138 Ibid., 351–52.
139 Ibid.
140 For example, Rael-Gálvez traces the case of Tomás Heredia’s lawsuit against José María García: Heredia fled García’s home, arguing that the peonage contract under which he worked was illegal. Multiple justices of the peace in Doña Ana County sided with García and ordered Heredia to return to him. On a habeas corpus petition to the territorial supreme court, the justices reasoned that “peonage must be as illegal as Negro slavery” and ordered Heredia freed. Rael-Gálvez, “Identifying Captivity,” 284–85 (citing records of the New Mexico Supreme Court [no published opinion exists]).
141 The first master-servant law was enacted by the territorial legislature in 1851 and was expanded in a variety of ways in the 1850s and 1860s. Ibid., 188 (citing the various pieces of legislation). The legislature formally abolished peonage in 1867, but the practice apparently continued well into the next decade. Brooks, Captives and Cousins, 349n70.
142 Brooks, Captives and Cousins, 348.
143 Rael-Gálvez, “Identifying Captivity,” 200 (citing legislation enacted in 1859).
144 Gómez, “Race, Colonialism, and Criminal Law,” 1156n65 (describing probate judges and the probate court).
145 Rael-Gálvez powerfully observes: “While terms such as ‘genízaro’ and ‘criado’ were much more common, ‘guardianship’ may also have begun to be used in similar ways. As is true with all these euphemisms, however, what this reveals is precisely what it attempts to hide: a continually constructed ideology of a legally mandated benevolence, which while read outside of slavery, was in fact constitutive of an uniquely situated colonial paternalism, hierarchy and racism.” Rael-Gálvez, “Identifying Captivity,” 201.
146 See, e.g., Jaremillo [sic] v. Romero, 1 N.M. 190 (1857).
147 Gómez, “Race, Colonialism, and Criminal Law,” 1158 (noting that the territorial supreme court curtailed the power of justices of the peace in several cases in the 1860s).
148 Rael-Gálvez, “Identifying Captivity,” 286–87.
149 One result of the U.S. Army’s Indian wars of the 1860s was the largest number of baptisms of nomadic Indians ever recorded in Catholic records. Ibid., 215. As Rael-Gálvez notes, these military campaigns revealed a shift “from the wars against slavery to the wars against Indians.” Ibid., 211. Admittedly, Mexicans, as army volunteers and in other support capacities, supported this assault on Navajos and other nomadic tribes. See ibid., 203n387 (citing an 1860 proclamation exhorting Mexican men to “create a force of 1,000 men” to fight the “savage” Navajos).
150 White, “It’s Your Misfortune,” 100.
151 As quoted in Rael-Gálvez, “Identifying Captivity,” 292.
152 Ibid., 270.
153 Reliance on 1898 as the beginning of U.S. imperialism cuts across the political spectrum, with even left-leaning scholars evoking that year as the start of “the New American Empire.” Smith, Civic Ideals, 429; see also Weston, Racism in U.S. Imperialism (arguing that American imperialism began in 1893 with efforts to annex Hawaii). On U.S. imperialism in Puerto Rico, see, e.g., Malavet, America’s Colony; Román, Other American Colonies.
154 Lipsitz, Possessive Investment in Whiteness, 4–5.
Chapter 4. Manifest Destiny’s Legacy
1 For an excellent study of colonialism and the transition in property regimes, see Montoya, Translating Property.
2 Legal scholar Emlen Hall argues that, in the case of some community grants, many Mexican Americans later became owners via homesteading and other types of public domain ownership. Hall, “San Miguel del Bado,” 413. Yet Hall’s analysis does not indicate how prevalent this might have been, either in the case of specific grants or more generally.
3 United States v. Sandoval, 167 U.S. 278 (1897).
4 Scott v. Sandford, 60 U.S. 393 (1857).
5 In re Rodriguez, 81 F. 337 (W.D. Tex. 1897).
6 Transcript of Record, United States v. Julian Sandoval, U.S. Supreme Court (hereafter Sandoval Transcript), 1.
7 Ibid., 50, 56.
8 Ebright, Land Grants, 173. For a fascinating account of the legal conflict over water rights to the Pecos River, see Hall, High and Dry.
