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Conclusion:
Common Lands, Common Law,
and Continuing Controversy

Excerpted from Land Grants and Lawsuits in Northern New Mexico© 1994, 2008 Malcolm Ebright. Original edition, UNM Press, Albuquerque, 1994. More Information about the book . For definitions of terms used see Glossary.


On a chilly day in late November 1990, spectators gathered in a small courtroom on the second floor of the old Federal Building in Santa Fe to witness a lawsuit that contained many of the same land and water issues that had frequently been litigated in New Mexico under three sovereigns. The State Engineer of New Mexico as plaintiff had filed a huge water rights adjudication lawsuit asking the court to establish priority dates for each of the acequias in the Taos area. The Court's decision would mean that acequias with later priority dates could be denied irrigation water during times of shortage in favor of those with earlier dates. Although Taos Pueblo was not involved at this stage of the proceedings, the Pueblo would have a chance to dispute the findings of Judge Frank Zinn as to Hispanic water rights when the Pueblo's water rights were established at a later date.1

The issues that Judge Zinn was charged with resolving are the issues that New Mexico's alcaldes, ayuntamientos, and governors had struggled with for the past four centuries: how are contradictory Indian and non-Indians claims to be resolved, what is the effect to be given to custom, and who has the burden, as between the government and the claimant, of proving matters as to which there is little or no archival evidence. But the fundamental question lurking behind these water rights hearings is the extent to which water will be privatized in New Mexico. Privatization of land and Hispanic land loss have steadily increased in the state as communal lands and the communities that use them have been reduced to near extinction.2 Now the conflict between privatization and common use, between strict technical rules of law and customary practice, and between New Mexico's Pueblo Indian and Hispanic population competing with each other and with land speculators for scarce water resources was coming to a head.

The rights of Indian and non-Indian claimants have been settled in traditional ways in the past, with both groups sharing available water, though the Indians' rights were not always adequately protected. Now however, the system of water adjudication tends to encourage competition between Indian and non-Indian in battles fought in the courtroom instead of interactions on the land.3 The importance of custom in determining land and water rights is likewise still an issue. In the 1890's land titles were unfairly adjudicated partly because the courts did not recognize customary law, and in the 1990s there still exists the danger that water rights will be similarly reduced or lost completely unless the court recognizes customary arrangements for sharing water between acequias.4 When rights to land grants were adjudicated by the Court of Private Land Claims in the 1890s and early 1900s, claimants had to shoulder the burden of proving that their land claims were valid even though the records they needed to make their case were often lost, destroyed, or inaccessible while in official custody. Now water rights claimants have the burden of proving water usage prior to the Pueblo Revolt although the records of such usage were destroyed during that 1680 revolution.5

In the century that has passed since the Court of Private Land Claims determined the validity of New Mexico's land grants, Hispanic land and water rights have been steadily eroded, though public awareness of the situation has been clouded until recently. Writers like John Nichols, Stanley Crawford, and others, have eloquently pleaded the case for the connection between Hispanic land and water rights and the survival of Hispanic culture in northern New Mexico.6 In Judge Zinn's Santa Fe courtroom, John Nichols testified as a landowner in Taos and as an irrigator from three different acequias, that it seemed absurd on a practical level that each of those acequias would have a different priority date. Stanley Crawford has written about a similar case where the legal process had taken something vital, like the ineffable combination of earth, sun, water, and seed and distilled it into legal briefs containing arcane technicalities making the magic of water something that can be bought and sold.7 The same thing was happening again, but it would not go unreported. Unfortunately in the 1890s there was no one willing and able to witness unfair land grant adjudications and report that an injustice was being done.

