CPLC 87

Table 12: Number of Grants in New Mexico Confirmed or

Rejected by the CPLC, 1891-1904 88

Table 13: CPLC Decisions Reversed by the U.S. Supreme Court 89

Table 14: Acreage Awarded for Spanish and Mexican Community

and Individual Land Grants during the Surveyor General

and the CPLC Land Grant Confirmation Processes in

New Mexico with and without Adjustments

(Subtractions) by GAO 93

Table 15: Summary of Adjusted Acreage Claimed in the CPLC’s

1904 Report 94

Table 16: Percentage of Acreage Awarded for Community and

Individual Spanish and Mexican Land Grants in New

Mexico, As Adjusted by GAO 94

Table 17: Percentage of Spanish and Mexican Land Grants

Confirmed in New Mexico, with and without

Adjustments for Claims Not Pursued 96

Table 18: Results for the 105 Community Land Grants in New

Mexico Confirmed in Part or Whole 101

Table 19: Community Land Grants with Boundary Disputes

Adjudicated by the CPLC, 1891-1904 104

Table 20: Results for the 49 Wholly Rejected Community Land

Grants in New Mexico 108

Table 21: Community Land Grants That Claimants Failed to

Pursue and Possible Explanations for This Failure 109

Page vii GAO-04-59 Treaty of Guadalupe Hidalgo

Table 22: Community Land Grants Rejected for a Variety of Legal

Reasons Unrelated to Authority of Granting Official or

Grant-Copying Official 111

Table 23: Community Land Grants Restricted to Their Individual

Allotments 113

Table 24: Decisions by the CPLC for Seven Community Land

Grants That Were Ultimately Restricted to Their

Individual Allotments 115

Table 25: Community Land Grants Made during the Mexican

Period That Were Rejected by the CPLC Because the

Granting Official Lacked Authority to Make Land

Grants under Mexican Law 118

Table 26: Community Land Grants Adjudicated by CPLC That

Involved Disputes over Copies of Grant Documents 122

Table 27: Non-Indian Community Land Grants with Originally

Confirmed Acreage and Currently Held Acreage 148

Table 28: Payments to Settle Land Claims for Pueblo Grants in

New Mexico, as of October 2002 158

Table 29: Comparison of Acreage Confirmed to Spanish Land

Grants for the Pueblos with Their Current Acreage, as

of December 31, 2000 159

Table 30: Community Land Grants in New Mexico Confirmed in

Full 210

Table 31: Community Land Grants in New Mexico Confirmed in

Part 211

Table 32: Rejected Community Land Grants in New Mexico 212

Figures

Figure 1: San Felipe Pueblo, New Mexico, c. 1880 18

Figure 2: Town of Las Vegas, New Mexico, c.1890 20

Figure 3: Generalized Depiction of U.S. Expansion 23

Figure 4: U.S. Land Acquisitions from México, 1845-1853 25

Figure 5: Provisions of 1854 Act Regarding Spanish and Mexican

Claims 56

Figure 6: Statements by Surveyors General of New Mexico and

Commissioners of the General Land Office Regarding

the Surveyor General Land Grant Confirmation Process 69

Figure 7: The CPLC, 1891 84

Figure 8: Sandía Mountain Range behind the Pueblo of Sandía,

New Mexico, c.1880 103

Page viii GAO-04-59 Treaty of Guadalupe Hidalgo

Figure 9: Current Land Ownership Within the Original Claimed

Boundaries of the Cañón de Chama Land Grant 215

Figure 10: Current Land Ownership Within the Original Claimed

Boundaries of the San Miguel del Vado Land Grant 216

Figure 11: Current Land Ownership Within the Original Claimed

Boundaries of the Petaca Land Grant 217

Figure 12: Current Land Ownership within the Originally Claimed

Boundaries of the Cieneguilla Land Grant 218

Figure 13: Current Land Ownership within the Originally Claimed

Boundaries of the San Antonio del Río Colorado Land

Grant 219

Figure 14: Current Land Ownership within the Originally Claimed

Boundaries of the Gotera, Maragua, and Cañada de San

Francisco Land Grants 220

Abbreviations

BLM Bureau of Land Management

CPLC Court of Private Land Claims

SGR Surveyor General Report

Page ix GAO-04-59 Treaty of Guadalupe Hidalgo

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Page 1 GAO-04-59 Treaty of Guadalupe Hidalgo

B-302565

June 4, 2004

The Honorable Jeff Bingaman

The Honorable Pete V. Domenici

United States Senate

The Honorable Tom Udall

United States House of Representatives

In response to your request, this report: (1) describes the confirmation

procedures by which the United States implemented the property

protection provisions of the 1848 Treaty of Guadalupe Hidalgo with

respect to community land grants located in New Mexico, and the results

produced by those procedures; (2) identifies and assesses concerns

regarding these procedures as they pertain to the government’s

confirmation of these grants from 1854 to 1904; (3) identifies and assesses

concerns regarding acreage transferred voluntarily or involuntarily after

the confirmation procedures were completed; and (4) identifies possible

options that Congress may wish to consider in response to remaining

community land grant concerns.

As arranged with your offices, this report is being issued in English and

Spanish versions (GAO-04-59 and GAO-04-60, respectively). We will

distribute copies in both languages in New Mexico and provide copies

upon request. We also plan to send copies to the other members of the

New Mexico delegation in the House of Representatives.

If you or your staffs have any questions about this report, please contact

me at (202) 512-5400. Key contributors to this report are listed in appendix

XIII.

Susan D. Sawtelle

Associate General Counsel

United States General Accounting Office

Washington, DC 20548

Executive Summary

Page 2 GAO-04-59 Treaty of Guadalupe Hidalgo

Whether the United States has fulfilled its obligations under the 1848

Treaty of Guadalupe Hidalgo, with respect to property rights held by

traditional communities in New Mexico, has been a source of continuing

controversy for over a century. The controversy has created a sense of

distrust and bitterness among various communities and has led to

confrontations with federal, state, and local authorities. Under the Treaty,

which ended the Mexican-American War, the United States obtained vast

territories in what is now the U.S. Southwest, from California to New

Mexico. Much of this land was subject to pre-existing land grants to

individuals, groups, and communities made by Spain and México from the

17th to the mid-19th centuries, and the Treaty provided for U.S.

recognition and protection of the property rights created by these grants.

Today, land grant heirs and legal scholars contend that the United States

failed to fulfill its treaty obligations regarding community land grants

within New Mexico. This contention is based in part on a belief that the

percentage of community land-grant acreage recognized by the U.S.

government in New Mexico was significantly lower than the percentage

recognized in California, and a view that confirmation procedures

followed in New Mexico were unfair and inequitable compared with the

different procedures established for California. The effect of this alleged

failure to implement the treaty properly, heirs contend, is that the United

States either inappropriately acquired millions of acres of land for the

public domain or else confirmed acreage to the wrong parties. According

to some heirs, the resulting loss of land to grantees threatens the

economic stability of small Mexican-American farms and the farmers’ rural

lifestyle.

In September 2001, GAO issued its first report on these issues, entitled

Treaty of Guadalupe Hidalgo: Definition and List of Community Land

Grants in New Mexico (GAO-01-951, Sept. 10, 2001).

Using a broad

definition of “community land grant”—as any grant setting aside common

lands for the use of an entire community—GAO identified 154 community

land grants out of a total of 295 grants made by Spain and México for lands

within New Mexico. In this second and final report, GAO discusses how

the community land grants were addressed by the courts and other entities

and how Congress may wish to respond to continuing concerns about

them. Specifically, this report: (1) describes the confirmation procedures

GAO simultaneously issued the report in Spanish—U.S. General Accounting Office,

Tratado de Guadalupe Hidalgo: Definición y Lista de las Concesiones de Tierras

Comunitarias en Nuevo México, GAO-01-952 (Washington, D.C.: Sept. 10, 2001).

Executive Summary

Purpose of This

Report

Executive Summary

Page 3 GAO-04-59 Treaty of Guadalupe Hidalgo

by which the United States implemented the property protection

provisions of the Treaty with respect to New Mexico community land

grants and the results produced by those procedures; (2) identifies and

assesses concerns regarding these procedures as they pertain to the

government’s confirmation of these grants from 1854 to 1904; (3) identifies

and assesses concerns regarding acreage transferred voluntarily or

involuntarily after the confirmation procedures were completed; and

(4) outlines possible options that Congress may wish to consider in

response to remaining community land grant concerns.

As detailed in detail in chapter 1 and appendix VIII of this report, we

conducted substantial research and analysis in the preparation of these

two reports. We also widely distributed an exposure draft of our first

report, in response to which we received over 200 oral and written

comments. We contacted and interviewed numerous land grant heirs,

scholars, researchers, historians, advocates, and organizations familiar

with implementation of the property protection provisions of the Treaty,

as well as New Mexico county and state government officials and U.S.

government officials from several agencies. We reviewed archival

documentation describing the procedures established and followed by the

Surveyor General of New Mexico and the Court of Private Land Claims,

and evaluated numerous studies, books, law review articles, treatises, and

other materials. We researched the legislation creating the Surveyor

General and the Department of the Interior’s subsequent instructions to

the Surveyor General, and the legislation creating the Court of Private

Land Claims. We obtained and examined all of the community land grant

adjudicative decisions and reports from the Surveyor General of New

Mexico, the Court of Private Land Claims, and the U.S. Supreme Court,

and we researched pertinent provisions of the U.S. Constitution and other

federal laws and federal court decisions. We conducted our review for this

second report from September 2001 through May 2004 in accordance with

generally accepted government auditing standards.

From the end of the 17th century to the mid-19th century, Spain, and later

México, made land grants to individuals, groups, and towns to promote

development in the frontier lands that today constitute the American

Southwest. In New Mexico, land grants were issued to fulfill several

purposes: encourage settlement, reward patrons of the Spanish

government, and create a buffer zone between Indian tribes and the more

populated regions of its northern frontier. Spain also issued land grants to

several indigenous Indian pueblo (village) cultures that had occupied the

areas long before Spanish settlers arrived. In 1821, after gaining its

Historical

Background

Executive Summary

Page 4 GAO-04-59 Treaty of Guadalupe Hidalgo

independence from Spain, México continued to adhere to the land policies

adopted by Spain. México’s governance of New Mexico lasted until 1846

and was riddled with instability and frequent political changes in

government leaders, organization, and laws.

As reflected in the literature and in popular terminology, there were two

types of Spanish and Mexican land grants made in New Mexico:

“community land grants” and “individual land grants.” Community land

grants were typically organized around a central plaza, whereby each

settler received an individual allotment for a household and a tract of land

to farm, and common land was set aside as part of the grant for use by the

entire community. Spanish and Mexican law usually authorized the local

governor to make such community land grants, and the size of each grant

was a matter within the governor’s discretion. Individual land grants, as its

name suggests, were made in the name of specific individuals and usually

were made by the governor as well.

Much of Spain’s settlement in the northernmost provinces of the American

continent occurred with little interference, but in time, England and

France made their presence on the continent known. While France

established only a few interior settlements to facilitate trade, England

established permanent colonies along the Atlantic Coast and increasingly

migrated westward. The United States formally acquired its independence

from England in the 1783 Treaty of Paris and, with the establishment of a

federal government in 1789, the U.S. steadily acquired more land and

expanded south to Florida and west to California. Treaties with Spain and

France, for Florida and the Louisiana Purchase, respectively, and with

numerous Indian tribes, propelled the U.S. acquisition of land and

westward expansion. In 1845, when Texas achieved statehood as the

nation’s 28th state, U.S. territorial interests, including a plan to expand

settlement to the Pacific Ocean, collided with México’s territorial

interests. The Mexican-American War broke out over the boundary

between Texas and México, bringing an end to a 9-year boundary dispute.

Eventually, U.S. troops occupied Santa Fe, New Mexico; proclaimed New

Mexico’s annexation; and established U.S. government control over the

territory. In 1847, U.S. troops occupied Mexico City and shortly thereafter,

México surrendered. The war officially ended with the 1848 ratification of

the Treaty of Peace, Friendship, Limits and Settlement, commonly referred

to as the Treaty of Guadalupe Hidalgo.

The Treaty of Guadalupe Hidalgo forever altered the political landscape of

the North American continent. Among the Treaty’s provisions were

México’s cession to the United States of vast territories extending from

Executive Summary

Page 5 GAO-04-59 Treaty of Guadalupe Hidalgo

California to New Mexico and an agreement by the United States to

recognize and protect property rights of Mexican citizens living in the

newly acquired areas. In order to implement the Treaty’s property

protection provisions in California, Congress enacted legislation (the 1851

Act) creating a commission to review and confirm grants, with appeals

authorized to federal district courts and the U.S. Supreme Court. In

determining whether to recognize and confirm a grant, the 1851 Act

directed the California Commission to apply Spanish and Mexican laws,

customs, and usages, as well as equity principles, the law of nations

(international law), the provisions of the Treaty, and decisions of the U.S.

Supreme Court. The 1851 Act also directed the Commission to apply a

presumption in favor of finding a community land grant where a city,

town, or village existed at the time the Treaty was signed. In New Mexico,

by contrast, Congress established two different and successive

mechanisms for recognizing and confirming Spanish and Mexican land

grants. First, in 1854, Congress established (in the 1854 Act) the Office of

the Surveyor General of New Mexico within the Department of the

Interior. The Surveyor General was charged with investigating Spanish and

Mexican land grant claims and submitting to Congress recommendations

on their acceptance or rejection. The Surveyor General was directed to

examine the claims by applying Spanish and Mexican laws, customs, and

usages, and to treat the prior existence of a city, town, or village as clear

evidence of a grant. Because of fraud and other difficulties with this

process as well as the process in California, Congress established a second

mechanism in 1891, the Court of Private Land Claims (CPLC), to resolve

new and remaining claims in New Mexico and certain other territories and

states (excluding California, where claims already had been resolved). The

criteria that Congress established for the CPLC in determining whether a

land grant should be confirmed were more stringent than those it had

established for both the Surveyor General of New Mexico and the

California Commission. The CPLC could confirm grants only where title

had been “lawfully and regularly derived” under the laws of Spain or

México.

