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Continuing Challenges Arising from the Southwestern Land Claims
"Continuing Challenges Arising From the Southwestern Private Land Claims" is the title of Chapter Six, Book I of Private Land Claims in the Southwest, submitted by J. J. Bowden in 1969 as partial fulfillment of the requirements for the degree of Master of Laws in Oil and Gas at Southern Methodist University.
Continuing Challenges Arising from the Southwestern Land Claims
by J. J. Bowden
Notwithstanding the fact that its treaty obligations and the well accepted principles of International Law required the United States to respect valid land grants located in the territories ceded to the United States by Mexico in 1848 and 1853, a delay of some six years was allowed to elapse before the United States established a procedure whereby the validity of Southwestern private land claims could be adjudicated. From the very outset, the method prescribed by the Act of July 22, 1854 was recognized by all concerned as being inadequate. New Mexico’s first Surveyor General, William Pelham, in his first Annual Report, recommended “further legislation on the subject, as the present law utterly failed to secure the object for which it was intended.” The placing of so much authority in the hands of a single officer, who was unfamiliar with Spanish and Mexican grants and unqualified to handle their adjudication, troubled the claimants, as well as each Surveyor General who lacked the problem. In the early days the government established liberal guidelines for the tasting of these claims. The existence of a town on the date the United States took possession of the territory was to be considered by the Surveyor General as prima facie evidence of a grant to that town. Other private land claims were to be investigated, in order to ascertain their origin, nature, character, and extent under the laws, usages and customs of Spain and Mexico, so that Congress could confirm bona fide claims and reject those which were “fraudulent or otherwise destitute of merit.” Therefore, early Surveyors General approved grants made by alcaldes, prefects, ayuntamientos, and the Territorial Deputation. Since grants apparently had been made in good faith and pursuant to the customs of the time, the Surveyors General did not require strict evidence of authority to issue the concession, Also their unfamiliarity with the terrain, coupled with the government’s policy of not surveying a claim until confirmed, permitted the unlawful stretching of grant boundaries by unfaithful Deputy Surveyors, who placed self interests in earning large fees over protecting the public domain. Criticism arose as a result of the unfortunate patenting of several grants whose validity was, at best, questionable, and whose surveys depicted them as covering exceedingly large areas. This criticism caused Congress to become exceedingly reluctant after 1860 to confirm the claims recommended by the Surveyors General, and after 1879 it refused to act upon any further grants. Had Congress acted promptly upon the backlog of claims which was building up, it could have prescribed appropriate safeguards against the former abuses. However, the complete breakdown of the system and retardation of the development of New Mexico finally forced Congress to pass the Act of March 3, 1891.5]
Although many proponents of further legislation to solve the Southwestern Private Land Claims problem had recommended that the claims be adjudicated by either a Board of Commissioners of the federal district courts, Congress created. a true court, and not “a hybrid cross between a board of arbitration and a coroner’s inquest.” It truly was a unique court it had the largest territorial jurisdiction of any trial court in the world and was clothed with all the powers within the scope of its jurisdiction — of the federal circuit and district courts. Thus, it was a court commensurate with the importance of its objects and purpose, By giving the court adequate authority and staffing it with competent judges, who were free from the least taint of political ascription, it was enthusiastically received by the Department of Justice, the bar, the grant claimants, the inhabitants of the Southwest, and the press, After thirteen and a half years of diligent efforts, the court finally settled the private land claims problem of the Southwest as between the government and the claimants. Thus, after the lapse of more than half a century, the government, in good conscience, could say that it had fulfilled its treaty obligations. Although the governments over‑all handling of private land claims in the Southwest was not one with which it could take pride, the establishment of the court in 1891 was probably the best means which could have been devised at that late date for the fair and efficient adjudication of the claims which were creating serious hardships on all who were connected with the problem.
Since the confirmation of a grant did not affect vested private rights existing between its owners, intricate and complicated questions of property law have challenged the best efforts of attorneys in the Southwest ever since the first grant was confirmed in 1858, however, many of these latent problems remained unsolved, since land values did not justify the cost of litigation. Perhaps the most complicated problem involved the distinction between the individual and community grants. In several cases individuals had received a grant from the Spanish or Mexican government for the purpose of establishing a new settlement. These grants were confirmed to the original grantees, their heirs and assigns, and the question would arise as to whether the unoccupied land belonged to the heirs of the original grantees or the inhabitants of the town. The classic example of this problem is the Tierra Amarillo Grant. The other side of the coin is the case of a grant issued to individuals but confirmed to a town. An example of this situation is the Town of Tome Grant. The litigation in New Mexico resulting from disputes arising over this question is legion.