Perhaps the greatest irony remaining after some four hundred years of land grants and lawsuits in New Mexico is that, recent land and water rights litigation itself has caused much of the most valuable research to be accomplished. Several of the land grants referred to in these chapters have been the subject of recent litigation. A suit concerning use rights to part of the Carson National Forest by settlers on the Las Trampas grant was decided by the federal district court in Santa Fe in 1982.8 Water rights on the Gallinas and Pecos Rivers and the question of the pueblo rights doctrine on the Las Vegas grant are presently the subject of another massive adjudication suit filed by the New Mexico State Engineer's Office,9 and a quiet title suit in Santa Fe County recently decided land titles on the Jacona grant.10 The reports of expert witnesses in the Aamodt (Rio Pojoaque), L.T. Lewis (Pecos River), and Taos water rights adjudication cases have added significantly to our knowledge of land and water rights in New Mexico.11 Much research remains to be done however, in order to obtain a complete picture of Hispanic land tenure and society in New Mexico prior to the United States invasion. While one scholar has pointed out the pitfalls of relying on experts whose reports are prepared for litigation to fill the gap in land grant studies,12 other scholars have relied heavily on these reports,13 and the experts themselves have expanded upon and published their reports to favorable reviews.14 As studies of land and water rights in New Mexico are beginning to catch up with similar studies in Latin America, the emphasis should be on the encouragement of a high level of scholarship, imaginative new approaches, and open debate.

 

The state of land grant studies in New Mexico and the Southwest can be compared to the historiography of Mexican land tenure and the agrarian aspects of the Mexican revolution. François Chevalier painted the broad sweep of Mexican colonial land tenure, taking much of his documentation from northern Mexico and emphasizing the hacienda as the dominant form of land-holding in his pioneering work.15 Later, some historians of the Mexican revolution explained that event as an uprising of the Mexican peasant against the abuses of the hacienda system.16 Recently however, a number of local and regional studies have led to revisionist viewpoints concerning the Mexican revolution. Rather than landless peasants being the primary actors, middle class rancheros owning relatively small tracts of land, were also found to have played a crucial role in the revolution.17 This new emphasis on regional history in Mexico is radically changing the conventional wisdom about land tenure in Mexico and elsewhere in Latin America.18

When one compares studies of land tenure in Mexico to the historiography of the land grants in the Southwestern United States it is apparent that no one has approached the latter field with the breadth of a Chevalier. Hispanic land grants existed in the present states of California, Texas, Louisiana, and Florida, as well as New Mexico, and all were adjudicated in different ways with different results. No one except J. J. Bowden has attempted a detailed study of this broad field.19 Even when the field is narrowed to New Mexico the gaps in the published studies are large, though a more complete understanding of the history and adjudication of New Mexico land grants is beginning to emerge as regional studies of specific land grants are published. The Maxwell grant was the first land grant to be the subject of individual treatment by William Kelleher in 1942,20 and later by Jim Berry Pearson,21 Lawrence R. Murphy,22 and Morris F. Taylor.23 Leading the way with more recent studies of northern New Mexico land grants are G. Emlen Hall and Anselmo Arellano with their works on the Pecos Pueblo and Las Vegas grants respectively.24 Paul Kutsche and John Van Ness have published a study of the village of Canoñes which is connected with the Juan Bautista Valdez, Piedra Lumbre, and Polvadera grants.25 Each land grant merits in-depth treatment amounting to a regional study of a part of New Mexico. Preliminary indications reveal a wide variety of land tenure, political, and social patterns in the different regions. When more studies are completed we may have more revisionist history similar to the revisionist history of the Mexican Revolution that is now being written.

This book contains several conclusions which can also be seen as revisionist in nature. These include a dismal assessment of the fairness of land grant adjudication in New Mexico and the opinion that unethical practices by lawyers who were members of the Santa Fe Ring was widespread. As to the latter point, Victor Westphall and other scholars have expressed some scepticism that lawyers like Thomas B. Catron were engaged in unethical or fraudulent practices.26 In the Las Trampas and Juan José Lovato grant partition and quiet title suits, however, we see clear evidence of such conduct, not only on the part of Catron, but also by lawyers Alois B. Renehan, Charles Catron, and Alonzo McMillan. As more study is done of these and other lawyers' involvement in other land grant partition and quiet title suits, we may learn of other instances of unethical or fraudulent conduct.27 Enough evidence has been unearthed so far, however, to establish that the activities of these lawyers resulted in the privitization of most of the common lands that survived the effects of the Sandoval decision. In addition, the partition statute itself must also be blamed for Hispanic common land loss.