A number of factors contributed to the background against which the New

Mexico community land grants were investigated and resolved under these

two processes. For the most part, New Mexico consisted of a sparsely

populated area of subsistence agricultural communities, and inhabitants

were unfamiliar with the English language, the U.S. legal system, and

American culture. The Mexican legal system, for example, had consisted

largely of Spanish and Mexican codes and laws that were often interpreted

according to local custom and usage, and more formal tribunals and

Executive Summary

Page 6 GAO-04-59 Treaty of Guadalupe Hidalgo

courts did not play the same important role in México as they did in the

United States in interpreting and deciding issues and cases.

U.S. land tenure and ownership patterns also differed from those then

existing in New Mexico. Then as now, the U.S. system viewed the earth’s

surface as an imaginary grid laid out on a piece of paper, and cartography

and surveying were used to identify physical features of a particular

parcel. The exact measurements of parcels were identified and located on

a map, land ownership was primarily in “fee simple,” and land titles were

recorded in local government offices. Taken as a whole, this system

facilitated the use of land as a commodity that could be bought and sold.

By contrast, the Mexican and Spanish systems were rooted in a rural,

community-based system of land holding prevalent in medieval Europe.

That system was not based on fee simple ownership; instead, land was

viewed more in its relationship to the community, although parcels could

be sold to individuals after the land had been used and inhabited for a

certain number of years. Land was used primarily to provide sustenance to

the local population, rather than as a commodity that could be exchanged

or sold in a competitive market. Land boundaries were defined with

reference to terrestrial landmarks or the adjoining property, and because

these markers were often difficult to locate, Spanish and Mexican land

records sometimes lacked the geographic precision of the U.S. system.

As noted above, over a 50-year period starting in 1854, Congress directed

implementation of the property protection provisions of the Treaty of

Guadalupe Hidalgo in New Mexico for community land grants through two

distinct and successive procedures. First, in the 1854 Act, Congress

established the Office of the Surveyor General of New Mexico within the

General Land Office of the Department of the Interior (Interior). The

Surveyor General was charged with investigating the land grant claims

and, through Interior, making recommendations to Congress for final

action. The 1854 Act directed the Surveyor General to base his conclusions

about the validity of land grant claims on the “laws, usages, and customs”

of Spain and México and on more detailed instructions to be issued by

Interior. These instructions, in turn, directed the Surveyor General to

recognize land grants “precisely as México would have done” and to

presume that the existence of a city, town, or village at the time of the

Treaty was clear evidence of a grant. The Surveyor General investigated

Results in Brief and

Principal Findings

Congress Directed

Implementation of the

Treaty of Guadalupe

Hidalgo’s Property

Provisions in New Mexico

through Two Successive

Procedures

Executive Summary

Page 7 GAO-04-59 Treaty of Guadalupe Hidalgo

claims under this process from 1854 to 1891, and Congress confirmed the

vast majority of grants recommended for confirmation before the Civil

War in the early 1860s. Congressional confirmation ceased during the war

and resumed thereafter in the mid-1860s, but stopped again in the early

1870s because of concern about allegations of fraud and corruption. These

concerns finally were addressed with the advent of a new Presidential

administration in 1885, which scrutinized the confirmation process and

appointed a new Surveyor General. The new Surveyor General

reconsidered and reversed some of his predecessor’s recommendations to

Congress, and a backlog of land grant claims developed.

After several attempts at reform, Congress ultimately revised the

confirmation process in 1891 with passage of the 1891 Act. The 1891 Act

established a new entity, the Court of Private Land Claims (CPLC), to

resolve both new and remaining claims for lands in New Mexico (and

certain other territories and states). In part to prevent the type of fraud

and corruption which had characterized some of the claims filed in New

Mexico and California, Congress directed the CPLC to apply stricter legal

criteria for approval of land grants than Congress had established for the

Surveyor General of New Mexico. Under the new criteria, the CPLC could

confirm only those grants that claimants could prove had been “lawfully

and regularly derived” under Spanish or Mexican law, and the presumption

that Interior had directed the Surveyor General to follow—to find in favor

of a grant based on the previous existence of a city, town, or village—was

eliminated. Either the claimant or the U.S. government could appeal the

CPLC’s decisions directly to the U.S. Supreme Court, which could review

claims de novo, that is, without giving a presumption of correctness to the

CPLC’s rulings. Like the CPLC, however, the Supreme Court was bound by

the same legal criteria in determining whether a grant should be

confirmed: title to the land must have been “lawfully and regularly

derived” under Spanish or Mexican law. The CPLC adjudicated land grant

claims from 1891 through 1904. Thus over the 50-year history of the two

successive statutory land grant confirmation processes in New Mexico, the

legal standards and procedures applied in determining whether a

community land grant should be confirmed became more rigorous.

In discussing the results of these two confirmation procedures in New

Mexico, land grant scholars often have reported that only 24 percent of the

acreage claimed in New Mexico was awarded, for both community and

individual grants, in contrast to the percentage of acreage awarded in

California of 73 percent. In our judgment, the percentage of claimed

acreage that was awarded for New Mexico grants was actually 55 percent,

because the acreage that can fairly be viewed as having been claimed is

Executive Summary

Page 8 GAO-04-59 Treaty of Guadalupe Hidalgo

considerably smaller than that cited by land grant scholars, with the result

that a larger proportion of acreage was actually awarded. For example,

scholars include as grant lands claimed in New Mexico acreage that was

located outside of New Mexico, acreage that was covered by claims that

were withdrawn or never pursued, and acreage that was “double-counted.”

We believe the acreage attributable to these factors should be excluded

from a fair assessment of the confirmation process results.

The claims that were filed and pursued for the 154 community land grants

located in present-day New Mexico during this 50-year period

encompassed 9.38 million acres of land. The majority of these land

grants—105 grants, or over 68 percent—were confirmed, and the majority

of acreage claimed under these confirmed grants—5.96 million acres, or

63.5 percent—were ultimately awarded, although a significant amount

(3.42 million acres, or 36.5 percent) were not awarded and became part of

the U.S. public domain available for settlement by the general population.

Some of the confirmed grants were awarded less acreage than claimed,

and grants that were wholly rejected were awarded no acreage at all. Land

grant heirs and scholars commonly refer to acreage that was not awarded

during the confirmation process as “lost” acreage, and thus it is said that

community land grants “lost” 3.42 million acres during the confirmation

process. The circumstances surrounding this perceived loss have been a

concern of land grant heirs for more than a century.

A number of land grant heirs, legal scholars, and other experts have

charged that activities under the two federal statutory New Mexico

community land grant confirmation procedures did not fulfill the United

States’ legal obligations under the Treaty’s property protection provisions.

With respect to grants that were confirmed, heirs and others have voiced

concern about whether the full amount of acreage that they believe should

have been awarded was in fact awarded, as well as whether the acreage

awarded was confirmed and patented to the rightful owners. With respect

to grants that were rejected, the heirs’ principal concern is that no acreage

was awarded at all. Published studies have identified three core reasons

for rejection of claims for New Mexico land grants, all involving decisions

by the CPLC or, on appeal, the U.S. Supreme Court: (1) that under the

Supreme Court’s decision in the United States v. Sandoval case, the

courts confirmed grants but restricted them to their so-called “individual

allotments,” that is, to acreage actually occupied by the claimants; (2) that

under the Supreme Court’s decisions in the United States v. Cambuston

and United States v. Vigil cases, the courts rejected grants because they

had been made by unauthorized officials; and (3) that under the Supreme

Heirs and Others Are

Concerned That the United

States Did Not Properly

Protect Land Grants during

the Confirmation Process,

but the Process Complied

with All U.S. Laws

Executive Summary

Page 9 GAO-04-59 Treaty of Guadalupe Hidalgo

Court’s decision in the Hayes v. United States case, the courts rejected

grants because they were supported solely by copies of documents that

had been made by unauthorized officials. These three reasons resulted in

rejection of claims for approximately 1.3 million acres of land in 17

different grants. If Congress had established less stringent standards in the

1891 Act for the CPLC to apply in evaluating claims for the New Mexico

community land grants, such as those it established for the California

Commission under the 1851 Act or the Surveyor General of New Mexico

under the 1854 Act, these results might have been different. Congress had

discretion in how it implemented the Treaty provisions, however, so long

as it did so within constitutional and other U.S. legal limitations (which it

did, as discussed below). Thus the fact that Congress established different

standards for grant confirmation at different times did not indicate any

legal violation or shortcoming.

In addition to these concerns by heirs about how specific claims were

adjudicated, some heirs and legal scholars have contended that there were

two more general problems underlying the Surveyor General and CPLC

processes. First, with respect to the Surveyor General procedures, heirs

and scholars contend that they did not meet the “fairness” requirements of

due process of law under the U.S. Constitution. We found that the

procedures did, in fact, meet constitutional due process requirements, as

the courts at that time defined them and even under today’s standards. All

potential land grant claimants were provided with the requisite notice of

the establishment of the Office of the Surveyor General and the

requirement to submit claims for any land grant for which they sought

government (congressional) confirmation. Persons who filed claims with

the Surveyor General were then given the requisite opportunity to be

heard in defense of their claimed land grants. Even persons who disputed

claims that had been filed with the Surveyor General based on their

allegedly superior Spanish or Mexican title, but who did not themselves

file a claim, had opportunity to be heard, both during the Surveyor General

process and thereafter—including to the present day. Second, with respect

to the CPLC process, heirs and scholars assert that it did not appropriately

consider principles of equity, particularly in comparison with the Surveyor

General process, but instead applied standards that were overly technical

and “legal.” We found that the CPLC did apply more stringent standards in

deciding whether to approve community land grants than the Surveyor

General had, but that these differences were the result of differences in

the authority and mandates that Congress established for the two entities.

Under the 1854 Act, the Surveyor General was directed to look to the

“laws, usages, and customs of Spain and México” in recommending a grant

for Congress’ confirmation, while under the 1891 Act, the CPLC was

Executive Summary

Page 10 GAO-04-59 Treaty of Guadalupe Hidalgo

directed to confirm only those grants that had been “lawfully and regularly

derived” under the laws of Spain, México, or any of the Mexican states. As

the U.S. Supreme Court explained in the United States v. Sandoval case,

the CPLC—and the Supreme Court in reviewing the CPLC’s decisions—

was required as a matter of U.S. law to act within the boundaries that

Congress had established in deciding whether to confirm grants under the

1891 Act. Because the 1891 Act directed the CPLC to apply more stringent

standards than the 1854 Act had established for the Surveyor General, the

Court explained in Sandoval, claimants had to look to “the political

department” of the U.S. government—the Congress—to address any

remaining concerns about consideration of “equitable rights.” Whether the

1891 Act appropriately considered equitable rights was a policy judgment

for the Congress in 1891, and it remains so today.

Finally, some scholars and legal commentators have raised questions

about whether the statutory confirmation procedures that Congress

established for New Mexico grants fulfilled the United States’ obligations

under the Treaty and international law. They contend that the substantive

requirements of the statutes—the standards that Congress set for

determining when a grant would be confirmed—were inconsistent with

the terms of the Treaty and international law, and thus even if the United

States carried out the statutory requirements, these allegedly did not

satisfy all of the government’s obligations. Under established U.S. law,

however, as articulated by the U.S. Supreme Court in the Botiller v.

Dominguez case and other decisions, courts are required to comply with

the terms of federal statutes that implement a treaty such as the Treaty of

Guadalupe Hidalgo that is not self-executing. (A treaty is not self-

executing if it requires implementing legislation before becoming

effective.) If an implementing statute conflicts with the terms of the treaty,

this conflict can be addressed only as a matter of international law or by

enactment of additional legislation. In the case of the Treaty of Guadalupe

Hidalgo, the evidence indicates that the substantive requirements of the

implementing statutes were, in fact, carried out, through the Surveyor

General of New Mexico and the CPLC procedures. Thus any conflict

between the Treaty and the 1854 or 1891 Acts—which we do not suggest

exists—would have to be resolved today as a matter of international law

between the United States and México or by additional congressional

action. As agreed, we do not express an opinion on whether the United

States fulfilled its Treaty obligations as a matter of international law. By

contrast, any concerns about the specific procedures that Congress, the

Surveyor General, or the CPLC adopted cannot be addressed under the

Treaty or international law, but only under U.S. legal requirements such as

Executive Summary

Page 11 GAO-04-59 Treaty of Guadalupe Hidalgo

the Constitution’s procedural due process requirements, and as noted, we

conclude that these requirements were satisfied.

Notwithstanding the compliance of the two New Mexico confirmation

procedures with these statutory and constitutional requirements, we found

that the processes were inefficient and created hardships for many

grantees. For example, as the New Mexico Surveyors General themselves

reported during the first 20 years of their work, they lacked the legal,

language, and analytical skills and financial resources to review grant

claims in the most effective and efficient manner. Moreover, delays in

Surveyor General reviews and subsequent congressional confirmations

meant that some claims had to be presented multiple times to different

entities under different legal standards. The claims process also could be

burdensome after a grant was confirmed but before specific acreage was

awarded, because of the imprecision and cost of having the lands

surveyed—a cost that grantees had to bear for a number of years. For

policy or other reasons, therefore, Congress may wish to consider whether

some further action may be warranted to address remaining concerns.

Some land grant heirs and advocates of land grant reform have expressed

concern that the United States failed to ensure continued community

ownership of common lands after the lands were awarded during the

confirmation process. They contend that the Treaty of Guadalupe Hidalgo

imposed a duty on the United States to ensure that these lands were not

subsequently lost through other means, either voluntarily or involuntarily,

and that because the United States did not take such protective action, the

United States breached this alleged “fiduciary” duty. (A fiduciary duty is a

duty to act with the highest degree of loyalty and in the best interest of

another party.) Land grant acreage has been lost, for example, by heirs’

voluntary transfers of land to third parties, by contingency fee agreements

between heirs and their attorneys, by partitioning suits that have divided

up community land grants into individual parcels, and by tax foreclosures.

