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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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