Another major cause of Hispanic land loss was unfair adjudication of land grants due in part to the conflict between the Hispanic and Anglo legal systems. In Chapter 2, the differences in procedure and the differences in social and legal values that underlie the conflict between the two systems are discussed. In Chapters 1, 2, 3, and 6 the different emphasis on custom in the two legal systems is explored, and in Chapters 1, 5, and 9 the failure of the Anglo-American legal system to understand the common lands is analyzed. Although the United States Supreme Court was decidedly unsympathetic toward common land ownership in the Sandoval case, this form of land tenure was well known to the English common law. In fact a system of common ownership of land and common use rights in the land of others existed in England and throughout Medieval Europe that was remarkably similar to the Spanish system of commons found in Spain and New Mexico.28 Thus, the mistaken interpretation by the courts of common lands in New Mexico was not due to an historical absence of this form of land tenure in England or the United States.

The English common lands concept goes back to the era when most land ownership was common and private land ownership existed hardly at all.29 This situation developed into a system of mixed private and common ownership in feudal England, with two main types of common ownership and use rights: the rights of landowners in an agricultural community to use woods and pasture lands owned by the community, and the rights of such citizens to make use of privately owned lands. The loss of the commons in England began in the early 1700s and continued through the end of the century as land was privatized under the notorious enclosure acts.30 Almost a century before the historic Sandoval decision, the 1801 Enclosure Act set up a commission to fence the common lands so that newly privatized land could be brought under cultivation.31 The Sandoval decision was a judicial rather than a legislative enclosure, based more on a policy favoring privatization to encourage economic development than on the legal authorities cited by the court.

By the time Sandoval was decided American judges often looked with suspicion on the concept of common lands and common use-rights, as can be seen in a 1833 New York case where the judge stated:

these common rights which were at one time thought to be essential to the prosperity of agriculture, subsequent experience, . . . has shown to be prejudicial. In this country such rights are uncongenial with the genius of our government, and with the spirit of independence which animates our cultivators of the soil.32

This ethnocentric viewpoint was also expressed by Americans toward the entire system of Hispanic Civil law.33 Since the common lands concept was out of favor in United States law, American judges were also unsympathetic toward Hispanic common lands ownership as defined by Spanish and Mexican law. Thus the U. S. supreme court was prepared to adopt the argument made by United States attorney Mathew Reynolds against land grant ownership of common lands and in favor of U. S. government ownership of those lands. Thereafter, some have argued, Forest Service administration of former common lands in northern New Mexico has been like that of a private entrepreneur, selling timber and grazing rights despite a professed policy of making forest resources "more responsive to the needs of local people."34

One scholar has argued that the Sandoval decision did not in itself cause such a massive loss of common lands. Using records concerning the common lands of the San Miguel del Bado grant, with which the Sandoval case was concerned, G. Emlen Hall shows that most of what had been grant common lands was acquired as private property by grant residents under the Federal Small Holding Claim and Homestead laws in the late 1890s and early 1900s. Hall concludes that approximately two-thirds of San Miguel del Bado's common lands were recovered by its residents as private property which they still own today.35 However, most northern New Mexico common lands, like the Las Trampas and San Joaquin grants, became National Forest land not available for small holding or homestead claims, either through government purchase of the land or because of Sandoval.36 Since it was only the portion of the San Miguel del Bado grant not set aside as National Forest that the grantees were able to reclaim, Hall's conclusions appear to be limited to the land grant in question.37

Professor Hall suggests, however, that the evidence he adduces for San Miguel del Bado may have broader implications, and implies that perhaps Sandoval was not wrong in its holding that New Mexico's community land grants did not own their common lands. Although in one place Hall calls the Sandoval holding "probably erroneous," in another he characterizes the argument that "the United States deprived the community grants of something that 'belonged' to them" as primitive.38 Halls' more sophisticated reasoning makes a dangerous leap in logic, however. He says that "the United States did not so much expropriate the common lands of the San Miguel del Bado grant as alter the nature of their ownership from municipally owned commons to individually owned private tracts."39 This gives the sense of a beneficent government not really taking land but simply giving it a different ownership. But the government did take the common lands under Sandoval. The fact that a few families were able to regain title to some of this land within the San Miguel del Bado grant does not change that fact. Nevertheless, this kind of regional study tracing the chain of title to grant common lands is extremely valuable, and needs to be done on other New Mexico land grants to determine the extent to which Hall's conclusions might have a wider application.