9 La Madrid, Hermanitos Comanchitos, 33.
10 Ibid., 27–28. The Comanches not only were the most powerful military force in the region, but also controlled a thriving economy that included a human slave trade. “The Comanches built the most dynamic economy that the southern plains had ever seen. Based on horse raising, buffalo hunting, the preservation of meat, and hide tanning, it was labor-intensive and involved an ever-growing workforce. Trading contacts and ties in New Mexico were pursued aggressively.” Ibid., 32.
11 Other types of grants—individual and empresario—were distributed by the Spanish and Mexican authorities in order to achieve other goals. See Montoya, Translating Property, 163–65. Community grants included two subtypes: those awarded to mestizo settlers and those awarded to Pueblo Indian communities. The community land grants bear some resemblance to the ejido system of land distribution in twentieth-century Mexico.
12 Gómez, “History and Adjudication of the Common Lands,” 1056.
13 Farago, “Mediating Ethnicity and Culture,” 24.
14 For the five conditions that accompanied the 1794 grant, see Sandoval Transcript, 2–3.
15 “The principal difference between a community land grant and an individual grant was that the common lands of a community land grant were held in perpetuity and could not be sold or otherwise alienated, while an individual grant could be transferred.” Government Accountability Office, “Treaty of Guadalupe Hidalgo” (hereafter GAO Report), 17.
16 Gómez, “History and Adjudication of the Common Lands,” 1043–51, 1058.
17 Ibid., 1053, 1057–58. See also Hall, “San Miguel del Bado,” 417.
18 Sandoval Transcript, 1.
19 For a compelling history of Pecos Pueblo, see Hall, Four Leagues of Pecos.
20 Ebright, Land Grants, 173.
21 Sandoval Transcript, 3.
22 Ebright, Land Grants, 171.
23 Gutiérrez, When Jesus Came, 149, 154. Gutiérrez traces his family roots to genízaro ancestors. Public lecture at the University of New Mexico, March 6, 2006.
24 Kraemer, “Dynamic Ethnicity,” 96. One result was the strategic manipulation of genízaro and mestizo status depending on political and economic utility in particular contexts. Ibid. For a fascinating history of Abiquiu, a genízaro community grant established in 1754 that illustrates just such transformations and manipulations, see Ebright and Hendricks, Witches of Abiquiu.
25 GAO Report, 97. This probably is a conservative estimate. Kosek, Understories, 9. For a scathing critique of the GAO Report, see Ebright, “GAO Land Grant Report.”
26 GAO Report, 97.
27 United States v. Sandoval, 167 U.S. 278 (1897); Hall, “San Miguel del Bado,” 415.
28 Westphall, Public Domain, 71.
29 Ibid.
30 I estimated this number based on data compiled by geographers Warren Beck and Ynez Haase. Beck and Haase, Historical Atlas, map 59 (“National Forests”). Only two national forests in New Mexico were designated outside this time frame (the former Pecos River National Forest, 1892, and the Datil National Forest, 1931).
31 Kosek, Understories, 42.
32 For an analysis of the sovereignty/property ownership distinction as it affected Indian lands, see Banner, How the Indians Lost Their Land, 6–7.
33 Act of March 3, 1851, 9 Stat. 631 (1851).
34 “The land unsuccessfully claimed under the act or not presented to the board by 1853 automatically became part of the public domain of the United States.” Fritz, Federal Justice, 140.
35 Act of July 22, 1854, 10 Stat. 308 (1854).
36 “For each claim, the act directed the surveyor general for New Mexico to recommend first to the secretary of the interior and then to Congress whether the new sovereign [the United States] should honor the claim, thus segregating the lan
d from the public domain, or reject it, in which case the claimed land would join that to be opened to public settlement or otherwise dealt with under American public land law.” Hall, Four Leagues of Pecos, 78. See also GAO Report, 41–43; Gómez, “History and Adjudication of the Common Lands,” 1069–70.