Some land grant heirs also contend that the Treaty specifically exempts

their confirmed grant lands from taxation. These issues have great

practical importance to claimants, because it appears that virtually all of

the 5.3 million acres in New Mexico that were confirmed to the 84 non-

Pueblo Indian community grants has since been lost by transfer from the

original community grantees to other entities. This means claimants have

lost substantially more acreage after the confirmation process—almost all

of the 5.3 million acres that they were awarded—than they believe they

lost during the confirmation process—the 3.4 million acres they believe

they should have been awarded but were not.

Heirs and Others Are

Concerned that the United

States Did Not Protect

Community Land Grants

after the Confirmation

Process, but the United

States Was Not Obligated

to Protect Non-Pueblo

Indian Land Grants after

Confirmation

Executive Summary

Page 12 GAO-04-59 Treaty of Guadalupe Hidalgo

We conclude that under established principles of federal, state, and local

law, the Treaty did not create a fiduciary relationship between the United

States and non-Pueblo community grantees in which the United States was

required to ensure the grantees’ continued ownership of confirmed lands,

nor did it exempt lands confirmed to these grantees from state or local

property requirements, including, but not limited to, tax liabilities. The

United States does have a fiduciary relationship with the Indian Pueblos in

New Mexico and it protects community lands that the Pueblos obtained

under Spanish land grants. But this relationship is the result of specific

legislation, bringing the Pueblos under the same general protections

afforded to other Indian tribes, rather than the result of obligations

created under the Treaty. Thus the U.S. did not violate any fiduciary duty

to non-Pueblo community grantees.

As detailed in this report, grantees and their heirs have expressed concern

for more than a century—particularly since the end of the New Mexico

land grant confirmation process in the early 1900s—that the United States

did not address community land grant claims in a fair and equitable

manner. As part of our report, we were asked to outline possible options

that Congress may wish to consider in response to remaining concerns.

The possible options we have identified are based in part on our

conclusion that there does not appear to be a specific legal basis for relief,

because the Treaty was implemented in compliance with all applicable

U.S. legal requirements. Nonetheless, Congress may determine that there

are compelling policy or other reasons for taking additional action. For

example, Congress may disagree with the Supreme Court’s Sandoval

decision and determine that it should be “legislatively overruled,”

addressing grants adversely affected by that decision or taking other

action. Congress, in its judgment, also may find that other aspects of the

New Mexico confirmation process, such as the inefficiency and hardship it

caused for many grantees, provide a sufficient basis to support further

steps on behalf of claimants. Based on all of these factors, we have

identified a range of five possible options that Congress may wish to

consider, ranging from taking no additional action at this time to making

payment to claimants’ heirs or other entities or transferring federal land to

communities. We do not express an opinion as to which, if any, of these

options might be preferable, and Congress may wish to consider additional

options beyond those offered here. The last four options are not

necessarily mutually exclusive and could be used in some combination.

The five possible options are:

Concluding Observations

and Possible

Congressional Options in

Response to Remaining

Community Land Grant

Concerns

Executive Summary

Page 13 GAO-04-59 Treaty of Guadalupe Hidalgo

Option 1: Consider taking no additional action at this time because the

majority of community land grants were confirmed, the majority of

acreage claimed was awarded, and the confirmation processes were

conducted in accordance with U.S. law.

Option 2: Consider acknowledging that the land grant confirmation

process could have been more efficient and less burdensome and imposed

fewer hardships on claimants.

Option 3: Consider establishing a commission or other body to reexamine

specific community land grant claims that were rejected or not confirmed

for the full acreage claimed.

Option 4: Consider transferring federal land to communities that did not

receive all of the acreage originally claimed for their community land

grants.

Option 5: Consider making financial payments to claimants’ heirs or other

entities for the non-use of land originally claimed but not awarded.

As agreed, in the course of our discussions with land grant descendants in

New Mexico, we solicited their views on how they would prefer to have

their concerns addressed. Most indicated that they would prefer to have a

combination of the final two options—transfer of land and financial

payment.

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 14 GAO-04-59 Treaty of Guadalupe Hidalgo

From the late 1600s until 1846, Spain, and later México, made a total of 295

grants of land within what today are the boundaries of New Mexico. These

grants were made to individuals, groups, and towns in order to promote

development in the frontier lands that now constitute the American

Southwest. Of these 295 grants, 141 were made to individuals, and the

remaining 154 were made to communities, including 23 grants made by

Spain to indigenous Indian pueblos (villages) in recognition of the

communal lands that the Pueblo people had held and used long before the

Spanish settlers arrived. The principal difference between a community

land grant and an individual grant was that the common lands of a

community land grant were held in perpetuity and could not be sold. Both

types of land grants fulfilled several purposes: they encouraged settlement,

rewarded patrons of the Spanish government, and created a buffer zone

between Indian tribes and the more populated regions.

As Spain and later México encouraged settlement along the northern

frontier, England established colonies that began at the Atlantic Coast and

extended westward. The United States, after establishing a federal

government in 1789, steadily acquired land and promoted expansion south

to Florida, west to California, and north to Oregon. The relative ease with

which the United States acquired the Louisiana Purchase (by 1803 treaty

with France) and Florida territories (by 1819 treaty with Spain), among

other areas, propelled U.S. acquisition of land and westward expansion. In

1845, when Texas achieved statehood as the nation’s 28th state, U.S.

territorial interests, including plans to expand settlement to the Pacific

Ocean, collided with México’s territorial interests. The Mexican-American

War broke out shortly thereafter, over the location of the boundary

between Texas and México, culminating a 9-year dispute. Eventually, U.S.

troops occupied Santa Fe, proclaimed the annexation of New Mexico, and

established U.S. government control over the territory. In 1847, U.S. troops

occupied Mexico City, and México soon surrendered. The war officially

ended with the 1848 ratification of the Treaty of Peace, Friendship, Limits,

and Settlement, commonly referred to as the Treaty of Guadalupe Hidalgo.

The Treaty of Guadalupe Hidalgo forever altered the political landscape of

the North American continent. Among the Treaty’s provisions was

México’s cession to the United States, for $15 million, of vast territories in

the southwest from California to Texas. The United States also agreed

under the Treaty to recognize and protect Mexicans’ ownership of

property within the ceded territory and to admit Mexican citizens living in

the ceded territory as U.S. citizens if they wished.

Chapter 1: Introduction—Historical

Background and the Current Controversy

Overview

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 15 GAO-04-59 Treaty of Guadalupe Hidalgo

Today, 300 years after the first Spanish land grants were made in New

Mexico and 150 years after the signing of the Treaty of Guadalupe Hidalgo,

conflicts persist over New Mexico community land grants. Many heirs of

those who claimed to own community lands at the time the Treaty was

ratified assert that the United States did not fulfill its treaty obligations.

The effect of this alleged failure, heirs contend, is that the United States

either inappropriately acquired millions of acres of land for the public

domain or else confirmed acreage to the incorrect parties. To assist the

Congress in deciding whether any additional measures may be appropriate

in response to these continuing concerns, and if so, what measures

Congress may wish to consider, GAO was asked to study a number of

issues. The results of this study are set forth in our first report on these

issues in September 2001, and in this second and final report.

The arrival of Columbus on the North American continent in 1492 heralded

the beginning of a Spanish campaign of exploration, conquest, and

settlement. In 1513, Ponce de Leon led an expedition into Florida. Six

years later, Hernando Cortés conquered the Aztec empire in central

México. To help govern his rapidly expanding colonial empire, the King of

Spain established a Council of the Indies in 1524, creating the vice-royalty

of New Spain, and later the vice-royalties of Peru, Buenos Aires, and New

Granada, and appointed a viceroy to govern each region. The viceroy of

New Spain governed from the new capital city of Mexico City and

appointed a general commander to govern locally in each of the vice-

royalty’s 10 provinces, including New Mexico and California. Initially, the

laws governing the empire came from Spain’s Las Siete Partidas. A

revised compendium of laws—known as the Nueva Recopilación de Las

Leyes de España—replaced them in 1567, with another compendium

following in 1680—the Recopilación de las Leyes de los Reynos de las

Indias—and another in 1805—the Novissima Recopilación de las Leyes

de España.

Spanish exploration of New Mexico and the greater southwest began in

earnest with the 1540 expedition of Francisco Vasquez de Coronado,

whose search for gold and silver led to encounters with native tribes of the

region. Coronado encountered Indian tribes who lived in villages, or

pueblos (as referred to by the Spanish explorers), which had been

occupied for centuries. (The term pueblo was also used to refer to the

Indians living in these communities; these persons were referred to as

Pueblo Indians or Pueblos.) The pueblo settlements were long-established

communal villages that were sustained by an agrarian economy.

New Mexico during

the Spanish Period,

1598-1821

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 16 GAO-04-59 Treaty of Guadalupe Hidalgo

Significant Spanish settlement in New Mexico began in 1598 with the

arrival of an expedition led by Juan De Oñate. Oñate came as New

Mexico’s first provincial governor, and his office assumed all civil and

military authority in New Mexico. The governor had authority to do all that

was necessary to assure the proper functioning of the provincial

government, including supervising the founding of settlements and

maintaining the official files of documents that later formed the archives

of Santa Fe. Historically, the files of colonial governors and those of the

cabildo (the provincial council) became the central repository for all

official documents, including the registration of land titles and

conveyances. In 1609, Santa Fe became the provincial capital.

From 1610 to 1680, many settlers and others, such as Franciscan

missionaries, migrated to New Mexico. The settlers came to farm and raise

livestock, and they established towns and small communities. The

missionaries came to convert the Indians living in the province, and they

founded missions to teach the Indians Christianity and the Spanish culture

and language. In an effort to encourage Spanish settlement and collect

tribute, Spain awarded an encomienda to deserving subjects. Under the

encomienda system, a Spanish settler obtained the right to collect an

annual tribute from each head of family. The encomendero was obligated

to defend the province, give religious instruction to the natives, and

collect tribute from them.

The encomienda system, which relied on the labor and conversion of the

Indians, bred deep resentment. The Pueblo people soon developed a

common hatred for the encomienda and the suppression of Pueblo

religious practices by missionaries. In 1680, the Pueblos revolted and

within 11 days, all Spaniards living in New Mexico had fled to the El Paso

area. The Spaniards finally returned to New Mexico in 1693, and found

that part of the official archives—which had served as the central

repository of land grant documentation, along with privately held

documents that had not been taken by the Spaniards in the evacuation of

Santa Fe—had been among the revolt’s casualties. As a result, a good part

of the official documentation regarding ownership of land within New

Mexico at that time was lost.

A decree of 1684 appointing Don Domingo Jironza Petriz de Cruzate as

Governor and Captain General of New Mexico specifically authorized the

issuance of land grants in New Mexico. As in other provinces, Governor

Cruzate was assisted by alcaldes mayores, or mayors, who served multiple

functions, including investigating new petitions for land grants and placing

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 17 GAO-04-59 Treaty of Guadalupe Hidalgo

grantees in possession. Alcaldes also served as justices of the peace,

probate judges, sheriffs, tax collectors, and captains of the militia.

From the late 1600s until 1821, Spain made land grants to individuals,

groups, towns, and pueblos. These grants served several purposes: to

encourage settlement and colonial industries, to reward patrons of the

Spanish government, and to create a buffer zone between hostile Indian

tribes and more populated regions. Grants that were awarded to towns

and other group settlements in New Mexico were modeled on similar

communities created in Spain. In Spain, the King typically granted lands

adjacent to small towns to the community, for common use by all town

residents. Each settler received, in addition to use of common lands,

private lots for a home and farming and stock raising. Although neither

Spanish law nor Spanish land grant documents used the term “community

land grant,” many grants referred to lands set aside for general communal

use or for specific communal purposes such as hunting, grazing, wood

gathering, and watering. As a result, scholars, the land grant literature, and

popular terminology have commonly used the phrase “community land

grants” to denote grants that set aside common lands for the use of the

entire community, and we have adopted this term for our reports. The

principal difference between a community land grant and an individual

grant was that the common lands of a community land grant were held in

perpetuity and could not be sold or otherwise alienated, while an

individual grant could be transferred. Spain also declared itself guardian of

the pueblo communities, issuing grants to these settlements in recognition

of their communal nature. The Pueblo of San Felipe, shown in figure 1, is

an example of a pueblo community that was awarded such a land grant.

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 18 GAO-04-59 Treaty of Guadalupe Hidalgo

Figure 1: San Felipe Pueblo, New Mexico, c. 1880

The procedure for obtaining a grant of land from the New Mexico

provincial governor typically involved several steps. First, prospective

landowners submitted a written petition to the governor describing the

requested area and asserting that it was vacant. The governor then, usually

writing in the margin of the petition itself, directed the alcalde mayor with

jurisdiction over the land to develop a sketch map of the proposed grant

area, noting the distance from neighboring settlements or pueblos and

reporting on whether there were other parties making claims adverse to

the petition. Depending on the information provided by the petitioner and

the alcalde mayor, a title of possession would be prepared by the

governor and delivered by the alcalde mayor to the petitioner. The alcalde

mayor then submitted a second report of these proceedings, called “the

juridical act,” to document the delivery of possession. After 4 years of

continuous possession by the petitioner, the grant became final. The

petition, alcalde mayor reports, title of possession, and grant were then

assembled into a single official package called the expediente. The

expediente for a community land grant was rarely complete because many

Source: Photo

h b

John K. Hillers, courtes

Museum of New Mexico, Ne

ative No. 16094.

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 19 GAO-04-59 Treaty of Guadalupe Hidalgo

claimants preferred to keep records in their private possession. In

addition, many original grant records were simply lost.