A look at a map of northern New Mexico reveals that much of the land that once comprised the common lands of community land grants is now owned by the government and administered by the Forest Service.40 In addition to common lands adjudicated to the government under the Sandoval decision, some of this land was privatized common lands purchased by the United States government, as was the case with the Las Trampas grant commons, and some was land grant land acquired by the government in an avowed effort to assist rural Hispanic villagers, as was true of the Juan Jose Lovato grant.41 One can argue, as have Emlen Hall, Alvar Carlson, and William deBuys, that under federal ownership things did not change that much on the land grants, or that often government regulations actually benefited the land.42

William deBuys has met the problem head-on in his excellent book Enchantment and Exploitation: The Life and Hard Times of a New Mexico Mountain Range. DeBuys recognizes that "protection of the land has meant injury to the village people, and protection of the villagers' cherished pastoral traditions has meant injury to the land." He believes that the Forest Service has generally done a better job managing former land grant land than have the grants themselves, though some would point out that Forest Service stewardship has not always benefited the forests.43 DeBuys observes that "at the heart of every argument over resources and every discussion of how best to conserve the integrity of village culture lies the question of who, by rights, owns the land, and suggests that possibly the best approach for dispossessed land grant heirs to take is to become involved in the land management process of the National Forests. He argues that since the land grants once owned these lands, it follows that the villagers within those grants should be the major beneficiaries of current resource management.44

While this may be the best that village residents can hope for, based on past history it has little chance for success. A better approach would require the government to loosen or cut the strings attached to the resources needed by the villagers. If the land cannot be protected without hurting Hispanic villages, then maybe we need to embrace that contradiction for a while. The alternative is to be forced to choose between two equally unacceptable alternatives. By choosing either the land or the villages, we forsake what is not chosen. But we cannot forsake either the land or the villager, for it is precisely the relationship between the two that land grants and lawsuits is all about.

Alvar Carlson has recently sounded a more fatalistic note regarding the preservation of the land-based Hispanic culture of Northern New Mexico: "Spanish Americans will continue then gradually to forsake, voluntarily and involuntarily, aspects of their rural culture and homeland as they lose their land base and sense of traditional communities. . . ." This scholar believes that the causes of Hispanic land loss that he cites: "Anglo-American surveyor-generals (sic), the Court of Private Land Claims, the U.S. Forest Service, Santa Fe Ring lawyers, and land grabbers," -- these are merely scapegoats. Rather, he implies, blame should be placed on the Spanish and Mexican governments of New Mexico "for noncompliance with procedures or [on] the Spanish Americans themselves, who in many cases grossly exaggerated their claims to land grants, necessitating long legal disputes."45

Certainly there is evidence of exaggerated and fraudulent land grant claims46 and it is also true that the Spanish and Mexican governments were not always consistent in regard to the granting of land. Governor Manuel Armijo in particular made grants in violation of the laws and procedures of Mexico long before Surveyors General Henry Atkinson, James Proudfit, and T. Rush Spencer had perfected the art of using public office for their own private benefit. Moreover, individual New Mexican citizens had engaged in land speculation long before the arrival of Thomas B. Catron, Charles Catron, Alonzo McMillan, and A.B. Renehan on the New Mexico scene. But, present day concerns regarding land and water in New Mexico will not disappear by blaming the victims, as does Carlson, be they Hispanic or Indian. Few would disagree with the proposition that the United States promised more by the Treaty of Guadalupe Hidalgo than it delivered.

Some say that past and present injustices would better be left forgotten since it is neither proper nor possible to remedy them. To do so, according to this argument, would cast doubt on existing titles.47 Other experts have suggested solutions to the problem of Hispanic land loss in scholarly publications48 or at congressional hearings.49 It may be that the cycles of privatization will come full circle sometime in the future and local control of common resources will again be encouraged in Northern New Mexico. The common lands concept has been suggested by environmentalists as a means of protecting resources where private interests have not treated them with due respect for the environment.50

The loss of common lands through the manipulation of the concept of title is what was happening in Judge Zinn's Santa Fe courtroom with water rights, not so much because of the decision he would make, but because of the context within which he was forced to make it. Traditionally in Hispanic New Mexico water was shared by all water-users so that no one was ever completely deprived of water.51 Absolute title with the right to sell water is an Anglo concept imposed on New Mexico water-users fairly recently, and like the imposition of the partition suit, it will inevitably lead to the loss of water rights just as the partition suit resulted in the loss of common lands. Communal control of irrigation water by acequia associations has helped the communities that use those resources to survive, but with privatization both water rights and the communities themselves are in jeopardy.52