37 Gonzáles, “Struggle for Survival,” 303.
38 An Act to Establish a Court of Private Land Claims, 26 Stat. 854 (1891). Despite the act’s broad mandate, keep in mind that it was designed to deal only with the non-California portion of the Mexican Cession.
39 See Gómez, “History and Adjudication of the Common Lands”; Perea et al., Race and Races, 284–91. The case remains infamous among today’s advocates for land grant rights. At a Land Grant Committee hearing of the New Mexico legislature, an heir to a communal land grant that was denied under the holding in United States v. Sandoval testified about the lasting impact of the case. Land Grant Committee Hearings, August 23, 2006. For a different perspective, see Hall, “San Miguel del Bado,” 413.
40 “In the said territories, property of every kind, now belonging to Mexicans now established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it, guaranties equally ample as if the same belonged to citizens of the United States.” Article VIII, Treaty of Guadalupe Hidalgo, 9 Stat. 922 (1848).
41 A testament to how effective the proposed Article X would have been in keeping land in the ceded territory in the hands of Mexicans is the fact that Polk forwarded the treaty to the Senate with the express recommendation that the article be excised. Ebright, “Land Grant Adjudication,” 54. Malcolm Ebright, the widely recognized authority on land grant law, believes that, had the spirit of the proposed article been followed (that is, that Mexican law and practice had been followed by American courts in deciding the validity of claims in the Mexican Cession), the outcomes of land claims would have been dramatically different. Instead, he contends, two kinds of bad law resulted, both of which took the majority of lands in New Mexico out of Mexican American hands: “improperly confirmed grants are now valuable private property” and improperly rejected grants “are now U.S. government land” administered by the U.S. Forest Service and the Bureau of Land Management. Ibid., 54.
42 Griswold del Castillo, Treaty of Guadalupe Hidalgo, 180 (emphasis added).
43 As Mexican historian Josefina Zoraida Vázquez points out, it must be remembered that the Mexicans could not have been in a weaker bargaining position. While the treaty was being negotiated and ratified, Mexico City was occupied by American forces, and American military personnel repeatedly threatened to continue the invasion by moving to capture cities farther south. Mexico’s acting president had to plead with the Mexican Congress to ratify the treaty in May 1848 by assuring legislators that “the cession of territory was the least that could be agreed upon . . . as large as are the territories of Texas, Upper California, and New Mexico.” Zoraida Vázquez, “Significance in Mexican History,” 82. See also Ebright, “Land Grant Adjudication,” 53. On the Mexican perspective of the war, see, generally, Zoraida Vázquez, México al Tiempo.
44 For a scholarly discussion, see Griswold del Castillo, Treaty of Guadalupe Hidalgo, 181, 183. Known as “the Protocol of Querétaro,” the clarification was made in writing after negotiations between Mexican and American diplomats on May 26, 1848, a few days before the formal ratification of the treaty on May 30, 1848. See also GAO Report, 31, 178.
45 Stuart Banner makes an analogous point in his analysis of the interaction of conquest and contract law in the ultimate transfer of land from the Indians to Euro-American whites. “In the end, the story of the colonization of the United States is still a story of power, but it was a more subtle and complex kind of power than we conventionally recognize. It was the power to establish the legal institutions and the rules by which land transactions would be enforced. The threat of physical force would always be present, but most of the time it could be kept out of view because it was not needed.” Banner, How the Indians Lost Their Land, 6.
46 A congressional committee in 1858 expressed frustration with the system: “It is now ten years since the surveyor general of the Territory [of New Mexico] was authorized to examine and report to us the private land claims of its people; and, although protected, as is supposed, by treaty, in the enjoyment of their property, no man in that Territory, without some action of Congress, can say that his title, however acquired, would hold against any claimant who might purchase his lands from the government.” “Claims in the Territory of New Mexico,” Report to Accompany H.R. Bill No. 605, Committee on Private Land Claims, House of Representatives, 35th Cong., 1st Sess., Report No. 457, May 29, 1858, 1.
47 Sandoval Transcript, 4.
48 Ibid., 64–66.
49 Ibid., 65.
50 Hall, “San Miguel del Bado,” 417.
51 Schiller, “Adjudicating Empire.”
52 Gómez, “History and Adjudication of the Common Lands,” 1071. For a discussion of strikingly similar concerns two decades earlier in California, see Fritz, Federal Justice, chap. 5.