In 1821, México (including the province of New Mexico) secured its

independence from Spain with the signing of the Treaty of Cordova.

Augustine Iturbide was subsequently elected Emperor of México and a

national council was established, although a revolution ousted Iturbide

after a year. The first 25 years of Mexican sovereignty were riddled with

instability and frequent changes in political leaders, organization, and

laws. Only one Mexican president served a full term in office during this

period. The changes in governments generally brought with them changes

in laws; for example, each government typically repealed and nullified the

laws of its predecessors. Thus, although the Treaty of Cordova had initially

adopted existing Spanish law for the Mexican nation, the legal

requirements changed repeatedly.

This continually changing legal regime made it difficult to ascertain which

official was authorized to make land grants at any given time. A 1681

Spanish law had given such authority only to the provincial governor, but

in 1813, Spanish law extended grant-issuing authority to a provincial

diputación (legislative body). In 1823, the Mexican Colonization Law of

Iturbide authorized ayuntamientos (town councils) to grant lands, but

regulations issued in 1828 to implement an 1824 Mexican Colonization

Law returned all grant-making authority to the governor.

Later, the

Mexican government passed still more legislation concerning land grants.

The enactment of these various laws also created uncertainties about

whether earlier laws had been repealed. As the U.S. Supreme Court later

described this situation in Ely’s Administrator v. United States, 171 U.S.

220, 223 (1898):

Few cases presented to this court are more perplexing that those involving

Mexican grants. The changes in the governing power as well as in the form of

government were so frequent, there is so much indefiniteness and lack of

precision in the language of the statutes and ordinances, and the modes of

procedure were in so many respects different from those to which we are

accustomed, that it is quite difficult to determine whether an alleged grant was

made by officers who, at the time, were authorized to act for the government, and

The Mexican government also entered into agreements with empresarios, who contracted

to provide settlers with tracks of land.

New Mexico during

the Mexican Period,

1821-1848

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 20 GAO-04-59 Treaty of Guadalupe Hidalgo

was consummated according to the forms of procedure then recognized as

essential.

Meanwhile, in the early 1800s, pioneers from the United States had begun

arriving in New Mexico. In 1807, a U.S. expedition led by Lieutenant

Zebulon M. Pike was intercepted by Spanish troops, arrested, and escorted

south to Chihuahua, México. Pike and his men were released near San

Antonio, Texas. By the 1820s, commerce had developed along the Santa Fe

Trail, extending from Independence, Missouri, west to Santa Fe. In New

Mexico, officials issued land grants to individuals and communities in an

effort to accommodate the expanding population. For example, in 1835,

México issued a community grant to the Town of Las Vegas. (See figure 2.)

México identified the Governor of New Mexico as the political chief, and

the territorial diputación (later the asamblea departmental) served as the

governor’s collective principal advisor. Larger towns in New Mexico had

ayuntamientos. In 1837, the prefectura (jurisdiction) system, in which a

prefect administered a geographical area and reported directly to the

governor, subsumed the ayuntamientos system of administration. As of

1844, New Mexico had three prefecturas: Rio Arriba in the north, Santa Fe

in central New Mexico, and Rio Abajo in the south.

Figure 2: Town of Las Vegas, New Mexico, c.1890

Source: Photograph by F. E. Evans, courtesy Museum of New Mexico, Negative No. 50798.

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 21 GAO-04-59 Treaty of Guadalupe Hidalgo

All told, from the end of the 17th century to the mid-19th century, Spain

and México made a total of 295 land grants—141 grants to individuals and

154 grants to communities, including 23 grants to Indian pueblos. The

Indian pueblos and most of the land grants were located in northern New

Mexico. The community land grants usually contained sufficient land and

water resources to facilitate settlement and establish communities. The

pueblo grants allowed the settled Indian tribes to continue to sustain their

communities through agriculture and animal husbandry, both of which

required land. México continued to recognize the communal nature of

Pueblo settlements of land and considered the residents to be Mexican

citizens. Water being an important commodity in an otherwise arid

landscape, most pueblo communities had been founded along the Rio

Grande and its tributaries.

After the establishment of the U.S. government in 1789, the United States

steadily acquired land and promoted settlement and expansion south to

Florida and west to California. The relative ease with which the United

States acquired the Louisiana Purchase and Florida territories, among

other areas, helped to propel additional U.S. land acquisition, settlement,

and expansion farther west. In 1845, John L. O’Sullivan, editor of United

States Magazine and Democratic Review, coined the phrase “manifest

destiny” to describe what had become a national movement to promote

expansion and “civilize” persons encountered along the way. In the years

since, some land grant heirs have contended that this Manifest Destiny

ideology contributed to a form of racism and arrogance detrimental to

Mexicans living in the New Mexico territory. According to O’Sullivan, the

claim to new territory was:

by the right of [America’s] manifest destiny to overspread and to possess the

whole of the continent which Providence has given us for the development of the

great experiment of liberty and federative self-government entrusted to us. It is a

right such as that of the tree to the space of air and earth suitable for the full

expansion of its principle and destiny of growth.

O’Sullivan called on Americans to resist any foreign power that attempted

to thwart “the fulfillment of our manifest destiny to overspread the

continent allotted by Providence for the free development of our yearly

multiplying millions.” O’Sullivan further argued that such providential

Alan Brinkley, American History: A Survey (McGraw Hill College, 10th ed. 1999), p. 430.

The United States’

Westward Expansion

and Manifest Destiny

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 22 GAO-04-59 Treaty of Guadalupe Hidalgo

favor gave Americans the right to bring the benefits of democracy to what

he considered more backward peoples, meaning Mexicans and Indians,

and if necessary, to do so by force.

Americans initially set their sights on establishing just a two-ocean

boundary. By 1900, however, U.S. territorial expansion had spread beyond

North American borders to non-contiguous areas, such as Alaska, Hawaii,

the Philippines and Puerto Rico. While most U.S. citizens celebrated their

self-proclaimed manifest destiny, Indian tribes, Mexicans, and Europeans

with claims in the Western Hemisphere did not. For them, the

overwhelming public support for expansion could only be interpreted as a

promise of conflict. Historians have surmised that a growing concern

about the future of the U.S. economy might have been behind the manifest

destiny ideology. In that vein, economic uncertainties may have led

politicians to assert that a new direction was needed and that the nation’s

prosperity depended on a vast expansion of trade with Asia. Figure 3

depicts the expansion of the United States as it acquired land from France,

England, and Spain.

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 23 GAO-04-59 Treaty of Guadalupe Hidalgo

Figure 3: Generalized Depiction of U.S. Expansion

Alaska Purchase, 1867

Hawaii

Annexed 1898

Gadsden Purchase, 1853

Treaty with Spain, 1819

British Cession, 1818

Disputed Area

Republic of Texas

Annexed 1845

Source: U.S. Geolo

ical Surve

Original 13 States and

their Territorial Claims, 1783

Louisiana Purchase, 1803

Mexican Cession, 1848

Oregon Compromise 1846

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 24 GAO-04-59 Treaty of Guadalupe Hidalgo

Persistent disputes between the Mexican and U.S. governments over the

Texas boundary led to deterioration of the nations’ relationship. Spain had

laid claim to Texas in 1519 with the expedition of Alonso Alvarez de

Pineda, and in 1690, established it as a separate Spanish province with

undefined boundaries. When México gained its independence from Spain

in 1821, there were several Spanish settlements in Texas including Laredo,

Nacogdoches, La Bahia, and San Antonio. Meanwhile, in 1820, Moses

Austin, and later his son Stephen Austin, had petitioned Spain for

permission to found and promote a colony in Texas. Spain approved the

petition, and the colony proved to be successful and prosperous. In 1824,

México combined Texas and Coahuila as a new department and, under its

new colonization laws that offered liberal land grants, invited more

immigrants to Texas. The influx of immigrants increased the population of

Texas from 3,000 in 1821 to over 38,000 in 1836.

Concerned by the growth of an immigrant population, in 1830, México

barred further immigration from the United States. In 1835, Mexican

General Antonio Lopez de Santa Anna established himself as dictator of

México. After México refused to grant Texans’ request for independence

and made efforts to reduce the size of the Texas militia, a convention of

Texas delegates declared independence from Mexican control. Santa Anna

responded with armed intervention. Texans suffered an initial defeat at the

Alamo, but won decisively at the battle of San Jacinto. In 1836, the

Republic of Texas claimed independence from México, and in 1845,

Congress passed a resolution inviting Texas to join the Union as a state.

On December 29, 1845, Texas became the 28th state. Figure 4 shows the

area claimed by both the Republic of Texas and México at the time Texas

became a state.

Texas Independence

and Statehood and the

Resulting Boundary

Disputes between the

United States and

México

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 25 GAO-04-59 Treaty of Guadalupe Hidalgo

Figure 4: U.S. Land Acquisitions from México, 1845-1853

The beginnings of the Mexican-American War occurred on April 5, 1846,

when U.S. General Zachary Taylor was ordered to occupy the area in

dispute between Texas and México. President James K. Polk believed that

the disputed area belonged to the United States, and on May 13, 1846, he

declared that a state of war existed between the two countries. Brigadier

General Stephen Watts Kearny led the U.S. Army of the West out of Fort

Leavenworth, Kansas, for the conquest of New Mexico and California. In

August 1846, as General Kearny’s troops arrived in Santa Fe, the Acting

The Mexican-

American War

Source: U.S. Geological Survey.

Mexican Cession, 1848

Disputed area: Claimed by Republic of Texas 1836-45; claimed by U.S. 1845-48

Republic of Texas, 1836-45: annexed by U.S. 1845

Gadsden Purchase, 1853

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 26 GAO-04-59 Treaty of Guadalupe Hidalgo

Governor of New Mexico, Juan Bautista Vigil y Alarid, officially

surrendered New Mexico to the United States.

In September 1846, General Kearny issued a collection of laws, known as

the “Kearny Code,” to govern the territory of New Mexico under military

rule. At the same time, General Kearny issued a “Bill of Rights,” modeled

closely on the protections contained in the U.S. Constitution. Based partly

on the laws of México, Texas, and Missouri, the Kearny Code provided for

the establishment of a government led by an appointed governor and

supported by a court system, which included the appointment of alcaldes

to resolve minor legal matters. The Kearny Code also established the

Office of Registrar of Lands to record all papers and documents in the new

territory “concerning lands and tenements” issued by the Spanish and

Mexican governments and located in the archives of the former Mexican

government in Santa Fe. Any person claiming lands in New Mexico under

a Spanish or Mexican land grant could file a notice with the Registrar,

stating the nature and extent of the claim and including the grant to be

recorded, the deed of conveyance, an order of survey, or other written

evidence of the claim. The claimant could provide any official authorized

to administer oaths with evidence indicating the nature and extent of the

claim; how much land had been planted and inhabited; the chain of title;

and whether a grant document still existed and, if not, why or how it had

been lost or destroyed. If a claimant failed to provide written evidence of

the claim or statement under oath within 5 years from January 1, 1847,

such claim would be void. As discussed below, Congress enacted other

legislation starting in the 1850s that superseded the Kearny Code.

Meanwhile, shortly after war broke out in 1846, the military had moved

into California. On January 10, 1847, General Kearny and Commodore

Robert E. Stockton captured Los Angeles. In 1848, the discovery of gold in

California precipitated one of the largest and most unforeseen population

shifts in history. Hundreds of thousands of people from all over the world

poured into California, laying claim to lands already occupied by

Mexicans. Overwhelmed, U.S. military governors in California took steps

to protect Mexican ownership of land until the establishment of a U.S.

tribunal to confirm land titles. In the interim, claimants were advised to

have their lands surveyed by a qualified surveyor.

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 27 GAO-04-59 Treaty of Guadalupe Hidalgo

In August 1847, after the U.S. Army occupied Mexico City, Mexican

General Santa Anna agreed to enter into negotiations for a peace treaty.

President Polk appointed Nicholas P. Trist to negotiate the treaty with

México, and provided him with specific instructions and a copy of a

proposed treaty. Then, as now, international law generally required a

successor sovereign to recognize the property rights of a former

sovereign’s citizens to the same extent provided under the laws and

practices of the prior sovereign.

The proposed treaty between Mexico and

the United States contained no provision explicitly addressing the

recognition of Spanish and Mexican land grants, but Trist’s instructions

specified that if the subject of grants was raised during negotiations, a

clause modeled on the 1803 treaty between the U.S. and France governing

the Louisiana Purchase could be included. Article III of that treaty

provided that the “inhabitants of the acquired territory shall be

incorporated into the United States and admitted as soon as possible,

according to the federal Constitution, to the enjoyment of all the rights,

advantages, and immunities of American citizens. In the meantime, they

shall be maintained and protected in their liberty, property and religion.”

The Mexican government was concerned that the proposed U.S. treaty did

not provide sufficient protection for the property and other rights of its

citizens who now resided in American territory. The instructions given to

the Mexican negotiators directed them to seek various protections for

these interests, specifically, achievement of statehood or territorial status

for the area being transferred; preservation of property and other rights of

Mexicans who became U.S. citizens and continued to reside in the

acquired lands, as well as the rights of Mexicans residing outside such

lands; immediate U.S. citizenship for inhabitants of the acquired lands;

recognition of the validity and effect of land concessions; and protection

of the property of the Catholic Church and maintenance of relations

between Catholics residing in the United States and their ecclesiastic

authorities in México.

Trist’s initial efforts to negotiate a treaty were unsuccessful, and President

Polk recalled him from México. Trist disobeyed the President’s order,

however, and over the next several months, he negotiated a draft treaty

that was based partly on a Mexican version that had contained many of the

See United States v. Percheman, 32 U.S. 51, 86-87 (1833); Restatement of the Law, Third,

Foreign Relations Law of the United States (1987) §§ 208-09.

Louisiana Purchase Treaty, Article III (emphasis added).