Many of the case studies in this book have revealed injustice in the adjudication of Northern New Mexico's land grants. The San Joaquin grant lost its common lands because of the Sandoval decision and those lands are now part of the Santa Fe National Forest. The Embudo grant was rejected entirely because of a failure to recognize the reality of custom in New Mexico. The common lands of the Las Trampas grant were lost to speculators with the aid of the court-sanctioned partition suit. By documenting the unfairness and injustices that accompanied land loss in New Mexico, history can be made to bear witness to current policy and legal decisions affecting New Mexico's land and water resources. When Bureau of Land Management policy required the Embudo grant residents to buy back their homes from the government after the same government had unfairly acquired most of that grant, then at least let these facts be known.53 When, in Tierra Amarilla, a community-based weaving and sheep-raising cooperative is not able to use state government land for grazing its sheep, at least let it be known that the same land was once communal grazing land of the Tierra Amarilla grant, lost due to the unfairness of the Surveyor General system.54 And when residents of the Las Trampas grant are arrested and convicted for cutting trees without a Forest Service permit, let us recall that this land was once grant common lands acquired by the U.S. government with knowledge that the settlers had rights to the timber which the government is now unwilling to recognize.55

Whether or not the government or the courts ever correct past injustices, at least let it be known that they occurred. It is important to remember the land grants and lawsuits of northern New Mexico's past as current litigation continues to decide the ownership of precious land and water resources in the state. Even Niccolo Machiavelli, that Renaissance consultant to princes, with no more regard for the rights of the people than was expedient, advised the rulers of his day that "a prince should . . . refrain from [taking] the property of others, for men are quicker to forget the death of a father than the loss of a patrimony."56


1. State ex rel. Reynolds and the U.S. and Taos Pueblo as Intervenor v. Eduardo Abeyta, et al, U. S. District Court nos. 7896-SC and 7939-SC consolidated.

2. Emlen Hall, "San Miguel del Bado and the Loss of the Common Lands of New Mexico Community Land Grants," NMHR, 66 (October 1991): 413-432.

3. Frances Levine, "Dividing the Water: The Impact of Water Rights Adjudication on New Mexican Communities," Journal of the Southwest, 32 (Autumn 1990): 268-277; Frances Leon Quintana, "Land, Water, and Pueblo-Hispanic Relations in New Mexico," Journal of the Southwest, 32 (Autumn 1990): 288-299.

4. For a discussion of the effect of local customs on Hispanic land and water rights see, Daniel Tyler, "The Role of Custom in Defining New Mexican Land and Water Rights," report filed in U.S. and State v. Abeyta, U.S. District Court causes no. 7896 and 7939, as well as Dr. Tyler's testimony in that case on 20 May 1991.

5. The state's expert historian in the Taos water rights adjudication implied that Spaniards were irrigating before 1680, but since any record of such irrigation had been destroyed, none of their acequias could have a priority date until after 1680. State ex rel. Reynolds and the U.S. and Taos Pueblo as Intervenor v. Eduardo Abeyta, et al, hearings 26 and 27 November, 1990; John O. Baxter, Spanish Irrigation in Taos Valley, (Santa Fe: New Mexico State Engineer Office, 1990), pp. 4-5.

6. John Nichols, The Milagro Beanfield War (New York: Holt, Rinehart and Winston, Inc., 1974); Stanley Crawford, Mayordomo: Chronicle of an Acequia in Northern New Mexico (Albuquerque: University of New Mexico Press, 1988).

7. Stanley Crawford, "Dancing for Water," Journal of the Southwest, 32 (Autumn 1990): 265-267.

8. U.S. v. Jose Paz Lopez et al., U.S. District Court cause nos. 81-180 and 81-181 consolidated.

9. State ex. rel. Reynolds and Pecos Valley Artesian Conservation District v. L.T. Lewis, et al., Chavez County Disrict Court cause nos. 20294 and 22600, consolidated. This lawsuit aims at adjudication water rights on the Pecos River and its tributaries in New Mexico. cause No. 85-575 (C).

