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Report to Congressional Requesters

TREATY OF GUADALUPE HIDALGO

Findings and Possible Options Regarding
Longstanding Community Land Grant Claims in New Mexico

Executive Summary

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).1 Using a broad definition of "community land grant"&emdash;as any grant setting aside common lands for the use of an entire community&emdash;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 1 GAO simultaneously issued the report in Spanish&emdash;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). 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.

Historical Background

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 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 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 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.

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

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 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&emdash;to find in favor of a grant based on the previous existence of a city, town, or village&emdash;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 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&emdash;105 grants, or over 68 percent&emdash;were confirmed, and the majority of acreage claimed under these confirmed grants&emdash;5.96 million acres, or 63.5 percent&emdash;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.

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

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 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&emdash;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 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&emdash;and the Supreme Court in reviewing the CPLC's decisions&emdash; 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&emdash;the Congress&emdash;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&emdash;the standards that Congress set for determining when a grant would be confirmed&emdash;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 selfexecuting 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&emdash;which we do not suggest exists&emdash;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 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&emdash;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.

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

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&emdash;almost all of the 5.3 million acres that they were awarded&emdash;than they believe they lost during the confirmation process&emdash;the 3.4 million acres they believe they should have been awarded but were not.

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.

Concluding Observations and Possible Congressional Options in Response to Remaining Community Land Grant Concerns

As detailed in this report, grantees and their heirs have expressed concern for more than a century&emdash;particularly since the end of the New Mexico land grant confirmation process in the early 1900s&emdash;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:

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&emdash;transfer of land and financial payment.

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