The Treaty of

Guadalupe Hidalgo

(1848)

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 28 GAO-04-59 Treaty of Guadalupe Hidalgo

aims of the Mexican negotiators. For example, Article VIII of Trist’s draft

protected the property of former Mexican citizens who chose to reside in

the new U.S. territory, allowing them to sell their property and leave the

territory without paying taxes on the proceeds. Article VIII also provided

protections for the property of Mexicans not residing in the territory and

gave persons remaining in the territory a year in which to designate

whether they wished to become U.S. citizens or remain expatriated

Mexican citizens living in the United States. If no designation was made,

all Mexicans living within the ceded territory would automatically become

citizens of the United States.

Article IX of Trist’s draft treaty, similar to Article III of the Louisiana

Purchase Treaty, provided that persons who elected to become American

citizens under Article VIII would become citizens of the United States as

soon as possible and enjoy all of the rights and benefits of citizenship. In

the meantime, the draft stated, “their liberty, property, and civil rights shall

be maintained and protected.” Article X of Trist’s draft made specific

reference to Mexican land grants and stated that grants made by either the

Mexican government or other competent authorities would be respected

to the same extent as if the acquired territories had remained under

Mexican rule. In addition, grantees of lands in Texas who had not been

able to satisfy all of the conditions of their grants, because of the conflicts

between México and Texas, were to be provided additional time to fulfill

these conditions. A similar opportunity was provided with respect to

grants located in the other areas ceded to the United States under the

Treaty, including New Mexico and California. These two provisions

pertaining to incomplete grants were based on language in the United

States’ 1819 treaty with Spain for the purchase of Florida.

Although Trist exceeded his authority in continuing to negotiate with

México, President Polk accepted most of Trist’s draft as substantially

consistent with the original proposal that the President had given him.

President Polk did not accept Article X, however, which addressed

Mexican land grants, and he sent the treaty to the U.S. Senate for approval

Appendix I to this report discusses the confirmation processes that Congress established

regarding grants of land covered by the Louisiana Purchase Treaty and the 1819 U.S.-Spain

treaty, known as the Adams-Onis Treaty or the Transcontinental Treaty. Both treaties

served as possible models for the Treaty of Guadalupe Hidalgo.

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 29 GAO-04-59 Treaty of Guadalupe Hidalgo

with a recommendation that it reject Article X.

President Polk was

concerned about Article X because he believed it would reopen the

question of ownership of lands in Texas, which had been considered

settled once Texas became independent from México in 1836. The Senate,

which also believed Trist had exceeded his authority, approved Article

VIII, amended Article IX, and rejected Article X.

As approved, Article VIII provided, among other things, that:

In the said territories, property of every kind, now belonging to Mexicans not

established there, shall be inviolably respected. The present owners, the heirs of

these, and all Mexicans who may hereafter acquire said property by contract, shall

enjoy with respect to it guaranties equally ample as if the same belonged to

citizens of the United States.

Regarding Article IX, as specified in President Polk’s original negotiating

instructions, the Senate substituted a provision based on Article III of the

Louisiana Purchase Treaty and Articles V and VI of the Florida Purchase

Treaty. Amended Article IX assured that persons who did not preserve

their Mexican citizenship would, at the proper time—when the respective

territories were admitted as U.S. states—become citizens of the United

States and enjoy all of the rights of U.S. citizenship under the U.S.

Constitution. Until then, such persons would “be maintained and protected

in the free enjoyment of their liberty and property, and secured in the free

exercise of their religion without restriction.” Article IX also was modified

to make clear that it was Congress, rather than the President, that decided

when the inhabitants of a territory were to be made citizens of the United

States. For persons living in the New Mexico Territory, this interim status

would last 62 years, until New Mexico and Arizona achieved statehood in

Under Article II, Section 2, Clause 2 of the U.S. Constitution, the President is authorized to

negotiate treaties, the terms of which must then be approved by at least two-thirds of the

U.S. Senate. After Senate approval, the President, acting as the chief diplomat of the United

States, ratifies the treaty. The ratifications of the U.S. and other parties to the treaty are

then exchanged. See generally Restatement of the Law, Third, Foreign Relations Law of

the United States (1987) § 303. As discussed in chapter 3, in order for provisions of ratified

treaties to be given effect in the United States, they must either be “self-executing” or

implemented by an act (such as an act of Congress) having the effect of federal law.

Appendix II to this report contains Articles VIII and IX of the Treaty of Guadalupe Hidalgo

and Article X as negotiated by Mr. Trist but deleted before ratification. The complete

Treaty as approved by the U.S. Senate and ratified by the President and by Mexico is set

forth at 9 Stat. 922 (1848).

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 30 GAO-04-59 Treaty of Guadalupe Hidalgo

1912. Persons living in California were able to become U.S. citizens much

earlier, because California became a state in 1850.

With these revisions—and with provision, among other things, for

payment by the United States to México of $15 million and assumption by

the United States of over $3.2 million in claims against México

—the

Senate approved the Treaty, the President ratified it, and it was sent it

back to México for ratification.

Unsure whether México would ratify the

Treaty as amended, the United States sent two commissioners to México

to explain the revisions the United States had made. The commissioners

delivered an explanatory note to the Mexican foreign minister from U.S.

Secretary of State Buchanan; the note specifically addressed the language

in Article IX, which designated Congress as the branch of the U.S.

government that would decide when a territory would be incorporated

into the United States. The note stated that “it cannot be doubted” that

Congress “will always exercise the power as soon as the condition of the

inhabitants of any acquired territory may render it proper. . . Congress will

never lend a deaf ear to the people anxious to enjoy the privilege of self-

government. Their application to become a State of the Union will be

granted the moment it can be done safely.”

In explaining the deletion of

Article X, Secretary Buchanan stated that it would be unauthorized and

unjust for the United States to disturb the title to lands in Texas by

allowing unfulfilled grant conditions to be completed. Similarly, the

Secretary explained that it would be unfair to revive dead titles to land in

this manner in upper California and New Mexico. He stated that Articles

VIII and IX secured property of every kind belonging to Mexicans, whether

held under Mexican grants or otherwise.

Based on the recommendation of the Mexican president, both houses of

the Mexican Congress approved the Treaty as amended by the United

States. The U.S. commissioners then held conferences with their Mexican

See Treaty of Guadalupe Hidalgo, Art. XII; Christine Klein, Treaties of Conquest: Property

Rights, Indian Treaties, and the Treaty of Guadalupe Hidalgo, 26 N.M.L. Rev. 201, 208

(1996).

When the Senate approves a treaty on the basis of a particular understanding of its

meaning, the President, if he ratifies the treaty, must do so on the basis of the Senate’s

understanding. Restatement, Foreign Relations Law, footnote 7 above, § 314. In the case

of the Treaty of Guadalupe Hidalgo, the President agreed with the Senate’s changes and his

ratification reflected support for these changes.

See Letter from Secretary of State Buchanan to the Minister of Foreign Relations of the

Mexican Republic (Mar. 18, 1848).

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 31 GAO-04-59 Treaty of Guadalupe Hidalgo

counterparts to discuss the meaning of these amendments. At the

conferences, the Mexicans presented a draft protocol, known as the

Protocol of Querétaro, summarizing what they believed were the

explanations of the revisions.

The Mexican Minister of Foreign Affairs

stated that with these explanations, the Mexican government would

proceed to ratify the treaty as modified by the United States. Two of the

Protocol’s three provisions related to land grants. The first provision

explained the revisions to Article IX and the substitution of language

based on the Louisiana Purchase Treaty, and contained all of the privileges

and guarantees that the inhabitants of the ceded territories would have

enjoyed under Article IX as it had originally been drafted by Mr. Trist. The

second Protocol provision related to the striking of Article X by the United

States. The Protocol explained that this was not intended to annul land

grants and that Mexican grants preserve “the legal value which they may

possess and the grantees may cause their legitimate titles to be

acknowledged before the American tribunals.” Legitimate titles to every

kind of property in California and New Mexico, both real and personal

property, that were acquired prior to the commencement of the Mexican-

American War in 1846 were to be considered legitimate titles under

Mexican law, the Protocol stated.

When the Mexican Congress raised no objections to the Protocol, México’s

president proceeded to submit all of the instruments of ratification of the

Treaty, including the Protocol, to the U.S. commissioners. However, the

Protocol had not been included in the ratification documents submitted by

the United States to México (it had not yet been drafted), nor did

President Polk include the Protocol in the U.S. documents concerning

ratification when he sought funds from Congress to implement the Treaty.

Some members of Congress questioned the significance of the Protocol

and asked whether it modified the Treaty. The administration’s position

was that the Protocol was not part of the Treaty and that its contents in no

way modified the Treaty. México, on the other hand, considered the

Protocol to be an essential part of the Treaty and a principal reason that it

was ratified. In an exchange of notes between one of the U.S.

commissioners, Nathan Clifford, and México’s new ambassador to

Washington, Mr. Clifford set out three matters on which both countries, in

Mr. Clifford’s view, had agreed: (1) the Protocol was not an addition to the

Treaty; (2) it did not change or modify the Treaty; but (3) the Protocol was

a correct interpretation of the treaty. Mr. Clifford’s third point led to his

Appendix III to this report contains relevant portions of the Protocol of Querétaro.

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 32 GAO-04-59 Treaty of Guadalupe Hidalgo

recall, and the United States informed México that Mr. Clifford’s statement

did not represent the position of the United States. México continued to

maintain that the Protocol was a correct interpretation of the Treaty, and

these conflicting interpretations have continued to the present day. Under

U.S. law, therefore, Articles VIII and IX of the Treaty, but not deleted

Article X, set forth the property protections given to Mexicans in the newly

acquired territories. Article VIII is the Treaty’s primary source of property

protection and Article IX provides similar protections in the interim period

before statehood was granted to the territories.

Following negotiation of the Treaty of Guadalupe Hidalgo, lower-ranking

Mexican and U.S. officials reached a compromise on where to draw the

boundary dividing the two countries, which the Treaty had left unresolved.

The U.S. government rejected this compromise for several reasons. First,

engineers had advised that the most direct and practicable route for the

Southern transcontinental railroad extending from El Paso to California

would be south of the compromise boundary. Second, the United States

wanted to be released from the obligations under Article XI of the Treaty

to prevent Indian raids on Mexican settlements on the U.S. side of the

border. Third, the United States wanted to have more assurance of its

rights of transit across the Isthmus of Tehuantepec, which significantly

shortened sea voyages between the Atlantic and Pacific Oceans. The

discovery of gold in California made this shortcut all the more pressing.

In an effort to resolve these problems, the United States and México

entered into a new treaty in 1853. Under this treaty, popularly known as

the Gadsden Purchase Treaty (named after the U.S. negotiator, James

Gadsden),

the United States purchased about 29 million acres of land

from México for an additional $10 million. Articles V and VI of the

Gadsden Purchase Treaty specifically addressed land grants that had been

made within this area and Article V made the property protection

provisions of the Treaty of Guadalupe Hidalgo applicable to this additional

purchased land. Unlike the Treaty of Guadalupe Hidalgo’s property

provisions, however, Article VI of the Gadsden Treaty provided that

Mexican grants would be considered valid only if the land conveyed had

The official name of the treaty, signed on December 30, 1853, is the Treaty of Boundary,

Cession of Territory, Transfer of Isthmus of Tehuantepec.

The Gadsden

Purchase Treaty

(1853)

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 33 GAO-04-59 Treaty of Guadalupe Hidalgo

been identified and “located” and the grant had been recorded in the

Mexican archives.

After ratification of the Treaty of Guadalupe Hidalgo, the U.S. government

decided to allow existing local governments to stay in operation until

Congress could establish territorial governments in the newly acquired

lands. Under the Compromise of 1850—a series of congressional acts

passed during August and September 1850—Congress provided, among

other things, for the federal purchase from Texas of the area east of the

Rio Grande, which was included as part of the New Mexico Territory.

Congress also provided for the creation of the Territories of Utah and New

Mexico and the admission of California into the Union as the 31st state.

In 1851, Congress passed the first legislation implementing the property

protection provisions of the Treaty of Guadalupe Hidalgo, addressing

Spanish and Mexican grants in California. Congress focused on

California’s land grants first because it wanted to encourage settlement of

U.S. public domain land there. Since the late 1700s, the U.S. government

had made federal lands available for ownership by settlers, a policy that

first necessitated identification of which lands belonged to the United

States. The need to accomplish this became more urgent in California

when gold was discovered there in 1848—the same year that the Treaty of

Guadalupe Hidalgo was signed—and throngs of people poured into the

territory hoping to make their fortunes. By September 9, 1850, when

California was admitted to the Union, it had a population of about 92,600

people, and on March 3, 1851, Congress enacted the 1851 Act.

The 1851

Act, discussed in more detail below, implemented the property protection

provisions of the Treaty in California by creating a three-person

commission to evaluate Spanish and Mexican land grant claims in the

state. The process also had the effect of identifying which lands were part

Appendix IV to this report contains Articles V and VI of the Gadsden Purchase Treaty. As

discussed in chapter 2, footnote 38, land grants which had been made within the Gadsden

Purchase territory were not initially treated in the same manner as grants within the

territories ceded under the Treaty of Guadalupe Hidalgo, due to the Department of the

Interior’s initial interpretation of the Act of August 4, 1854 (10 Stat. 575) that added the

Gadsden Purchase territory to the New Mexico Territory.

Relevant portions of the 1851 Act, 9 Stat. 631 (“An Act to ascertain and settle the private

Land Claims in the State of California”), sometimes referred to as the Mexican Claims Act,

are contained in appendix V of this report.

Organization of the

New U.S. Territory

and Procedures to

Resolve Land Grant

Claims

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 34 GAO-04-59 Treaty of Guadalupe Hidalgo

of the U.S. public domain because all lands acquired under the Treaty that

were not covered by the land grants became part of the public domain.