10. Town of Jacona Land Grant Association v. Aamodt, Santa Fe County District Court cause No. SF 85-575(C).

11. Reports in the Aamodt case (State ex. rel. Reynolds v. R. Lee Aamodt, et al., U.S. District Court cause No. 6639), include Michael C. Meyer and Susan S. Deeds, "Land, Water, and Equity in Spanish Colonial and Mexican Law: Historical Evidence for the Court in the Case of State of New Mexico vs. R. Lee Aamodt et al."; John O. Baxter, Spanish Irrigation in the Pojoaque and Tesuque Valleys during the Eighteenth and Early Nineteenth Centuries (Santa Fe: New Mexico State Engineer Office, 1984); and Daniel Tyler, "Land and Water Tenure in New Mexico, 1821-1846." Reports in the L.T. Lewis case include, Iris H.W. Engstrand, "Water Rights of Municipalities under the Governments of Spain and Mexico," and Daniel Tyler The Mythical Pueblo Rights Doctrine: Water Administration in Hispanic New Mexico (El Paso: University of Texas at El Paso, 1990); reports in the Taos water rights adjudication include, John O. Baxter, Spanish Irrigation in Taos Valley (Santa Fe: New Mexico State Engineer Office, 1990), and Daniel Tyler, "The Role of Custom in Defining New Mexican Land and Water Rights." All of these reports are unpublished manuscripts except Tyler and Baxter.

12. Sylvia Rodriguez has argued that research for water rights litigation is narrow and skewed because it does not take into account archeological data, oral history, and ethnography, and that historical experts tend to be coopted by the adjudication system since they depend on it for their livelihood and affirmation as experts. Journal of the Southwest 32 (Autumn 1990): pp. 307-314.

13. See, for example, Charles T. DuMars, Marilyn O'Leary, and Albert E. Utton, Pueblo Indian Water Rights: Struggle for a Precious Resource (Tucson: The University of Arizona Press, 1984).

14. Michael C. Meyer, Water in the Hispanic Southwest: A Social and Legal History, 1550-1850 (Tucson: The University of Arizona Press, 1984); Review of Tyler, The Mythical Pueblo Rights Doctrine by Alberto L. Hurtado, NMHR 67 (January 1992): 85.

15. François Chevalier, La Formation des grands domaines au Mexique. Terre et société aux XVIe - XVIIe siécles (Paris: Institut d'Ethnologie, 1952); translation of Chevalier (without notes), Alvin Eustis, trans., Lesley Byrd Simpson, ed., Land and Society in Colonial Mexico (Berkeley and Los Angeles: University of California Press, 1963). A major study of a particular hacienda or latifundio also came from the northern Mexican State of Coahuila. Charles H. Harris III, The Sánchez Navarros: a Socioeconomic Study of a Coahuilan Latifundio, 1846-1853 (Chicago: Loyola University Press, 1964.)

16. See, for example, John Womack Jr., Zapata and the Mexican Revolution (New York: Alfred A. Knopf, 1969).

17. According to regional studies in Mexico, there was not one revolution, but many. Resolution of ancient conflicts between communities and between families was also found to be as important a cause of the revolution as was social and economic reform. Ian Jacobs, Ranchero Revolt: The Mexican Revolution in Guerrero (Austin: University of Texas Press, 1982), pp. xiv-xxii; D.A. Brading, Haciendas and Ranchos in the Mexican Bajío: León 1700-1860 (Cambridge, 1978); Frans J. Schryer, "The Role of the Rancheros of Central Mexico in the Mexican Revolution (The Case of the Sierra Alta de Hidalgo)," Canadian Journal of Latin American Studies, 4 (7) (1979), 21-41.

18. Two works published in 1972, one in the United States, the other in Mexico, have influenced the increased number of regional histories about Mexico. They are: William B. Taylor, Landlord and Peasant in Colonial Oaxaca (Stanford: Stanford University Press, 1972), and Luiz González's, Pueblo en vilo: Microhistoia de San José de Gracia (Mexico: El Colegio de México, 1972; second edition); for the English version see, Luis González, San José de Gracia" A Mexican Village in Transition (Austin: University of Texas Press, 1974). In Mexico these regional studies have been called "microhistories." Luis González, Invitación a la Microhistoria (Mexico: Sepsetentas, 1973). A listing of other important regional studies is found in Jacobs, Ranchero Revolt, pp. xxi-xxii, notes 49-52.