53 Gómez, “History and Adjudication of the Common Lands,” 1071.
54 Julian, “Land-Stealing in New Mexico,” 18.
55 Ibid., 18 (emphasis added).
56 Sandoval Transcript (Surveyor General Julian’s report to Congress, December 6, 1886), 67.
57 For those who answer with a resounding no, see Gómez, “History and Adjudication of the Common Lands,” 1071–72; Schiller, “Adjudicating Empire.”
58 Act of March 3, 1891, 26 Stat. 854 (1891). Congress charged the court with resolving land claims in the federal territories of New Mexico, Arizona, and Utah and the states of Nevada, Colorado, and Wyoming. GAO Report, 77.
59 Gómez, “History and Adjudication of the Common Lands,” 1069–70.
60 For a description of the act, see Fritz, Federal Justice, 139–40.
61 Ramirez, “Hispanic Political Elite,” 51.
62 See Gómez, “History and Adjudication of the Common Lands,” 1073n261.
63 Ibid. It is not known whether Catron followed through with the recommended amendments.
64 Ibid., 1077n284; see also Hall, “San Miguel del Bado,” 417n10.
65 Bibliographical Directory, 1541.
66 Sandoval Transcript, 57.
67 Bradfute, Court of Private Land Claims, 27.
68 Sandoval Transcript, 22–23.
69 Ibid., 54–55. The transcript lists the witness as “Mariano Varos,” but his name was very likely “Barros” misspelled as “Varos.”
70 Ibid., 17.
71 Ibid.
72 Ibid., 25.
73 Ibid.
74 Ebright, Land Grants, 45; see also Fritz, Federal Justice, chap. 5.
75 United States v. Sandoval, 291, 294. See also GAO Report, 98.
76 Gómez, “History and Adjudication of the Common Lands,” 1042.
77 For studies that describe Mexican Americans’ transition to a wage-labor economy in northern New Mexico during the early and middle twentieth century, see Kosek, Understories; Masco, Nuclear Borderlands; Montoya, Translating Property.
78 Gonzáles, “Struggle for Survival,” 305.
79 See, generally, Correia, Properties of Violence; Gardner, Grito!; Nabokov, Tijerina and the Courthouse Raid; and Tijerina, They Called Me “King Tiger.”
80 Fehrenbacher, Dred Scott Case, 74.
81 Ibid., 99. Note that when Congress admitted the Orleans Territory as the state of Louisiana in 1812, it changed the name of the Louisiana Territory to the Missouri Territory.
82 Fehrenbacher, Era of Expansion, 125, 128.
83 Ibid., 135.
84 Ibid.; see also Bauer, Mexican War, 78.
85 Bauer, Mexican War, 136.
86 Lamar, Far Southwest, 63.
87 For descriptions of the Compromise of 1850, see Fehrenbacher, Dred Scott Case, 160–63; Larson, New Mexico�
�s Quest for Statehood, 55–57; White, “It’s Your Misfortune,” 159.
88 Congress paid Texas ten million dollars to relinquish its claims regarding its western border with New Mexico; Texas previously had claimed that its western border extended to include Santa Fe (New Mexico’s capital).
89 See Cover, Justice Accused, 175 (describing the 1850 Fugitive Slave Act and concluding that it significantly modified the 1793 act); Smith, Civic Ideals, 262 (referring to the Fugitive Slave Act as “horrifically Kafkaesque”).
90 Fehrenbacher describes nonintervention this way: “Down until 1861, no free state was ever formed out of territory in which nonintervention had been the rule. In practical terms, nonintervention had meant popular sovereignty, and popular sovereignty had always meant slavery.” Fehrenbacher, Dred Scott Case, 138. Four years later, with the creation of the Kansas-Nebraska Territory, the question of slavery in the territories again appeared. The region was north of the thirty-sixth parallel, so the Missouri Compromise should have governed, yet southerners won out, and the nonintervention provision that had been applied to Utah and New Mexico in 1850 governed. Ibid., 181.
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