By comparison, the need to resolve U.S. land ownership and land grant

claims in New Mexico—with a smaller population and fewer natural

resources than California—was seen as less pressing, and was addressed

by Congress three years later in 1854. That year, Congress enacted the

1854 Act, the first of two principal statutes addressing land grants in the

Territory of New Mexico.

The 1854 Act, also discussed later in this

chapter and in chapter 2, created the Office of the Surveyor General of

New Mexico. In addition to the routine task of surveying newly acquired

territory, as did his fellow Surveyor General in California,

the Surveyor

General of New Mexico was charged by the 1854 Act with the considerable

responsibility of evaluating private land grant claims and recommending

whether Congress should confirm the grants.

The United States’ acquisition and settlement of New Mexico in the mid-

1800s brought together two distinct societies that differed in language,

government administration, legal systems, and land settlement patterns.

For the most part, New Mexico consisted of a sparsely populated area of

Spanish-speaking subsistence agricultural communities. Except in a few

larger settlements like Santa Fe, residents were unfamiliar with the

English language and American customs. The New Mexican legal system,

which consisted of Spanish and Mexican codes and laws, largely relied on

custom-based law in resolving conflicts. Because few individuals with

legal training lived in New Mexico, local officials, such as the alcalde

mayor, often acted as informal judges in resolving community disputes

through conciliation and compromise. By contrast, the U.S. legal system

introduced into the Territory of New Mexico allowed individuals to

resolve certain types of disputes through a formal trial of issues before a

judge, sometimes with a jury present and with an opportunity to cross-

examine witnesses. Although this system embodied the individual-

Relevant portions of the 1854 Act, 10 Stat. 308 (“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”), are contained in appendix VI of this report.

As reflected in table 1 later in this chapter, Congress established the Office of the

Surveyor General of California in 1851 and later established Surveyor General positions in

Utah, Colorado, Nevada, and Arizona. The 1854 legislation that established the Office of the

Surveyor General of New Mexico also established the Office of Surveyor General for

Kansas and Nebraska.

Factors Contributing

to Different Mexican

and U.S. Systems of

Land Ownership

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 35 GAO-04-59 Treaty of Guadalupe Hidalgo

centered values characteristic of U.S. society, it differed to some extent

from the community-centered values prevalent in New Mexico before its

U.S. acquisition.

U.S. land tenure and ownership patterns also differed from those in New

Mexico. The U.S. land tenure system was based on viewing the earth’s

surface as an imaginary grid laid out on a piece of paper. Cartography and

surveying were used to identify the physical features of a particular parcel.

The exact measurements of parcels were then identified and located on a

map. Land ownership was primarily in “fee simple,” which is the broadest

property right allowed by English and U.S. law. Land titles were recorded

in local government offices, which facilitated the use of land as a

commodity that could be bought or sold. By contrast, the Spanish and

Mexican system was rooted in a rural community-based system of

landholding that had been prevalent in medieval Europe. The land tenure

system was not based on fee simple ownership but was viewed more in its

relationship to the community, although individual parcels might be sold

after the land had been used and lived on for a certain number of years.

Land was primarily used to sustain a local population rather than as a

commodity to be bartered or sold in a competitive market. Land

boundaries were defined with reference to terrestrial landmarks on

adjoining property, and no standard method for measuring land was

employed. At times, these terrestrial markers were difficult to locate.

Spanish and Mexican land records also lacked the geographic precision of

the U.S. system, and frequently, land transfers were not recorded in local

archives, making ownership difficult to ascertain.

In July 1848, the U.S. Senate Committee on Public Lands approved a bill

providing for a three-member commission and a surveyor general to

investigate and report to Congress within 2 years on all private land claims

in California. When the bill was considered in 1849, Senator Thomas Hart

Benton offered a substitute bill, which authorized the filing of claims with

a recorder of land titles. All claims filed would be automatically

recognized unless the U.S. Attorney challenged the validity of the grant in

U.S. district court, with the court’s decision being final for grants valued at

less than $5,000. Senator Benton believed that this procedure was

necessary if the United States was to honor its pledge under Article VIII of

the Treaty to “inviolably respect” Spanish and Mexican land grants.

Neither of these bills passed the Senate, and no further legislation was

introduced until after California became a state in September 1850.

The California

Commission

Legislation (1851 Act)

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 36 GAO-04-59 Treaty of Guadalupe Hidalgo

Meanwhile, in order to gather concrete information about land grants in

California for congressional consideration, Congress commissioned a

military officer, Captain William Halleck, to collect information, including

data from the archives of the former Mexican governor and the laws and

regulations governing grants of public lands and mission properties in

California. Captain Halleck completed his report, and President Fillmore

forwarded it to Congress. At the same time, the Secretary of the Interior

appointed Senator Benton’s son-in-law, William Jones, to examine records

in the archives in California and, if time permitted, in Mexico City and New

Mexico, regarding the character and extent of land grant titles in the

California acreage acquired by the United States. Mr. Jones was to prepare

detailed information about each grant, including its date and area, the

name of the original grantee, the granting official, and the date of approval

by the territorial legislature. Mr. Jones was also asked to separate bona

fide grants from those he considered questionable and to study mission

lands and Indian titles. President Fillmore transmitted Jones’ report to

Congress in 1850.

Captain Halleck’s report concluded that most of the titles to lands claimed

in California, granted both by Spain and México, were in doubt. He

therefore urged that land grants be subject to the scrutiny of a trial

process, which would examine the grants’ validity in accordance with

Mexican law. Halleck pointed out that many of the grants had indefinite

boundaries, contained double the acreage authorized for the grant, and

had not been approved or submitted to the territorial legislature as

required by Mexican law. He found that remaining mission lands had been

the property of México and became part of the U.S. public domain after

the Treaty. Halleck urged that a procedure be established to ensure the

prompt and final settlement of land claims in the new state.

By contrast, Mr. Jones found that Mexican and Spanish grants in California

had “mostly perfect titles.” While conceding that many grants failed to

strictly adhere to Mexican procedures, Jones noted that prior to U.S.

possession, California had been in an undeveloped state and legal

formalities were largely disregarded. With the acquiescence of the highest

Mexican authorities, custom supplanted written law. Jones recommended

that a survey be made of the grants and that titles be swiftly confirmed

upon completion of the surveys. Jones believed that there should be a

presumption of validity for Mexican grants and that the government

should oppose only those grants which it had reason to believe were

invalid.

Chapter 1: Introduction—Historical

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Page 37 GAO-04-59 Treaty of Guadalupe Hidalgo

Senators used the Jones and Halleck reports to support rival bills

concerning California land titles. After California became a state, Senator

Benton reintroduced his proposed legislation for the registration of land

titles, with appeal rights to federal district court. Senators Gwin and

Freemont sponsored an alternative bill, creating a three-member

commission to evaluate the validity of land grant titles, with a U.S.

representative to be present at commission meetings and appeals from

commission decisions to be allowed to federal district court and the U.S.

Supreme Court. Senator Gwin generally wanted the commission to be

similar to that created for resolution of land claims within the Louisiana

Purchase, but Senator Benton, who believed that having a U.S. agent

present at commission meetings would amount to a de facto confiscation

of Mexican land titles, noted that there had been no U.S. agent present at

the Louisiana Purchase commission hearings.

Ultimately, the Gwin-Freemont bill passed the Senate, followed by the

House (with no recorded debate), and the bill was enacted as the 1851 Act.

As noted above, the 1851 Act established a three-person commission

whose members were appointed by the President with the advice and

consent of the Senate. The statute directed “each and every person

claiming lands in California by virtue of any right or title derived from the

Spanish or Mexican government” to submit a claim for such lands to the

Commission within 2 years of the statute’s enactment. Failure to submit a

claim by this time would result in the lands being “deemed, held, and

considered as part of the public domain of the United States . . .” The

Commissioners were to meet “at such times and places as the President of

the United States shall direct” and were required to “give due and public

notice” of their sessions, although the statute did not specify how this

notice was to be given. A presidentially appointed U.S. Agent, “learned in

the law, and skilled in the Spanish and English languages,” was to be

present at all Commission meetings in order to “superintend the interests

of the United States.” The Act also directed this U.S. Agent to “collect

testimony in behalf of the United States” and to attend any depositions

conducted by a claimant.

The Commissioners were authorized to administer oaths to witnesses and

to examine the witnesses themselves, and testimony before the

Commission was to be transcribed in writing. The Commissioners also

were to appoint a Commission Secretary to act as an interpreter, maintain

records of the proceedings, and, at the request of the U.S. Agent, the local

U.S. Attorney, or any claimant, issue subpoenas for attendance of

witnesses before the Commission or an individual Commissioner.

Although the Commission process nominally involved representatives

Chapter 1: Introduction—Historical

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Page 38 GAO-04-59 Treaty of Guadalupe Hidalgo

from two sides—the claimant and the U.S. government—the Supreme

Court later recognized that the Commission was “an administrative body,

not a court” and characterized the Commission’s proceedings as “not

adversary.”

Either the claimant or the United States (by the local U.S.

Attorney) could appeal the Commission’s decision to U.S. district court,

and the court could consider both the evidence presented to the

Commission as well as new evidence. Either party could then appeal the

district court’s decision to the U.S. Supreme Court.

The 1851 Act directed both the Commission and the courts, in deciding on

the validity of a claim, to apply the legal standards contained in the

following sources: the terms of the Treaty of Guadalupe Hidalgo, “the law

of nations” (international law), “the laws, usages, and customs of the

government from which the claim [was] derived” (Spain or México), “the

principles of equity,”

and, “so far as they are applicable,” U.S. Supreme

Court decisions. In addition, the Act provided that if a claimant “duly

proved” that a city, town, or village had been in existence as of July 1846,

this proof was to be considered prima facie (presumptive) evidence of a

grant to the town to which the grant had been made.

As noted, any lands

for which claims were rejected by the Commission or the courts, or for

which claims were not filed before the 2-year statutory deadline, were

deemed to be part of the U.S. public domain available for distribution to

settlers. For claims that were confirmed, the grant had to be surveyed by

the Surveyor General of California and the survey submitted to the Interior

Department’s General Land Office, which then issued a “patent” to the

claimant.

The 1851 Act provided for challenges by third parties to land grant

ownership in at least two different points in the land grant confirmation

process. Thus there was to be recourse for communities or individuals

who believed that they had superior title to grants being evaluated by the

Commission. First, Section 13 of the Act specified that after a grant was

United States v. O’Donnell, 303 U.S. 501, 523-24 (1938). The O’Donnell decision, the

“political” nature of the Commission’s jurisdiction, and the non-adversarial nature of its

proceedings are discussed in greater detail in chapter 3.

Equity principles reflect broad principles of fairness, in addition to technical

requirements of the law.

Prima facie evidence is evidence that is sufficient to establish a presumption that a

particular set of facts are true and to switch the burden of proof to the party seeking to

establish that the facts are not true or have a different meaning.

Chapter 1: Introduction—Historical

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Page 39 GAO-04-59 Treaty of Guadalupe Hidalgo

confirmed but before a patent was issued, a third party could file suit in

federal district court. The court would decide which of the two claimants

held title, and in the meantime, the court could issue an injunction

temporarily halting issuance of the patent. Second, Section 15 of the Act

specified that ownership decisions by either the Commission or the

reviewing courts were binding only on the United States and claimants

who had appeared before the Commission: “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.”

Originally, the courts interpreted Section

15 to mean that the Commission’s decisions were only binding on persons

with “imperfect” (incomplete) grants who had filed a claim with the

Commission.

The decisions were not believed to be binding on persons

with perfect grants, because it was thought that the 1851 Act did not

require such persons to file claims with the Commission in order to

confirm title to their land.

In Botiller v. Dominguez, 130 U.S. 238 (1889),

however, the U.S. Supreme Court ruled that even persons with perfect

grants had to file claims with the Commission by the 1851 Act’s 2-year

deadline. The practical effect of the Botiller ruling was that the

Thus the California land grant confirmation process was not to be a strictly “in

personam” proceeding (determining the rights and obligations of one person over another)

or an “in rem” proceeding (determining the ownership rights of all persons regarding

specific property), but rather a “quasi in rem” proceeding (determining the interests of

particular persons in particular property). See generally Restatement, Second, Judgments

(1982) §§ 2, 5, 6 (a “true” in rem proceeding is one “against all the world,” see § 6,

Comment “a”). Quasi in rem proceedings include those where a claimant seeks to

establish ownership in specific property and extinguish the ownership interests of others,

see Hanson v. Denckla, 257 U.S. 235, 246 n. 12 (1958). The constitutional due process

implications of these different categories of proceedings for land grant claims under the

Treaty of Guadalupe Hidalgo are discussed in chapter 3.

A “perfect” grant was a grant made in accordance with Spanish or Mexican legal

requirements and for which the conditions attached to the grant have been satisfied. An

“imperfect,” “incomplete” or “inchoate” grant was a grant either not made in accordance

with these legal requirements or for which all conditions had not been satisfied.

See, e.g., DeArguello v. Greer, 26 Cal. 615 (1864); Minturn v. Brower, 24 Cal. 644 (1864).

Chapter 1: Introduction—Historical

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Commission’s decisions became binding on all parties, despite the fact

that the literal terms of Section 15 seemed to indicate otherwise.

The first several decades of U.S. Supreme Court decisions reviewing

appeals from the California Commission were quite liberal in approving

land grant claims, and on occasion, the Court even dispensed with

conditions essential for valid title under Mexican law.

In the Court’s view,

the United States had an affirmative duty under the Treaty to establish the

validity of grants. Thus instead of being a “contentious litigant” before the

Commission, the United States was to be motivated by pursuit of

information to enable it to carry out its obligation to recognize authentic

titles.

In 1889, however, after nearly 40 years of liberal awards in

California, the Supreme Court began to apply greater scrutiny in

evaluating land grant claims. In the Botiller case noted above—which one

commentator has described as “mark[ing] the decline of judicial activism

for the protection of Spanish and Mexican land grants”

—the U.S.