19. J. J. Bowden "Private Land Claims in the Southwest," 6 vols. (Master's thesis, Southern Methodist University, 1969.

20. William A. Kelleher, The Maxwell Land Grant (Albuquerque: University of New Mexico Press, reprint edition 1984).

21. Jim Berry Pearson, The Maxwell Land Grant (Norman: University of Oklahoma Press, 1961).

22. Lawrence R. Murphy, "The Beaubien and Miranda Land Grant 1841-1846," New Mexico Historical Review 42 (1967): 27-47.

23. Morris F. Taylor, O.P. McMains and the Maxwell Land Grant Conflict (Tucson: University of Arizona Press, 1979). For a review of some of the literature on the Maxwell grant, see John R. Van Ness, Introduction to Keleher, Maxwell Grant, pp. vii-xvi.

24. G. Emlen Hall, Four Leagues of Pecos (Albuquerque: University of New Mexico Press, 1984), and Anselmo F. Arellano, "Through Thick and Thin: Evolutionary Transitions of Las Vegas Grandes and its Pobladores (Ph.D. diss., University of New Mexico, 1990).

25. Paul Kutsche and John R. Van Ness, Canoñes: Values, Crisis, and Survival in a Northern New Mexico Village (Albuquerque: University of New Mexico Press, 1981.)

26. Victor Westphall defends Thomas B. Catron from allegations that he engaged in fraudulent or unethical conduct, Westphall, Catron, pp. 97-99, and challenged anyone to present specific instances of land grant chicanery. Westphall, "Fraud and Implications of Fraud in the Land Grants of New Mexico," NMHR 49 (July 1974): 211. For additional examples of such chicanery, see David Benavides, "Lawyer-Induced Partitioning of New Mexican Land Grants: An Ethical Travesty", a paper presented for Professor Hall's seminar, UNM School of Law, Summer, 1990; and Malcolm Ebright, The Tierra Amarilla Grant: A History of Chicanery (Santa Fe: The Center for Land Grant Studies, 1980).

27. Professor Robert Shadow of the Universidad de las Américas in Pueblo, Mexico is presently studying the Mora grant's partition suit in connection with his work regarding the changing land ownership patterns on the Mora grant.

28. John R. Van Ness, "Hispanic Village Organization in Northern New Mexico: Corporate Community Structure in Historical and Comparative Perspective," in Paul Kutsche, ed. The Survival of Spanish American Villages (Colorado Springs: The Research Committee of The Colorado College, 1979); for an excellent study of common and private land ownership and agrarian life in medieval France see, Marc Bloch, French Rural History, trans. Janet Sondheimer (Berkeley and Los Angeles: University of California Press, 1966), especially pp. 167-234.

29. F. Pollock, The Land Laws (1896), p. 18, note 3.

30. E. C. K. Gonner, Common Lands and Inclosure (New York: Augustus Kelley, 1969); G. M. Trevelyan, English Social History (New York: David McKay Company 1942), pp. 375-76.

31. Enclosure Act, 41 Geo. 3, c. 109.

32. Van Rensselaer v. Radcliff, 10 Wend. 639, 648-49 (N.Y. Sup. Ct., 1833), cited in Julian C. Juergensmeyer and James B. Wadley, "The Common Lands Concept: A 'Commons' Solution to a Common Environmental Problem," 14 Natural Resources Journal 361, 370 (1974).

33. Iris H. W. Engstrand, Introduction to Tyler, Mythical Pueblo Rights Doctrine, p. 4.

34. Region 3 Policy on Managing National Forest Land in Northern New Mexico, William D. Hurst, Regional Forester, Albuquerque, 6 March 1972; David A. Clary, Timber and the Forest Service (Lawrence: University Press of Kansas, 1986), pp. xi-xii, 180-88, and passim; Suzanne Forrest, The Preservation of the Village: New Mexico's Hispanics and the New Deal (Albuquerque: University of New Mexico Press, 1989).

