by J. J. Bowden
Felipe Tafoya, an attorney practicing law in Santa Fe, appeared before Governor Tomas Velez Cachupin on behalf of the inhabitants of the Pueblos of Zia, Jemez and Santa Ana. He called the governor’s attention to the fact that the pueblos always had considered the valley of the Ojo de Espirit Santo as a pasture ground for their livestock. Since a number of grants had been made in the vicinity, the Indians were concerned that someone might seek to appropriate their aboriginal lands. Therefore, they had retained Tafoya to present their petition for a grant covering a tract described as being bounded:
On the north, by a place called the Ventana, where some Navajo Apaches resided; on the east, the pueblo of Zia, Jemez and Santa Ana; on the south by the lands of certain settlers of the Puerco River; and on the west, by the summits of the Puerco River.
In response to their petition, Cachupin, on June 16, 1766, ordered Bartolome Fernandez, the Alcalde for the Queres Nation, to investigate the request and advise him if there was any impediment to the issuance of the requested concession. Fernandez, in compliance with the governor’s order, went to the valley and examined the requested lands. He found that the tract extended from the stone ford, which was the boundary of the settlers on the Puerco River, northward about eight leagues to the Ventana and westward from the Pueblo of Zia, which was the nearest pueblo to the land, about six leagues to the Puerco River. He also noted that there was no arable land within the tract and that there were only a few watering places. Therefore, the tract was suitable only for the pasturing of livestock, which was abundant at the pueblos. He also advised the governor that the pueblos had no suitable land upon which to sustain their animals and the issuance of the grant would not prejudice the rights of any third person. As a result of Fernandez’s favorable report, Cachupin granted the premises jointly to the three pueblos as a pasturage for their livestock. The granting decree described the grant as being bounded:
On the north, by the place known as the Ventana; on the east, by the pueblo of Zia; on the south, by the rocky ford of the Puerco River which was the boundary of the inhabitants of Nuestra Señora de la Luz de San Fernando; and on the west, by the Puerco River.
The grant was made subject to the condition that in time of emergency the horses of the royal garrison at Santa Fe could be pastured on the grant since it was a place where they had grazed in the past. The decree also directed Fernandez to deliver royal possession of the lands to the three pueblos. On September 28, 1766, Fernandez performed the usual ceremonies necessary to place the pueblos in possession of the lands described in the granting decree.[1]
The testimonio of the grant was filed in the Surveyor General’s office in 1856, but, on account of some disagreement among the Indians, was withdrawn and the claim was not prosecuted. However, on February 2, 1874, the inhabitants of the three pueblos, through their attorney, Samuel Ellison, petitioned Surveyor General James K. Proudfit seeking the confirmation of the grant, which they estimated to contain 276,480 acres. The testimonio was refiled in support of their claim. Two witnesses appeared before Proudfit and testified that the natives of the three pueblos had “always had livestock grazing upon this tract of the Espiritu Santo, except during hostilities with the Navajo Indians, when the stock was removed to places of greater safety.” This testimony also revealed that no one claimed an adverse interest in the grant except:
One Diego Baca has resided at the spring for the last three or four years, and has been cultivating land and has some livestock there, but under what right he occupies I do not know.