Supreme Court reversed the California Supreme Court and declared that

the 1851 Act required claims for all grants, perfect and imperfect, to be

submitted within the statute’s 2-year deadline. The Botiller Court

explained that the Treaty of Guadalupe Hidalgo could be implemented in

the United States only through congressional action, and for claims in

California, this meant that if the terms of the 1851 Act conflicted with the

terms of the Treaty, the statute governed.

Also at about this time, as

discussed in chapter 2, Congress came to believe that a number of

See generally Federico M. Cheever, Comment: A New Approach to Spanish and

Mexican Land Grants and the Public Trust Doctrine: Defining the Property Interest

Protected by the Treaty of Guadalupe-Hidalgo, 33 UCLA L. Rev. 1364, 1389-95 (1986). See

also United States v. O’Donnell, footnote 18 above (because 1851 Act resolved title

between claimants and the U.S., persons later claiming title under the U.S. were not “third

parties” entitled to file challenges under Section 15).

See, e.g., Freemont v. United States, 58 U.S. 542 (1854); United States v. Reading, 59 U.S.

1 (1855); United States v. Larkin , 59 U.S. 557 (1855); United States v. Fossatt, 62 U.S. 445

(1858); United States v. Teschmaker, 63 U.S. 392 (1859); United States v. Andres Pico, 63

U.S. 406 (1859); United States v. Rose, 64 U.S. 256 (1859); Luco v. United States, 64 U.S.

515 (1859); Stearns v. United States, 73 U.S. 589 (1867). But see United States v.

Cambuston, 61 U.S. 59 (1857) (rejecting California land grants not made by Mexican

governors, in light of 1824 Mexican statute and 1828 Mexican regulations authorizing only

governors to make grants according to terms of the statute and regulations).

United States v. Fossatt, footnote 25 above, p. 451.

C. Klein, footnote 9 above, 26 N.M.L. Rev., p. 223.

The Botiller decision is discussed in greater detail in chapter 3.

Chapter 1: Introduction—Historical

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Page 41 GAO-04-59 Treaty of Guadalupe Hidalgo

fraudulent claims had been approved in both California and New Mexico.

These and other concerns eventually led to creation of a special land

court, the Court of Private Land Claims (discussed below), which

Congress directed to apply stricter legal standards in evaluating Spanish

and Mexican land grant claims in New Mexico and several other territories

and states.

As noted above, on July 22, 1854, Congress enacted the 1854 Act, the first

of the two principal statutes implementing the property protection

provisions of the Treaty of Guadalupe Hidalgo with respect to land grants

in New Mexico. The 1854 Act, discussed in greater detail in chapter 2,

established the Office of the Surveyor General of New Mexico, responsible

for surveying the New Mexico Territory. In addition, Congress directed the

Surveyor General to investigate Spanish and Mexican land grant claims in

the territory and to recommend, through the Secretary of the Interior,

congressional approval or rejection of the claims. The 1854 Act also

created the Office of the Surveyor General for the Kansas and Nebraska

territories and by 1863, Congress had established such offices in each of

the new territories or states. (See table 1.) The Office of the Surveyor

General of New Mexico opened in Santa Fe on December 28, 1854, as part

of the Department of the Interior’s General Land Office,

and from 1854

through 1925, there were 16 permanent Surveyors General of New Mexico.

(See table 2.)

Table 1: Establishment of Surveyors General for the Southwestern United States

Name of state

or territory

Year territory

established

Year state

admitted

Year Office of

Surveyor General

established

California

1850 1851

New Mexico 1850 1912 1854

Utah 1850 1896 1855

Colorado 1861 1876 1861

Nevada 1861 1864 1861

Arizona 1863 1912 1863

Source: GAO analysis.

The General Land Office, created in 1812, was later combined with the Grazing Office on

July 16, 1946, to form the Department of the Interior’s Bureau of Land Management. Today,

the Bureau of Land Management’s New Mexico Office, located in Santa Fe, retains some of

the historical records and surveys from the Surveyor General of New Mexico.

The New Mexico

Surveyor General

Legislation (1854 Act)

Chapter 1: Introduction—Historical

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Page 42 GAO-04-59 Treaty of Guadalupe Hidalgo

California was admitted directly as a state in 1850.

The Office of the Surveyor General of Utah was originally opened in Salt Lake City, Utah, on July 27,

1855, but the Office was closed by the Act of March 14, 1862. From 1862 to 1868 when the Office

reopened, Utah was under the Surveyor General of Colorado.

The Office of the Surveyor General of Nevada was originally opened in Carson City, Nevada, on

June 22, 1861, but the Office was closed by the Act of March 14, 1862. From 1862 to 1866 when the

Office reopened, Nevada was under the Surveyor General of California.

The Office of the Surveyor General of Arizona was originally established by the Act of February 24,

1863, and the Office opened in Tucson, Arizona, on January 25, 1864. However, the Office was

closed on July 4, 1864, and from July 1864 to March 1867, the Arizona Territory was under the

Surveyor General of New Mexico. From March 1867 to 1870, when the Office was reopened, the

Arizona Territory was under the Surveyor General of California.

Table 2: Surveyors General of New Mexico, 1854-1925

Name Appointment or date of commission

William Pelham Aug. 1, 1854

Alexander P. Wilbar June 21, 1860

John A. Clark July 26, 1861

Benjamin C. Cutler July 29, 1868

T. Rush Spencer Apr. 15, 1869

James K. Proudfit July 23, 1872

Henry M. Atkinson Feb. 10, 1876

Clarence Pullen July 9, 1884

George Washington Julian June 1, 1885

Edward F. Hobart Aug. 3, 1889

Charles F. Easley June 28, 1893

Quinby Vance July 26, 1897

Morgan O. Llewellyn Jan. 20, 1902

John W. March Jan. 13, 1908

Lucius Dills Mar. 20, 1914

Manuel A. Sanchez Apr. 7, 1922

Source: C. Albert White, A History of the Rectangular Survey System (Washington, D.C.: U.S. Government Printing Office, 1983).

The Surveyor General of New Mexico was the first U.S. Surveyor General

assigned the responsibility of investigating Spanish and Mexican land

grant claims in addition to his usual surveying duties. As originally

established in 1850, the New Mexico Territory stretched from Texas to

California and included part of what is now southern Colorado and the

southern tip of Nevada. As the Territory changed shape, however, and

other Offices of Surveyor General were established throughout the West,

the responsibility to investigate claims was shared by several surveyors

Chapter 1: Introduction—Historical

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Page 43 GAO-04-59 Treaty of Guadalupe Hidalgo

general. The size and shape of the New Mexico Territory changed with the

formation of the Colorado and Arizona Territories in 1861 and 1863,

respectively. The Surveyor General of Colorado was assigned the

responsibility of investigating Spanish and Mexican land grant claims in

the Colorado Territory when it was established in 1861,

and the Surveyor

General of Arizona was assigned the responsibility of investigating claims

in the Arizona Territory in 1863 and again in 1870.

The Surveyors General

of New Mexico, Colorado, and Arizona continued to investigate Spanish

and Mexican land grant claims until Congress established the Court of

Private Land Claims in 1891.

On March 3, 1891, Congress enacted the 1891 Act, the second principal

statute implementing the property protection provisions of the Treaty of

Guadalupe Hidalgo with respect to land grants in New Mexico.

The 1891

Act, also discussed in greater detail in chapter 2, superseded the 1854 Act

that had been in effect for 37 years. The 1891 Act created the Court of

Private Land Claims (CPLC) to address land grant claims in the Territories

of New Mexico, Arizona, and Utah and the States of Nevada, Colorado,

and Wyoming. The CPLC was the first federal court especially created by

Congress to address land grant claims. Federal courts previously had

played a role in evaluating land grant claims in other areas of the country:

in the 1851 Act, Congress had authorized federal courts of general

jurisdiction to hear appeals of administrative rulings by the California

Commission, and Congress previously had directed the federal courts to

See Act of Feb. 28, 1861, 12 Stat. 172. The Department of the Interior did not issue

instructions for the investigation of land grant claims to the Surveyor General of Colorado

until 1877, however.

The Office of the Surveyor General of Arizona was originally established by the Act of the

February 24, 1863, and the office opened in Tucson, Arizona, on January 25, 1864. Under

the Act of February 24, 1863, 12 Stat. 664, the Surveyor General of Arizona had the same

powers and duties as the Surveyor General of New Mexico. However, the Office of the

Surveyor General of Arizona closed on July 4, 1864. From 1864 until 1870, when the office

reopened, either the Surveyor General of New Mexico or the Surveyor General of

California covered the Arizona Territory. The Office of the Surveyor General of Arizona

was reopened by the Act of July 11, 1870, 16 Stat. 230, and the Act of July 15, 1870, 16 Stat.

291, reestablished the authority for the Surveyor General of Arizona to investigate land

grant claims. The Department of the Interior did not issue instructions for the investigation

of land grant claims to the Surveyor General of Arizona until 1877, however.

See Act of March 3, 1891, 26 Stat. 854 (“An act to establish a court of private land claims,

and to provide for the settlement of private claims in certain States and Territories”).

Relevant portions of the 1891 Act are contained in appendix VII to this report.

The Court of Private

Land Claims

Legislation (1891 Act)

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 44 GAO-04-59 Treaty of Guadalupe Hidalgo

address claims for European-issued land grants under the Louisiana

Purchase and the acquisition of Florida.

Bills creating a special land court

had been introduced previously, but were never enacted. By the early

1890s, however, the predominant view in Congress, in the face of

fraudulent land grants that Congress believed had been approved in both

California and New Mexico, was that a special land court was needed to

evaluate land grant claims and that this court should apply more carefully

circumscribed legal standards.

Today, 300 years after Spain made its first land grants in New Mexico and

more than 150 years after the Treaty of Guadalupe Hidalgo was signed,

concerns and bitterness over the United States’ implementation of the

Treaty still linger. Deeply rooted convictions and conflicting views of land

grant heirs, land grant boards of directors, advocacy organizations, legal

and academic experts, and the New Mexico State Attorney General’s

Treaty of Guadalupe Hidalgo Land Grant Task Force, among others, have

focused on the land grant disputes in recent years. At the core of the most

wide-ranging complaints about implementation of the Treaty lies the

allegation that the U.S. government did not protect individuals’ or

communities’ ownership to the same extent that these lands would have

been recognized and protected under the laws and practices of México. As

an example of this perceived disparity, scholars and land grant heirs often

point to the treatment given the Tierra Amarilla land grant, and they also

allege that the Surveyor General of New Mexico failed to comply with U.S.

Constitutional requirements of “due process of law” during his

investigation of this grant.

As a result of these alleged shortcomings,

heirs contend, Congress in 1881 incorrectly patented almost 600,000 acres

to an individual instead of to the Tierra Amarilla community. Issues

associated with the Tierra Amarilla community’s perceived loss of land to

private individuals still create a sense of bitterness and an atmosphere of

general distrust about the federal government, as reflected in a 1967

confrontation between land grant heirs, their advocates, and state and

As noted, appendix I to this report discusses the confirmation processes under the

Louisiana and Florida purchase treaties.

As noted, whether the Surveyor General process complied with due process

requirements is discussed in chapter 3.

Land Grant Issues in

New Mexico Today

Chapter 1: Introduction—Historical

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Page 45 GAO-04-59 Treaty of Guadalupe Hidalgo

federal authorities at a courthouse in the town of Tierra Amarilla, New

Mexico.

In addition to these core complaints, there are collateral issues regarding

land grants in New Mexico that are beyond the scope of this report. For

example, land grant heirs and their advocates consistently express

concern that racial prejudice contributed to shortcomings in the land grant

adjudication process and the results of this process. These groups have

asserted that the ideology of Manifest Destiny promoted a form of racism

and arrogance to the detriment of Mexicans and former Mexicans living in

New Mexico territory. Others have claimed that the U.S. government

tolerated the ambitions of unscrupulous individuals who exploited the

land grant situation, manipulated public land laws, and confused Mexicans

unfamiliar with the new U.S. legal system in order to enrich themselves

and acquire land.

Land grant heirs and their advocates today have launched a campaign to

encourage the U.S. Congress to resolve concerns pertaining to their long-

standing community land grant claims in New Mexico. One land grant

advocacy group has proposed that some form of government “restitution”

of land grants be made and “compensation” provided to heirs for their

perceived loss of lands. Another group is attempting to organize land grant

communities in New Mexico so that they can achieve recognition and

redress for their unresolved concerns. To assist the Congress in deciding

whether it may wish to take any additional measures in response to these

concerns, and if so, what types of measures it may wish to consider,

Senators Jeff Bingaman and Pete Domenici asked us to study a number of

issues, and Representative Tom Udall joined in this request.

To respond to the request by Senators Bingaman and Domenici and

Representative Udall, we agreed to review how the United States

implemented the Treaty’s property protection provisions with respect to

community land grants in New Mexico and to identify and evaluate the

In June 1967, a group of armed men took two hostages from the Rio Arriba County

courthouse in the town of Tierra Amarilla, in which several Alianza Federal de Mercedes

members were being arraigned for unlawful assembly. The Alianza Federal de Mercedes,

headed by Reies Lopez Tijerina, was an organization that sought the return of ownership of

Spanish and Mexican land grants to heirs of the grantees. Many of these heirs were

concerned about what they believed was the loss of hundreds of thousands of acres of

ancestral grant lands through the actions of private parties and the U.S. government.

Objectives, Scope,

and Methodology of

This Report

Chapter 1: Introduction—Historical

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Page 46 GAO-04-59 Treaty of Guadalupe Hidalgo

concerns that have been raised about this implementation process. We

agreed to answer these questions in two reports.

On September 10, 2001, we issued our first report on community land

grants in New Mexico in English and Spanish.