35. Those who could show possession of a tract of the public domain were able to obtain title to the tract and many individuals took advantage of this law by filing affidavits declaring that they had used the land exclusively even though it had been common land. "Today perhaps ten prominent San Miguel del Bado families control the lion's share of the private land that represents the rejected common lands of the San Miguel del Bado grant." Emlen Hall, "San Miguel del Bado and the Loss of the Common Lands of New Mexico Community Land Grants," NMHR 66 (October 1991): 413-432, n. 45.

36. The common lands of the Polvadera and Juan Bautista Valdez grants are also part of the Santa Fe National Forest. Paul Kutsche and John R. Van Ness, Canoñes: Values, Crisis, and Survival in a Northern New Mexico Village (Albuquerque: University of New Mexico Press, 1981), p. 21.

37. It was because only 50,000 acres of San Miguel del Bado common lands ended up in the National Forest that the rest was available for privatization. Hall, "San Miguel del Bado," pp. 420-421, note 20.

38. Hall, "San Miguel del Bado," p. 432.

39. Hall, "San Miguel del Bado," p. 416 and 432.

40. In recent testimony at a congressional hearing on the status of community land grants in northern New Mexico, the Forest Service estimated that 714,000 acres of New Mexico's national forests were formerly Spanish and Mexican land grants. Testimony of Regional Forester David F. Jolly, Santa Fe, October 11, 1988, in Oversight Hearing . . on the Status of Community Land Grants in Northern New Mexico (Washington, D. C.: U. S. Government Printing Office, 1989), p. 59; the region 3 Forest Service policy estimates that 22% of the Carson and Santa Fe National Forests were once land grant lands.

41. See chapter 1, notes 175-181 and corresponding text.

42. William deBuys, Enchantment and Exploitation: The Life and Hard Times of a New Mexico Mountain Range (Albuquerque: University of New Mexico Press, 1985). Alvar Carlson, The Spanish-American Homeland: Four Centuries in New Mexico's Río Arriba (Baltimore and London: The Johns Hopkins University Press, 1990).

43. Clary, Timber and the Forest Service, pp. xi-xii, 177-188.

44. DeBuys, Enchantment and Exploitation, pp. 271, 311-313, 277.

45. Alvar Carlson, The Spanish-American Homeland, pp. 210 and 216. Carlson's statement that "there will always be those, particularly academicians, who will tendentiously place the burden of accusation and guilt upon the U.S. government . . ." is not annotated nor does Carlson cite any evidence for the statement, so the specifics of his charges cannot be ascertained and refuted. Carlson, Spanish-American Homeland, pp. 210-211.

46. See chapter 10 regarding the Ramon Vigil grant, and chapter 1, note 162, and corresponding text.

47. William deBuys, Enchantment and Exploitation, p. 312-13.

48. Donald Cutter, "The Legacy of the Treaty of Guadalupe Hidalgo," New Mexico Historical Review, 53 (October 1978) 305.

49. U.S. House of Representatives, Committee on Interior and Insular Affairs, Status of Community Land Grants in Northern New Mexico, 100th Congress, 2nd Session, Serial 100-65, 1989.

50. Juergensmeyer and Wadley, "The Common Lands Concept" 14 Natural Resources Journal 361 (1974).

51. Daniel Tyler, The Mythical Pueblo Rights Doctrine , pp. 40-45; Tyler, "Land and Water Tenure in New Mexico, 1821-1846," p. 64.

52. Frances Levine, "Dividing the Water: The Impact of Water Rights Adjudication on New Mexican Communities," Journal of the Southwest 32 (Autumn 1990): 268-269.

53. See Chapter 6 on the Embudo grant.

54. Donald Dale Jackson, "Around Los Ojos, sheep and land are fighting words," Smithsonian 22 (April 1991) 37-47. Malcolm Ebright, The Tierra Amarilla Grant: A History of Chicanery (Santa Fe: Center for Land Grant Studies, 1980).

55. See Chapter 7 on the Las Trampas grant.

56. Niccolo Machiavelli, The Prince, Daniel Donno, trans. (New York, Toronto, London, Sydney, Auckland: Bantam Books, 1966), p. 60. The Prince was completed in 1513, the same year that Juan Ponce de León "discovered" Florida, the first of a series of Spanish explorations, eventually leading to the arrival of Francisco Vázquez de Coronado in New Mexico in 1540. David J. Weber, The Spanish Frontier in North America (New Haven: Yale University Press: 1992), pp. 33-34, 46-49.

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