As a result of disagreements over the management of community grants, a number of statutes were enacted. A Board of Trustees was created to manage each of the community grants, with the exception of the Town of Las Vegas Grant, which is controlled by the District Court of San Miguel County. These boards were given varying power; each included the right to sell the unallocated portions of the grant, and to sue and he sued. In an effort to bring uniformity in connection with the management of community grants, New Mexico enacted a general law in 1907 governing the composition, election, power and duties of such boards.
Management of the individual grants is complicated by the fact that they usually are owned by hundreds of descendants of the original grantee. In at least one case — the Cebolleta Grant — a grant became what has been referred to as a “nobody’s grant,” because of an inability to determine its ownership. The rights of innumerable co‑tenants and the expense of partitioning have retarded the development of many of these old grants. Several grants have been lost as a result of numerous owners’ failure to get together and pay the taxes assessed against the grant, One prominent New Mexico land lawyer has suggested that everyone connected with private land claims would have benefited if the United States would have condemned such grants at the very outset and paid their owners the then fair value of such land. This would have eliminated much of the unrest which northern New Mexico is experiencing. These certain militant leaders are asserting that the Latin Americans were cheated out of their lands and their rights should be restored to them.
While the Pueblo claims were among the earliest confirmed, they were not fully settled. The conflicting claims of many non‑whites located within the boundaries of the pueblo grants were either extinguished or the Indians were compensated for such losses under the Pueblo Lands Board Act of 1924. A number of aboriginal land claims have been filed under the Indian Claims Commission Act of 1946.
In conclusion, it may be observed that although there are still private land claims problems in the Southwest, they are not as numerous as they once were. However, difficult problems will continue to arise regarding rights under private land claims. For instance, the field of water law contains many unanswered questions. Therefore, as long as there is private ownership of land and property rights in the Southwest, the old Spanish and Mexican land grants will continue to play a role in its development and legal history.
Notwithstanding the fact that the basic problem has been settled for nearly three quarters of a century, the Private Land Claims Problem played a far more important role in the history of the Southwest than the one printed page treatment afforded it in the expensive study conducted by the Public Land Law Review Commission.11]
 An Act to establish the Offices of Surveyor General of New Mexico, Kansas and Nebraska, to grant donations to actual settlers, and for other purposes, Chap 103, 10 Stat. 308 (1854).
 H.R. Exec. Doc No. 1, 34th Cong, 1st Sess., 302 (1855).
 S. Misc. Doc, No, 12, 42nd Cong, 1st Sess., 2 (1871).
 By 1760 it was reported that there were 7,666 Spaniards located mainly east of the Rio Grande, and by 1799 the number had reportedly increased to 18,826, with the population centered in Taos, Santa Fe and Albuquerque Reports from traders indicated that by 1803 the Spanish population had increased to 40,200, and according to a local census, to 43,443 by 1827, The Mexican and Pueblo Indians formed an important element in the population of New Mexico, and it is estimated that they formed over half of the population of San Miguel del Bado, Santa Fe and Taos Counties prior to 1848 Prior to the American acquisition of New Mexico, its economy was primarily pastoral. Jicarilla Apache Tribe v. United States, 17 Ind,. Cl. Comm., 338 (1966).
 Court of Private Land Claims Act, Chap 539, 26 Stat 854 (1891).
 Stone, A Brief History of the Court of Private Land Claims, 9 (1893).
 2 New Mexico Statutes, Chap. 8, 466‑483 (1953).
 Keleher, “Law of the New Mexico Land Grant,” 4 New Mexico Historical Review 368 (1929).
 Pueblo Lands Board Act, Chap. 331, 43 Stat. 636 (1924).
 Indian Claims Commission Act, Chap. 959, 60 Stat. 1049 (1946). The testimony in these claims shows that between the 11th and 13th centuries, A.D., a number of Athapascan-speaking groups (the Navajos and Apaches) migrated southward into New Mexico. They lived primarily by hunting bison, but engaged in limited agriculture. They were divided into bands and wandered over extensive areas. Whenever game became scarce they turned to pillaging the frontier communities for a livelihood. As a result of their aboriginal use of certain vaguely defined “hunting grounds,” many of these tribes have asserted claims for damages resulting from the appropriation of these vast tracts by the government. The lands covered by confirmed Spanish and Mexican grants located within the boundaries of these claims are excluded since they were appropriated by the former sovereigns and not the United States, Jicarilla Apache Tribe v. United States, 17 Ind. Cl. Comm. 33 (1966). In addition to their “Pueblo Grants,” several of the Pueblo Indian tribes have recovered the market value of the lands covered by their aboriginal claims which were appropriated by the United States.
 Gates, History of Public Land Law Development, 117‑118 (1968).