The first report defined the

concept of community land grants, identified three types of grants that met

this definition, and listed the grants for which we found evidence

supporting their identification in each category. We limited our review to

community land grants made by Spain or México from the late 1600s to

1846 that were partially or wholly situated within the current borders of

the State of New Mexico and subject to the Treaty of Guadalupe Hidalgo.

We also included grants that México made in the portion of New Mexico

affected by the 1853 Gadsden Purchase, because those grants also were

subject to the Treaty.

To define “community land grants,” we reviewed land grant documents

filed with the U.S. government; Spanish colonial, Mexican, and current

New Mexico state laws; federal, state, and territorial court cases; and the

land grant literature. In our analysis, we found that the land grant

documents did not use the specific term “community land grants,” nor did

Spanish and Mexican laws use this term. We did find, however, that some

grants referred to lands set aside for general communal use (ejidos) or for

specific purposes, including hunting (caza), pasture (pastos), wood

gathering (leña), and watering (abrevederos). Scholars, the land grant

literature, and popular terminology also commonly use the phrase

“community land grants” to denote land grants that set aside common

lands for the use of the entire community, and we adopted this broad

definition in determining which Spanish and Mexican land grants could be

identified as community land grants.

Using this broad definition, we identified three categories of community

land grants. The first type of grant was a grant in which common lands

formed part of the original grant. A grant was included in this category if it

met one of the three following criteria:

See U.S. General Accounting Office, Treaty of Guadalupe Hidalgo: Definition and List

of Community Land Grants in New Mexico, GAO-01-951 (Washington, D.C.: Sept. 10,

2001); U.S. General Accounting Office, Tratado de Guadalupe Hidalgo: Definición y Lista

de las Concesiones de Tierras Comunitarias en Nuevo México, GAO-01-952 (Washington,

D.C.: Sept. 10, 2001).

GAO’s First Report

Chapter 1: Introduction—Historical

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Page 47 GAO-04-59 Treaty of Guadalupe Hidalgo

• The grant document declared that part of the land was made available

for communal use, using such terms as “common lands” or “pasturage

and water use”; or

• The grant was made for the purpose of establishing a town or other

new settlement. Spanish laws and customs concerning territories in the

New World provided that new settlements, cities, and towns would

include common lands; or

• The grant was issued to 10 or more settlers. Spanish law governing

settlement in the New World stated that 10 or more married persons

could obtain a land grant if they agreed to form a settlement indicating

that a grant would contain common lands.

The second category of community land grant we identified were grants

for which a person or persons had reported the existence of common

lands in their grant. No specific existing grant document supported this

assertion; claimants stated that the original documentation had been lost

or destroyed. Nevertheless, common lands were mentioned in other

documents filed with the Office of the Surveyor General of New Mexico or

the CPLC. This category also included private grants that set aside land for

the common use of settlers.

The third category of community land grant we identified encompassed

grants made by Spain to the indigenous pueblo cultures in New Mexico to

protect communal land that they had used and held for centuries before

the Spanish settlers arrived. Spain and México recognized the Pueblo’s

communal settlements.

Using these criteria, we identified a total of 154 community land grants, or

approximately 52 percent of the total of 295 land grants made by Spain and

México within New Mexico. Table 3 identifies the number of Spanish and

Mexican land grants by type of category.

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 48 GAO-04-59 Treaty of Guadalupe Hidalgo

Table 3: Spanish and Mexican Land Grants in New Mexico

Grant type Explanation

Total number of land

grants in New Mexico

Community land grants

Original documentation community grants Community land grants identified through original grant

documentation

Self-identified community grants Grants identified by heirs, scholars or others as having

common lands but lacking documentation

Pueblo community grants Grants made by Spain to indigenous pueblo communities 23

Subtotal for community land grants 154

Individual land grants Grants made to individuals 141

Total 295

Source: GAO analysis.

In this second and final report, we agreed to: (1) describe the confirmation

procedures by which the United States implemented the property

protection provisions of the Treaty with respect to New Mexico

community land grants and the results produced by those procedures;

(2) identify and assess concerns regarding these procedures as they

pertain to the government’s confirmation of these grants from 1854 to

1904; (3) identify and assess concerns regarding acreage transferred

voluntarily or involuntarily after the confirmation procedures were

completed; and (4) outline possible options that Congress may wish to

consider in response to remaining community land grant concerns. As

agreed, GAO does not express an opinion on whether the United States

fulfilled its obligations under the Treaty as a matter of international law.

To determine how the United States implemented the property protection

provisions of the Treaty, we reviewed archival documentation describing

the procedures established and followed by the Surveyor General of New

Mexico and the CPLC, as well as numerous books and articles. We also

interviewed officials from local, state, and federal agencies and academic

experts and historians who were familiar with the implementation of the

property protection provisions of the treaty. (Appendix VIII of this report

is a complete list of all of the individuals, groups and agencies we

contacted.) We examined the legislation creating the Surveyor General

and the Department of the Interior’s subsequent instructions to the

Surveyor General, and the legislation creating the CPLC. We obtained and

examined all of the community land grant adjudicative decisions and

reports from the Surveyor General of New Mexico, the CPLC, and the U.S.

GAO’s Second Report

Chapter 1: Introduction—Historical

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Page 49 GAO-04-59 Treaty of Guadalupe Hidalgo

Supreme Court. We determined the number of grants that were confirmed

and awarded at least some acreage and the number of grants that were

rejected in total. We also calculated a revised figure for the percentage of

acreage approved in New Mexico during the confirmation process, by

excluding from our analysis acreage associated with factors we judged

inappropriate or misleading, namely: (1) acreage for grants located

primarily outside New Mexico; (2) acreage for which claims were filed but

never pursued (for example, because the land already had been confirmed

to another grant or a court already had rejected similar claims as

unsupported); (3) acreage sought under claims for which the courts found

they had no jurisdiction; (4) acreage that was double-counted because

more than one claimant sought the same land; and (5) grants that

appeared to be fully confirmed but where the original amount claimed had

been inadvertently overestimated. Furthermore, we identified and

reviewed existing studies and published reports, articles and books on the

workings of the Surveyor General of New Mexico and the CPLC and

compared them with similar activities in California, under the Treaty of

Guadalupe Hidalgo, and in Louisiana and Florida, under the Louisiana

Purchase and Florida purchase treaties. We also reviewed federal and

state cases, including U.S. Supreme Court cases, concerning the

confirmation of grants in California and, under the Louisiana Purchase and

Florida treaties, in those locations.

To identify and assess the concerns regarding the implementation of the

Treaty as it pertains to the confirmation of community land grants in New

Mexico, we interviewed officials from the New Mexico Land Grant Forum,

the New Mexico Attorney General’s Treaty of Guadalupe Hidalgo Land

Grant Task Force, the All Indian Pueblo Council, various land grant boards

of trustees, and community land grant heirs throughout New Mexico. We

identified the reasons why some acreage claimed by community land grant

heirs had been rejected by the Surveyor General of New Mexico, the

CPLC, and the U.S. Supreme Court. In particular, for each of the 154

community land grants, we documented the rationale behind the rejection

or reduction in size of grants or, when the information was available, why

claimants had failed to pursue their cases, and then developed categories

of grants based on these reasons. We also identified and reviewed existing

studies, articles, and published reports on the results and criticisms of the

Surveyor General and the CPLC processes, including materials criticizing

outcomes for specific grants as well as materials critical of the overall

procedures. To determine whether the procedures established to

implement the Treaty’s property protection provisions regarding New

Mexico land grants were in compliance with applicable U.S. laws and

requirements, including the U.S. Constitution, we examined the Treaty

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 50 GAO-04-59 Treaty of Guadalupe Hidalgo

provisions, decisions by the federal courts, legal treatises, and the

literature.

To identify and assess the concerns regarding acreage lost after the

confirmation process, we interviewed land grant legal scholars, land grant

heirs, and land grant organizations. We obtained and reviewed studies, and

articles that contained information on the various ways in which

community land grants lost ownership of much of their land. We

attempted to contact representatives of each of the 84 non-Indian

community land grants that were confirmed and received some acreage to

determine how much land they currently controlled. After an extensive

search, we reached representatives for 37 of the grants, and were advised

by members of the New Mexico Land Grant Forum that the best estimate

of current acreage held by the remaining 47 grants was zero. To determine

whether the United States had a fiduciary duty under the Treaty to protect

land grant heirs and land grant property from governmental and private

actions, we examined the Treaty’s property protection provisions,

decisions by the federal and New Mexico state courts, legal treatises, and

the literature.

Finally, to determine what options Congress may wish to consider if it

decides that some sort of additional action may be appropriate in response

to continuing concerns, we interviewed local, state, and federal officials,

scholars in the land grant area, and land grant heirs. During these

interviews, we asked land grant heirs and others to identify specific

actions that they believed would resolve their concerns. We also identified

and reviewed prior congressional actions designed to resolve land

disputes unrelated to the Treaty of Guadalupe Hidalgo, as well as prior

congressional bills and hearings addressing land grant disputes under the

Treaty. As detailed in chapter 5, in the non-Guadalupe Hidalgo context,

congressional actions have ranged from issuance of an apology to creation

of government commissions authorized to make financial payments or

award federal land; in the Guadalupe Hidalgo context, bills have been

introduced starting in 1971 and as recently as 2001 (H.R. 1823, the

Guadalupe-Hidalgo Treaty Land Claims Act of 2001, sponsored by

Representative Tom Udall) to create a commission to evaluate and address

individual claims or categories of claims.

We conducted our work on this second report from September 2001

through May 2004 in accordance with generally accepted government

auditing standards.

Chapter 1: Introduction—Historical

Background and the Current Controversy

Page 51 GAO-04-59 Treaty of Guadalupe Hidalgo

In summary, under the 1848 Treaty of Guadalupe Hidalgo, México ceded

vast territories to the United States, from California to Texas. The United

States agreed in the Treaty to recognize and protect Mexicans’ ownership

of property within the ceded territory that had previously been obtained

under community and individual land grants from Spain and México. The

manner in which the United States implemented these Treaty obligations

has been the subject of debate and conflict for more than a century, and

GAO was asked to study a number of issues to assist the Congress in

deciding whether any additional measures may be appropriate in response

to continuing concerns. The results of this study are set forth in our first

report on these issues in September 2001 and in this second and final

report.

Summary

Chapter 2: Congress Directed Implementation

of the Treaty of Guadalupe Hidalgo’s Property

Provisions in New Mexico through Two

Successive Procedures

Page 52 GAO-04-59 Treaty of Guadalupe Hidalgo

Over a 50-year period starting in 1854, Congress directed implementation

of the property protection provisions of the Treaty of Guadalupe Hidalgo

in New Mexico for community land grants through two distinct and

successive procedures. First, in the 1854 Act, Congress established the

Office of the Surveyor General of New Mexico within the General Land

Office of the Department of the Interior (Interior). The Surveyor General

was charged with investigating the land grant claims and, through Interior,

making recommendations to Congress for final action. The 1854 Act

directed the Surveyor General to base his conclusions about the validity of

land grant claims on the “laws, usages, and customs” of Spain and México

and on more detailed instructions to be issued by Interior. These

instructions, in turn, directed the Surveyor General to recognize land

grants “precisely as México would have done” and to presume that the

existence of a city, town, or village at the time of the Treaty was clear

evidence of a grant. The Surveyor General investigated claims under this

process from 1854 to 1891, and Congress confirmed the vast majority of

grants recommended for confirmation before the Civil War in the early

1860s. Congressional confirmation ceased during the war and resumed

thereafter in the mid-1860s, but stopped again in the early 1870s because

of concern about allegations of fraud and corruption. These concerns

finally were addressed with the advent of a new Presidential

administration in 1885, which scrutinized the confirmation process and

appointed a new Surveyor General. The new Surveyor General

reconsidered and reversed some of his predecessor’s recommendations to

Congress, and a backlog of land grant claims developed.

After several attempts at reform, Congress ultimately revised the

confirmation process in 1891 with passage of the 1891 Act. The 1891 Act

established a new entity, the Court of Private Land Claims (CPLC), to

adjudicate both new and remaining claims for lands in New Mexico (and

certain other territories and states). In part to prevent the type of fraud

and corruption which had characterized some of the claims filed in New

Mexico and California, Congress directed the CPLC to apply a stricter

legal standard for approval of land grants than Congress had established

for the Surveyor General of New Mexico. Under the new standard, the

CPLC could confirm only those grants that claimants could prove had

been “lawfully and regularly derived” under Spanish or Mexican law, and

the presumption that Interior had directed the Surveyor General to

follow—to find in favor of a grant based on the previous existence of a

city, town, or village—was eliminated. Either the claimant or the U.S.

government could appeal the CPLC’s decisions directly to the U.S.

Chapter 2: Congress Directed

Implementation of the Treaty of Guadalupe

Hidalgo’s Property Provisions in New Mexico

through Two Successive Procedures

Overview

Chapter 2: Congress Directed Implementation

of the Treaty of Guadalupe Hidalgo’s Property

Provisions in New Mexico through Two

Successive Procedures

Page 53 GAO-04-59 Treaty of Guadalupe Hidalgo

Supreme Court, which could review claims de novo, that is, without giving

a presumption of correctness to the CPLC’s rulings. Like the CPLC,

however, the Supreme Court was bound by the same legal standard that a

claim must have been “lawfully and regularly derived” under Spanish or

Mexican law. The CPLC adjudicated land grant claims from 1891 through

1904. Thus over the 50-year history of the two successive statutory land

grant confirmation processes in New Mexico, the legal standards and

procedures applied in determining whether a community land grant should

be confirmed became more rigorous.

In discussing the results of these two confirmation procedures in New

Mexico, land grant scholars often have reported that only 24 percent of the

acreage claimed in New Mexico was awarded, for both community and

individual grants, in contrast to the percentage of acreage awarded in

California of 73 percent. In our judgment, the percentage of claimed

acreage that was awarded for New Mexico grants was actually 55 percent,

because the acreage that can fairly be viewed as having been “claimed” is