Following be conclusion of his investigation of the claim, Proudfit announced his decision on the validity of the grant. In this decision, which was dated February 2, 1874, he held that it was evident that Cachupin intended to extend the boundaries of the pueblo lands so as to include the premises and that the Indians had proven “an absolute grant and full possession under it.’ Therefore, he recommended its confirmation by Congress.[2] A preliminary survey of the grant was made by Deputy Surveyor Stephen C. McElroy in October and November, 1877 for 382,849.00 acres.[3]
Since Congress had taken no action upon the claim, the pueblos brought suit[4] for the confirmation of the grant in the Court of Private Land Claims after its creation. The plaintiffs, in their petition which was dated November 24, 1892, alleged that the pueblos had received an absolute grant. The government, on the other hand, asserted that the pueblos had received only a possessary right or license which could be revoked by the Spanish or Mexican authorities at any time and was liable to be forfeited by abandonment or nonuse. It also contended that the regranting of various portions.[5] Of the grant prior to the acquisition of New Mexico by the United States evidenced its forfeiture. The Court concurred with the government’s position and entered a decree on August 18, 1893., rejecting the grant and dismissing the plaintiffs’ petition.[6] The plaintiffs appealed the decision to the United States Supreme Court which, on November 15, 1897, held:
Upon the whole, we are of the opinion that the Court below was correct in holding that the grant in question did, not vest the title to the lands in question in the petitioners, but was a mere license to use them for pasturage, and that such license, if not revoked by the subsequent grants, was revoked by the Treaty of Guadalupe Hidalgo, ceding this entire territory to the United States. . .[7]
Since Section 2(5) of the Act of August 13, 1946[8] authorized the presentment of aboriginal claims[9] to the Indian Claims Commission for adjudication, the inhabitants of the pueblos of Zia, Jemez and Santa Ana petitioned[10] the Commission seeking damages for the 298,634 acres covered by the grant which did not conflict with any previously confirmed grant on the ground that such land had been taken by government without compensation. In an effort to establish their aboriginal claim to such land, the Indians offered oral testimony by the governors of each of the three pueblos showing that the Indians had used an area exceeding, but including the claimed land, throughout their tribal history. They testified that these tribal histories, which consisted of oral accounts handed down from father to son, from generation to generation, from time immemorial, showed that the Indians since pre‑Spanish times had exclusive use of all the claimed area for farming, hunting, mining, grazing livestock, and gathering firewood. A historian, as an expert witness, traced history of these pueblos from 1540 to the mid‑nineteenth century and showed that they had occupied a large area west of the pueblos throughout the four‑century period. On cross‑examination, the historian testified that he had found no reference relating to the occupation by the Navajos or by the Apaches or that there were any permanent residences located in the area. The third and last line of evidence introduced by the Indians was that of archaeology. This evidence strongly confirmed the historical evidence and oral testimony of the Indian leaders. Although the Commission recognized that no other Indians permanently occupied the area, it was of the opinion that the evidence offered was “so vague and indefinite that a finding of aboriginal title in the petitioners to any of the claimed area would have to be based on mere conjecture.”[11] The Indians appealed the decision to the Court of Claims, which, by decision[12] dated April 17, 1964, reversed the Commission and remanded the claim to it for a determination of the value of the land at the time of the taking, which the parties agreed had occurred in 1848. The Indians and the government presently are negotiating in an effort to reach a compromise as to the amount of the compensation to be paid the Indians.[13]
[1] H. R. Exec. Doc. No. 206, 43d Cong., 1st Sess., 6‑9 (1874)
[2] Ibid., 11‑12.
[3] The Pueblos of Zia, Jemez and Santa Ana Grant, No. TT (Mss., Records of the S.G.N.M.).
[4] The Pueblos of Zia, Jemez and Santa Ana v. United States, No. 50 (Mss., Records of the Ct. Pvt. L. Cl.).
[5] Three subsequent grants were made within the boundaries of the Pueblos of Zia, Jemez and Santa Ana Grant. These were (a) the Ojo de Espiritu Santo grant which was made in 1815, (b) the Town of San Isidro Grant which was made in 1786, an (c) the Canon de San Diego Grant which was made in 1798.
[6] 1 Journal 173, (Mss., Records of the Ct. Pvt. L. Cl.).
[7] Pueblo of Zia v. United States, 168 U. S. 198 (1897).
[8] Indian Claims Commission Act, Chap. 959, Sec. 2(5), 60 Stat. 1049 (1946).
[9] Otoe and Missouria Tribe of Indians v. United States, 131 Ct. Cl. 593 (1955) (cert. den., 350 U.S. 848, 1955).
[10] Pueblo of Zia, Jemez and Santa Ana v. United States, No. 137 (Mss., Records of Ind. Cl. Comm., Washington, D.C.).
[11] Pueblo of Zia, Jemez and Santa Ana v. United States, 11 Ind. Cl. Comm. 131 (1962).
[12] Pueblo of Zia, Jemez, and Santa Ana v. United States, 165 Ct. Cl. 501 (1964).
[13] Jason W. Kellahin to J. J. B., December 28, 1967.
Pueblo of Zia, Jemez and Santa Ana Grants; J.J. Bowden's research on land grants